GOP lawmakers miscast Congress' counting of Biden's electoral win as a fact-finding mission. It isn't
WASHINGTON — When a joint session of Congress convenes Wednesday to confirm President-elect Joe Biden's electoral win, lawmakers' task is simple: count the Electoral College votes submitted by the states.
No other roles are outlined in the Constitution.
But with plans to object to Electoral College results in states President Donald Trump lost, 13 Republican senators and perhaps more than 100 House members will look to exert enormous federal power in choosing a president that would be unprecedented in modern American history.
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Election law experts say the efforts – doomed to fail in the Democratic-controlled House and even the Republican-controlled Senate – would disregard state sovereignty in administering elections, marking a dramatic abuse of federal authority and statute.
"The job is to count," said Rebecca Green, director of William and Mary School of Law's election law program. "It's very clear that the states are the ones who evaluate any claims of irregularities. And it's the job of Congress to count the official state certifications. Congress is not intended as the correct body for Congress to vet election irregularities."
'We'll hear the evidence,' Pence vows
Trump loyalists in the Senate and House have cast the joint session as the moment where the truth will finally come out – a fact-finding mission – about voter fraud allegations that have been debunked in court over the past two months.
“I promise you, come this Wednesday, we’ll have our day in Congress," Vice President Mike Pence, who will oversee the session, said Monday at a campaign rally in Georgia ahead of the state's Senate runoff elections. "We’ll hear the objections. We’ll hear the evidence."
Sen. Josh Hawley, R-Mo., who is among the 13 senators who intends to reject electoral votes, said, "At the very least, Congress should investigate allegations of voter fraud and adopt measures to secure the integrity of our elections."
More: Sen. Hawley will object to Electoral College results, ensuring a doomed fight to overturn Biden's win
Yet the joint session is not an investigation or a trial, according to legal experts. There can be no witnesses or sworn testimony to present evidence.
Under the Electoral Count Act of 1887, the House and Senate would have to convene separately each time a state's electoral votes receive written objections by both a House member and a senator. House Republicans are expected to target results in six states – Arizona, Georgia, Michigan, Nevada, Pennsylvania Wisconsin – while senators have committed to object to three.
Each objection could launch hours of debate, setting up a marathon session with each lawmaker limited to speak for no more than five minutes.
"The only job for Congress is to determine whether it's got votes from appointed electors. It doesn't do a recount of the underlying popular vote. It doesn't do anything like that," said Edward Foley, director of Ohio State University’s election law program. "All it does is say, 'Did the state appoint electors? And who are the electors who the state actually appointed?' And once Congress answers that question, it's done. It just counts the vote."
Courts, not Congress, the forum to hear voting fraud allegations
Since the Nov. 3 election, the Supreme Court twice refused to take up Trump-endorsed lawsuits that sought to overturn the election results. Federal and state courts dismissed Trump's claims of voter fraud more than 60 times. And recounts in Georgia and Wisconsin upheld Biden's victories in those states.
Federal law requires Congress recognize the slates of electors chosen by states that resolved legal fights, recounts and other election disputes by the Dec. 6 "safe harbor" deadline. Every state met the deadline.
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Trump failed in his push to convince Republican-controlled state legislatures in states like Michigan and Pennsylvania to appoint their own separate slates of electors. It means the only official Electoral College votes presented to Congress were those that showed Biden defeated Trump by a margin of 306 to 232.
"There's no doubt this year as to who the real electors are, so Congress' job this year should be easy," Foley said, adding that Hawley and other Republican senators haven't accurately portrayed their role. "They talk as if it's Congress' role to look into these allegations of voter fraud and the popular vote. First of all, the allegations don't have evidence to back them up. But jurisdictionally, Congress isn't the right forum for this. The right forum for this were in the state courts."
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The 12th Amendment, which outlines the Electoral College process, says the vice president, in this case Pence, shall "open all the certificates and the votes shall then be counted."
Serving in his capacity as president of the Senate, Pence will open the electoral certificates from each state alphabetically to count the votes. The constitution gives no authority to Pence to judge or reject the election results, only to count them.
"When a person counts the number of games his favorite team has won, that person has no power to alchemize losses into wins," retired appellate attorney Richard Bernstein and Alan Charles Raul, former associate counsel to President Ronald Reagan, wrote in the Wall Street Journal this week.
No precedent to make election judgements
Eleven senators led by Sen. Ted Cruz, R-Texas, that plan to reject to electoral votes have proposed delaying the congressional count to appoint an electoral commission with "full investigatory and fact-finding authority." The commission would oversee a 10-day audit of election results in disputed states. The senators then want states to convene special legislative sessions to certify potential vote changes.
Derek Muller, a law professor from the University of Iowa, said Article I of the Constitution gives Congress "robust power" to judge the elections of its own members. But he said the counting power of presidential elections is limited. He said the parameters outlined in the Electoral Count Act – including limiting debate to two hours – are meant to defer to the states on elections.
"The notion that Congress is going to go essentially readjudicate what happened in a state is not something with congressional precedent," Muller said.
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Republicans have pointed to recent times in which Democrats in Congress objected to electoral votes for Republican presidents. Two of those moments didn't have support from any Democratic senator.
In 2017, half a dozen Democratic House members raised formal objections to the Electoral College vote of Trump's victory over Hillary Clinton. But they lacked the backing of any senator to be considered. Biden, then the vice president, repeatedly slammed the gavel, saying the objections could not be entertained.
In 2001, then-Vice President Al Gore, overseeing his own election loss to George W. Bush, also quieted House members who objected to electoral votes with his gavel because they lacked a Senate sponsor.
Democrats were wrong in 2005, legal experts say
The most recent time a senator signed on to a House objection came in 2005, when Sen. Barbara Boxer, D-Calif., teamed with Rep. Stephanie Tubbs Jones, D-Ohio, to object to election results of Ohio. Their objection lost handily, receiving just one vote in the Senate – Boxer's – and 31 votes in the House, all from Democrats.
"It was wrong then," Foley said of the 2005 Democratic effort. "It shouldn't have happened. It was an abuse of the process."
Muller said the Republican objections expected Wednesday are "consistent" with past Democratic objections. But he added, "It's also way more people saying it now and the president's on board, so it just heightens the concern."
More: 'We'll hear the objections' to Electoral College results, Vice President Mike Pence promises
Josh Kaul, the Democratic attorney general of Wisconsin, which is among the states that could be disputed Wednesday, said the choice for Congress is fundamentally whether to affirm or reject democratically obtained election results.
He called it "a vote on whether the members of Congress support our democracy."
"Do they support a system where the people choose our elected leaders? Or instead do they support a system that's more like Russia or other countries where, yes, the people vote, but it is politicians who ultimately select who leads us?" Kaul said, "Fortunately that effort is going to fail. But it is deeply concerning for the health of our democracy."
Reach Joey Garrison on Twitter @joeygarrison.