To quote the Grateful Dead, “what a long, strange trip it’s been.”  Our hopes for a decisive enough result that the winner would be clear on November 3 failed to come to fruition.  And since then, Trump and his allies have thrown everything but the kitchen sink into denying reality.  Even as late as this week, Trump’s allies have been filing meritless cases to try to have judges cancel the votes in various states.  And almost all of the case have been rejected by the courts.  To date, the Supreme Court has not accepted any cases, and have left most cases proceed on the normal schedule (which means no decisions on taking any of them prior to January 8 when the Supreme Court next meets).

That leaves us down to one last abuse of the legal process — the joint Congressional session to count the electoral votes sent by the states.  The current process dates back to the aftermath of the election of 1876.  In that election, you had a handful of states with conflicting results certified by different entities.  As such, you had multiple states sending votes from individuals that had been recognized by some part of state government as the official electors.  Ultimately, a commission was established to resolve those disputes.  While it took around a decade to get legislation through Congress, the Electoral Count Act of 1887 set forth the key provisions that are still in place today.   The current language in Title 3 sets forth a multi-stage process.

First, prior to election day, each state legislature shall set forth the rules governing the selection of electors.  These rules besides designating who makes the selection also dictate the procedures to be followed during that selection, the role to be played by various state agencies (legislatures, state election authorities, and local election authorities) in running the selection process, and who has the power to resolve disputes that might arise during the selection process (courts, state election authorities, local election authorities, and legislatures).  While the Constitution does not mandate the use of the popular vote to select electors (and, in the early days, some states had the legislature pick the electors), every state has now opted for using some variation of the popular vote to pick electors.  And every state has adopted procedures in which the initial resolution of election disputes are made by local election authorities and state election authorities with the potential for judicial review of those decisions.

Second, on the first Tuesday after the First Monday in November of the election year, the State then proceeds to pick its electors using the rules previously established by the state legislature.   This year every state held its election.  Every state has determined who the voters selected as the electors for that state.

Third, once the electors have been chosen, the governor of the State issues a certificate of ascertainment identifying the individuals chosen as electors for that state.  In theory, at least, if all disputes about the election results are resolved by a state more than six days before the electoral college meets, the slate of electors listed in the certificate of ascertainment are immune from later challenge.  An original of the certificate of ascertainment is then sent to the national archives and duplicates are kept for the meeting of the electors.  Every state has sent a certificate of ascertainment to the national archives.

Fourth, on the first Monday after the Second Wednesday of December, the electors for each state meet in the location chosen by their state for their meeting.   (This date is a change from the date in the original version of the Electoral Count Act in light of the Twentieth Amendment moving the start of the new presidential term from March to January.  The original act had the meeting taking place in mid-January.)  After the electors have cast their votes, they complete six certificates of vote setting forth the votes cast for president and vice-president.  A duplicate copy of the certificate of ascertainment is then attached to each certificate of vote.  According to statute, one copy goes to the President of the Senate; two copies go to the national archive, two goes to the secretary of state for that state, and goes to the local federal court.    (One copy for the national archive and one copy for the secretary of state is intended to be kept as a public record, the other copy for both agencies and the one copy for the district court are spares in case the copy sent to the Senate does not get there on time.)  Presumptively, every state has sent its certificate of vote to the President of the Senate accompanied by the certificate of ascertainment.  Evey state has sent its certificate of votes to the national archives.  The national archives website currently has all of the certificates of ascertainment and all of the valid certificates of vote posted for viewing over the internet.  We do not know if any competing certificates of vote have been sent to the President of the Senate for any state.

All of that background is old news at this point.  All that is left is for Congress (as the de facto election authority for this election) to count those votes and declare the winner.  For the most part, this should be a ceremonial event.  But back to the Electoral Count Act for a minute.  The Electoral Count Act was put in place for a real dispute when you had conflicting certifications of winners.

