The electoral college votes are not certified until the congress certifies them. Constitutionally, no one is ‘President-elect’ until the US Congress certifies at least 270 electoral votes for whichever candidate.
The electoral votes will be counted on January 6th by congress, overseen by US Senate president Mike Pence. The 12th Amendment mandates that “the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall be counted.”
The 12th Amendment also says “the person having the greatest number of votes for President shall be President.” But Congress must agree to all of this. And remember, Pence is the one running the show at this stage.
There was an ‘alternate slate’ of electors in PA, GA, MI, WI, AZ, NV, and NM who have cast votes, and those results may get sent up to Congress alongside the votes from the ‘official slate’ of electors.
In a traditional contested election, which hasn’t happened in over 100 years, competing slates of electors would be produced, one certified by the governor and the other by the legislature.
The alternative slate of electors are not certified by the state legislature so there is no contested election in a formal sense.
If the current lawsuits play out the way the Trump administration needs them to, the ‘alternate slate’ of electors are already in place.
If they win the cases most necessary in the courts, they can direct those alternate electors be certified.
The Wisconsin supreme court recently ruled that state and local election officials violated the law when they gave blanket permission allowing voters to declare themselves ‘indefinitely confined,’ and skip voter ID requirements. Democrat politicians directed Wisconsin democrats to all vote indefinitely confined because of COVID, despite even Dr Fauci saying there was no reason people shouldn’t be able to vote in person. Lawyers are in consensus that change violated Wisconsin state law, as well as the constitution.
There’s also a solid challenge to the hundreds of unmanned drop boxes set up in swing states. In many swing states, the deployment of the drop boxes, manned or unmanned, were determined to be a violation of their state laws, as well as the constitution.
Many changes made, without the state legislatures of these states, basically completely erased all of the safeguards in place needed for verification of the ballots. The changes in all of the swing states were made effectively right before the election, and these changes were officially determined to be a violation of the equal protections clause in the constitution, while also being violations of several state laws.
Therefore, all of those potentially millions of votes are in fact officially ILLEGAL votes.
These are just a few examples of the legal challenges still in place that the Trump campaign is referring to. The problem is that the Trump campaign has continuously been getting hammered in court.
The best way to handle this would have been for the republican state legislatures to refuse to certify until the ballots have been audited. They refused to do this, and instead spit in the faces of their constituents by certifying the votes, and having official electors vote for Biden.
What are the Potential Outcomes?
Breakdown #1 – From Election Wizard:
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.
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 not read the Democrat electors into the record, it does not 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, but it’s not impossible.
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 not like a traditional vote in the House where each member votes.
House delegations are determined by which party controls most Representatives from a given state. Republicans will control a majority of House Delegations in 2021.
Trump would be elected for another 4 years.
Breakdown #2 – From Fox News:
Electors can choose for whom they want. There is no federal statute nor constitutional provision which governs this. Electors “pledged” to given candidates. But 32 states and Washington, DC mandate that electors agree to vote for the candidate who prevailed in their given state. Five states penalize an elector who goes rogue and votes for someone other than the winner. Fourteen states do not allow “faithless” electors. A “faithless” elector is someone who casts a ballot for a candidate other than the winner.
The House and Senate go through each state’s slate of electoral ballots in alphabetical order. Congress is supposed to accept the version signed by the governor. But Congress really isn’t bound at this stage. It can do what it wants when it comes to certifying the electoral college results.
After the 2000 Florida election dispute, a cavalcade of Congressional Black Caucus members paraded through the well of the House chamber to contest the outcome during the Joint Session. Vice President Al Gore, then President of the Senate, and like Nixon, the vanquished Democratic nominee, presided.
“Mr. Vice President, I rise to object to the fraudulent 24 Florida electoral votes,” declared Rep. Maxine Waters, D-Calif.
“Is the objection in writing and signed by a member of the House and a senator?” inquired Gore.
Congressional rules require a House member and senator simultaneously challenge a state’s electoral slate. But Waters lacked a Senate sponsor.
“The objection is in writing!” snapped Waters. “And I don’t care!”
Gore, stood firm, despite having the most to benefit from Waters’ entreaty.
“The chair will advise that the rules do care,” Gore intoned, triggering applause throughout the House chamber.
Questions arose in January, 2005 about Ohio’s slate of electoral votes. In that instance, the late Rep. Stephanie Tubbs Jones, D-Ohio, and former Sen. Barbara Boxer, D-Calif., teamed up to challenge Ohio’s electoral votes. The House and Senate then met separately to consider Ohio’s slate. But after a short debate, Congress decided that President George W. Bush was victorious in Ohio.
Rep. Mo Brooks, R-Ala., indicates he will likely challenge some electoral college results from various states. Brooks will need a sponsor from the Senate to launch a debate contesting a state’s electoral slate.
If there is a House and Senate member appealing a state’s slate of electors, the Joint Session of Congress is dissolved and the House and Senate meet separately for two hours to debate a contested state’s electoral vote. Each body then votes whether to accept or reject that state’s slate of electoral votes. Then the House and Senate reconvene in the Joint Session.
This could literally consume all day on January 6 and probably bleed into the wee hours of Jan. 7 before this is all resolved. Challenges to electoral slates are anticipated from Georgia, Pennsylvania, Nevada, Wisconsin and Michigan. And, voting on each state’s slate will take longer due to the pandemic. So Jan. 6 and 7 could be LONG ones.
However, it is important to note that a state’s slate of electoral votes is only tossed if BOTH the House and Senate vote to do so. We doubt the House will reject any challenged electoral slates. But there will be a roll call vote, indicating how many House Republicans vote in favor of dismissing a given state’s electoral vote.
And, keep in mind, the Senate starts the new Congress at 51-48 in favor of the GOP. Sen. David Perdue, R-Ga., will not be a senator at the beginning. Sen. Kelly Loeffler, R-Ga., will. How fast will Georgia certify the winners of the Georgia runoffs on Jan. 5? And could that impact how the Senate votes? What happens if it’s clear Democrats have won BOTH Georgia races and the Senate will be 50-50 – and we learn of such news in the middle of challenges to a state’s electoral slate?
We don’t know.
To take the presidency, 270 electoral votes are required. But what happens if a candidate falls short because a state’s electoral votes are in dispute?
Or, if there is an impasse when certifying the electoral college?
First, there’s no immediate game clock dictating that Congress has exhausted all options. But if Congress determines there’s a stalemate, the 12th Amendment directs the House to elect the president.