The Next Attempt to Subvert

January 6th, when the electoral votes are counted.

“#USAxAUS” by White House is in the Public Domain

Tomorrow the electors will assemble in their respective state capitals to cast their votes. Barring some minor acts of unfaithfulness, the tally will be 306 for Biden and 232 for Trump reflecting the popular vote of the 50 states and the District of Columbia. Team Trump’s attempt to subvert this constitutional process in court will have failed.

Now, it will not surprise me if some lawsuits are filed to try and stop those electoral votes from making it to Congress, but I can only foresee this because Trump’s legal team is willing to file comedically horrific suits.

Indeed, this morning Trump indicated more suits were coming. Via Fox News: Trump tells ‘Fox & Friends’ election challenges ‘not over’ ahead of Electoral College vote.

Still, the next place for another attempt to subvert American democracy will be on the floor of the Congress.

The NYT reports: Trump Allies Eye Long-Shot Election Reversal in Congress, Testing Pence.

The effort is being led by Representative Mo Brooks, Republican of Alabama, a backbench conservative. Along with a group of allies in the House, he is eyeing challenges to the election results in five different states — Arizona, Pennsylvania, Nevada, Georgia and Wisconsin — where they claim varying degrees of fraud or illegal voting took place, despite certification by the voting authorities and no evidence of widespread impropriety.

[…]

Under rules laid out in the Constitution and the Electoral Count Act of 1887, their challenges must be submitted in writing with a senator’s signature also affixed. No Republican senator has yet stepped forward to say he or she will back such an effort, though a handful of reliable allies of Mr. Trump, including Senators Ron Johnson of Wisconsin and Rand Paul of Kentucky, have signaled they would be open to doing so.

[…]

Even if a senator did agree, constitutional scholars say the process is intended to be an arduous one. Once an objection is heard from a member of each house of Congress, senators and representatives will retreat to their chambers on opposite sides of the Capitol for a two-hour debate and then a vote on whether to disqualify a state’s votes. Both the Democratic-controlled House and Republican-controlled Senate would have to agree to toss out a state’s electoral votes — something that has not happened since the 19th century.

This process is doomed to failure because there is no way a Democrat-controlled House is going to support such a motion. I am not even sure the Senate would, as I can’t see Romney or Murkowski voting to support, and keep in mind the Reps will be down two seats due to pending elections in Georgia.

Indeed, the piece notes several dissenters on the GOP side:

Several Senate Republicans — including Patrick J. Toomey of Pennsylvania, Susan Collins of Maine, Lisa Murkowski of Alaska and Mitt Romney of Utah — have forcefully rejected the idea of overturning the results, and their votes would be enough for Mr. Biden to prevail with the support of Democrats.

The question is: are Trump allies willing to engage in a symbolic act in support of this (and risk annoying their colleagues) or will they concede to the futility of it all?

Prior to this week, and the spectacle of the majority of the House caucus signing onto the Texas suit in a blatant rejection of democracy, I would not have expected a challenge to make to a debate. Now, however, I could see Trumpists forcing multiple votes just for the symbolism of it all.

Heck, I could see challenges for each state in question, leading to hours and hours of wasted time as each chamber “debates” frivolous claims of fraud all to the further detriment of our democracy.

FILED UNDER: Campaign 2020, U.S. Constitution, US Politics
Steven L. Taylor
About Steven L. Taylor
Steven L. Taylor is a Professor of Political Science and a College of Arts and Sciences Dean. His main areas of expertise include parties, elections, and the institutional design of democracies. His most recent book is the co-authored A Different Democracy: American Government in a 31-Country Perspective. He earned his Ph.D. from the University of Texas and his BA from the University of California, Irvine. He has been blogging since 2003 (originally at the now defunct Poliblog). Follow Steven on Twitter

Comments

  1. al Ameda says:

    All of this is going to make it hard for Biden to even pretend to ‘reach across the aisle.’

    Every Democratic Member of Congress should have a chart that identifies each Republican Congress Member who signed on to actively support this very open slow motion attempted coup and sedition. Be reminded of it everyday.

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  2. Kathy says:

    If I were Romney, I’d show up for the debate in pajamas, a sleeping cap, eye mask, ear plugs, and loudly say, “Children, wake me up when you’re done with your tantrum.”

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  3. Sleeping Dog says:

    Dems should challenge NC…

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  4. gVOR08 says:

    @al Ameda:

    Every Democratic Member of Congress should have a chart that identifies each Republican Congress Member who signed on to actively support this very open slow motion attempted coup and sedition. Be reminded of it everyday.

    Better would be for the supposedly liberal MSM to keep a list and mention it with any mention of any these people. Especially when they scream about the Stolen Election to back vote suppression measures. But they won’t.

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  5. Kathy says:

    There is an itsy-bitsy, teensie-weensie silver (not yellow) lining in the hurricane that is Trump’s attempt to dismantle Democracy.

    He could now be heralding the roll out of the COVID vaccines and making exaggerated claims of his leadership in OPERATION WARPSPEED! (that’s how he talks), and how thanks to him the beginning of the end of this devastating pandemic is now at hand. This would let him cement a positive bit in his legacy, and he might be remembered in part for that.

