Congressional leaders unveil rules governing Electoral College count
The rules of Congress’ Jan. 6 session governing the counting of Electoral College votes will remain identical to those used for decades, under a proposal set to be introduced Sunday by Senate Majority Leader Mitch McConnell.
The rules obtained by POLITICO must be adopted in both the House and Senate and have long been uncontroversial afterthoughts in the process of finalizing the results of presidential elections. However, as dozens of Republicans in the House and Senate threaten to challenge President-elect Joe Biden’s victory — citing baseless claims of widespread fraud and irregularities — the rules have taken on new prominence.
The rules were revealed amid the first indications of GOP pushback to the election challenges inside the House, where dozens of Republicans are embracing President Donald Trump’s push to object to the election’s certification.
A group of seven House Republicans — including Freedom Caucus members such as Ken Buck (Colo.) and Chip Roy (Texas) as well as Rep.-elect Nancy Mace (S.C.) and libertarian Rep. Thomas Massie (R-Ky.) — put out a rare and lengthy statement Sunday afternoon opposing the effort to challenge election. The statement was also signed by Reps. Kelly Armstrong (R-N.D.), Mike Gallagher (R-Wis.) and Tom McClintock (R-Calif.).
They argue that the constitution makes clear that states — not Congress — are responsible for selecting electors, though they said they “are outraged at the significant abuses in our election system.”
“We must respect the states’ authority here,” the lawmakers wrote in their statement, obtained by POLITICO. “Though doing so may frustrate our immediate political objectives, we have sworn an oath to promote the Constitution above our policy goals. We must count the electoral votes submitted by the states.”
And Roy went further on Sunday evening, forcing a vote on whether to allow Speaker Nancy Pelosi to seat the House members in the states Trump is challenging. The move forced Republicans on the record validating the results of the House elections that occurred on the same ballots that resulted in Biden’s win in November. The result was a 371-2 vote in favor of seating all of the members.
A handful of Senate Republicans have come out forcefully against the Trump-driven challenges as well. In addition to Sens. Ben Sasse, Mitt Romney and Pat Toomey, who forcefully rebuked those mounting challenges, Sens. Susan Collins and Roger Wicker indicated Sunday they would oppose challenges as well. The Washington Post also revealed Sunday that Trump, a day earlier, called Georgia’s secretary of state Brad Raffensperger and pressured him to “find” enough votes to reverse Biden’s win in the state.
Some Trump allies have sought to throw out the procedures altogether. They’ve hoped to empower Vice President Mike Pence, who will preside over the session, to unilaterally reject Biden’s electors; it’s unclear if those members will attempt to object to or change those rules when they come to the House and Senate floor Sunday evening. Rep. Louie Gohmert (R-Texas) last week sued Pence in an effort to have the procedures thrown out, but he was unceremoniously dismissed by two federal courts.
The procedures, if adopted, require Pence to introduce all papers “purporting” to be electoral votes. He is to read them alphabetically by state and offer lawmakers a chance to issue any objections along the way. These longstanding procedures permit as few as two lawmakers — a single House member and senator acting together — to grind the process to a halt, forcing the House and Senate to break up the joint session and debate the challenges for two hours apiece, before voting on them and returning to the joint session.
In a letter to Democrats, Speaker Nancy Pelosi indicated that the full caucus would hold a call Monday at 9 a.m. to discuss how the Jan. 6 session will unfold, and separate strategy sessions will be convened for Democrats who hail from the states expected ot be challenged by Trump’s allies, like Pennsylvania, Georgia and Arizona.
“Over the years, we have experienced many challenges in the House, but no situation matches the Trump presidency and the Trump disrespect for the will of the people,” Pelosi said. She indicated that Reps. Zoe Lofgren (D-Calif), Adam Schiff (D-Calif.), Jamie Raksin (D-Md.) and Joe Neguse (D-Colo.) had taken leadership roles in the pushback to the GOP effort.
Pelosi also emphasized that Democrats shouldn’t use the challenges in order to “debate the presidency of Donald Trump.
“While there is no doubt as to the outcome of the Biden-Harris presidency, our further success is to convince more of the American people to trust in our democratic system,” she said.
There is virtually no doubt that the challenges to Biden’s victory will fail. The Democratically led House will oppose them, and enough Republicans in the closely divided Senate have indicated they will reject any challenges as well. But the magnitude of the push — with dozens of House Republicans and at least a quarter of the Senate GOP — will be unprecedented, aided by the full-throated backing of the sitting president, who has encouraged supporters to convene in Washington en masse on Jan. 6 to protest the session.
Some Trump allies are encouraging Pence to try to take control of the session regardless of the rules and simply refuse to introduce Biden’s electors in states that Trump has challenged. But Pence declined to embrace that strategy in court, and Congress would similarly refuse to entertain such an effort.
The processes in the proposed rules are enshrined in a federal law passed in 1887 called the Electoral Count Act, a statute passed to address the disastrous election of 1876. The procedures have been embraced by every Congress since then to govern the Jan. 6 Electoral College certification meeting. However, constitutional scholars have debated whether the House and Senate can be bound by the 130-year-old law and whether they may supplement it to clearly define some of its vague aspects, such as Pence’s authorities as the presiding officer and the law’s requirements that all “purported” electoral votes be introduced.
One of the questions about Pence’s role is whether he intends to introduce slates of Republicans who claimed to cast electoral votes for Trump in key states that Biden won. Trump’s would-be electors met on Dec. 14, the day the formal Electoral College members met in their respective state capitals and held mock sessions to cast votes for Trump. If he does, Congress would be required, by law, to count only those certified by the state governments — but it would continue to amplify Trump’s efforts to delegitimize the process.