Congress will meet Wednesday to confirm President-elect Joe Biden’s Electoral College victory in the 2020 presidential election, but based on allegations of fraud and “unlawful practices” — found meritless by the courts — dozens of Republicans are expected to contest the results in key swing states, including Pennsylvania.
The action isn’t expected to result in the election getting overturned in President Donald Trump’s favor. Democrats control the House and enough of the Senate’s GOP members have rejected the approach.
Observers say the highly unusual move will most likely serve only to prolong — and further politicize — a typically procedural, uncontroversial process.
“I think it probably is mostly people thinking ahead to 2024 presidential campaigns,” said Kermit Roosevelt III, a constitutional law professor at the University of Pennsylvania.
Since his popular vote and electoral college losses, Trump has taken to reaching out to state leaders directly, asking for their help overturning the results. Although his unfounded claims of widespread election fraud have been uniformly dismissed, he has continued spreading baseless theories about impropriety.
Swing states have been at the center of those theories.
In Pennsylvania, state senators and representatives report being inundated by emails from Trump-supporting constituents, urging them to overturn results. Some have spoken out against the theories; others have taken action by, for instance, trying to change state election laws.
The commonwealth’s congressional delegation is under similar pressure. All but one House Republican, moderate Brian Fitzpatrick (R-1), signed a letter indicating that they will vote against confirming Pennsylvania’s election results.
“The state’s official certification of electors was based upon a flawed system and an inaccurate vote count. Thus, very possibly resulting in an erroneous certification,” they wrote. “Until these unlawful practices are acknowledged and corrected, we cannot agree to support electors chosen based upon an inaccurate total vote count.”
So, ahead of what promises to be a tumultuous, confusing day, here’s what you can expect from congressional certification.
How does certification work?
There are several steps to certifying election results. The first comes when a state counts, then officially submits, its results. Then, the electors for the candidate confirmed as the winner cast their votes. Pennsylvania, for instance, gets twenty electoral votes.
Congressional confirmation is the final step before inauguration.
That’s what is happening Wednesday. Congress will meet in a joint session of the House and Senate at 1 p.m., with Vice President Mike Pence presiding. The body will go through the official electoral college votes for each state alphabetically, and then congress will vote on them one by one.
Members have the opportunity to contest any state. If at least one member from the House, and one from the Senate file objections, the chambers have to recess separately to debate the challenge for up to two hours. Then, they return and use a popular vote to decide whether they’ll accept the state’s slate of electors.
The process could drag on late into the night on Jan. 6. Disputes are expected in several states, including Pennsylvania, Georgia, Michigan, Wisconsin, and Florida. But in the end, Biden’s 306 to 232 Electoral College advantage over Trump is expected to be confirmed.
Why will GOP challenges likely be ineffective?
Democrats control the House. They support Biden, have overwhelmingly criticized Republicans’ efforts to contest the election result, and will not vote to throw out any contested state’s electoral votes.
Things are slightly more complicated in the Republican-controlled Senate.
Roosevelt notes, because senators have to answer to constituents across an entire state, they tend to be more moderate than House members. Even though some GOP senators have pledged to contest the results in swing states, it looks like they won’t be a majority in the closely-balanced chamber.
While House challenges to states’ electoral college slates are relatively common, Senate ones aren’t.
The last one came in 2005, when California Democrat Barbara Boxer joined a House Democrat in symbolically objecting to Ohio’s result, which helped deliver George W. Bush a victory over Democrat John Kerry. Boxer said she aimed to “cast the light of truth on a flawed system which must be fixed now.”
What are Pennsylvania politicians saying?
Although the issue of 2020 election integrity is intensely partisan, there is still some variation within parties — especially in the GOP.
U.S. Senator Pat Toomey, who is not running for reelection, released a statement disavowing from those who have supported Trump’s baseless fraud theories.
“The effort by Senators Hawley, Cruz, and others to overturn the results of the 2020 presidential election in swing states like Pennsylvania directly undermines this right [of the people to elect their own leaders],” he said in a statement. “The senators justify their intent by observing that there have been many allegations of fraud. But allegations of fraud by a losing campaign cannot justify overturning an election.”
Toomey said that come Wednesday, he intends to “vigorously defend our form of government by opposing this effort to disenfranchise millions of voters in my state and others.”
Things are different in the lower chamber.
Though the eight GOP House members from Pennsylvania who declared that they “cannot agree to support [the commonwealth’s] electors” stopped short of specifically saying they plan to vote against the Pennsylvania results, their meaning was clear.
At least one member, John Joyce (R-13) was more explicit.
“For the sake of our liberty and our American values, I will stand up for President Trump – and our American democracy – by objecting to the Electoral College certification on January 6,” he said in a statement.
The Pennsylvania members’ complaints have less to do with Trump’s unfounded allegations of widespread fraud, and more with what they called “unlawful actions” by the Democratic-controlled state Supreme Court and Democratic Secretary of State.
They include a court decision that allowed mail ballots to be accepted up to three days late due to postal service delays, and decisions to accept ballots with misplaced or incomplete signatures and dates.
Democrats in the Pennsylvania delegation have forcefully disagreed with the GOP actions.
“I certainly disagree with Senator Toomey on many issues, but the fact that he and several other Senate Republicans have announced they will vote to uphold the will of the people just confirms that this nonsense will go nowhere in the House or Senate,” said Rep. Dwight Evans (PA-03).
Brendan Boyle, also a Philadelphia Democrat, introduced a resolution calling for inquiries into the validity of the election of all the members who have echoed claims of fraud.
“Some members have announced they are seeking to cancel American democracy and reverse the official results of the 2020 presidential election,” he wrote in a statement. “This ridiculous fantasy is nothing short of a seditious subversion of the will of the American people.”
Fitzpatrick, the one House Republican who did not say he planned to contest Pennsylvania’s results, did not respond to a request for comment.
Where do we go from here?
Because it is highly unlikely that any state’s results will be thrown out, the next question becomes: Where can a divided congress, and a divided country, go from here?
It’s certainly a question on Roosevelt’s mind.
“I’m afraid that it’s going to make the next four years a lot more difficult — not that they were going to be easy, anyway,” he said. “To the extent that we’re in an era of people living in different realities, this exacerbates that.”
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