Expect the best but anticipate the worst as we approach the month leading up to Inauguration Day.
By Moe White –
The electoral college
As we’ve all learned from coverage of the 2020 elections, when American citizens vote for a presidential candidate, they are actually voting for electors in their state, who then cast their votes for president and vice-president. Each state gets one elector for each House seat and both its Senate seats, so those with the smallest populations, like Idaho, Delaware, or Wyoming, get only three (2 for Senators, 1 for the single Congressman); California, with 53 Representatives and two Senators, gets 55; Texas, 38; NC, 15. In 33 states and Washington, DC, those electors are legally required to support the voters’ candidate of choice.
Counting the people’s votes
After polls close on Election Day, each state’s board of elections begin to count and then certify the results of the popular vote—including votes that arrive after Election Day but were mailed and postmarked by Nov. 3. This process can take days or weeks, though it generally ends by Nov. 12. Whenever it’s finished, each governor prepares a “Certificate of Ascertainment” of the vote in that state, naming the electors and the number of votes cast for each candidate. Even if there are demands for recounts, challenges, or lawsuits over election results, they must be completed by Dec. 8, at which time the governor’s Certificate of Attainment is sent to the archivist of the United States.
Counting the electors’ votes
Six days later, on Dec. 14, each state’s electors meet and vote for president and vice president; their paper ballots are tallied up; and they sign “Certificates of the Vote” that are sent by registered mail to various officials in Washington. They must be received by Dec. 23.
The new Congress is sworn in every two years on Jan. 3, and three days later the House and Senate hold a joint session to count the electoral votes. If one ticket has received 270 or more electoral votes, the President of the Senate, currently Vice President Mike Pence, announces the results. If not—if there’s a tie at 269-269—the election can, according to the Constitution, be determined by the House of Representatives.
This year there might not yet be a full Senate, because runoff elections are scheduled to take place on Jan. 5 for both Georgia seats. Those elections might not be resolved by the following day, so one or both seats might be empty, in which case Sen. Mitch McConnell will still be Majority Leader. Regardless of the Senate outcome, the 11th District’s newly elected Representative, Madison Cawthorn, will be seated in NC’s House delegation.
Throwing in a monkey wrench…
What if there’s not a clear winner?
During that Jan. 6 joint session, any member of Congress may object to returns from any state as they are announced; objections must be made in writing by at least one member of the House and one in the Senate. Theoretically, our Rep. Cawthorn, joined by Sen. Ron Johnson of Wisconsin, for instance, could object to Georgia’s decision to award its 16 electoral votes to the Biden-Harris ticket. If the objection meets certain requirements, the House and Senate meet separately to debate it for up to two hours, after which each chamber votes to either accept or reject the objection. They then return to joint session and announce the results of their respective votes. If both houses approve an objection to a state’s contested electoral votes, those votes are excluded. If not—and with the Democrats in charge of the House, excluding them would be highly unlikely—the votes are counted.
…and then another
But whether or not that hypothetical objection to Georgia’s vote succeeds or fails, another pair—Rep. Matt Goetz and Sen. Thom Tillis, for example—can then object to, say, Pennsylvania’s electoral college vote, and the entire process begins again. Another two hours of separate discussion and voting, and a return to the joint session to accept or dismiss the objection.
It is not beyond the realm of possibility that Sen. McConnell, assuming he is still Majority Leader, would rule that every single objection meets those “certain requirements,” thus forcing up to two hours of debate and delay, over and over and over. The same process could be imposed for other closely contested states’ electoral votes—Nevada, Arizona, Wisconsin, NC—or even for those with landslides for Biden-Harris, like California or Illinois.
A pair like Cawthorn and Tillis could even object to the electoral vote totals of a landslide-for-Trump state like Oklahoma, simply to gum up the works for another few hours. With fifty states and DC, they could force the joint session to meet for weeks while objecting to, and resolving, every state’s electoral vote total. With only two weeks between the beginning of the joint session on Jan. 6 and Inauguration Day on Jan. 20, they could effectively prevent President-elect Biden from being certified as the new president in time for his swearing-in.
…and yet another
Or, if they manage to get even a few states’ electoral votes rejected, so neither candidate reaches the magic number of 270, the election could be thrown to the House of Representatives, where each state gets a single vote.
States v. citizens
North Dakota and South Dakota are both considered “red” states, so each one has two senators, both Republicans. Each also has one GOP Representative. That gives each state three electoral votes, though together their combined population of 1.67 million would fit inside Charlotte (pop. 2.05 million) with room to spare.
However, if a presidential election goes to the House, the lone Congressman from each of those states will choose whom to vote for: Biden or Trump. Naturally, these GOP Reps. will cast two votes for Trump. And like the Dakotas, the population of Montana, barely 1,000,000, gives the state only one Congressman, giving him a single vote for president—also for Trump. So those three states cast three votes for a second Trump term.
And here’s the rub
California, almost 40 times as populous as Montana, 42 times as big as S. Dakota, and with 53 Congressmen representing 39,780,000 citizens—more than 12% of the entire country—would get a single vote as well. One vote for Biden, compared with three low-population states’ votes for Trump.
Now, Georgia is considered a “blue” state in 2020, because it went for Biden. But its House delegation includes at least eight Republicans, and at most four Democrats (two seats are vacant, and some may change when votes are finalized). So, despite Biden’s winning the statewide vote, the eight House Republicans will overrule the few Democrats and, united, cast the state’s single vote for … Trump.
Pennsylvania currently has nine Democrats and nine Republicans as its representatives. How will they choose to vote? Will they be guided by the Republican-led state Legislature, which claims the right to make that determination on behalf of Trump, or by the popular vote, which Biden won. Or will they be tied at 9-9, and therefore cede their vote altogether?
The bottom line
Though their combined population is barely 45% of the country, more individual states (26 or 27) are in the “red” column than the “blue” column (23 or 24, plus DC). Each gets one vote. Those large “blue” states, representing well over half the nation’s population, get fewer than half the votes.
And that means Mr. Trump would be reelected as president.
Throwing the monkey wrenches into the House
Could this happen? Certainly; it’s the Constitution’s solution to divided government. Will it happen? In light of Mr. Cawthorn’s character and reputation, and Mitch McConnell’s track record, I wouldn’t put it past them.