For most of the last 130 years, neither party ever seriously challenged the results.  Even in 1960, when a mandatory state recount led to a different result and an amended certificate of ascertainment in Hawaii, objections were not raised.  On only two occasions has a Senator joined the objection by a Representative.  The first was in 1969 when the objection was to counting the vote of a faithless elector in North Carolina who opted to vote for the American Independent ticket (Wallace/LeMay) rather than the Republican ticket (Nixon/Agnew).  This objection resulted in a serious debate with the objection receiving the support of 170 Representatives and 33 Senators.  (Of course, this year, the Supreme Court finally resolved the issue of whether a state can ban faithless electors and invalidate the vote.  But even under that decision, it is a state option of whether such a vote counts.)  But as the objection only concerned one vote that went to a losing candidate, it would not have altered the winner of the election.  In 2004, there was a formal objection to the counting of the votes of Ohio.  While, in theory, this objection could have altered the results of the election, the proponents of the objection made it clear that they merely wanted to debate the issue of voter suppression and other problems in the election and were not really seeking to overturn the vote.  On that objection, only 31 Representatives and 1 Senator voted to support the objection.  While objections have been made to other elections (primarily the 2000 and 2016 elections), the objection was only made by a Representative with no Senator joining in the objection.

The rules for the Count are both simple and complex.  On the simple side, the basic rule is set forth in the Twelfth Amendment (which mostly tracked the original language in Article II, Section 1, Clause 3 of the Constitution with minor adjustments reflecting the change from two votes for President with the runner-up becoming Vice-President to separate elections for President and Vice-President.)  Under the Twelfth Amendment, “The President of the Senate shall, in the presence of the Senate and the House of Representatives, open all the certificates and the votes shall be counted.”  Five key things should be noted about the Constitutional text: 1) it doesn’t say anything about when the count takes place; 2) it doesn’t say who actually does the counting; 3) it doesn’t say anything about how disputes are resolved; 4) the certificates referred to in this sentence are the certificate of votes which the states have sent to the President of the Senate under an earlier sentence in the Twelfth Amendment; and 5) the proceedings are presided over by the President of the Senate (i.e. the Vice-President) but the Amendment does not define the duties of the presiding officer during this proceeding beyond opening the certificates.  In the absence of these important details, the general rule in the Constitution is that Congress may enact statutes with are needed to carry out the powers assigned to any part of the government in the Constitution.  (That same provision is what allows Congress to establish cabinet departments, etc.)   As noted above, the lack of any further guidance was not a problem with two contingent elections and no disputed elections prior to 1876.  The fine details for the ceremonial count could be handled by the House and Senate prior to the count (and still are).  But the election of 1876 showed the need to have certain rules established in advance to resolve a real dispute.  In 1887, Congress responded by passing the Electoral Count Act.

The primary section of the Electoral Count Act is now codified at Title 3, Section 15, of the United States Code which sets forth the basic rules.  First, it establishes the date, time, and location of the Count — January 6 at 1 p.m.  in the House of Representatives.  Second, it establishes who does the count — four tellers with two Representative being appointed by the House and two Senators being appointed by the Senate.  Third, it establishes the process for the Count.  Under the terms of the statute, the President of the Senate opens the envelopes received from the states in alphabetical order and hand the certificate to the tellers.  The tellers then read the certificate aloud and record the vote.  Fourth, it establishes the procedure for challenging the validity of the votes as reflected in the certificate.  Under the provisions of Section 15, if members of the House and the Senate wish to object, they need to file  a written objection setting forth the reasons for their objection.  A valid objection must be signed by both a Representative and a Senator.  Fourth, after all written objections to a particular state’s votes have been received (recognizing the possibility of multiple objections and, perhaps counter objections if multiple certificates of votes are received from a state), Section 15 provides that the joint session shall recess and the Senate shall return to the Senate chamber for the two houses to separately debate and vote on the objections.

At this point, the basic rules for the process are found in Title 3, Section 17 of the U.S. Code.  Under Section 17, there are three basic rules governing the debate.  First, no Senator and no Representative may speak more than once to an objection.  Second, the speeches of the Senators and Representatives are limited to five minutes each.  Third, the total time for the debate is limited to two hours.  Upon the conclusion of the two hours of debate, the respective houses shall vote.  At this point, the process flips back to Section 15.

