January 6th: The Lowdown on the Showdown

Here's exactly (well, almost exactly) what will happen tomorrow in DC.

Today at one o’clock in the afternoon, Vice-President Mike Pence will gavel in the quadrennial joint session of Congress to verify the Electoral College. Although President-elect Joe Biden defeated President Trump by a margin of 306-232 electoral votes and over seven million individual votes, Trump and millions of his supporters continue to claim massive election fraud in key swing states.

The congressional verification of the electoral slate is historically a ceremonial afterthought, but today’s proceedings are sure to differ from precedent. At least thirteen GOP senators, led by Sens. Josh Hawley (R-MO) and Ted Cruz (R-TX), and over one hundred House Republicans, corralled by Reps. Jim Jordan (R-OH) and Devin Nunes (R-CA), will join together to object to the electoral slates of states such as Arizona, Pennsylvania, Georgia, Wisconsin, Michigan, and Nevada.

In addition, thousands of Trump supporters are expected to fill the capital’s streets for various Stop the Steal protests and another Jericho March led by a group of right-wing evangelicals. Calls for violence ranging from anti-Antifa turf wars to civil war pervade far-right online communities, and DC police are on high alert. Democrats claim that President Trump should be arrested on charges of sedition. A prominent Trump-aligned lawyer crusaded for a firing squad execution of the vice-president and alleged that the Supreme Court Chief Justice runs a massive pedophile ring. Read that last sentence again. Oh, and most of this tumult arose in the last week.

What exactly is happening tomorrow, and why is America in such an uproar? Let’s wade through the chaos together.


Can Congress object to already-certified electoral slates?

Yes, but it’s complicated and not regarded as cool.

Here’s how today’s process will work: Vice-president Pence (more to come on him later) will preside over the joint session of the Senate and the House of Representatives. Senate pages will carry envelopes with enclosed electoral votes into the House chamber and deliver them to Pence. He will open the envelopes and pass the slates to tellers, two congressmen and two senators, who announce the count to the gathered representatives. Since the states will be read alphabetically, Arizona will likely be the first state to have its slate objected, likely by the aforementioned Cruz and Rep. Mo Brooks (R-AL). After the objection is recognized, both houses will retreat to their respective chambers for up to two hours of debate on the objection. The Senate and the House will then vote on the objection; if either chamber does not uphold the objection by majority vote, it will be struck down. The joint session will then reconvene to continue the count.

The right to object was established by the Election Act of 1887, which is discussed in detail later in this piece. After the disastrous Hayes-Tilden election of 1876, in which the election was decided by a fifteen person commission of congressmen, senators, and SCOTUS justices, Congress provided this act as an avenue to rectify any future issues before inauguration day.

Since the act’s passage, Congress has never sustained an electoral objection. For an objection to be officially recognized, it must be signed by a senator and a representative, which has only happened once. In 2005, Sen. Barbara Boxer (D-CA) and Rep. Stephanie Tubbs Jones (D-OH) alleged voter suppression in objecting to Ohio’s electoral slate. The objection failed in the Senate by a vote of 74-1, and John Kerry didn’t even support the motion. In 2001 and 2016, a handful of congressmen attempted unfounded objections to the electoral count, but their haphazard objections were quickly rejected by overwhelming bipartisan opposition. As such, although such objections are legal, there is not much precedent to assist Cruz and Hawley’s efforts.

Since all states submitted only one slate of electors to Congress, any path forward from a successful objection is unprecedented and quite murky. If Congress rejects a state’s slate, there does not appear to be a viable way to ascertain another slate, as state election laws are already well-established. Some conservatives claim that state legislatures may reclaim the right to choose which candidate receives the electoral votes, but such claims are dubious and doubted by most legal scholars.

To put it simply, electoral objections are historically publicity stunts with little recognized impact. Tomorrow’s objections will be, by far, the most serious and substantial congressional effort to upend final certification in American history.


Will the objections change the outcome of the election?

No.

Any possible votes in support of these objections will come from Republicans. Twenty-four Republican senators have already announced their intentions to vote against all objections, with more members soon to follow. Pelosi and the Democrats narrowly control the House, so all efforts to decertify election results are bound to fail there.

In the most notable Republican dissension, Senator Majority leader Mitch McConnell (R-KY) plans to arduously oppose the objections. In addition, respected GOP senators such as Ben Sasse, Jim Inhofe, Tim Scott, and Tom Cotton published extensive pieces on why they will not support the electoral objections. Cotton is an interesting case: despite his steadfast support of President Trump, he strenuously decried the objections as “erod[ing] further our system of constitutional government.” Cotton aggressively contradicted his executive counterpart, claiming that if such objections are sustained, “Congress would take away the power to choose the president from the people and place it in the hands of whichever party controls Congress,” and “[t]his action essentially would end our tradition of democratic presidential elections.” His strong words were mirrored in Sasse’s voracious and quotable statement: “Adults don’t point a loaded gun at the heart of legitimate self-government.” Sasse acknowledged the long-term consequences of the actions of Cruz, Hawley, and Trump:

If you make big claims, you had better have the evidence. But the president doesn’t and neither do the institutional arsonist members of Congress who will object to the Electoral College vote.

