Delay, Delay, Delay

Article II, Section 1, Clause 4 of the Constitution authorizes Congress to fix the day on which the electors shall vote and states that electors must meet the same day throughout the United States. Congress designated the date of the electors meeting in the 1936 passage of United States Code: Title 3, Section 7 [3 USC 7] which states, “The Electors of President and Vice President of each State shall meet and give their votes on the first Monday after the second Wednesday in December next following their appointment.” The date of the Electors’ meeting for the 2020 Presidential election is set for this Monday, January 14, 2020. On Wednesday, West Virginia became the final of the 50 states and the District of Columbia to certify their presidential results. While the results of the election should be a foregone conclusion to any sane person in the United States, the President, his followers (including the attorneys general in 18 states), and Republicans in Congress have refused to accept a legitimate and legally conducted election of Joe Biden as President of the United States. For more than four years now, the Republican Party has descended into madness. It began long before, but the deterioration of their collective mental capacity has increased since the party chose Donald Trump as the Republican nominee for President in 2016.

The states’ certifications come as Trump has baselessly claimed that the election was rigged and sowed doubt about the outcome of the presidential race. Dozens of lawsuits challenging the results have been dismissed at the state and federal levels across the country since the November election. Now, these nutjobs have turned to the Supreme Court to beg it to hear their outrageous claims. There is no precedent or legal recourse for the Texas AG to file a suit with SCOTUS against other states for how they conducted their election. In no way does how other states handled their elections cause any harm to the State of Texas or any other state. Nowhere in the Constitution says that any state has the right to determine what another state does in their elections, especially when lawfully enacted by their state legislatures. States suing one another has in the past always been about border disputes, water rights, or interstate commerce. None of these apply to an election. While I doubt SCOTUS will accept the Texas AG’s case, we still have to wait. Article III of the Constitution does grant SCOTUS original jurisdiction over a narrow range of cases, specifically “all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party.” However, SCOTUS has set precedent in the past that they do not have to accept cases where they hold original jurisdiction. Most legal scholars believe that the Texas AG’s lawsuit has no merit, and SCOTUS will refuse to consider it.

What worries me is not the casting of the electoral votes on Monday but the counting of the Electoral College votes on January 6, 2021. If a Senator and a Representative sign an objection to the votes cast by a state’s electors, then the joint session must be adjourned so the Senate can return to their chamber to debate the objection. The House will remain and hold a debate in their chamber (the counting of the electoral votes always occurs in the House chamber). The House and Senate have up to two hours to debate before they vote separately to accept or reject the objection. Once the vote has been cast, the Senators return to the House chamber, and the joint session will resume. The good thing is that BOTH the House and Senate must agree to accept the objection and throw out the election results. This is unlikely as the Democratically controlled House will not vote to throw out any election results. However, this process must be done as soon as an objection with the two required signatures is made. The counting of votes cannot continue until a debate and vote is completed and must be done each time there is an objection with the required signatures is submitted. 

What worries me is how much time this will take if the process is repeatedly done. It could delay the certification of the electoral votes by Congress for days. At the most, it could likely take 6-7 days if Republicans object only to the electoral votes by the states Biden won, and the Joint Session only meets for 8 hours a day. The length of time Congress would meet, I believe, would be controlled by Vice President Mike Pence, who is statutorily required to chair the Joint Session, unless he passes that responsibility to Pro Tempore of the Senate, Chuck Grassley (R-IA). If Republicans somehow stupidly did delay the count until after noon January 20, according to the Electoral Counting Act, the Speaker of the House would be sworn in as Interim President at noon on Inauguration Day when Trump’s term officially ends. She would serve as Interim President until the election is certified by Congress. Sadly, this would likely mean that Nancy Pelosi would have to resign to become Interim President. As far as I know, there is no option for her to refuse and pass it on to Grassley, who is next in the line of succession. If Pelosi is required to resign to become Interim President, the California Governor cannot just appoint her back to her seat. Members of the House of Representatives must be filled through an election, not appointment like Senators can be, so she would have to win a special election for her to return to her seat in the House. Whether she could return as Speaker of the House is a question of procedure for which I don’t know the answer. 

All of this sounds like mere speculation, but a delay in the Electoral College count process is a very real possibility. Rep. Mo Brooks (R-AL) is already trying to frighten the more than 80 million Americans who voted for President-elect Joe Biden into thinking that there is a chance he and other Republicans in Congress could overturn the 2020 election results. To this end, Brooks has stated that he’s planning to challenge the Electoral College votes when Congress reviews them on January 6. As Brooks put it (without any evidence): “This election was stolen by the socialists engaging in extraordinary voter fraud and election theft measures.” Brooks also shared he’s actively seeking to recruit additional Republican members of Congress to join his efforts to prevent Biden from becoming the 46th president because, as he sees it, “Donald Trump won the Electoral College by a significant margin.” Even if he follows through with his threat, it won’t matter. It will only delay the inevitable.

Joe Biden will receive his projected 306 electoral votes on Monday to secure his election victory when the electors meet in their respective states. He will have well over the 270 required to become the next President. Those votes will be counted in a Joint Session of Congress. While Brooks’s objection may be an interesting (and potentially frightening) constitutional thought experiment, in reality, it doesn’t matter. No Republican Senator signaled any enthusiasm for Brooks’ plan. In fact, they have been downright dismissive of it. However, if Trump starts lobbying Republican Senators, that could change. We all know there are crazy, idiotic, stupid, Trumpist Senators who could join in and sign an objection along with Brooks. The Alabama Congressman may very well be able to enlist one Republican Senator—or even more than one—to sign his objection on January 6, given that such grandstanding will ingratiate Republicans with Trump’s base. This will likely cause a delay of hours or maybe days if they continue their stupidity long enough. But that’s all it will be — one final delay. 

All of the grandstanding and claims of election fraud is dangerous to the United States’ democratic institutions. I am tired of this stupidity that has gripped the U.S. and the Republican Party. The Republican Party has only one chance to redeem itself in any way, and that chance is quickly slipping through their fingers as they continue to humor Donald Trump’s delusions. There is no doubt this election will go down in history as one of the most fucked up ever. Even the election of 1876 did not see this much stupidity from a losing side, and that election was the reason Congress passed the Electoral Counting Act in the first place. Regardless of the attempted delays the Republicans may try, come Inauguration Day, Trump will be yelling at TV screens in Mar-a-Lago, and Joe Biden will be sitting behind the Resolute Desk (after the White House is fumigated and disinfected first).

About Joe

I began my life in the South and for five years lived as a closeted teacher, but am now making a new life for myself as an oral historian in New England. I think my life will work out the way it was always meant to be. That doesn't mean there won't be ups and downs; that's all part of life. It means I just have to be patient. I feel like October 7, 2015 is my new birthday. It's a beginning filled with great hope. It's a second chance to live my life…not anyone else's. My profile picture is "David and Me," 2001 painting by artist Steve Walker. It happens to be one of my favorite modern gay art pieces. View all posts by Joe

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