So, is it really the end of democracy?
January 3, 2021 10:03 AM   Subscribe

I tried to google what would actually happen if a majority of the House and Senate would vote against certifing the electors in some states, but only get articles saying that this time it is certain to fail, which is true. But what about next time when Republicans hold the Senate and House and loose an election, can they really just choose not to certify electors from states they lost and annoint their candidate? I mean, this would likely result in a civil war, but would this somehow be legal?
posted by SweetLiesOfBokonon to Law & Government (8 answers total) 4 users marked this as a favorite
 
AFAIK, they can.

The Electoral Count Act largely resolves the problems of states submitting dual slates of electors (as happened in the 1876 election between Tilden and Hayes) by saying that the governor has the final word on which slate is valid.

However.

It's widely accepted that the Electoral Count Act is... messy ("incoherent" and "contradictory" have also been suggested) and it leaves some things unclear. What is true, I believe is that Congress has plenary power to certify the electoral votes. IOW, if they decide to reject all of one parties votes from a couple of states, handing the victory to the other party, it stands. It stands even if their actions specifically violate the ECA, because Congress is the last word on this (that's what "plenary power" means).
posted by It's Never Lurgi at 10:23 AM on January 3


Is there really a vote to certify? I was under the impression that the only thing that must happen is Pence himself accepting the EC votes. Done deal. That both houses are there in attendance more as a formality without any actual voting power over Pence's declaration. I guess I'm wrong in that?
posted by Thorzdad at 10:33 AM on January 3


From T. Greg Doucette on Twitter (a conservative independent lawyer who has been one of the LawTwitter crew smacking down all the Trump & Trump adjacent lawsuits to invalidate whatever):

But yes, both chambers of Congress acting together have always had the power to install a President. See Hayes-Tilden 1876

Further down that thread he notes: "It's functionally impossible to have an election where one party wins the presidency but neither chamber of Congress, and 218 Representatives + 51 Senators agree to toss results."

and: "Since the modern two-party Dem-Rep system began in 1860, a new President of one party has taken office with both Congressional chambers controlled by the other party in:

1969 (Nixon)
1973 (Ford)

That's it. 2x in 160 years.

And in those 2x-in-160-years occurrences, there weren't majorities in both chambers to overturn the results

(Just like there aren't now even in a Republican-controlled Senate)"



Not A Lawyer personal addendum from having followed this quite a bit - "would this somehow be legal?" is kind of not-quite-answerable. Because this has all happened so rarely in US history, there isn't a lot of established precedent created by court rulings in past cases. So maybe on first read technically yes it would be legal BUT IF the US actually wound up in some kind of situation where there were majorities on Congress willing to throw out electoral slates, there would be lawsuits flying all over the place challenging the basis for Congress deciding to throw out certain electoral slates.

(This is one of the reasons the purported Jan 6 "challenges" won't work - besides the challengers not actually having the votes in Congress to reject the electors, all the electors they're challenging have been 100% six-ways-from-Sunday legally certified by state processes and legislatures and Governors and accepted by the US Congress & National Archives. There really is no legal basis for rejecting electors.)
posted by soundguy99 at 10:39 AM on January 3 [1 favorite]


The New Yorker has an article about how Republican state legislatures could twist the ECA to their advantage even if they don't hold a majority of both houses.
posted by RobotVoodooPower at 10:44 AM on January 3


Is there really a vote to certify? I was under the impression that the only thing that must happen is Pence himself accepting the EC votes. Done deal. That both houses are there in attendance more as a formality without any actual voting power over Pence's declaration. I guess I'm wrong in that?

Yes that is incorrect. Pence is legally a glorified ceremonial envelope-opener. He doesn't have any power to accept shit except in the "I have handed you this thing" definition of "accept." Pence is the formality, if he's not there for whatever reasons the Senate can (and has) use the President Pro Tempore. Congress actually has the legal power here.

Electoral College Timeline from the National Archives.
posted by soundguy99 at 10:48 AM on January 3


[Folks, question is on a touchy topic, please restrict your answers to the "is it legal" part of the question.]
posted by jessamyn (staff) at 10:52 AM on January 3


Congress *can* object to any state's results, Electoral Act of 1887 does allow both reps and senators to submit written objections to each state's results, but it must be seconded by someone in the OTHER chamber. In fact, when Trump won, several Democrats submitted objections mainly as a form of protest, but they weren't seconded, esp. when Hillary already conceded. If it does get seconded, then it gets a joint session for both chambers to debate on... up to 2 hours, then a vote to accept or toss out the results... by BOTH chambers.

So hypothetically, as per your scenario, Congress *can* throw out results from states where they lost, but they need control of BOTH chambers.

The real question here is currently, you need 270 electoral votes to win the presidency, and if some votes were disqualified so nobody has 270 votes, does that mean the 270 threshold is lowered too? Or is it still 270 and nobody wins? That, nobody knows.

https://constitutioncenter.org/blog/explaining-how-congress-settles-electoral-college-disputes
posted by kschang at 12:50 PM on January 3


The relevant part of the law is Title 3 US Code.

Section 15: Counting electoral votes in Congress. This is the main rule, and includes tiebreakers and the presumption that the votes certified by the governor are the correct votes
Section 16: where people sit, also limits recesses if this starts to take awhile
Section 17: limiting debate to 2 hours total and 5 minutes per person if the houses are meeting separately to consider objections
Section 18: no debate and no motions during the joint session
Section 19: if there is no President and Vice President elected by the time the term ends (January 20), what happens next (the Speaker resigns from Congress and becomes Acting President)

But what about next time when Republicans hold the Senate and House and loose an election, can they really just choose not to certify electors from states they lost and annoint their candidate?

Let me introduce you to Rutherford B. Hayes.
posted by Huffy Puffy at 1:34 PM on January 3


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