How Congress certifies who is president – regardless of potential legal
There may be litigation in the coming days about the prospective outcome of the 2020 presidential race.
But regardless of what happens in the courts, the decision as to who becomes President rests with those who operate under the Big White Dome on Capitol Hill.
The following explains what happens in Congress over the next few months as it goes about certifying the next President.
The Constitution makes Congress the ultimate arbiter determining which candidate wins each state. Congress must approve certificates of election from all 50 states. You may have thought November 3rd was the most important date on the election calendar. But a more crucial date is December 14, dictated by an obscure, Byzantine, 1887 law: The Electoral Count Act.
Congress passed the legislation after the disputed 1876 Presidential election between President Rutherford B. Hayes and Samuel Tilden. Electoral votes were far from certain in Florida, South Carolina, Louisiana and Oregon. There was a sprint to settle the electoral college tally before Inauguration Day, 1877. Congress created an “electoral commission” to resolve the issues. In those days, the President assumed office on March 4.
The Electoral Count Act dictates that states choose electors no more than 41 days after the election. This is partly why the Supreme Court rushed to complete Bush v. Gore on December 12, 2000. The decision halted the count of ballots in Florida, handing the presidency to George W. Bush.
The 1887 law establishes a “safe harbor” date so states conclude vote counts and establish electors early. But what happens if there are problems with the mail? The cryptic nature of the statute could give some states the green light to continue to counting – or cease counting.
So what happens if a state sends inconsistent slates of electoral votes to Congress? The new, 117th Congress must hammer all of that out, starting on January 6, 2021.
Electoral vote “certificates” start filtering into the Capitol in December from the various states. This is in preparation for the House and Senate to meet in a Joint Session of Congress on January 6 to formally sign off on the results.
At this point, we expect House Speaker Nancy Pelosi, D-Calif. – presuming she is re-elected as Speaker and Vice President Pence, in his capacity as President of the Senate, to co-preside over the Joint Session. Pence’s term doesn’t expire until January 20. And, the 12th Amendment to the Constitution mandates 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 be counted.”
That phrase is key. It has vexed Constitutional scholars for decades. The 12th Amendment doesn’t dictate “how” the votes are counted. That’s why this could get dicey.
The 12th Amendment also says “the person having the greatest number of votes for President shall be President.” But Congress must agree to all of this. And remember, Pence is the one running the show at this stage.
Do not underestimate the role of the Vice President…
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