The newly minted 117th Congress meets in a joint session Wednesday to confirm the Electoral College votes from each state, and lawmakers are girding for what will be a long series of debates and votes on the normally pro forma affair as dozens of Republican lawmakers object to President Donald Trump’s defeat.
The GOP effort will likely extend the process into the night — and possibly the next day — but has no chance of derailing the inevitable, which is Congress certifying Joe Biden’s victory.
The joint session, mandated under federal law, will convene at 1 p.m. in the House chamber, with Vice President Mike Pence presiding.
Per the Constitution, the vice president opens each state’s sealed certificates in alphabetical order and hands them to one of four “tellers” — a Republican and a Democrat from each chamber who review the certificates and announce the state’s votes.
The counting is typically procedural and efficient, by congressional standards. But objections to states’ votes, which Republicans have promised, will extend the process.
If a lawmaker challenges a state’s results, they stand and state their objection. For the challenge to be considered by the two chambers, the lawmakers must be joined in their objection by someone from the other chamber.
Dozens of House Republicans, led by Mo Brooks of Alabama and Jim Jordan of Ohio, are planning to object to the certification in six states: Arizona, Georgia, Michigan, Nevada, Pennsylvania and Wisconsin. It’s not clear whether they’ll have a senator joining them in objecting to all six.
Missouri’s Josh Hawley, the first GOP senator to say he would raise an objection, has committed to objecting in Pennsylvania. Georgia Sen. Kelly Loeffler announced Monday, the day before voting was to close in her runoff election, that she’d object to certification of the presidential results in her state.
Texas’ Ted Cruz is planning to object to Arizona's certification to push for an emergency audit of results in disputed states; 10 other GOP senators have joined his call for the audit.
If a successful objection is raised, Pence would suspend the joint session and order lawmakers back to their respective chambers to debate on the merits of the challenge for two hours, followed by votes in each chamber. This process is expected to take much longer than the two hours, as voting windows in both chambers have been extended to allow for social distancing in the chambers.
Extra security precautions will also be in place around the Capitol. Trump has urged public protests to help pressure lawmakers to reject the Electoral College vote, and he said on Twitter he would speak Wednesday at a rally with supporters near the White House.
Violence and destruction of property occurred during previous pro-Trump demonstrations in December. Lawmakers and staff received security instructions to arrive at the Capitol early Wednesday to get inside the perimeter before demonstrations begin and to use underground tunnels while traveling between office buildings and the Capitol instead of walking or driving.
Republicans in both chambers are divided over whether to object or certify the results, a conundrum created by the party’s desire to be loyal to both Trump and the Constitution.
Roughly a quarter of Senate Republicans and half of the House GOP Conference are planning to support objections.
Senate Majority Leader Mitch McConnell, who said the Dec. 14 Electoral College votes should have been the final chapter on the election, is expected to vote against the objections.
The Kentucky Republican has privately urged his conference not to join their House counterparts in objecting, in an effort to protect members from a difficult vote that wouldn’t change the outcome of the election.
But once Hawley announced his decision, McConnell’s plans crumbled. The group of 11 Senate Republicans announced shortly afterward that they’d object unless an electoral commission was appointed to conduct a 10-day audit of the election returns in the disputed states.
Those GOP senators — Cruz, Wisconsin’s Ron Johnson, Oklahoma’s James Lankford Montana’s Steve Daines, Louisiana’s John Kennedy, Indiana’s Mike Braun, Tennessee’s Marsha Blackburn and Bill Hagerty, Wyoming’s Cynthia Lummis, Kansas’ Roger Marshall and Alabama’s Tommy Tuberville — acknowledged that their effort would likely fail.
“We are not naïve,” they said in a joint statement. “We fully expect most if not all Democrats, and perhaps more than a few Republicans, to vote otherwise. But support of election integrity should not be a partisan issue.”
Of the senators who’ve announced plans to object, four are up for reelection in 2022: Johnson, Kennedy, Lankford, and Loeffler if she wins her runoff.
Johnson has not yet said whether he will seek a third term, but he and Loeffler could face backlash in a general election. Kennedy and Lankford hail from states where their biggest threat to reelection is a primary challenge, so their objections in support of Trump are more likely to be helpful than harmful.