Once all of the objections related to a given state have been decided by each House, the joint session resumes, the result of the votes of the two houses are announced, and the count proceeds to the next state.  The complex part of the Electoral Count Act is its rules governing the result of the two votes.  The Electoral Count Act anticipates two key issues that might arise from the objection and the votes.  First, and most importantly, it contains a rule governing the possibility that the two houses might disagree on whether to count votes.  Second, it recognizes that there are different potential reasons for objections and addresses the most likely possibility.

Typically, prior to the count, both houses adopt procedural rules for the count which generally follow the dictates of the Electoral Count Act.  And the tradition has been that the tellers for the House are the chair and ranking member of the Rules Committee and that the tellers for the Senate are the chair and ranking member of the Rules and Administration Committee.

For the purposes of this year’s election, there are two real possibilities.  First, what should be true is that we have only one certificate of vote from each state.  In that case, objections are supposed to be limited to a claim that the votes were not regularly given.  While the statute does not define what would be a valid objection of this type, the general view of legal scholars is that this provision authorizes claims of bribery or fraud in the casting of the electoral votes not a challenge to the appointment of the electors.  However, we will likely get claims that electors were not properly elected even though the election authorities and courts in the challenged states have resolved these issues.  In any case, the rule in Section 15 is that, if there is only one certificate of vote, those votes are counted unless both houses vote in favor of an objection.  The other possibility is that some Trump supporters might mail forged certificates of votes to the President of the Senate.  In that circumstance, the certificate of ascertainment comes into play.  If the House and the Senate are unable to agree as to which slate of electors is the proper slate of electors, the slate of electors with a certificate of ascertainment signed by the governor will have their votes counted and any competing slate will be rejected.

In the past, this process has been relatively straightforward.  In 2016, despite numerous attempts by members of the House to object to multiple states, the total time for the joint session was 41 minutes (the complete proceedings can be found in the Congressional Record for January 6, 2017).  Throughout that proceeding, Vice-President Biden was firm and shut down the attempt to object at length when there was no Senator who signed onto any of the objections.  So in a universe in which the Republican Party was rational, the final act of this election would conclude by 2 p.m. EST on January 6.   Even if the Republicans would limit themselves to one state to make their point about their concerns about how judges and election officials allegedly did not follow state law, the count would still be relatively quick.  In 2004, the count was over by 5:30 p.m.  In 1969, the count was over by 5:15 p.m.

At the present time, we do not know the full scope of the objections from the Party of Trump.  There are several questions that will only be answered as the process takes place.  First, will the rules adopted by the two houses cover the possibility of an extended count?  In particular, will there be any rule about when the joint session will recess for the day and when it will convene the following day (and, if the count will proceed on Saturday and Sunday).  If not, we may see recess motions as the count continues.  And we may get a hint at the strength of the Party of Trump if efforts are made to amend the rules to increase the power of the Vice-President or to postpone the count until a further investigation may be made of Trump’s fictional complaints about the vote.

Second, how many states will be subject to the objection?  And there are three key states in the early count to look at.  First is Alabama.  Of course, Trump won Alabama.  If the Party of Trump objects to Alabama, it will be clear that the intent is to stretch the process out.  Second is Arizona.  At this point,  it appears more likely than not that the Party of Trump will object to Arizona.  While the only state that has been specifically identified by Senator Josh Hawley of Missouri is Pennsylvania, Arizona is one of the six states that was the subject of multiple cases (and one of eight states that was the subject of, at least, one case).  If Arizona is the subject of an objection, we could be looking at objections to multiple states.  Third is California.  California is the first Biden state in which the Trump campaign did not file any court case.  If the Party of Trump files an objection to California, we could see an extended process in which objections are made to all twenty-seven states in which Biden received an electoral vote.  At this point, the Party of Trump is claiming to have 140 votes in the House led by Representative Mo Brooks of Alabama who has stated that he will be objecting to multiple states and Representative Louis Gohmert of Texas who filed a case trying to invalidate the Electoral Count Act (which was rejected by a judge appointed by President Trump and the Fifth Circuit Court of Appeals — the most conservative appellate court in the federal system).  And the Party of Trump has twelve announced members in the Senate including Senator Ted Cruz of Texas and Senator Ron (“useful idiot”) Johnson of Wisconsin.  As noted above, other than Senator Hawley’s specific mention of Pennsylvania, none of the Senators have pledged to join an objection to any specific state, but they have threatened to object to multiple states if they do not get a commission to conduct audits of the vote in the “disputed” states.

