Memorandum Congressman Mark Amodei Nevada’s Second Congressional District
SUBJECT: Joint Session to Read Electoral College Votes & Objection Process DATE: January 4, 2020
- On December 14, electors from all 50 states cast their votes for the electoral college, giving Joe Biden 306 votes and President Trump 232 votes.
- Leading up to this, Texas Attorney General Ken Paxton sued four battleground states (GA, MI, PA, WI) to challenge their election results. On December 11, the Supreme Court rejected the lawsuit, stating “Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections.”
- Following the state’s electors’ votes on December 14, the electors sent their vote certificates to the Vice President (as the President of the Senate), their respective state’s Secretary of State, the Archivist of the United States, and the judge of the federal district court whose district in which the electors met.
- On January 6th, the certificates are opened and counted by the VP/President of the Senate during a joint session of Congress. The President of the Senate reads the state’s certificates in alphabetical order, announces the electoral votes for that state, and asks if there are any objections.
- This procedure has largely been ceremonial in the past, but many have taken to the Internet that this serves as the last “opportunity” to change the election results in favor of President Trump.
Scenario 1 – If no objection is offered by any Member of Congress then the state’s electoral votes are counted, and the next state’s electoral votes are opened and read.
Scenario 2 – If an objection is offered it must be in writing and signed by one Senator and one Representative to jointly submit the objection. If the objection is not in writing or does not have both a Senator and Representative, then the objection is not considered. The state’s electoral votes are counted, and the next state’s electoral votes are opened and read.
Scenario 3 – If an objection is offered in writing with signatures from one Senator and one Representative, the Senate would then return to their chamber, and both houses would consider the objection for no more than two hours. Both houses would then vote on the objection, which is passed/failed by a simple majority vote. The Senate will return to the House for the joint session to reconvene. If both chambers sustain the objection, then that state’s electoral votes would not be counted. If the objection was not agreed to in both chambers then the electoral votes would be counted, and the next state’s electoral votes are opened and read.
- An objection is made toward only one state’s electoral votes. As such, should one Senator and one Representative jointly submit the objection, they can object to every state’s electoral votes if they so choose.
- If the objections fail to pass by a majority vote, then the original electoral votes are counted, and the joint session ends when all the electoral votes have been counted and the candidate with the majority of votes is announced the President.
- If the objection(s) do pass, then those state’s electoral votes are not counted. Should a candidate not hold the necessary 270 electoral college votes or there is a tie, the House of Representatives decides the presidency with each congressional delegation or state having one vote, and the Senate decides the vice president with each Senator having their own vote.
The winner is determined by a simple majority vote, so at least 26 states in the House voting
for one candidate, and 51 Senators voting for one candidate.
• Should this contingent election in the House and Senate not be held by January 20, then the
Speaker of the House serves as Acting President, or if the Senate has voted but the House has not, then the Vice President-elect serves as Acting President until a vote is held.
Outlook for January 6:
- Even if Members of both the House and Senate jointly object to the electoral votes of 6 states (AZ, GA, MI, NV, PA, WI), the House will decide by simple majority if the objections are sustained. With 222 Democrats to 211 Republicans, it is all but certain the House will overrule any objections.
- Additionally, while 12 Republican senators have announced they oppose the counting of electoral votes, 15 senators have already stated they are in support of counting all electoral votes. As such, it is very unlikely that the Senate will vote to sustain any objections.
Vice President Pence’s Authority:
- As President of the Senate, Vice President Pence will preside over the certification process. Rep. Louie Gohmert and 11 Arizona Republicans sued VP Pence, claiming that he has sole authority to decide whether a state’s electoral votes are accepted.
- Vice President Pence subsequently requested the court to reject the suit, stating “Ironically, Representative Gohmert’s position, if adopted by the Court, would actually deprive him of his opportunity as a Member of the House under the Electoral Count Act to raise objections to the counting of electoral votes, and then to debate and vote on them.”
- On January 1, the 5th Circuit Court of Appeals dismissed the case against the Vice President.