WHAT WILL HAPPEN TOMORROW IN WASHINGTON?

WHAT WILL HAPPEN TOMORROW IN WASHINGTON?
by
Julio Gonzalez, M.D., J.D.
 
Tomorrow, January 6, 2021, will be a momentous day in American history. Regardless of the outcome, it will long be remembered as the day when Congress was pressed with the responsibility of disposing of the results of the most highly contested, most fraudulent presidential election in modern American history.  Unlike the controversy in 2000, which involved only Florida, the broad and extensive nature of the irregularities surrounding the highly disputed states of Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin makes it certain that Congress will be placed in the sole position of determining who the next President will be.  

Many claim that Congress should not get involved; that it should passively accept the certified electoral votes from the various governors, but in so doing, Congress will still have made an affirmative choice. Thus, more than at any other time in recent American history, a process that generally is obscure and a mere formality will take center stage in determining the future direction of our country.  How will the process take place?  How will it end?  Does Trump have a chance at prevailing?  Does Biden have a chance at prevailing?  These are the questions explored here today.
 
The Powers of Congress
 
The Constitution confers upon each state's legislature the responsibility of appointing presidential electors.  More importantly, for the purposes of tomorrow's proceedings, the Constitution places upon Congress, along with the Vice President of the United States acting as President of the Senate, the responsibility of counting the certificates.  To govern the process, Congress passed the Electoral Count Act in 1887 (ECA).   It is from this Act that the oft-quoted procedures regarding the events that will take place tomorrow proceed.  
 
In short, when a Representative and a Senator bring an objection in writing regarding a state’s electoral slate, then the two Chambers will separate for two hours to consider and resolve the controversy.  The states will be called out one at a time and in alphabetical order such that the first state expected to be contested will be Arizona.  There are supposed to be no recesses during the breakout sessions, and if the deliberations go past five days, no further recesses will be allowed.  The logic is that at the end of the various sessions, Congress will have resolved the questions of what to do with each state's electoral slate. 
 
How Congress treats each electoral packet is subject to each state's submission.  If a state submits only one slate of electors with the appropriate gubernatorial certification, the certified slate is deemed valid unless both Chambers disagree with the validity of the slate.  If, on the other hand, a state submits more than one slate, as Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin did, the presumption is that the neither is valid, thus forcing both the House and the Senate to agree on one slate over the other for one to be counted.  If no such agreement takes place, then that state's slate will not count.  
 
If Congress disqualifies enough electoral packets such that no majority is reached, then the Twelfth Amendment provision regarding the manner in which the President and Vice President are to be chosen by the House and Senate respectively will be triggered.  
 
The Powers of the Vice President
 
Much less clear are the powers of the Vice President.  The Constitution requires that the Vice President, before Congress, open and count the electoral votes.  However, the Constitution does not require that the Vice President who will be acting in his capacity as President of the Senate accept the various slates, nor does it prohibit him from discarding them.  
 
In making the President of the Senate the presiding officer of the joint session through the ECA, Congress assigned upon him an undefined amount of power. Some claim the Vice President's position is merely ministerial, but precedent argues against this interpretation. For example, on at least three occasions, the Vice President chose not to present some of the packets to the joint session.  In 1865, the Vice President excluded electoral votes from Tennessee and Louisiana because Congress had decided to exclude the southern states from participating in the Electoral College.  In 1873, the Vice President did not present the results from Arkansas because in his opinion, the votes "did not in any respect comply with the requirements of the law on the subject."   In this case, the noncompliance issues were mostly procedural, as they were not sealed with the envelope indorsed, and they did not include the certification from the governor.  In 1877, the Senate President refused to present a packet from Vermont because it was presented to him after the statutorily prescribed deadline.
 
These three examples occurred prior to the ECA, but the Vice President has been active in determining the validity of packets afterwards as well.  
 
The Wrench in the System
 
All these rules sound well and good, but in point of fact, the problem is that they are not binding, nor is Congress's compliance with them subject to judicial review.  The reason is no Congress has the capacity or power to bind a subsequent Congress. Thus, the Congress that passed the ECA cannot dictate how the 117th Congress will conduct its business this January 6.  Further, each branch of government determines the rules by which it governs itself. Thus any decisions made by the joint session of Congress as to how an issue is resolved can be neither reviewed nor overturned by the courts.  There will be no judicial review, and whatever Congress ultimately decides will be final.
 
 
My Prediction of What Will Happen 
 
So what will happen tomorrow?  First, I must say it is generally not a good idea for someone to make a prediction on a process over which he or she has little control, as more often than not, he will be wrong.  Nevertheless, for your entertainment and to invite further discussion, I will offer you mine.  
 
I believe that Senator Ted Cruz (R-T) will submit his motion to have all seven contested elections undergo an emergency audit performed by a committee of five senators, five representatives, and five justices.  He will base his motion on the 1876 election experience where a similar committee was drawn up.  Apparently, the experience with this committee was unsatisfying, however, which was one of the reasons Congress passed the ECA the next year. Regardless, I believe his motion will fail.  
 
Next, all seven contested states will be challenged, making the deliberations continue past tomorrow.  I predict that the House will reject every objection delivered to it, leaving it up to the Senate to decide.  Sadly, at this time, Senate leadership is not demonstrating the intestinal fortitude to stand up to the evil it is facing and correct it.  Needless to say, I do not have much faith that Senators McConnell, Cotton, Lee, Romney and others, even when faced with irrefutable evidence to the contrary, will let justice prevail.  This is particularly unnerving since all it takes in each of the seven cases is for the Senate and the House to disagree with each other for the electoral slate to be disqualified and trigger the Twelfth Amendment vote where the President likely prevails.  
 
The wildcard in all of this is the Vice President.  As presiding officer in a process with little precedent and no binding authority, he is the key to what will transpire.  Unquestionably, Vice President Pence's actions will be informed by the presumptive vote counts he will gather prior to the beginning of the session.  If the votes are not there in the Senate, he may outrightly refuse to present packets from the contested states to Congress and even refuse to consider motions to the contrary.  Doing so may appear as a coup, but no more so than the events surrounding the 2020 elections have appeared to conservatives.  Alternatively, he may choose, by his own accord, to send the ballots back to the various states with instructions to resolve the matter in the next ten days so that the Congress may then reconvene with either a slate of uncontested ballots or a Twelfth Amendment vote trigger.  
 
Of course something altogether unforeseen may also take place. Regardless, there is only one prediction worthy of a guarantee.  Whatever happens tomorrow, it will be historic.


January 5, 2021 (0727) Note:  A source intimately involved in the process has contacted TheFederalistPages.com to explain that, contrary to our findings based on our review of the ECA, if the two chambers do not agree on a state's electoral slate tomorrow, regardless of the number of slates delivered to the Vice President, the governor's certification will prevail.  Procedurally, this posture makes it nearly impossible for the objectors to prevail and brings up the concern of the precedent being set for future elections in a proceeding destined to come up short.

In preparing this article I relied heavily on the scholarship and expertise shared by Dean Stephen Siegel in "The Conscientious Congressman's Guide to the Electoral Count Act of 1887" appearing in Florida Law Review, 56, 541-671 (2004).
 
 
Dr. Julio Gonzalez is an orthopaedic surgeon and lawyer living in Venice, Florida.  He served in the Florida House of Representatives.  He is the author of numerous books including The Federalist Pages, The Case for Free Market Healthcare, and Coronalessons.  He is available for appearances and book signings, and can be reached through www.thefederalistpages.com.
 
 
 
 
 
 

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