Trump has already pushed for someone in South Dakota to primary Senate Republican whip John Thune in 2022. Thune did not mince words about his disdain for the objection effort when he said, “It’s going down like a shot dog.”
Thune is far from the only Republican senator facing voters in 2022 to oppose the objections. Others include Alaska’s Lisa Murkowski, Ohio’s Rob Portman, Alabama’s Richard C. Shelby, Missouri’s Roy Blunt, North Dakota’s John Hoeven, South Carolina’s Tim Scott, Utah’s Mike Lee and Kansas’ Jerry Moran. Pennsylvania’s Patrick J. Toomey and North Carolina’s Richard M. Burr are also opposed, but they’re retiring.
Politics are also driving decisions on the House side where far more Republicans are concerned about primaries than general election challenges.
House Minority Leader Kevin McCarthy kept his conference largely unified during his first two years leading them in the minority. But the votes Wednesday on objections to the electoral counts will certainly expose some fissures that could drive conference dynamics into a 2022 cycle where the GOP has ambitions to retake the House.
Although McCarthy has not said whether he would join the objections, Brooks said he’s heard through an intermediary that the California Republican is supportive.
“But Kevin McCarthy has not told me that. And so we’ll have to see how it plays out,” Brooks said Sunday.
Brooks said he and Jordan, the Judiciary ranking member, have been collecting House GOP co-sponsors for the objections and “that count is well in excess of 50.” Others may not co-sponsor the objections but could vote to sustain them.
House Majority Leader Steny H. Hoyer said that if Republicans mount a challenge to all six swing states Trump lost, the process “may well” go into Thursday.
“I’ll have to make that judgment, though, sometime on Wednesday,” the Maryland Democrat said about whether lawmakers would break overnight.
Republicans will detail their challenges during debates in each chamber. Democrats are ready to rebut any unsubstantiated claims of fraud and malfeasance.
“We do have a strategy. We have members from each state who are ready to discuss the status of their state, what happened and what the courts said,” Hoyer told reporters Monday.
In addition to Democrats from the contested states, Speaker Nancy Pelosi, who will be presiding over the House debate, has tapped Intelligence Chairman Adam B. Schiff, Administration Chairwoman Zoe Lofgren and Reps. Jamie Raskin of Maryland and Joe Neguse of Colorado to lead the rebuttals.
For a state’s Electoral College votes to be dismissed, majorities of both houses have to sustain the objection. If one chamber votes to toss the state’s votes and the other doesn’t, the objection is dismissed. That hasn’t happened since the Electoral Count Act was passed more than 130 years ago.
After an objection is voted on, the joint congressional session reconvenes and continues with the count. If there is another formal objection to a different state’s electoral votes, the process is repeated.
One for the history books
With Democrats controlling the House and McConnell and other Senate Republicans recognizing Biden’s victory, any objections are sure be voted down.
“I expect without a doubt that the report of the Electoral College and the 306 electoral votes that Mr. Biden got will be confirmed at the end of this process,” Hoyer said on a press call Tuesday.
But the attempt to overturn the results would still earn a place in history.
The last time Congress considered a challenge to a state’s electoral votes 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.
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.
In the end, the House voted 267-31 against the challenge in 2005. In the Senate, where the vote was 74-1, Boxer stood alone in her objection to the Ohio tally. Bush’s Democratic opponent, then-Sen. John Kerry of Massachusetts, had conceded the election in November.
The expected number of lawmakers backing the challenges Wednesday will be the largest ever congressional challenge to Electoral College results.
The unparalleled scale of objections is happening despite no evidence of widespread election fraud that Trump’s allies allege.
What the objections will do is put Republican lawmakers who are not joining the effort in the awkward position of defying the president and forcing them to go on the record repeatedly to uphold Joe Biden’s win.
Kentucky Rep. Thomas Massie, one of the Republicans opposing the objections on constitutional grounds, said Trump is diminishing his influence with the effort to overturn the election.
“He could have said, ‘You know, we lost. We’re going to keep our coalition together; we’re going to come back stronger in four years, whether I run for president or not, we’re going to have influence,’” Massie said. “But instead, it feels like he’s just blowing up not the GOP but his own movement by putting them through this at the end.”
Bridget Bowman contributed to this report.