Q&A – What Happens When Congress Contests Electoral College Results

Today’s entry: Now that there are senators who will contest the vote certification in addition to the House the election will be contested. What I’m unclear on is what will happen? Also, I heard Democrats have tried this before, has it ever been successful?

Bottom Line: Once the six-team Trump contested states - Arizona, Georgia, Michigan, Nevada Pennsylvania, and Wisconsin – certified their results; attention began to shift to the last stand for President Trump’s challenge to the 2020 Presidential Election results. The Congressional certification of the electoral college results, which takes place this Wednesday. Driven by the double-edge sword presented by social media, where there’s at least as much misinformation shared as factual information, confusion is high heading into Wednesday’s certification process.

Most of the misinformation being shared comes from picking and choosing what one wants from Constitutional law. In reality, what will happen Wednesday, with contested results, is straight-forward and easily understood. It’s also happened in modern cycles without a change in results.

The key in understanding how the process works comes through both the 12th Amendment to the Constitution, but also the 1887 Electoral Count Act which streamlined the contestation process. The Electoral Count Act was enacted to avoid future chaos after the 1876 Presidential contested election - in which you did have the leader in Electoral College votes at the time of Congressional certification, Democrat Samuel Tilden – eventually lost to Republican Rutherford B. Hayes in the most contested Presidential election in American history.

Over the next decade, Congress created the Electoral Count Act to prevent another contestation from taking place. Without getting into the weeds of the law, it made three meaningful changes to election disputes in Congress.

  1. To limit the power of the Vice-President to that of only the President of the Senate
  2. To limit Congress’s ability to challenge state results by requiring full Congressional support to overturn any state’s election results
  3. To empower states to produce their own election results

Every theory advanced that I’ve come across in recent weeks, which would in theory result in President Trump winning, ignores this Act.

As a result of these changes, a Congressional challenge can’t change the electoral college outcome of any state. Instead, Congress can contest with the intent to reject the certification of a state’s results based on the premise that the state didn’t follow the Electoral Count Act lawfully in the process of their certification. So, what happens and what can you expect on Wednesday?

Vice-President Mike Pence will take up the certification of the Presidential results. He’ll read the results of each state before a joint body of Congress. When a state’s results are read, if at least one member of the House of Representatives and one Senator object, each body of Congress is required to deliberate for two hours amongst themselves regarding the contestation of that state’s results. After two hours each body of Congress takes up a full vote on whether to certify the state’s results or to reject them.

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Email: brianmudd@iheartmedia.com

Twitter & Parler: @brianmuddradio

Photo by: Chip Somodevilla/Getty Images

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