On Wednesday, the newly-seated Congress will count the Electoral College votes to affirm President-elect Joe Biden’s victory in last year’s presidential election.
President Donald Trump has been building up Wednesday's joint session of Congress, but it appears there is little he or his allies in Congress can do to stop Biden from taking office on January 20.
While the event has generally been simply a matter of procedure in years past, Wednesday’s vote will have more tension than past counts.
How the process works
Electoral College votes are divvied by state based on population. In 48 states and the District of Columbia, the candidate who won the most votes wins all of that state’s electors. In Maine and Nebraska, those states divided Electoral College votes based on how the state’s congressional districts voted.
On Jan. 6, a joint session of Congress, with Vice President Mike Pence in his role as president of the Senate, will count each state’s Electoral College votes. Senators and representatives will be given an opportunity to object to each state’s slate of electors. It takes one representative and one senator to stop the process and raise an objection.
The objection must be made in writing, and members of the Senate and House will go to their separate chambers to debate on the objections.
What Trump’s allies are hoping to accomplish
In the days following the election, Trump alleged that the election was rigged. Trump lost the Electoral College vote by a 306-232 margin. Trump’s campaign specifically has raised objections in five states won by Trump in 2016 that Biden flipped in 2020. Biden won the states of Michigan, Wisconsin, Pennsylvania, Georgia, and Arizona by less than 3%.
In the two months since Election Day, Trump’s campaign has lost dozens of lawsuits alleging fraud and irregularities. Courts have dismissed the lawsuits due to hearsay, lacking standing, or lacking direct allegations of fraud.
Sen. Josh Hawley, R-Missouri, said he would sign on to a challenge. Hawley claimed Pennsylvania did not follow its own election laws. Hawley also alleged that Facebook and Twitter interfered in the election.
“I cannot vote to certify the electoral college results on January 6 without raising the fact that some states, particularly Pennsylvania, failed to follow their own state election laws. And I cannot vote to certify without pointing out the unprecedented effort of mega-corporations, including Facebook and Twitter, to interfere in this election, in support of Joe Biden,” Hawley said.
Facebook and Twitter have been frequent targets of Trump’s in recent months as the companies began flagging inaccurate claims made by Trump as “misleading.”
This has prompted Trump to call for the repeal of Section 230 in the federal code, which offers legal protections for companies like Facebook and Twitter.
Without these protections, experts claim that companies like Facebook and Twitter would be forced to censor materials posted on their sites heavily.
Biden won the state of Pennsylvania by 1.2%.
While Hawley did not specifically say what laws were not followed in Pennsylvania, some Republicans were upset at a US Supreme Court decision that gave the green light to Pennsylvania to continue accepting mail-in ballots that had been mailed in before Election Day for three days.
Pennsylvania law originally stated ballots must be received by Election Day in order to be counted. Democrats argued that given slowdowns in mail service that the votes should be counted if the ballots were sent before Election Day.
The decision to include the ballots added about 10,000 votes -- most but not all for Biden -- to the final count in Pennsylvania.
Given Biden’s 80,000-vote victory in Pennsylvania, the late-arriving ballots would not have been nearly enough to change Pennsylvania's outcome.
Why Trump’s efforts are likely to fail
For an objection to be sustained, both the House and Senate would have to agree on rejecting some or all of a state’s electors.
Given that Democrats hold the US House, that alone should mean the objection will fail in the House.
Even with Hawley’s backing in the Senate, a number of Republican senators have been critical of efforts to undo the vote of electors.
2012 Republican nominee Mitt Romney, now serving as one of Utah’s two Republican senators, said despite irregularities, he lost “fair and square.”
”Look, I lost in 2012. I know what it’s like to lose,” Romney told CBS News. “And there were people that said there are irregularities. I have people today who say, ‘Hey, you know what, you really won’ — but I didn’t, I lost fair and square. Of course, there were irregularities. There always are. But spreading this kind of rumor about our election system not working is dangerous for democracy here and abroad.”
Procedurally, it appears the most Hawley’s effort can achieve is to delay formalizing Biden’s win by a few hours or, at most, a few days. Debate on each objection must end after two hours before a vote is called and the two chambers resume their joint session.
It should be noted that the 2021 Electoral College count is not the first time an objection has been raised.
In 2005, following John Kerry’s loss to George W. Bush, an objection was considered for the state of Ohio. While all sides knew the objection would go nowhere, several Democrats aired grievances over long lines at the polls and voters being purged from the record in the state of Ohio, where Kerry narrowly lost.