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Amber Phillips of the Washington Post has been keeping watch on Trump’s futile effort to reverse his loss. He simply can’t believe that he is a loser. A LOSER. He said again and again on the campaign trail in 2016 that under him, the country would get tired of winning so much. But the one thing he finds impossible to accept is that he did not win. The votes have been cast, the Electoral College has voted, the election is over: He lost. But he won’t concede, and his friends say he will never concede.
The next event in the process prescribed by the Constitution occurs on January 6, when Congress votes to acknowledge the report of the Electoral College, which Biden won by 306-232, exactly the same vote as in 2016 when Trump said he won a “landslide.” The big difference is that Biden also won the popular vote, by at least seven million, unlike 2016, when Trump lost the popular vote by three million. Biden won both the popular vote and the Electoral College, but Trump simply won’t accept reality. He continues to raise hundreds of millions of dollars from his “base,” to help fund his fight to win. Imagine getting a letter from a billionaire, asking you to pitch in to help pay his legal fees.
There’s one final maneuver that some of President Trump’s allies in Congress say they will use to attempt to deny Joe Biden a win: an 1880s law that allows members of Congress to challenge a state’s results and make the whole Congress vote on whether to accept the results. It’s been attempted after almost every election for the past two decades. It got nowhere in the past, and it almost certainly won’t now.
This year, Rep. Mo Brooks (R-Ala.) is leading the charge to challenge Biden’s win, and Politico reportshe’s brought nearly a dozen other House Republicans to meet with the president to talk about it. Trump has responded encouragingly. But for this plan to work, House members need at least one senator to sign on to each challenge they raise. That may come from Sen.-elect Tommy Tuberville (R-Ala.), who will be in the Senate by Jan. 6 and expressed openness to the idea. Trump said he’s recently spoken to Tuberville about this.
It has become the norm after recent elections for House lawmakers on the losing side to try to put up a symbolic fight over the results.
This time, though, it’s not happening in a normal post-election period. The president has tried everything else — baseless fraud claims, undermining voting by mail, dubious legal challenges and strong-arming state legislatures — to try to reverse his loss. He’s running out of long shots to take.
Here’s how this works, and why it will almost certainly fall short.
Congress’s role in a presidential election
It’s on the front end and back end of the election. Congress sets the election date. After that, states take over, notably deciding how they want to hold their individual elections and certifying their own results.
Once states certify their results and once the electoral college votes Dec. 14, states send their electoral college vote totals to Congress to be counted and confirmed. This happens Jan. 6. It’s largely a formality since election law says Congress has to treat those results as “conclusive.”
But there is a mechanism that allows lawmakers to challenge those results. It’s an extremely confusing, poorly written law from the 1880s known as the Electoral Count Act, which was written to help guide Congress if there is a dispute in a state about which candidate won.
It’s important to note that we don’t expect any disputes among the states about who won, so in some sense Brooks is misinterpreting when Congress can challenge results.
Here’s what happens next in this scenario. Experts warn that the law is so convoluted that if we get really into this process, there is lots of room for disagreement or exploitation of the law to try to overturn the results, if enough Republicans are game. (That’s a big if.)
What we know will happen if Republicans challenge the election results
- When Congress convenes to vote to count each state’s electors and confirm results, a lawmaker from each chamber, the House of Representatives and the Senate, challenges one state’s electors at a time. We don’t yet know if Tuberville or another senator will officially sign onto a challenge; if they don’t, the challenge efforts end immediately. Top Senate Republicans are speaking out forcefully against joining in. Senate Majority Leader Mitch McConnell (R-Ky.) has urged senators to stay away from this. Sen. John Thune (R-S.D.) ‚the No. 2 Senate Republican, said that any challenges are “going down like a shot dog.” The law says lawmakers don’t have to give a detailed explanation for why they object; they basically just object.
- The House and the Senate then separate and debate the challenge for up to two hours.
- They vote in separate sessions on whether to accept or reject the challenge to that state’s electors. They have to do this for each state challenged, and Trump’s allies are giving indications they could try to challenge results in several states. So it’s possible Jan. 6 could be a long day.
- In the House, that’s an easy vote to predict, since it’s controlled by Democrats. In the Senate, two runoffs in Georgia won’t yet be finished, so Republicans will have the majority — but narrowly, with Vice President Pence presiding in a tie-breaking vote. So far, no Republican senators seem keen on voting to challenge a state’s results, and it would take a lot more than a handful of Republicans to vote to override a state’s electoral count. “I can’t imagine that that would happen,” said Sen. John Thune (R-S.D.), who is a top Senate Republican. Their resistance to this idea is notable given that many of Republican lawmakers still haven’t explicitly recognized Biden as the winner. Does their willingness to appease Trump stop at voting to overturn a candidate’s duly won electors?
- Legally it’s even clearer that Congress has nothing to challenge, said Adav Noti with the Campaign Legal Center and an expert on this process. All the states that are in Trump’s crosshairs met every legal requirement for having their electoral votes recognized by Congress, and federal law says Congress must treat such results as “conclusive.” So a challenge is likely to end pretty quickly.
- If both chambers separately vote Biden the winner, then this is over. All Trump’s allies did was delay the inevitable.
Where the process could get muddled
Okay, but hypothetically what happens if Republicans somehow decide to push this challenge further?
If the Senate decided to vote in favor of a challenge to a state’s electors, then this is still over, Noti says. If the state in question has offered Congress only one count of electoral votes — as all states are doing — then the law still says Congress has to accept that slate. (Unless both chambers of Congress somehow vote to object to that state, which won’t happen.)
If there were multiple slates of electors to decide from, and if the chambers disagreed on which one to choose, then the tiebreaker would be the governor who certified the results. That’s good news for Biden, since the governors of several states that Republicans have been trying to challenge — Wisconsin, Michigan, Pennsylvania — are Democrats.
So even if we drift far into hypotheticals on this, there are numerous checks that would protect Biden’s win.
One question is what Pence’s role would be. He is the presiding officer in the Senate, but Noti says the law was written to limit the vice president’s authority, realizing he probably has a keen interest in the outcome.
So his role is more symbolic than anything else — he reads the vote counts of each state out loud — but perhaps he could exert his influence to challenge a state’s results, too. Noti says Congress could override him quickly.
Two vice presidents have used their power recently to the other effect, to end a challenge that would favor them or their party. In 2017, House Democrats challenged Trump’s win, and it was then-Vice President Joe Biden who was presiding over everything. “It is over,” he told Democrats. In 2001, it was then-Vice President Al Gore, who had narrowly lost the election to George W. Bush, who presided over a failed Democratic challenge to Bush’s win.
As The Post’s Mike DeBonis reports, members of the party that lost the presidential election have raised objections after nearly every election since 2000. All have failed, and only one succeeded in splitting the chambers to force them to debate the challenge. When certifying the contentious 2000 election, House Democrats tried to challenge Gore’s loss using Florida’s electoral votes, but they couldn’t find a Senate partner to get things started.
In 2005, House Democrats challenged Bush’s reelection the same way over the result in Ohio. Then-Sen. Barbara Boxer of California joined them, but the effort was quashed pretty quickly. House Democrats tried again in 2016 to challenge Trump’s win, but no senator was willing to stand with them.