Donald Trump’s refusal to concede defeat in the presidential election has made the ceremonial counting of electoral votes by Congress on January 6 a consequential event for the first time in modern American history. Is there anything that can happen on Wednesday that would allow Trump to actually remain in office for a second term? Let’s look at the precedents — and what will be unprecedented about January 6, 2021.
Joe Biden is still going to be president, right?
Then why is this happening?
Because everything is unbearably dumb.
There have been presidential elections so narrowly decided that they spawned full-scale political crises. There have been presidential elections that have fallen just within a hair’s breadth of being that close. The 2020 election was neither. Joe Biden won by a clear and convincing margin.
So this isn’t a nightmare situation?
It depends on what your nightmare was in the first place. Scholars feared that a key state would be so close that it would certify competing slates of electors with both Democrats and Republicans legitimately insisting that they had won. This is the scenario that could have come to fruition after the Florida recount had Al Gore not conceded and the situation which sparked a political crisis in the election of 1876 when Florida, Louisiana, and South Carolina submitted two sets of electors after both Democrat Samuel Tilden and Republican Rutherford Hayes declared victory.
This is not the situation that exists after the 2020 election. There is no plausible straight-faced argument that can be made that Trump received more votes in any of the states that are contested. Instead, his supporters and allies have relied on legal arguments that can very generously be described as strained.
Then what is this?
It’s a banzai charge. The path to successfully contesting election results required a number of contingencies to come into place in several states. It hasn’t happened in a single one. State election officials have found consistent Biden victories in contested states and, as a result, state legislatures have declined to send competing slates of electors. However, Trump has been undeterred by his legal team’s constant failures in courts of law (as well as frequent humiliations in the court of public opinion). At this point, the strategy of his legal team is far more Jim Jones than James Baker.
But this has long left the realm of a legal fight. Instead, it’s a political battle governed by two facts. Donald Trump refuses to acknowledge that he has lost the election, and he has a sky-high approval rating with Republican voters. This means many Republican elected officials have either fully drunk the Kool-Aid (no one has ever attributed Machiavellian motives to Texas congressman Louie Gohmert, who filed a failed lawsuit against Mike Pence last week to force him to declare Trump the victor on Wednesday) or just believe that their prospects for future electoral success rely on staying in Trump’s good graces. After all, gerrymandering in the House has meant most members are far more vulnerable in a primary than a general election. Those who publicly acknowledge Biden’s victory risk ending up in the crosshairs of Trump’s Twitter account and potentially seeing some of the hundreds of millions that Trump has raised since November for his personal PAC spent against them.
So what happens on Wednesday then?
Congress will meet its constitutionally mandated joint session on January 6. The certificates verifying the results of each state are read in alphabetical order. However, under the Electoral Count Act of 1887, if there is a written objection to a state’s returns signed by both a congressman and a senator, then the joint session recesses. Both the House and Senate convene separately for up to two hours to debate the objection. Each chamber needs to uphold the objection by a majority vote. That won’t happen. The House has a Democratic majority and a number of Republican senators have said they will not support an objection. Nonetheless, the objections could still be a major drag on the process as Trumpists have said they will challenge the results in up to six swing states: Arizona, Georgia, Michigan, Nevada, Pennsylvania, and Wisconsin. The joint session could last into Thursday morning as objections and mandated two-hour debates collide with the complexities of assembling Congress in the middle of a pandemic, leading to a protracted roll call of the state votes.
Has this happened before?
There have twice been formal objections to electoral votes through this process. One was over a procedural issue in 1969 when there was an objection to an electoral vote cast in North Carolina for George Wallace by an elector pledged to Richard Nixon. This did not affect the outcome and was in fact a grounds for debate about faithless electors in principle and what the appropriate means of addressing the problem would be. It was rejected.
The second came in 2005 when Democratic Senator Barbara Boxer of California joined with a number of House Democrats to challenge electoral votes from Ohio, which provided George W. Bush’s margin of victory. But Democrats insisted this was merely to raise attention to voting issues and that they had no intention of reversing the ultimate result of the election.
In contrast, Trump will speak at a rally of die-hard supporters who want to overturn the election results on Wednesday, has suborned Georgia’s top election official to alter the results in the Peach State, and has spent the two months since the election tweeting false allegations of fraud.
So how does it end?
It still ends with Joe Biden as president. The question is how destabilizing the process is. There is the possibility that Pence, who presides over the Senate, could attempt to act on his own initiative in an attempt to force a pro-Trump result. Trump has been urging Pence to do so, including at a rally in Georgia Monday night where he said “I hope Mike Pence comes through for us, I have to tell you… He’s a great guy. Of course, if he doesn’t come through, I won’t like him as much.” Trump followed this with a tweet Tuesday morning insisting “The Vice President has the power to reject fraudulently chosen electors.” However, Pence could simply not show up on Wednesday to avoid this conflict and allow Chuck Grassley, the president pro tempore of the Senate, to preside in his stead.
Ned Foley, an election law expert and professor at Ohio State University, told GEN, “that would be unprecedented in American history and destabilizing for the process but I think the end result of that would still be the two chambers would control the outcome.” However, Pence has signaled that he would not do this and the possibility is considered unlikely. But even this, the most extreme scenario possible, still ends with Joe Biden as president, as there are majorities in both the House and Senate to uphold the results of the election.