Your complete guide for watching Wednesday's Congressional Electoral Vote count

Everything you need except popcorn

Here’s your guide to watching, and a primer for Wednesday’s Joint Session of Congress to count the state Electoral College votes. History normally records these sessions as little more than a footnote, but occasionally, like in 1877, sparks erupt. The 2021 version of this pomp and ceremony session will likely be like no other before it. It’s going to be very closely watched by a lot of Americans.

When:

Congressional Joint session begins at 1 PM in the Chamber of the House of Representatives, Washington D.C.

The President of the Senate is Vice President Pence and he is responsible to “preserve order” during the electoral count process.

“Under §18 (3 US Code), the President of the Senate is to preserve order. This authority may be interpreted as encompassing the authority to decide questions of order, but the statute is not explicit on this point. There are some instances of the presiding officer announcing decisions concerning the procedures of the joint session. Vice President Albert A. Gore, Jr., presiding over the joint session of January 6, 2001, ruled on the admissibility of objections to the receipt of electoral votes from the State of Florida, and also advised House and Senate Members that debate was not permitted and that a unanimous consent request for debate on the issue could not be entertained. He further stated that even incidental parliamentary motions, including those that only affect the actions of the House, needed the written endorsement of at least one Representative and one Senator in order to be valid. Vice President Gore also declined to entertain a point of order that no quorum was present because the point of order had not been endorsed by one Member from each chamber”

Texas Representative Louie Gohmert filed a suit in Federal District Court last week to provide Vice President Pence the ability to choose Trump electors in his role presiding over the electoral vote count.  Pence rejected the idea that he should have emergency authority to decide electoral vote objections as indicated in his filing associated with the Gohmert law suit.  The Texas case was later dismissed at the District and Appeals courts.  Additionally it seems unlikely that Pence would be willing to leave electoral votes uncounted, in states the Trump campaign lawyers believe wide spread voter fraud have occurred.

It is expected that Georgia will only have one senator seated the joint session.  The election is January 5’th and the results will not be certified in time for the Joint Session Electoral vote counting.  This means that Sen. David Perdue’s seat will be vacant and that Sen. Kelly Loeffler will remain, since she occupies former Sen. Johnny Isakson’s seat pending election results and state certification (even if she appears to lose the election).  This should provide the slimmest of Republican majority in the Senate to start the new Congress.

If it appears Loeffler lost to Democrat candidate Raphael Warnock, we might expect some kind of procedural objection to her presence, but it’s unclear that this would carry any weight.

Counting of Votes:

The President of the Senate will count votes by state in alphabetical order, so Arizona is likely the first objection.

Basis for Objections:

The basis for Republican objections will be that several state electoral votes were not “regularly given” due to alleged instances of wide spread voters fraud.

Written objections must be filed in writing by one senator and one representative to be considered.  At minimum, objections will be filed concerning electoral votes by Missouri Sen. Josh Hawley and Alabama Rep. Mo Brooks. Additionally, Sen. Ted Cruz is on record leading a group of 11 Senate Republicans willing to support objections. On the House side, as many as 140 representatives have indicated support for challenging electoral votes.   There are likely several objections expected to be filed, covering states including Arizona, Florida, Georgia, Michigan, Pennsylvania, and Wisconsin.

Upon receiving an objection the House and Senate will immediately break into single session in their respective chambers to debate the merits of the objection and vote to either pass or fail by simple majority of members.

Debate Rules:

The Senate Majority Leader, Republican Mitch McConnell, runs the proceedings in the Senate.

The Speaker of the House, newly re-elected Democrat Nancy Pelosi, runs the proceedings in the House of Representatives.

There is a five minute limit for each member to speak.

Total debate time is limited to two hours for each house, followed immediately by the vote.

Any objection must carry a majority within both chambers to succeed. It is extremely unlikely that any objection raised will pass a vote in the House due to a sufficient Democratic majority along with smaller numbers of Republicans joining them in opposition to the measure.

What if…

Now here’s some speculation. If an objection is successful concerning a state’s elector slate in both legislative chambers due to concerns of voter fraud or similar irregularities, then that state’s electoral votes may end up not counted. While extraordinarily unlikely, going down this path is uncharted at such a large scale of expected objections. Precedent exists for leaving the 270 majority requirement in place, even if the elector pool of counted votes is greatly reduced. If neither candidate reaches the majority threshold, the election could be thrown into the House. In this unlikely situation, I would expect that the Democrat leadership in the House would rather go the route of a special commission (as proposed by Cruz and company) to determine the election outcome, rather than chancing a Biden overturn in the House of Representatives. This path would follow the Hayes election solution of 1876.

I have always enjoyed studying American History. In grade school I would read the boiled down and condensed version of events and day dream about what it would be like to witness the events of the past. The election of 2020 will soon enough be one of these tease skeleton paragraphs in our history books. What will future readers daydream when the real time hyperbole of this election is stripped away?