Washington Wednesday - Showdown at the electoral college corral

NICK EICHER, HOST: It’s the 6th of January, 2021. So glad you’ve joined us for today’s edition of The World and Everything in It. Good morning, I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. Up next, Washington Wednesday.

The United States Congress is gathering today in a joint session to tally the votes of the Electoral College.

Congress’ formal certification of the electoral votes is the final step in the presidential election.

But President Trump is pressuring Republicans to delay or oppose certification and some GOP lawmakers plan to do so. 

And there’s another potential wrinkle in what is normally a smooth and uneventful process. 

Vice President Mike Pence, in his role as president of the Senate, is slated to officially announce Joe Biden as the country’s next president.

But President Trump is also pressuring him not to do so.

TRUMP: And I hope Mike Pence comes through for us, I have to tell you. I hope that our great vice president, our great vice president comes through for us. He’s a great guy. Of course, if he doesn’t come through, I won’t like him quite as much.

But what does it mean if some lawmakers do indeed oppose certification or if Vice President Pence does not formally declare Biden’s victory? 

Here to help answer these questions is Hans von Spakovsky. He’s an attorney and former member of the Federal Election Commission. Today he’s a senior fellow with the Heritage Foundation. Good morning!

SPAKOVSKY: Good morning!

REICHARD: This congressional joint session, while generally not very newsworthy, is never a mere formality. Why does Congress convene to review these votes, rather than simply rubber stamping the Electoral College results? 

SPAKOVSKY: Well, because there’s actually a federal statute that governs the opening and counting of Electoral College votes and the statute was passed in the late 1800s after the very highly disputed 1876 presidential election, because in that election there were three southern states where they couldn’t tell who had won the election. And there were disputes over which sets over which set of Electoral College votes should be counted. Does that sound familiar? [Laughs] It should. So, anyway, so Congress passed this statute. It’s in the U.S. code and it basically lays out that January 6th is the date for the opening and counting of the Electoral College votes that have been sent up from each state. It’s a joint session of Congress—both the Senate and the House meet together in the House chamber. It’s presided over by the vice president. And it has a provision in it and this is what folks have been talking about—some Republicans on the House side and the Senate side. There’s a provision in it that allows an objection to be filed, a written objection to the certification and counting of the votes from a particular state. The written objection has to be signed by both a Senator and a Representative. If an objection is filed, then they temporarily suspend the joint session and the counting of the Electoral College votes and each chamber then meets on its own. So, the Senators go back to the Senate, the Members of the House meet in the House. And they there then debate and take a vote on that objection. Should it be overruled? Should it be sustained? And that is the process that it looks like might be happening if objections are filed. 

REICHARD: Well, we’ll soon find out. Joe Biden won 306 electoral votes to President Trump’s 232. The Electoral College affirmed that last month in each state capital. Is Congress legally obligated to defer to the Electoral College vote? I take it no?

SPAKOVSKY: Well, not if they believe that there was a problem with the election or the certification. What’s interesting about this is, look, both houses may vote to overrule the objections. OK? If that happens, then the joint session comes back together and they keep counting the votes. If there were to be a disagreement—let’s say the House said this objection is invalid, but the Senate voted the opposite way and said the objection is valid. Well, then, you’re kind of in a quandary. What’s going to happen? The statute says that if the two houses disagree, then whichever set of electors were certified by the chief executive of the state are the ones that shall be counted. So, that might take care of that dispute. But, again, we’ve actually never had this situation come up since this law was passed in the late 1800s. 

REICHARD: Assuming lawmakers that have said they’ll oppose certification actually do that or if Pence does as Trump has asked him to do. What happens then? 

SPAKOVSKY: See, I think what’s going to happen is, look, the Democrats on the House side are going to vote to overrule any objection. And I don’t think Republicans who have said they’re going to object on the Senate side have enough votes to sustain their objection either. So, I think what’s going to happen is that they are—the objecting Senators and Representatives—I think they’re going to take advantage of the fact that this issue, this objection has to be debated to bring up on the floor of the Senate and the House all of the claims and allegations of wrongdoing, irregularities, and fraud and unconstitutional behavior so that the public eye is really brought to focus on these issues. I think in the end, you know, they’re going to lose. I don’t think they have the votes to sustain this and I think Biden is probably going to be declared president. But I think that bringing publicity to this is what they really want to accomplish. And what that should do, I hope, is to make state legislators in those states realize that they have problems that they need to remedy and solve when their state legislatures meet, which as you know in most states starts at the end of January. 

REICHARD: While this is highly unlikely to happen, suppose Congress were to disqualify enough electoral votes to deprive Biden of the needed 270 electoral votes, then what happens? 

SPAKOVSKY: Well, if there’s still litigation and dispute going on, so that that could potentially be resolved, well then on January 20th, that’s the end under an amendment to the Constitution, that’s the end of the president’s term. And if who is the president is still in dispute and there are states outstanding where we don’t yet have final results, there’s a federal statute, again, that governs this, that says that the acting President of the United States shall become the Speaker of the U.S. House until that’s resolved. The other alternative is if it can’t be resolved, if neither candidate has enough Electoral College votes to meet, well then it goes to the U.S. House to decide who shall be the president. And in that case, each state gets one vote. So, that means that in a big state like Texas or California where I think Texas has something like over 30 members of the House, California has over 50, they have to take an internal vote to decide which of the candidates their one vote will go to. 

REICHARD: Now, you touched on prior challenges to the electoral votes. Can you elaborate a little bit? And have any challenges succeeded in overturning an election result?

SPAKOVSKY: Well, like I said, the statute we’ve been talking about was passed because of the dispute over the 1876 election. If you’ll recall your history, it was Rutherford B. Hayes—a Republican—versus Samuel Tilden—the Democrat. But three states, there was a huge dispute over who had won those states with allegations of fraud and they were Southern states, suppression of the vote, of newly freed black slaves by, in fact, Democrats. Because of that and because they couldn’t figure out who had won those three states, Congress actually appointed a commission—a bipartisan commission—it had 15 members—to investigate what had happened in Louisiana, Florida, and South Carolina. At the end of their investigation, the bipartisan commission voted along party lines to count the Electoral College votes of the Republican electors of those three states. And that’s why Rutherford B. Hayes became the President of the United States with only one Electoral College vote to spare.  

REICHARD: And then looking to the future, what effect do you think this might have on the longrunning effort to either change or completely do away with the Electoral College system?

SPAKOVSKY: I know there are some folks, critics of the Electoral College system that think this will help them, but I actually think this will help reinforce people’s understanding of the importance of the Electoral College. Because, remember, the biggest reason for the Electoral College system being put in was because the framers of the Constitution were afraid that if we had a national popular vote system, candidates would simply go to the big cities, the big urban areas to campaign for president and they would ignore all the smaller states, the more rural areas of the country. With the Electoral College system, yeah, the larger states with larger populations still have more Electoral College votes. But even the smallest state has a minimum of three Electoral College votes. And if a candidate can attract enough support in those areas of the country, they can still win the presidency. So I actually think what has happened this year actually helps once again establish the legitimacy and the wiseness of having the Electoral College system.

REICHARD: Well, as a rural American, I am very glad to hear that! Hans Von Spakovsky, Senior Legal Fellow with the Heritage Foundation, thank you!

SPAKOVSKY: Sure. Thanks for having me.

(AP Photo/Patrick Semansky, File) In this Sept. 18, 2019, file photo, The White House viewed from the Washington Monument in Washington. 

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