Third, will any of these states have competing certificate of votes?  If they do, will the objections propose counting the alternative votes?  If so, will the Democrats have a conditional objection to counting the alternative votes?

There is a strong possibility that we will see debates on the votes from multiple states.  And if that happens, we will be in new territory.  In a rational universe, we would have one test state (Arizona), and then no further objections would be made.  But, if we have multiple objections, the process will be very lengthy.  Assuming that the joint session will only go to ten at night and then resume the following morning at ten, the process might look like the following.  The joint session would begin at 1 p.m. on January 6. At around 1:10 p.m., an objection is made to Arizona.  After the debate and vote rejecting that objection, the joint session will resume around 5:15 p.m.  Around 5:30 p.m., an  objection is made to the Georgia.  After the debate and vote rejecting that objection, the joint session will resume around 9:30 p.m.  Shortly before 10 p.m., an objection is made to Michigan, and the two houses opt to recess for the evening and resume the following morning.  On January 7, the process will resume and we may have debates and votes rejecting objections to Michigan, Minnesota, and Nevada.  Finally, on January 8, the process will resume and we may have debates and votes rejecting objections to New Mexico, Pennsylvania, and Wisconsin.  Finally, shortly before 10 p.m. on January 8, the count concludes with Wyoming and the four tellers certify that Biden and Harris received 306 votes each and that Trump and Pence received 232 votes each.  At which point, Vice President Pence will read out the results and repeat the statutory language declaring that Biden and Harris have been elected.

At the end of the day, all of this is a show for the Trump base.  Not one Democrat has announced that they will vote with the objectors.  And the Democrats have the majority in the House.  Even in the Senate, it will only take two Republicans joining with the Democrats to defeat the objection, and multiple Republicans have indicated that they will vote to recognize the official vote from the contested states.   It would be one thing if, as in 2004, the Republicans had announced that they were going to make a token objection to one state to raise the issue of how courts and election officials are loosely interpreting state statutes in a way that undermines the “checks” that those statutes create to assure that all votes are valid.  But the Party of Trump is actually arguing to overturn the results in these states based on non-existent (or debunked) evidence of alleged fraud.  In their minds, having put out false and delusional claims, we now need to have a thorough investigation because some people who have not bothered to look into the evidence debunking those claims now believe that Trump is telling the truth.

In a more rational world, what we are seeing this post-election period would be a wake-up call for democracy.  Both parties would reject the tin hat conspiracy theories.  Those politicians that enabled Trump’s attack on democracy would be kicked out in party primaries, and we would return to a more reality-based politics.  And both parties would take steps to actually increase election integrity — improving registration systems, making it easier for voters to cast valid votes, using voting/counting machines which create a paper record of the vote, regularly auditing the results after elections to assure that a hand count and a machine count reach the same result, and ending gerrymanders — and would reject proposals that would undermine election integrity by suppressing the vote.

Needless to say, I am not optimistic that any of this will happen.  Republicans will continue their efforts to suppress the vote using false claims of fraud to support greater restrictions on democracy.  They will continue using race to divide us in the hopes of winning control of the Senate and the House and the Presidency with a minority of the vote.  And in eight or twelve years, the next Trumpian politician will actually be semi-competent.   It is up to us as the voters to demand something better.  We will see if the voters will step up to the challenge.