What the 12 Republican senators planning to challenge the Electoral College in Trump's favor can and can't do to delay Biden's presidency
By Grace Panetta
President Donald Trump and hundreds of Republican lawmakers are planning a last-ditch attempt to overturn the results of the 2020 election by directly challenging state's slates of electors in Congress, but it's unlikely that they'll be able to reverse the president's loss.
At least 12 members of the Senate will join a slew of House Republicans in raising a challenge to at least one and possibly multiple slates of electors from states that voted for President-elect Joe Biden. The major swing states that backed Biden and have been subject to the most legal challenges during and after the election are Arizona, Georgia, Michigan, Pennsylvania, and Wisconsin.
In late December, Politico and Axios reported that a number of conservative House Republicans met at the White House to discuss their plan with Trump, White House lawyers, and Vice President Mike Pence to raise an objection to slates of electors.
The lawmakers present included Rep. Mo Brooks of Alabama, Rep. Andy Biggs of Arizona, Rep. Matt Gaetz of Florida, Reps. Jody Hice and Marjorie Taylor Greene of Georgia, Rep. Jim Jordan of Ohio, Rep. Scott Perry of Pennsylvania, and Rep. Louie Gohmert of Texas, according to Politico.
After the meeting, CNN reported that up to 140 House Republicans may end up challenging at least one state's slate of electors.
In the weeks following the election, Trump and his allies spread unfounded claims of widespread voter and election fraud but lost upwards of 40 legal challenges seeking to subvert or overturn the results of the 2020 presidential race.
Trump's allies failed to successfully pressure state election officials to delay certifying election results and also fell short in compelling Republican state legislatures in places that voted for Biden to appoint separate slates of presidential electors in an effort to force Congress to vote on which one to accept.
On December 14, slates of presidential electors met in all 50 states and the District of Columbia to formally cast their votes for president and vice president, again affirming Biden's victory with 306 electoral votes compared to 232 for Trump, and short-circuiting many of the outstanding and potential legal challenges to election results.
Lawmakers can't challenge the Electoral College nationwide — it must be done on a state-by-state basis
Even though all 538 designated presidential electors already voted in December, the full legal process of making Biden president isn't quite finished yet.
At 1 p.m. on January 6, Pence, acting in his capacity as the president of the Senate, will preside over a joint session of the 117th Congress to formally count the Electoral College votes. A teller will read aloud the certificates of votes cast by the electors representing all 50 states and Washington, DC, in alphabetical order to finalize the vote count.
If no members raise an objection to a state's electors, that state's slate of electors is accepted.
The Electoral Count Act of 1887 lays out the process and guidelines for members of Congress to challenge a state's electors. It stipulates that at least one lawmaker from each chamber must raise a challenge in order for Congress to take it up.
When lawmakers raise a challenge to a state's slate of electors, both chambers of Congress, the Senate and the House, would separately split up to debate for a maximum of two hours and then vote on whether to accept or reject the electors.
Lawmakers cannot challenge all the electoral votes cast throughout the entire country for a given candidate. If they wish to challenge multiple states' electors, they must challenge each state individually. The Senate president must count the slates of electors in alphabetical order, and cannot continue the count until after a challenge to a state's electoral votes is fully resolved.
The text of the ECA says that chambers of Congress can vote to reject a state's slate of electoral votes that were "lawfully certified" by a state's governor if those votes were not "regularly given," according to the National Task Force on Election Crises. The language of the ECA does not specify what it would mean for electoral votes to not be "regularly given."
Both chambers would need to vote by a simple majority — over 50% — to reject a given state's presidential electors, according to the Congressional Research Service.
Democrats have maintained a narrow majority in the House in the 117th Congress. The Senate is likely to be narrowly controlled by Republicans, pending the outcome of two Senate runoffs in Georgia on January 5.
'It would go down like a shot dog'
The number of GOP senators opposed to challenging electors makes it highly unlikely for the Republicans to muster the majority required to reject a state's electors.
Fourteen senators, Roy Blunt of Missouri, Bill Cassidy of Louisiana, Shelley Moore Capito of West Virginia, Susan Collins of Maine, Tom Cotton of Arkansas, Lisa Murkowski of Alaska, Mitt Romney and Mike Lee of Utah, Rob Portman of Ohio, Ben Sasse of Nebraska, Richard Shelby of Alabama, John Thune of South Dakota, Pat Toomey of Pennsylvania, and Roger Wicker of Mississippi, have all publicly come out against their colleagues' plan to challenge Electoral College votes.
Sen. Lindsey Graham of South Carolina, a top Trump ally, also issued a statement on Sunday opposing Cruz's idea to create an election commission and said his colleagues challenging electoral votes would have to reach "a high bar" to convince him to vote to reject slates of electors.
GOP Senate Majority Whip John Thune of South Dakota echoed the sentiment, telling CNN:
"I think the thing they got to remember is, it's not going anywhere. I mean, in the Senate, it would go down like a shot dog."
While members of Congress have a legitimate legal avenue to bring a challenge to states' electors, that process has only been invoked twice since the enactment of the ECA in 1887, the first time in 1969 and the next in 2005.
Jones' and Boxers' challenge failed by a margin of 74-1 in the Senate and 267-31 in the House, CNN reported at the time.
If House and Senate Republicans bring a challenge to Georgia's electoral votes to force a vote, it will likely only delay the proceedings by a few hours and fail to actually change the outcome. If the group challenges multiple states' electors, the process could drag on until the next day, which the ECA provides for.
Even in the improbable event that both chambers did vote to reject Georgia's slate of 16 Biden electors, for example, Biden would still have 290 electoral votes — still far above the 270 Electoral College vote threshold to be president.
