January 25, 2021

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Republican lawyer: Here’s what to expect when Trump supporters in Congress object to counting electors (opinion)

5 min read
If their goal is to call attention to the President’s case in a convincing manner, they’re deluding themselves because of two major hurdles. The rules structuring the congressional debate make presenting a cogent case challenging. And, as they should realize after losing some 60 court cases and hearing the President’s evidence-free rants at a rally in Dalton, Georgia, on Monday night and to Georgia Secretary of State Brad Raffensperger on Saturday, Trump has no case.
The Electoral Count Act of 1887 limits debate on any state’s delegations to two hours and each Senator or Representative to five minutes per state. That’s not a lot of time. Their presentation will be even less coherent if, as is customary, proponents and opponents alternate speaking. Speaker Nancy Pelosi controls the House debate. Less clear is whether Vice President Mike Pence as President of the Senate or Majority Leader Mitch McConnell decides the rules in the Senate.

Controlling the debate rules is one way that leadership can make the objectors’ goal even more elusive. If their goal is simply to take up time to make Trump’s case and show the defeated outgoing President they care, the best they can hope for is a finish in the wee morning hours when, one would presume, viewership is not at its peak.

The joint session begins at 1 p.m. in the House chamber. The objectors’ problem is that the more states they challenge, the longer the proceedings and the smaller the audience. Add to the two-hour debate the time it takes to vote — usually about 20 minutes in the Senate but now longer in the House since Covid-19 protocols limit the number of members on the floor voting at any one time. And with senators commuting back and forth to the House chamber for the formal joint session and for meal breaks, it could take between three and four hours for each state whose electors are challenged.

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The President said Monday his supporters could challenge up to eight states, which would at least put the conclusion in daylight, albeit on Thursday. More likely are challenges to between three states (which would still push things past prime time) to six states (maybe when the morning news shows go live). Recesses are limited under the law, and why would the majority want to extend the show longer than necessary?

The President and his objector allies also seem to be putting a lot of stock, and pressure, on Vice President Pence in his role as President of the Senate. It won’t work. The Vice President’s role is tightly limited by the Constitution’s 12th Amendment and the Electoral Count Act.

Only a few things can happen in the joint session. There will not be a debate on any state’s slate of electors in the Joint Session. Any motions and/or questions other than objections to a slate are out of order.

The session begins with Pence opening the envelopes from each state, which he must do in alphabetical order (meaning Arizona will be the first contested state). There’s no flexibility to considering another state out of order.

As Pence opens the envelopes containing each state’s electors, he will pass them to the Tellers (two Senators and two Representatives), who may read them or pass them to the Clerks to read. At that point, if a senator and a representative make written objections, the House and the Senate separate to debate and vote on that state. It is only in simultaneous sessions in each chamber that any actual debate will take place.

Under a “safe harbor” provision in the Electoral Count Act, which all the states met (despite Trump’s efforts), Pence as chair should recognize only the state-approved slate of electors received by the National Archives. But one power he could exercise to mollify Trump is to introduce the rogue slates that have reportedly been sent to Pence by the defeated Trump electors in Arizona, Georgia, Pennsylvania, Wisconsin, Michigan, Nevada and maybe others.
The people have spoken. The courts have spoken. President Trump lost

Those slates would quickly be either ruled out of order by the Parliamentarians (who serve at the pleasure of Majority Leader McConnell and Speaker Pelosi) or objected to. But it would force Trump’s opponents to make the objections. The result will be the same — the majority in the House and Senate will approve the Biden slates certified by the state. Although clearly outside the legal boundaries and destined for failure, Pence could claim he tried.

According to some news reports, Trump has envisioned Pence disqualifying the electors from enough states so that President-elect Joe Biden falls below the Constitutional threshold of 270 electoral votes. In that case, the 12th Amendment calls for the House of Representatives to select the President, with each state having one vote based on a tally of that state’s representatives. Trump wants this because Republicans currently have the majority of 26 delegations and to the Democrats’ 21. The others are tied.

But that ploy now seems destined for failure, even if Pence went outside his Constitutionally-mandated role and tried it. Enough Republicans have publicly opposed Trump’s Electoral College gambit and said they will vote for all states’ certified electors — so Trump no longer controls the majority of state delegations for this purpose.

Liz Cheney is the only member of the Wyoming delegation and indicated she won’t support Trump’s efforts. Same with Kelly Armstrong of North Dakota. Mike Gallagher of Wisconsin indicated he will oppose the Trump maneuver, which would turn Wisconsin from a 5-3 Republican majority to a 4-4 tie.
With North Dakota and Wyoming voting for Biden and Wisconsin tied, that makes the delegation count tied at 23. If Trump supporters have a maximum of 140 House members willing to sustain his objections, that means there are 70 or so Republicans who will oppose him. Assuming unified Democratic support for the Biden electors, Trump is also in danger of losing the delegations from Alaska, Georgia, Idaho, Iowa, Kansas, Michigan, Minnesota, Mississippi, Montana, Pennsylvania and South Dakota.

The bottom line is that Trump’s efforts to void the electoral college will fail. Just as they have in the 60 court cases trying to overturn the vote of the people in an election he lost.

2021-01-06 02:01:52

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