How Trump Allies in Congress Plan to Challenge Joe Biden’s Electoral College Win

Congress is set to hold a joint session today to ratify Democrat President-elect Joe Biden’s Electoral College win in the November election, in a final step ahead of his Jan. 20 inauguration. Some Republicans plan to raise challenges to some of the states’ results, alleging election irregularities. Their objections could force debate and votes in both chambers of Congress.


None of the challenges are expected to succeed, but they could slow down the process, and they give Trump allies a high-profile chance to formally challenge the election results. Here are some questions and answers about how events will play out.

What happens on today?

The law specifies that Congress is to convene at 1 p.m. Jan. 6 for a joint meeting to officially count and validate the 538 electoral votes that have been certified by the 50 states and District of Columbia.

Under the process, Vice President Mike Pence, acting in his constitutional role as the president of the Senate, opens up all the certificates reflecting the vote tallies sent by the states. He hands them to “tellers,” who are people appointed from the House and the Senate to read the ballots and verify the results. The tellers then read the states’ certificates in alphabetical order, starting with Alabama and ending with Wyoming, stating that the certificate from each state “seems to be regular in form and authentic.” Mr. Pence has the power to recognize any lawmaker who objects.

What is the process for challenging the results?

Any lawmaker can challenge a state’s Electoral College votes, but it takes one member of the House and one senator to formally object to a state’s result and bring the challenge to a vote by lawmakers. The objection must be in writing.

Once an objection is filed with the backing of a House member and a senator, lawmakers break up into their separate chambers to discuss and vote. There is a two-hour time limit per objection. At the end of debate, lawmakers hold a simple majority vote on the objection. Both the House and the Senate must agree for the challenge to be successful.

If the House and Senate disagree, “Then the challenge is not sustained,” said Gregory Koger, a professor of political science at the University of Miami. “Whatever votes sent from the state are accepted by the joint session.”

A majority consists of a majority of the lawmakers who are present, unless otherwise stipulated, according to Sarah Binder, a George Washington University professor who is also a scholar at the Brookings Institution.

The House has been conducting business through proxy voting, in which one lawmaker may ask a lawmaker who is physically present to vote on his or her behalf. If the organizing resolution for the new Congress permits proxy voting, then members may vote by proxy.


One wrinkle about the Senate: On Jan. 6, the chamber is set to have only 99 members, because the term of Sen. David Perdue (R., Ga.) expires Jan. 3 and the formal result of his Jan. 5 runoff likely won’t be known.

Are some lawmakers expected to challenge the 2020 election results?

Yes. Several Republicans have indicated they will do so.

Rep. Mo Brooks (R., Ala.) has said that he plans to challenge the results from several states, with the vote tallies in Nevada, Georgia and Pennsylvania of most concern. He has said that Republicans numbering “in the double digits” are joining the effort.

Sen. Josh Hawley (R., Mo.) of Missouri said he would challenge at least one tally as well, despite the efforts by Senate Majority Leader Mitch McConnell (R., Ky.) and other GOP leaders to dissuade senators from doing so.

Mr. Trump and the Republicans challenging the results have alleged widespread fraud and irregularities. No evidence of significant fraud has emerged in the months since the election.


Rep. Louie Gohmert (R., Texas) wants to challenge the results from five states with GOP-controlled legislatures that certified Biden victories there—Arizona, Georgia, Michigan, Pennsylvania, and Wisconsin. He says that the five states have submitted competing slates of electors, and has filed a lawsuit seeking to push Mr. Pence to recognize the Trump slates. But a federal judge on Friday dismissed the case, ruling that Mr. Gohmert and the other plaintiffs—Arizona Republicans who unsuccessfully ran to be presidential electors—didn’t have standing to file the case.

On Saturday, 11 current and incoming Republican senators said they would vote to reject on Wednesday the Electoral College votes of some states as not “lawfully certified” unless Congress appoints a commission to conduct an emergency, 10-day audit of the election results.

But the Republican senators didn’t say which states they had in mind or assert that they would mount their own objections in writing.

Sen. Ted Cruz (R., Texas) has said that a commission established in 1877 to resolve a contested presidential election should be the model. What did the 1877 commission do?

The commission was established by the Electoral Commission Act to resolve a dispute involving the 1876 race between Rutherford B. Hayes and Samuel Tilden. The dispute arose because rival slates of electors from four states—Florida, Louisiana, South Carolina and Oregon—sent Congress up two competing sets of electoral votes. To resolve the conflict, Congress established a commission made up of five senators, five House lawmakers, and five Supreme Court justices. The commission ended up voting 8-7 to award all the contested votes to President Hayes, making him the winner by 185-184, according to a history compiled by The University of Virginia’s Miller Center.

Is Congress expected to uphold any of the objections?

No. The Democratic-controlled House is expected to reject any challenge to states’ results. Moreover, many Republicans in the GOP-controlled Senate have expressed skepticism of the challenges, and party leaders have acknowledged Mr. Biden as the president-elect. Sen. John Thune (R., S.D.), the No. 2 Senate Republican, has said that any effort to overturn the presidential election result is “going down like a shot dog.”

Have lawmakers challenged election results in the past?

Yes. In 2001, some House Democrats objected to the results from Florida, which was at the center of the contested 2000 presidential race. Then-Vice President Al Gore had to preside over the joint session and rule against House Democrats who were trying to void an Electoral College result that cost him the presidency.

In 2005, Sen. Barbara Boxer (D., Calif.) joined House Democrats in a challenge about the 2004 presidential-election result from Ohio, but the resulting votes failed with minimal support in either chamber. In 2017, Democrats objected 11 different times when the tellers verified the votes from each of the states. Then-Vice President Biden quickly shut them down when no senators signed their objections.

But 2021 is a different situation politically, said Mr. Koger. Unlike in past years, “you have a president who hasn’t conceded, and a party where loyalty to that one figure seems to be a defining characteristic,” he said.

Why does Congress play a role in validating the election results?

The Constitution says that 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 current process was established through the Electoral Count Act of 1887, in an effort to minimize potential involvement by Congress in changing states’ reported results. It followed the controversial 1876 presidential election, in which results from Louisiana, Florida, South Carolina and Oregon were in dispute, leaving the race between Democrat Samuel Tilden and Republican Rutherford B. Hayes up in the air. The dispute ended in favor of President Hayes.

What is Vice President Pence’s role?

As the president of the Senate, Mr. Pence acts as the presiding officer. He opens up the envelopes containing the votes in front of the House and the Senate. He is also the person who must enforce the provisions of the resolution under which Congress conducts the joint meeting.

If Mr. Pence faces objections to any state’s votes, it likely will be his job to stop debate if an objection draws only support from one chamber of Congress—falling short of the requirement that at least one House lawmaker and one senator sign on. As president of the Senate, Mr. Pence in theory also could break any ties should the Senate need to vote. There is no precedent that limits the ability of the vice president to break a tie, according to Ms. Binder.


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