    As it is, he doesn’t care enough about the pandemic to do even that. Plus he already had COVID, and lived due to the high degree of medical care and experimental antibodies he got, so he probably thinks he’s immune now and totally safe from it, to the point he may not even take a vaccine. He will be remembered for hundreds of thousands of dead Americans instead. His handling of the pandemic will be studied as an example of how not to handle a pandemic.

    It’s small, very small, but it’s real.

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  6. Kylopod says:

    This process is doomed to failure because there is no way a Democrat-controlled House is going to support such a motion.

    Let me make this plain. What this means is that, if Dems lose the House and the Senate in 2022, and then win the presidential election in 2024, the new GOP Congress will steal the election.

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  7. DrDaveT says:

    Now, however, I could see Trumpists forcing multiple votes just for the symbolism of it all.

    It’s not exactly symbolism, I don’t think. It’s running up the list of grievances. Every loss in court, no matter how absurd, is one more proof that the fix is in, one more example of how the Deep State has subverted Trump’s rightful reign, etc. Remember, the people Trump’s playing to have zero clue about actual law. They do know, though, that when their idol announces a crime, there was a crime. There’s nothing “symbolic” about it for them; it’s not just a gesture.

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  8. @DrDaveT: Let’s say that I am not at all discounting the power and significance of symbols, so don’t read me as suggesting these actions don’t matter.

  9. @Kylopod: Correction: they would have to win the 2024 elections for the House, as the new House reads the EV, not the one elected at the mid-term.

    Otherwise, point taken.

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  10. fredw says:

    @Steven L. Taylor:

    Multiple attempts at discarding electors could be more than symbolic. If the objections can be dragged out over 5 days which might involve objecting to almost all states electors, I believe that since there is no declared winner at that time, the winner is decided by a vote of the house. In this case each state gets only one vote and since there are more red states, Trump is re-elected. Of course this is a ridiculous concern, not at all like the much more rational kraken lawsuits.

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  11. @fredw: I am unaware of a time limit on counting the EVs–what is your basis for this notion?

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  12. flat earth luddite says:

    @DrDaveT:

    It’s running up the list of grievances.

    List of grievances? When did we start living in an episode of Steinfeld, and how the #(#)@ do I get out of it?

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  13. Unsympathetic says:

    He stayed at a Holiday Inn Express last night.

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  14. fredw says:

    @Steven L. Taylor:

    I based it on something I read, probably on Wikipedia in the article on “Electoral Count Act” or one of linked articles. I did research on the electoral college and surrounding legislation a while ago. A quick scan of the articles there right now did not turn up the reference, so it may have been something I misinterpreted. I cannot be more thorough right now, so I will look later and post if I find it.

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  15. David S. says:

    @Kathy: I don’t think Trump is forward-thinking enough to care about his legacy; he just cares about how he will be remembered right now. He’ll start to care about his legacy in 6 months, I think.

  16. @fredw:

    If the objections can be dragged out over 5 days which might involve objecting to almost all states electors, I believe that since there is no declared winner at that time, the winner is decided by a vote of the house. In this case each state gets only one vote…

    I think that, in these case, the “winner” is the speaker of the house; the vote of the house, one-state, one-vote is when there is not a majority in the EC, a different scenario

  17. Teve says:

    @ABC

    NEW: Due to “credible threats of violence,” the Michigan legislature’s office buildings will be closed on Monday as the state’s 16 electors meet. abcn.ws/37dcrCy

    Right-wing terrorists strike again.

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  18. fredw says:

    @fredw:
    The only reference to five days I can find tonight is in Wikipedia: Electoral Count Act:
    “Section 7 (now 3 U.S.C. § 16) states that the joint session cannot be dissolved “until the count of electoral votes shall be completed and the result declared.”[28] No recess can be taken “unless a question shall have arisen in regard to counting any such votes, or otherwise under [Title 3, Chapter 1],” in which case either House, acting separately, can recess itself until 10:00 am the next day (Sunday excepted).[28] But if the counting of the electoral votes and the declaration of the result have not been completed before the FIFTH CALENDAR DAY ( emphases mine ) after the joint session began, “no further or other recess shall be taken by either House.”[28]”

    So this is the exact opposite of what I feared. It says that after 5 days the joint session cannot recess until a count is certified.

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  19. SC_Birdflyte says:

    At some point, there have to be real-world consequences for such persistent, flagrant attempts to subvert our democratic republic. The health of our body politic demands it. I’m not sure what the remedy could be, or how we would get it done.

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  20. wr says:

    @fredw: “So this is the exact opposite of what I feared. It says that after 5 days the joint session cannot recess until a count is certified.”

    I love this. I wonder which Republican senator would welcome the loathing of everyone else in congress as he forced them to stay in session day after day without a break. I mean, it’s either Ted Cruz or Rand Paul, but which?

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  21. @Miguel Madeira: Indeed. The only way the challenges could, hypothetically, lead to the House selecting the president that I can conjure is if the objections meant the rejection of enough EVs that no candidate had 270.

    And the only deadline would be Jan 20, at which point if the Congress had been unable to select a pres, the Speaker would be sworn in.

  22. Pylon says:

    @wr: I wonder if any crackpot Congressman can find a Republican senator willing to play along. Mitch won’t like it because I’m betting there’d be a couple Repub senators voting no and it would be embarrassing to lose that way.