All the clever arguments and rhetorical gymnastics in the world won’t change the fact that this January 6th effort is designed to disenfranchise millions of Americans simply because they voted for someone in a different party.

On the other side of the coin, Josh Hawley, a prominent Republican angling for a 2024 presidential run, led the pack in supporting the objections, saying that he “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.” Former Baptist youth minister James Lankford (R-OK) proposed forming an investigatory commission not unlike the one that decided the Hayes-Tilden election, and he spoke to his constituents’ concerns about fraud: “These are not questions that exist in the dark corners of the internet, but ones I hear at the grocery store, the gas station, through text messages, and on phone calls. For the sake of the nation’s unity, these questions should not be ignored.”

Ted Cruz and his cohort know that their objections will not and cannot win a majority. It’s simply impossible. Despite their date with destiny, these senators hold varying motivations for objecting: some seek the outgoing president’s blessing, others have aspirations to dethrone Joe Biden in 2024, and others simply wish to explore the allegations of fraud for the sake of those they represent.


Will Pence save the day for President Trump?

Spoiler alert: no.

In recent days, portions of Twitter and Parler have argued that the Constitution allows Mike Pence to autonomously decertify state election results on the basis of alleged voter fraud and election law modifications. Yesterday morning, President Trump provided a megaphone for that viewpoint on Twitter, bluntly stating:

Many Trump supporters view this alleged possibility as their best last-ditch effort to stop election results from being finalized. Alas, their hopes will be swiftly dashed, as the Constitution and other precedents definitively limit the vice-president’s role in today’s proceedings.

The 12th Amendment directly addresses Pence’s role in the joint session, saying, “The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.” The meaning of this text is clear and simple. The vice-president is only granted the power to open and count the electoral votes. Historically, traditionally, and legally, this is a ceremonial position.

The Electoral Count Act of 1887 solidifies the already obvious constitutional interpretation of the veep’s participation. The Act was written in response to an unprecedented electoral controversy during the count of 1857, in which the presiding officer gaveled down an objection to Wisconsin’s electoral slate, which bizarrely, was delivered late to the Capitol because of a blizzard. To avoid such unilateral decisions, which one senator claimed “could make a president of the United States without an election,” Congress passed the Electoral Count Act, preventing the vice-president from intervening in the count. Former FEC Chairman Trevor Potter observes that “[o]ne of the points of the Electoral Count Act is to constrain the vice president given this earlier episode and make it clear that he's a presider, not a decider” (emphasis added).

Maggie Haberman and Annie Karnie of the New York Times contextualize this misconception of Pence’s powers quite dandily:

[T]he president…has come to believe Mr. Pence’s role will be akin to that of chief justice, an arbiter who plays a role in the outcome. In reality, it will be more akin to the presenter opening the Academy Award envelope and reading the name of the movie that won Best Picture, with no say in determining the winner.

The Constitution and legal precedent concur: Vice-President Pence cannot reject electoral slates. Such objections and refutations can only come from Congress. President Trump’s tweet places Pence in quite a peculiar position, as he legally cannot do what his boss and most of his supporters want him to do. Pence is not expected to test the legal limits tomorrow, but some say that he will rhetorically decry voter fraud from the rostrum.


Will the streets erupt?

I sure hope not, but they may.

President Trump will speak to the crowds in front of the White House at eleven o’clock this morning. For the remainder of the day, DC’s streets will be filled with various rallies featuring GOP congressmen, right-wing media talking heads, Parler personalities, and shofar-blowing prophesiers walking seven times around the Supreme Court.

Previous post-election gatherings in DC have turned violent, with Proud Boys protestors and anti-fascist counter-protestors alike harassing pedestrians and clashing with each other. Many protesters announced on social media that they will be bringing weapons to the marches, possibly in violation of the District’s strict carry laws, and a few promised violence. As a precautionary measure, streets surrounding the Capitol, the White House, and the National Mall will be closed for blocks.

Much of the rhetoric surrounding Stop the Steal and the Jericho Marches has been nothing short of alarming for many. Evangelical author and speaker Eric Metaxas, the creator of the Jericho Marches, told TPUSA founder Charlie Kirk that “we need to fight to the death, to the last drop of blood” against alleged election fraud. Lawyer L. Lin Wood filed multiple high-profile lawsuits in support of the president and is friends with Trump confidants Sidney Powell and General Michael Flynn, and he is now infamous for his dogged support of Q-Anon conspiraces alleging that Republican leaders are treasonous “deep-state” operatives worthy of arrest and execution. While Metaxas, Kirk, Wood, Powell, and Flynn may not accurately reflect the views of #StopTheSteal protestors, their massive influence and borderline advocacy of violence is quite concerning.


Today will be interesting. Although the objections will not succeed, their political impact will echo loudly throughout the next four years and beyond. Whether intentionally or not, President Trump and his congressional allies are creating a sort of MAGA litmus test: if you vote against me, we’re against you. If GOP senators and congressmen choose to vote against the president and the objections, they risk losing millions of his supporters. Will Republicans risk a primary challenge and the president’s wrath to vote their conscience? Will others embrace the president’s fraud claims and follow their constituents?

Today’s votes will open wider the inter-party fault line that already exists between the Trumps/Hawleys and the Romneys/Sasses. Which is the future of the party? Only time will tell.