We have no way of knowing whether Donald Trump’s increasingly ludicrous claims that he actually won the 2020 presidential election will end before Joe Biden’s inauguration on January 20, 2021. But it does appear that his hard-core supporters will launch one more formal effort to overturn the election results on his behalf, thanks to the obscure and confusing Electoral Count Act of 1877, which established a mechanism for the last-minute resolution of presidential election disputes (like the one that had just roiled the nation in 1876).
To make a very long and tedious story short, the last step in any presidential election is the certification of electoral votes by the newly elected Congress in early January. This is normally a rubber-stamp of the results everyone knows on or shortly after Election Night. But the above-mentioned Electoral Count Act provides a way to “pause” the certification if one House and one Senate member protest the award of electors in one or more states. In that event, the two chambers separate and hold a two-hour debate before voting on the electoral votes for disputed states. Only if both Houses disapprove the initial results are they changed.
Now a very Trumpy House member, Mo Brooks of Alabama, has let it be known he intends to challenge the Electoral College count, presumably in enough states to toss the election to his Lord and Master if both Houses of Congress go along with him. So far, Brooks has not recruited a senator to go along, though it would be surprising if one of the multiple Republican members of the upper chamber who aspire to future leadership of the MAGA hordes would not at some point step forward.
Some mulling the 1877 act have expressed concerns about the mischief that Vice-President Mike Pence might conceivably make in his role as presiding officer for the session of Congress in which the electoral votes are counted, with the veep actually announcing each state’s winner. But there is a problem for any scenario whereby Pence, or for that matter the Congress as a whole, might put aside the winning slate: There won’t be an alternative slate of electors pledged to Trump that could be substituted. That wasn’t the case in 1877, when competing authorities in four states sent competing lists of electors pledged to Republican Rutherford Hayes and Democrat Samuel Tilden. And that’s why the elaborate system for debating and certifying electors in Congress was set up in the Electoral Count Act.
The same act created something called a “safe harbor deadline,” whereby electors certified by their states six days prior to the formal Electoral College vote would be immune from challenge. It’s now clear that all 50 states and the District of Columbia will meet that deadline (this year it is on December 8). So there’s really no basis for replacing them, other than by simply refusing to certify the election. That obviously won’t happen. Even if somehow Republicans decided to vote as a block against recognizing Joe Biden’s election, the Democratic-controlled House would not go along.
So the Brooks gambit is really just a symbolic move, perhaps to show his last-ditch fealty to The Boss, who of course may well run again in 2024. There’s even recent precedent for it: In January 2005, Ohio congresswoman Stephanie Tubbs Jones and California senator Barbara Boxer challenged Ohio’s decisive electoral votes due to concerns about possible voting-machine manipulation. But as the Los Angeles Times noted at the time, it was an explicitly symbolic measure not supported by its intended beneficiary:
“I hate inconveniencing my friends, but I think it’s worth a couple of hours to shine some light on these issues,” Boxer said during the Senate’s debate …
Republicans denounced as “frivolous” the effort by Boxer and Tubbs Jones to question the validity of the Ohio tally, with several saying Democrats were acting like sore losers.
Defeated Democratic presidential candidate Sen. John F. Kerry of Massachusetts said this week he did not support the effort to challenge the Ohio results.
That’s one thing that is very likely to change:
