The 538 state electors gathered this week to cast votes for president with little drama, but some Republicans plan to complicate the usually ceremonial process of Congress counting the electoral votes on Jan. 6 — and that could put one incoming member in an extraordinary position.
“I cast my vote for President Joe Biden,” said Nikema Williams, when Stacey Abrams called her name in Atlanta on Monday.
As one of Georgia’s 16 electors, Williams’ vote may be among those called into question by congressional Republicans in January. Although the full Electoral College certified Biden’s 306-232 win on Monday, that is still not the final step in the journey to Inauguration Day.
On Jan. 6, Congress will hold a joint session to count the electoral votes. The process is full of pomp and circumstance and holds the weight of a duty specified in the Constitution.
Lawmakers will convene in the House chamber at precisely 1 p.m., as prescribed by federal law, with the vice president presiding. The ceremony is as old as the Constitution, though the COVID-19 pandemic may force some changes. It is unclear if the there will be Senate pages around — they typically carry the wooden boxes that hold the stacks of sealed manila envelopes containing the electoral results from the states.
This congressional count is the final formal step in making the presidential election results official before the inauguration itself on Jan. 20.
It is usually a formality, but Rep. Mo Brooks has promised to challenge the Electoral College votes during the joint session, standing by unfounded doubts about illegal voting that he first aired on Twitter shortly after The Associated Press called the race for Biden.
“I urge @realDonaldTrump & Republicans to fight Biden’s unlawful victory claims. There’s no way I’ll vote in the House to ratify the Electoral College votes of states where illegal votes distorted the will of the people in those states who voted legally,” the Alabama Republican tweeted on Nov. 7.
Brooks has repeatedly referred to the presidential election as “stolen” by Biden and has made unsubstantiated accusations of widespread voter fraud. No proof has been offered, and dozens of lawsuits at the state and federal level have been dismissed for lack of evidence or flimsy reasoning. Still, Brooks has persisted.
“In my judgment, if only lawful votes by eligible American citizens were cast, Donald Trump won the Electoral College by a significant margin, and Congress’s certification should reflect that,” Brooks told Politico.
Georgia on his mind
The primary targets of Republican legal challenges to the election have been Georgia, Michigan, Pennsylvania and Wisconsin, and while court case after court case has been thrown out, these will likely be the same states that Brooks and his allies focus on if they move forward in challenging the electoral process in Congress.
That’s where Williams could face a strange situation. She served as a Georgia elector, casting her vote Monday in the state Capitol for Biden. But come January, she will be sworn in as the congresswoman for Georgia’s 5th District, serving alongside Brooks and any members who join the anticipated objection.
Sitting members of Congress cannot serve as electors, but members-elect can because they fulfill their duty as electors weeks before entering Congress. It’s not a common overlap, but Democrat Hakeem Jeffries was an elector and congressman-elect in 2012. No one challenged New York’s electoral votes at that time.
If an objection is raised about the Georgia votes, or any others for that matter, the joint session won’t act on it directly. Instead, the session would be suspended and Vice President Mike Pence would order lawmakers back to their respective chambers to debate on the merits of the challenge, followed by votes in each chamber.
So Williams may be put in the position of deciding the validity of her own role as an elector as one of her first votes in Congress — if an objection is filed against the counting of Georgia’s electoral votes, that is.
It will be Williams’ personal choice whether to vote to affirm her own electoral vote because there are no rules or procedures that would bar her from voting on the issue or forcing her to abstain, according to House Rules Committee staff.
“They can challenge all they want,” Williams spokesman Edward Hula said. “I can challenge that the sun is going to rise in the east tomorrow, but that doesn’t mean anything either.”
Williams herself did not return a request for comment about her thinking on the process.
While Williams’ situation is unique, it is driven by an upending of norms as Republican lawmakers question the validity of the election and Trump continues to sow doubt and distrust in the election systems.
Trump’s defiance of democratic norms has already put GOP lawmakers in a strained position, with many avoiding acknowledgement of Biden’s win. If he were to endorse Brooks’ challenge of the electoral vote count, they would be forced to choose between defying Trump or maintaining the credibility of the institution and constitutionally mandated process.
To raise objection to the Electoral College vote during the joint session and force a vote on the matter, Brooks would need a senator to join him in the effort. Many Republicans have not yet acknowledged that Biden is president-elect, but after the Electoral College votes came in Monday, some began to change their public stances.
“The Electoral College has spoken. So today I want to congratulate President-elect Joe Biden” Majority Leader Mitch McConnell said on the Senate floor Tuesday morning.
Sen. John Cornyn warned against objecting to the Electoral College results at the joint session.
“That would be a bad mistake,” the Texas Republican told reporters Monday.
They pointed out that entertaining the objection would force a vote of the full Senate on the validity of the challenge. The vote could be a tenuous one for Republicans, pitting them against Trump if they go on the record to reject the challenge.
A large vote in favor of the challenge would set a historic precedent of senators upholding an objection to the Electoral College results. It could also deepen partisan acrimony and sour relationships with the Biden administration just three days into a new Congress.
Wyoming Sen. John Barrasso, the GOP Conference chairman, told reporters Tuesday he is not aware of any senator willing to join Brooks’ effort. “I haven’t heard of any,” he said.
For the history books
With Democrats in control of the House and McConnell and other Senate Republicans recognizing Biden’s victory, any attempt to overturn the election for Trump during the joint session will surely be voted down. But the attempt, mostly a stunt, would still earn a place in history.
The last time a state’s electoral votes were challenged in Congress was 2005, when two Democrats, Sen. Barbara Boxer of California and Rep. Stephanie Tubbs Jones of Ohio, challenged Ohio’s electoral votes, won by President George W. Bush.
The challenge was based on concerns over long lines, lack of uniform policies on provisional ballots and the allocation of voting machines.
The results from each state, read in alphabetical order, were ticked through quickly until Ohio was called, and a clerk read the letter of objection from Boxer and Tubbs Jones.
Vice President Dick Cheney then ordered the lawmakers back to their respective chambers for two hours of debate on the merits of the challenge.
It was only the second such challenge since the current rules for counting electoral votes were established in 1887. Before 2005, the last case was in 1969 and it concerned a so-called faithless elector, or someone who did not vote for the candidate that elector had pledged to vote for.
Boxer ended up being completely alone in her vote to object to the Ohio tally; Cornyn says that if a challenge is brought this year, he expects the same isolation for whichever Republican senator joins Brooks.
“I understand that it just takes one,” he said. “I just hope they realize that it would be futile, and it’s unnecessary.”