Monday, January 18




Does President Trump still have a path to victory?

A likely scenario is that the Trump campaign’s litigation winds up getting Congress involved in the 2020 election.

Though courts will decide specific questions of legal interpretation in voting disputes, they do not want to be perceived as deciding the 2020 election result, as the Supreme Court did in 2000. Where possible, judges will decline to hear lawsuits that ask big political questions and leave these issues for the political system to resolve.

Though the House has a Democratic majority, such an outcome would almost certainly benefit Trump. Here’s why: In a concession to small states concerned their voices would be marginalized if the House was called upon to choose the president, the founders gave only one vote to each state. House delegations from each state meet to decide how to cast their single vote.

That voting procedure gives equal representation to California – population 40 million – and Wyoming, population 600,000.

This arrangement favors Republicans. The GOP has dominated the House delegations of 26 states since 2018 – exactly the number required to reach a majority under the rules of House presidential selection. But it’s not the current House that would decide a contested 2020 election; it is the newly elected House.

So how could this help Donald Trump?

On January 6 of each year following a presidential election, Congress convenes a joint session to count electoral votes and confirm the result of the presidential election. Congress has the discretion to move the date of the session by law, as it did in 2013 when the joint session was held on January 4. In these sessions, according to the Electoral Count Act of 1887, members of Congress may object to statewide election results or specific electoral votes in a particular state or the District of Columbia.

I’ll say it again, Members of Congress may object to statewide election results!

Specifically, during the session one member of the U.S. House and one member of the U.S. Senate must submit a written objection after the body reads the vote count from a particular state or D.C.

Once a House member and Senator submit an objection, the two chambers of Congress separate to debate for two hours and to vote on whether to continue counting the votes in light of the objection. Both chambers must vote by a simple majority to concur with the objection for it to stand, otherwise the objection fails.

If both chambers of Congress affirm the objection and the objection results in no one candidate receiving the necessary 270-vote Electoral College majority, the 12th Amendment dictates a congressional process for selecting a president and vice president. The House of Representatives votes to elect the new president. As a bloc, members of the House cast one vote per state, choosing between the three candidates who received the most Electoral College votes. The Senate votes to elect the Vice President, casting one vote per senator.

This joint session will be adjudicated by none other then Vice President Mike Pence.

Have members of Congress ever objected to a result?

Yes. Since the 1887 passage of the Electoral Count Act, there have been two instances of Congressional objections. In 1969, an objection was raised against the North Carolina vote due to the instance of a faithless elector, and in 2005 an objection was raised to the Ohio vote due to reported voting irregularities. These objections were rejected by both the House and Senate.

Could this happen now?

Yes. 106 congressional Republicans joined 17 States in the Texas lawsuit filed in the United States Supreme Court about constitutional processes used in the 2020 election. That could be 106 objections to certain States election results. Those objections would then be adjudicated by Mike Pence.

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