The Possibilities for Wednesday in Congress

 Three months ago,  I discussed at length the law specifying how electoral votes must be counted in Congress on January 6, and how Senator and Representatives can raise objections to a state's votes, and potentially invalidate them.  Since then, the people of the nation have elected Joe Biden president, and more than sixty lawsuits filed by the Trump campaign have failed to overturn the count in any state.  Nonetheless, it is now clear that more than 140 congressmen and at least 12 GOP Senators will make some objection to the count, leading, in all probability, to a debate in each House.  Meanwhile, President Trump has called for large demonstrations in Washington on that day, and reports state that some demonstrators plan to try to block access to the Capitol.  Today I'm going to look at the legal basis--or lack of one--for the Republican objections, and to try to predict what might happen on Wednesday.

Passed in the 1880s, the law on the subject aimed to resolve controversies such as had arisen during Reconstruction, and most notably in 1876.  In that year, Louisiana, South Carolina and Florida all submitted two sets of results, coming from competing state authorities. The Republican Rutherford B. Hayes needed the votes of all those states to win the Electoral College over Democrat Samuel J. Tilden.  Detailed historical research into the election later determined that Hayes probably carried Louisiana and South Carolina fairly thanks to the black majorities in those states, but almost certainly lost Florida, and, therefore, the election.  With no obvious way to settle the dispute, many felt that the Civil War might be renewed. Eventually, thanks in part to a bargain that led to the withdrawal of federal troops (and thus the end of effective Reconstruction) in Louisiana and Florida, Congress created a 15-member commission, composed of five Congressmen (from the Democratic-controlled House), five Senators (from the Republican-controlled Senate), and five Supreme Court Justices, to advise Congress on the counting of the votes under the 12th amendment.  The Commission sided with the Republicans, with Justice David Davis, the swing vote, taking their side, possibly induced by a bribe.  Hayes was declared the victor.

The dozen Republicans led by Ted Cruz have now referred specifically to the 1876 precedent and called for the creation of "an electoral commission, with full investigatory and fact-finding authority, to conduct an emergency 10-day audit of elections returns in the disputed states. Once completed, individual states would evaluate the commission’s findings and could convene a special legislative session to certify a change in their vote, if needed.”

Thinking about this, it seems to me that things could actually be worse.  The situation today differs in a critical respect from 1876, insofar as Arizona, Nevada, Georgia, Michigan, Wisconsin and Pennsylvania have all certified their Democratic electors and submitted their votes.  Although President Trump has personally tried to persuade Republican authorities in at least some of those states to dispute these decisions, they have refused to do so.  Now as it happens, someone did persuade the Republican electors in all of those states (I believe) to meet separately, cast ballots for Trump, and send them to the Congress.  The Republicans are not however arguing that Congress should accept those submissions as valid and award those electoral votes to Trump.  To have so argued would have created exactly the kind of controversy that led in 1876 to the appointment of the commission and the eventual Republican victory.  Instead, they simply want their commission to declare the results in various states in doubt.  That could in theory have allowed Congress to reject the electoral votes of enough states to deprive Biden of his majority and throw the election to the House of Representatives, voting by state, where Trump would win.  But rather than do that, they want the state legislatures in these states, most of which are dominated by Republicans, to award the electoral votes instead of the voters. 

The Republican problem is this: neither the 12th Amendment to the Constitution nor the relevant statute allows for action simply because one, or even both, houses of Congress question the results.  The law states that when at least one representative and one senator have objected to one or more state results, "no electoral vote or votes from any State which shall have been regularly given by electors whose appointment has been lawfully certified to according to section 6 of this title from which but one return has been received shall be rejected, but the two Houses concurrently may reject the vote or votes when they agree that such vote or votes have not been so regularly given by electors whose appointment has been so certified."  The law gives Congress  no power to reject results on a whim, or because of its own opinion about how an election was conducted: if the electors submitting the votes have been "regularly certified," then they must count.  To my knowledge there is no present dispute over the certification process for any of the electors from any of the controversial states, and thus, no remotely legal reason to accept their votes.  The law leaves the power to certify a state's electors with the state and only prescribes a role for Congress when the state has not managed to submit a clear and unchallenged result--unchallenged, that is, by state authorities.  Bush v. Gore was a terrible precedent (so terrible that the majority decision itself declared that it should not serve as a precedent) because it took the power to decide who had won the Florida election away from the state government of Florida.  Now the Republicans want to give the same power to a commission whose membership they do not even define. 

To get any action, the Republicans would need a majority in both houses of Congress.  They clearly will not get a majority in either one, since Democrats control the House and several Republicans, including Mitt Romney, Lisa Murkowski, and Pat Toomey, had made clear that they will accept the election results. The number of Republicans who will join Cruz and company will tell us just how powerful Trump remains within their party.  Unfortunately, nearly two years will pass before any of them have to face the voters again. 

One other danger remains. In a White House meeting more than a week ago, Michael Flynn and lawyer Sidney Powell apparently encouraged the President to declare martial law to seize control of the process of counting the votes.  Representative Louie Gomert of Texas has called upon Trump supporters to "go the streets [sic] and be as violent as Antifa and BLM."  Neither Flynn  nor Powell is actually part of the government, and I don't think Trump has anyone below him in the chain of command that would go along with this.  But I will feel better when night falls on Wednesday, the Republican objections have been voted down, and Biden has been declared the next president.