How Congress could disrupt the election

The greatest risk what our democracy faces in this election is the question of whether the votes cast will matter at all. All kinds of scenarios can occur. Ballots can be set on fire (and in fact have already been set on fire), or the courts can step in to throw out votes. But the possibility we should fear most is the one we can still prevent: Congress overturning the election.

Donald Trump tried to use Congress to do this in 2020 and early 2021, but he also tried so much more that it’s hard to remember the details. However, the details are important. Trump’s desperation after losing the election led him to ban voting everywhere he could — defeating state legislatures, local election boards, state courts, federal courts and ultimately the U.S. Congress on January 6. It all failed spectacularly, but that was amateurism. effort, and one that would require near-perfect execution to succeed. Joe Biden had won 306 electoral votes to Trump’s 232, meaning Trump would have had to overturn the results in several states to become president.

This time, the election results could be closer. By a narrow margin, Trump could be playing in the same forums as last time, and now with people who have spent years developing the art of stealing. Even if Trump loses every lawsuit, every attempt to convince a governor or legislature to throw out the popular vote, and every maneuver to pressure state and local officials, he can still use Congress as a backup plan.

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This, I suspect, is Trump’s “big secret.” named this week, with a grin, to House Speaker Mike Johnson. It’s only secret because Trump wants to keep it in his back pocket, but it could be quite similar to what he tried last time. According to laws passed by Congress, including the Electoral Count Act and the Electoral Count Reform Act of 2022, this is what should happen:

On January 6, 2025, the House and Senate will meet to watch each state’s electoral votes be opened and counted.
If a member of Congress objects to a particular state’s vote, the objection must be signed by at least 20 percent of the members of both chambers before it can be considered.
Only two categories of objections are permissible: if a state’s electors have not been “lawfully certified” (such as if a state has certified a false list of electors), or if a voter’s vote for a candidate was not “regularly” given (such as if the voters were bribed, voted for an ineligible candidate, or voted the wrong way). Otherwise, Congress must treat a governor’s certification of a slate as “decisive.”
If the 20 percent threshold is met in both chambers, the issue will be debated for up to two hours.
Then both the House and Senate must vote. The objection is accepted if a simple majority supports it in both chambers.
If a simple majority in both chambers agrees to an objection to the designation of a state’s electors as not “lawfully certified,” then that state is excluded from the Electoral College, changing the denominator to the College. (In contrast, if a particular elector is removed under the “regularly given” provision, the denominator does not change.) This means that the number of votes needed to win in the Electoral College drops accordingly when a state’s electors are removed because they are not chosen. “lawfully certified.” For example, if an objection to Pennsylvania’s proposal were upheld, the state’s 19 electoral votes would be eliminated, and winning the presidency would require 260 electoral votes instead of 270.

Congress’ Reform Act of 2022 was intended to reduce the risk of disaster, but disaster can still occur. For example, what does ‘lawfully certified’ mean? If Trump claims that undocumented immigrants voted in a state, does that mean the state’s vote was not “legally certified”? What about claims that absentee ballots were improperly counted? Or that the ballots arrived too late?

The answer to all these questions is an unequivocal no. Legally certified has long had a much more precise and technical meaning about procedure – simply whether the state’s governor certified the vote. That narrow-mindedness has led some to say there is nothing to fear, especially as Congress tightened the rules in the 2022 bill and made it harder for Congress to question the election results. I really hope that’s true. It should be right. It is right. But we live in a world where the entire enterprise and meaning of law is disputed, and where politicians stretch the laws beyond their breaking point. James Madison warned us about this The Federalist Paperscalling the law merely a “parchment barrier.” This time the parchment may not hold up.

Here’s how the nightmare scenario could play out. Imagine Kamala Harris taking the lead in the election, with 277 votes to Trump’s 261 votes. Further imagine that some of that lead comes from Pennsylvania. And then imagine that Pennsylvania decides to count mail-in ballots the required handwritten date on the envelope is missing. Trump subsequently challenged this practice, claiming that the Pennsylvania legislature created rules prohibiting the counting of those ballots. He goes through the Pennsylvania courts, all the way to the Pennsylvania Supreme Court, which rejects his challenge and allows the ballots to be counted. Trump then goes to the US Supreme Court, which also rejects his challenge.

While that should be the end of the madness, it may not be. On January 6, one-fifth of the House of Representatives and one-fifth of the Senate may argue that the Pennsylvania Supreme Court acted improperly by counting these ballots in violation of state law. They can argue that they have the right to independently interpret the law, and that Pennsylvania has acted lawlessly. The good news here is that Congress has ruled out that independent decision avenue for Congress in 2022 and has said that judicial decisions will be binding on Congress if it acts on January 6. But there is room for tendentious arguments about what Congress actually legislated, and some (including Senator Ted Cruz) have already said they believe the 2022 law is unconstitutional. So despite Congress’s very strong efforts in this area in 2022, an unscrupulous House and Senate could attempt to assert these powers. The assertion of such powers would be bogus, but there would then be a debate on the floor, and if a raw majority of the House and Senate supported the objection—misguided as it is—Pennsylvania’s 19 electoral votes would be stripped , leaving 258. electoral votes for Harris and 260 for Trump. Trump would then be declared president.

Such a decision could and should be challenged in court, and challenged all the way to the Supreme Court of the United States, where the challenge should prevail. Congress would defy the portions of the 2022 law that severely limited the types of objections, as well as the provisions in the law that make court rulings decisive in Congress. The question is: What will the Supreme Court do about it if Congress acts lawlessly? Some point to the Court’s recent decision to allow Virginia to purge 1,600 individuals from the voting rolls as evidence of its politicization, but defenders of the Court can point to the fact that it stayed out of the mischief in 2020, in the hope that this will also be the case. act responsibly again in this restart. However, the situations are different. The 2020 request was from the agitators, asking the Court to intervene positively in Trump’s favor – something the Court was apparently reluctant to do. This time, non-intervention is in Trump’s favor. The Court can say that it is acting neutrally by not hearing the case, effectively handing the presidency to Trump, despite the will of the people.

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The Supreme Court is, of course, fully capable of realizing the difference between positive intervention in 2020 (where it would be asked to facilitate Trump’s theft of the election) and 2024 (where it would be asked to prevent such a thing). A decision to stay out of Congress’s lawlessness should be unthinkable. And let’s hope this is the case (remember last year’s Court in Moore to Harper rejected by a 6-3 vote a Republican Party theory that would have given it a huge advantage in federal elections). But just in case, one important thing must be done to prevent this nightmare from unfolding: vote.

If Harris claims a decisive victory in the Electoral College as a result of the November 5 vote, then there is little to fear, no matter how Trump might try to counter that. And even if the Electoral College is close, remember that Americans will also vote for the House and Senate on November 5. And the new House and Senate, not the existing one, will make all the decisions outlined above on January 6, 2025. If Democrats control the House of Representatives, or control the Senate, this divided government will prevent the nightmare scenario from becoming a reality. And even if Republicans control both houses in 2025, electing people who respect the language and purpose of the Electoral Count Reform Act of 2022 — which, again, was written to prevent this scenario — will put an end to the madness.

So when you vote, vote for candidates who will ensure that the will of the people will govern. James Madison reminds us in ‘Federalist No. 55’ indicates that ‘the degree of depravity in humanity… requires a certain degree of… distrust’, but ‘there are other qualities in human nature which warrant a certain amount of esteem and confidence.’ The Republican government, continued Madison, is dependent on the latter. Let us pray that these qualities will lead Americans to the polls on Tuesday and, once there, that they will vote to protect our democracy.