December 1, 2020
President Donald Trump’s arsenal for overturning the election will soon be down to one final, desperate maneuver: pressing his Republican allies on Capitol Hill to step in and derail Joe Biden’s presidency.
Although the Electoral College casts the official vote for president on Dec. 14, it’s up to Congress to certify the results a few weeks later. And federal law gives individual members of the House and Senate the power to challenge the results from the floor — a rarely used mechanism meant to be the last of all last resorts to safeguard an election.
But several House Republican lawmakers and aides now tell POLITICO they’re considering this option to aid Trump’s quest.
“Nothing is off the table,” said Rep. Matt Gaetz (R-Fla.).
Gaetz pointed out that in January 2017, a handful of House Democrats took this precise procedural step before their efforts flamed out during a joint session of Congress presided over by none other than Biden, then the outgoing vice president.
“It is over,” Biden said at the time, gaveling down Democrats as Republicans cheered.
This time, Vice President Mike Pence will be in the chair for any potential challenges — a potentially awkward scenario as his boss continues to deny the reality of the election he lost.
Indeed, Trump lost the election. His legal battles have failed to stop states from certifying his defeat. And his bid to pressure state legislators to overturn Biden’s victory appears to be going nowhere. Congress — where Republicans are still largely in lockstep with Trump — is the last institution that could be a factor.
Here’s how Trump’s defenders in Congress may take a final shot at subverting the election, who might carry Trump’s mantle and why it’s almost certain to be more of a spectacle than a solution for Trump.
How congressional challenges work
The framers declared that the presidential election isn’t official until lawmakers certify the winner. The voters, on Nov. 3, picked 306 electors for Biden and 232 for Trump. Those electors will cast their formal votes for president on Dec. 14.
An obscure 1887 law called the Electoral Count Act, and several subsequent updates, spell out the process, setting Jan. 6 after a presidential election as the official certification date and outlining vague, complicated procedures.
On that day, the House and Senate meet in a joint session at 1 p.m. — just three days after a newly constituted Congress is sworn in. One of their first orders of business is to pass judgment on the Electoral College vote.
That same federal law also gives a tiny number of lawmakers enormous power to challenge the results.
If a single House member and a single senator join forces, they can object to entire slates of presidential electors. They must do so in writing and provide an explanation, though there are no guidelines on how detailed it must be.
If they do, the House and Senate must retreat to their chambers and debate the outcome for up to two hours before voting on the matter. Each state’s electors are certified separately, meaning lawmakers bent on challenging the results have multiple chances to force lengthy delays.
If the Democrat-run House and GOP-controlled Senate disagree? That outcome has never been tested before, though it would likely give governors in key states — including the Democrats who lead Pennsylvania, Wisconsin and Michigan — a larger role.
A few House Democrats have previously tried and failed to challenge GOP presidencies in 2001 and 2017 — after Al Gore and Hillary Clinton won the national popular vote but lost the Electoral College to George W. Bush and Trump, respectively. And congressional Democrats went even further in 2005, when John Kerry lost to Bush, forcing a full-fledged debate on Ohio’s electoral votes before both the House and Senate voted to reject the challenge.
Who might act for Trump?
Some of Trump’s allies are already pressuring GOP lawmakers to take this step.
“Ask your senators and congressman if they will object to any Electoral College certification of Joe Biden on January 6,” Tom Fitton, the pro-Trump head of Judicial Watch, said last week.
Fitton may not have much trouble convincing House members to agree. In addition to Gaetz, several incoming GOP lawmakers, like Georgia congresswoman-elect Marjorie Taylor Greene, have adopted the president’s harshest and falsest rhetoric about the prevalence of fraud in the 2020 contest. Rep. Mike Kelly (R-Pa.) was a plaintiff on a lawsuit — recently tossed by the state’s high court — arguing that Pennsylvania’s entire mail-in voting system was unconstitutional.
On Friday, a group of Republican state legislators in Pennsylvania filed a resolution declaring the results of their state’s election results “in dispute” and urging Congress to consider Biden’s electors in Pennsylvania to be considered disputed as well. Kelly has not indicated whether he might carry their fight into the Capitol.
Other Trump allies have explicitly left the door open to challenging the results. GOP Rep. Warren Davidson of Ohio, a top member of the conservative Freedom Caucus, said it’s seriously being considered by some members and they’re “studying” up on it.
The chief of staff to a second Republican lawmaker aligned with Trump also indicated that his boss is strongly considering a challenge to the electoral votes, depending on the status of Trump-backed litigation.
Other GOP lawmakers who might be friendly to the idea include Arizona Reps. Paul Gosar, Andy Biggs and David Schweikert, who all belong to the Freedom Caucus. The trio signed a letter urging the state’s largest county, Maricopa, to delay certification of the presidential election results until an audit is conducted. The Maricopa County board of supervisors rejected their request and certified the results on Nov. 20.
“There have been some issues raised about the integrity of some of our election systems within the state,” Biggs said in a statement. “Let’s leave no stone unturned in the pursuit of accountability and transparency.”
Biggs and Gosar sat behind Trump’s legal team Monday at a hearing of GOP state legislatures meant to amplify the campaign’s allegations of voter fraud.
It’s unclear if such House Republicans would have the blessing of leadership. Aides to House Minority Leader Kevin McCarthy did not return a request for comment.
