Tomorrow is a big day for Donald Trump. The biggest of days, in fact.
It is the absolute last chance he will get to challenge the result of the election, in any meaningful sense, before Joe Biden is sworn in as the next US president.
All 50 states have certified their results. The electoral college has voted. Trump’s legal challenges have been thrown out of court. Just one procedural obstacle remains before Biden’s inauguration on January 20.
Tomorrow, Congress is holding a joint session to count the votes cast by the electoral college last month. Usually, this event is little more than a formality, with the beaten candidate having conceded weeks or even months earlier.
This time, Trump still has not accepted defeat. And he has turned the joint session on January 6 into his last stand.
The President believes he can convince Congress to reject the results from several key states, delivering him a second term in office.
He has been piling pressure on Vice President Mike Pence, who will preside over the joint session, to intervene on his behalf.
He has urged congressional Republicans to raise objections to the official slates of electors from states he lost, such as Pennsylvania and Georgia.
And Trump has encouraged his supporters to descend on Washington DC for a massive “Save America” rally, which he plans to address while Congress is meeting.
It will be quite the spectacle, no doubt, but will it work? Is there any chance that Trump will succeed in overturning the election result?
Let’s walk through the process step by step.
A CONVOLUTED SYSTEM
We’ll start with the broader electoral process, and then dive into the specifics of what we should expect tomorrow.
Presidential elections in the United States are rather convoluted. Picking a president is a multi-step process, which is bookended by election day (November 3 in this case) and inauguration day (January 20).
Each state essentially runs its own individual election, in whatever manner it chooses. So, the rules in Massachusetts may be different from the rules in Texas, as long as they comply with the US Constitution.
In the weeks after election day, each state counts its votes – multiple times if necessary – certifies them, and uses the result to determine which electors will represent it in the electoral college.
Win the popular vote in any given state, and with a couple of minor exceptions, its entire slate of electors will be pledged to support you.
Next, the electors come together in each state to officially cast their votes. This is the electoral college vote you hear so much about.
It happened in mid-December, with Biden beating Trump 306-232, easily clearing the 270 electoral votes required for victory.
But that is not quite the end of the process.
The electoral college results are then sent to Congress, to be formally counted during a joint sitting, in accordance with the Constitution’s 12th Amendment.
“The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted,” the text declares.
Who is the President of the Senate? It’s the sitting US Vice President. Hence Pence’s role presiding over tomorrow’s proceedings.
You may have noticed that the 12th Amendment is not big on detail. It merely says that the votes shall be counted – it doesn’t specify who should count them, or whether Congress can decide to reject them.
That ambiguity blew up in America’s face in 1876, when an election between Republican Rutherford B. Hayes and Democrat Samuel Tilden ended up being bitterly disputed.
The chaos of that election led to the enactment of the Electoral Count Act in 1887, which lays out the rules of the joint session in more detail.
Those rules will govern what happens tomorrow.
WHY TRUMP’S PLAN WON’T WORK
Congress will convene at 1pm, local time, (7am Thursday NZT) with Pence in charge.
He will proceed to open the states’ certificates (which have been sealed and addressed to him) one by one, in alphabetical order, and the tellers will read out the results.
Members of Congress can object to any state’s certificate, which brings us to the core of Trump’s plan.
For an objection to count, it must be made in writing by at least one person from each chamber of Congress.
Trump will have no problem clearing that bar. A dozen Republican senators and more than 100 congressmen are expected to object on his behalf.
So, what happens next? Each time an objection is successfully made, the joint session is put into recess, with the Senate and House of Representatives separating to debate it.
They get two hours to do that before voting – again, separately – on whether to accept or reject the objection.
For a state’s electoral college result to be thrown out, both chambers must vote in favour of the objection.
It’s not enough for Trump’s supporters to succeed in the Senate, where the Republicans hold a 52-48 majority; they must also win the vote in the House, which is controlled by the Democrats.
We can immediately rule out the possibility that Democrats will vote to invalidate their own presidential candidate’s victory.
On top of that, Trump clearly lacks the numbers he needs in the Senate as well. A number of Republican senators have already released statements explaining why they won’t support an objection to the electoral college results.
Here’s one of them, from Arkansas Senator Tom Cotton – a staunch supporter of Trump.
“These objections would exceed Congress’s constitutional power, while creating unwise precedents that Democrats could abuse next time they are in power,” Cotton said.
“The founders entrusted our elections chiefly to the states, not Congress. They entrusted the election of our president to the people, acting through the electoral college, not Congress. And they entrusted the adjudication of election disputes to the courts, not Congress.
“Under the Constitution and federal law, Congress’s power is limited to counting electoral votes submitted by the states.
“Congress doesn’t have to agree with the election practices of every state, nor dismiss the possibility of voter fraud. But the states have responsibility for the conduct of elections, and courts have the responsibility to adjudicate election disputes.”
He went on to warn that tossing out the results of this election would “take away the power to choose the president from the people and place it in the hands of whichever party controls Congress”, thus “ending” America’s tradition of democratic elections.
We have seen similar statements from more than 20 Republican senators. Among them are more of Trump’s political allies, such as Texas Senator John Cornyn and Utah Senator Mike Lee.
We could talk about the merits of Trump’s various voter fraud claims here – or the lack thereof – but ultimately, the process comes down to simple maths. And he does not have the numbers.
That said, expect things to drag on well into the night. Should Republicans object to the results from multiple states, each objection will need to be debated and voted on individually. With every objection sucking up two hours, it will take some time to get through them all.
MIKE PENCE’S DILEMMA
Meanwhile, Pence has a problem. After four years serving as Trump’s loyal deputy, he risks getting on the President’s bad side, and there isn’t really anything he can do about it.
Trump appears to be labouring under the impression that his Vice President has real power over the result tomorrow, and is able to unilaterally decide whether or not to accept a state’s electoral college votes.
“I hope Mike Pence comes through for us, I have to tell you. I hope that our great Vice President, our great Vice President, comes through for us. He’s a great guy,” the President told his supporters at a rally in Georgia on Monday night.
“Of course, if he doesn’t come through, I won’t like him quite as much. No, Mike is a great guy. He’s a wonderful man, and a smart man, and a man that I like a lot.
“But he’s going to have a lot to say about it.”
“The Vice President has the power to reject fraudulently chosen electors,” Trump added in a tweet this morning.
Put aside the fact that there is no evidence any state’s electors were chosen fraudulently. On a more fundamental level, Pence simply does not have that power.
It’s not hard to understand why. If the Vice President did have that power, Al Gore could have unilaterally declared himself the next president in 2000, Dick Cheney could have anointed John McCain in 2008, or Biden could have given Hillary Clinton the win last time.
Pence’s role, as specified in the Electoral Count Act, is mainly ceremonial. He can keep order in the chamber, open the certificates before giving them to the tellers, ask whether there are any objections, and announce the results of any tallies.
Congress can decide to reject electoral votes. Pence cannot.
So however long it takes to get there, Trump’s last stand will end the same way as every other effort he has mounted since the election – in failure.
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