December 14, 2020 | 18:15 ET
Today was historic. In a show of protest, Republican presidential electors in Wisconsin, Michigan, Nevada, Pennsylvania, Georgia, Arizona, and New Mexico cast procedural votes for Donald Trump. At the same time in those states, Democrat electors cast state-sanctioned electoral ballots for Joe Biden.
The GOP electors’ protest vote preserves President Trump’s ability to continue his legal battles and puts us on a path for what could be an epic showdown during a Joint Session of Congress next year.
First, a few basic facts: states will send their electoral ballots to Washington over the next few weeks. Congress must, through a Joint Session, certify those ballots and determine who won the election. Regardless of media reports, there is no “President-Elect” until the people’s representatives — the Congress — says so by certifying the winner.
The Joint Session of Congress begins with the President of the US Senate reading the states’ electors into the record.
Who is the President of the US Senate? Vice President Mike Pence.
Some legal scholars have argued that where there are disputes over electors, the vice president has the legal authority to read into the record that slate of electors, which he believes is true and correct.
On the other hand, different legal scholars have said the vice president has no such power and may only read the slate of electors transmitted to the Congress by state officials.
Which one of these positions is correct? We don’t have a definitive answer. The US Supreme Court has never needed to address the question, but Trump may force the issue in 2021.
The question of whether Vice President Mike Pence could read the GOP electors into the record is an open question of law. As it stands, it’s at least theoretically possible that he could.
But even if Vice Present Pence does read the Democrat electors into the record, it doesn’t mean Joe Biden automatically becomes the President.
Under the law, Congress may object to a state’s electors being counted. This requires that both a member of the House and Senate object. If an objection is raised, the Joint Session of Congress is dissolved, and the House and Senate meet separately to debate the contested state’s vote.
Each chamber must then vote on whether to accept or reject that state’s slate of electoral votes. For a state’s electors to be tossed, both the House and Senate must vote to do so.
Republicans will start the new year with control over the Senate, 51-48, pending the outcome in Georgia. Democrats will narrowly control the House. It’s doubtful the Democrat-controlled House will vote to exclude a state’s electors from the tally. However, some lawyers have noted the law does not overtly require the US House vote by each member, although that’s what’s occurred in the past.
These legal scholars point out the House could vote by House Delegation on objections instead of by seat (roll call). Those lawyers argue voting by House Delegation is permissible under the law and jives with the 12th Amendment, which requires a vote by delegation in a contested election (more on that below). If the House votes by delegation on objections, Trump’s chances skyrocket.
Regardless, should the process lead to a deadlock because the House and Senate are unable to certify enough electors to push one candidate to 270 electoral votes, then the 12th Amendment is triggered.
Where neither candidate gets 270 electoral votes, the 12th Amendment directs the House to elect the President in what is known as a “contingent election.”
Under the constitutional procedure, each state casts one vote by House delegation. Note this is not like a traditional vote in the House where each members votes.
House delegations are determined by which party controls the majority of Representatives from a given state. Republicans will control a majority of House Delegations in 2021.
So, if we reach an impasse during the certification process on January 6, 2021, who becomes President might be determined by House Delegations. If that happens, Trump will get another four more years.