But the California Republican is a top Trump ally and has backed up Trump’s effort to contest the election results. McCarthy also falsely proclaimed on Fox News that Trump had won the election, before walking the comments back.
Getting a senator
There’s a reason Democrats fell short of more robust challenges to their 2000 and 2016 losses: the Senate.
In both years, a clutch of progressive lawmakers lodged challenges to the Electoral College count and pleaded with their Senate allies to join them. But both times, no senator would sign on.
“Is there one United States senator who will join me?” Rep. Maxine Waters (D-Calif.) pleaded just before Trump’s win was certified. She got no response. Afterward, Republicans chastised these House Democrats and called the effort disrespectful to voters.
The Senate has historically been more reluctant to engage challenges raised by House members on these issues. But there are reasons to believe 2021 could be different.
Though Trump’s power in Washington is waning as his presidency winds down, he will clearly continue to be a force in GOP politics, exerting outsize influence on the fate of Republicans on the ballot in 2022. Trump still has a stranglehold on the GOP base — which has eagerly embraced his false claims of widespread voter fraud — and has made clear he considers fealty his top priority.
Trump has forged deep ties with some Republican senators and may lean on them for this final stand. Over the weekend, Sen. Rand Paul (R-Ky.) echoed some of Trump’s unfounded suspicions about vote counting in key states like Michigan and Wisconsin.
Still, Senate Majority Leader Mitch McConnell — who has been silent on Biden’s victory thus far — may not welcome the idea, since it would force Republicans to take a politically toxic vote on the challenge, particularly ahead of the Senate GOP’s tough 2022 map. McConnell’s office didn’t respond to a request for comment on potential challenges.
If Trump does convince any senators to join the increasingly likely House challenges, it would look similar to 2005, when then-Sen. Barbara Boxer (D-Calif.) joined then-Rep. Stephanie Tubbs Jones (D-Ohio), citing “irregularities” to challenge Bush’s victory.
The move forced the House and Senate to retreat to their chambers and deliberate. But both Republican-controlled bodies rejected the challenge, cementing Bush’s win after a two-hour delay.
The only other similar challenge occurred in 1969 and dealt with a single electoral vote cast by a Republican elector expected to vote for Richard Nixon, but who backed George Wallace instead. After debate, both the House and Senate rejected the challenge and allowed the vote for Wallace to stand.
Why a challenge likely won’t work in a GOP-led Senate
It’s simple: the math. Arizona Sen.-elect Mark Kelly, a Democrat, will take his seat later this week, leaving Senate Republicans with a 52-48 majority. But on Jan. 3, when the new Senate convenes, it’s likely Republicans will be down another member because Sen. David Perdue’s reelection fight — the subject of a Jan. 5 runoff — will still be pending. Perdue’s current term will expire, and his seat will become vacant until a runoff winner is sworn in.
Perdue’s absence would leave Republicans with virtually no margin to sustain election challenges, which require a simple majority. And that’s before factoring in the small but growing number of sitting Republicans who have acknowledged Biden’s win, called him president-elect and urged Trump to move on.
GOP Sens. Lisa Murkowski of Alaska, Susan Collins of Maine, Mitt Romney of Utah, Ben Sasse of Nebraska and Bill Cassidy of Louisiana have described Biden as the winner or the “president-elect.” That’s more than enough to sink any challenges brought in the Senate.
What if the chambers disagree?
If every hypothetical scenario tips Trump’s way and the Senate upholds a challenge to certain slates of presidential electors, it would almost certainly put the chamber at odds with the Democrat-run House, where there will be little drama about certifying Biden’s victory.
In that case, lawmakers would step into a void of untested constitutional theories. At first blush federal law grants the power to resolve such disputes to the governor of the state in question. But legal scholars and the Congressional Research Service have pointed to some ambiguities.
The Electoral Count Act says that in this scenario, it’s up to the state’s governor to decide which electors should be counted — a boon for Biden in Pennsylvania, Wisconsin and Michigan, where Democratic governors would surely support his victory.
The Constitution, as written, expressly grants state legislatures the authority to determine the process for appointing presidential electors. The Trump campaign has leaned on that provision to encourage Republican-led legislatures to intervene and deliver electors for Trump despite the vote of their constituents.
For the Trump campaign’s interpretation to work, Trump would need a legal victory akin to a miracle. A court, perhaps the Supreme Court, would have to embrace this effort and scrap subsequent federal statutes that handed governors this power instead.
It’s a path that some Trump allies are publicly promoting.
“At any time, you can take back that power,” Trump campaign attorney Jenna Ellis told Pennsylvania Republican lawmakers at a hearing last week. On Monday, she encouraged Arizona lawmakers to do the same after the state certified Biden’s 10,000-vote victory.
But Pennsylvania’s response to that argument, in a brief filed with the Supreme Court on Monday, made clear why the Trump campaign’s position is such a long shot.
The framers of the Constitution never envisioned a legislature unilaterally deciding which electors to appoint; they wanted lawmakers to adopt a process through the normal course of passing laws, which includes a role for the governor, Secretary of State Kathy Boockvar emphasized in a brief submitted to the high court.
“It would have been passing strange,” Boockvar argued, “for the Framers, who created a system of checks and balances … to allow, in this one area, for state legislatures to regulate federal elections unchecked by any other branch of state government.”