How Congress could overturn the election

The biggest risk our democracy faces in this election is whether the votes cast will even count. Any number of scenarios could play out. The ballots could be (and in fact already have been) lit, or the courts could step in to throw out the votes. But the possibility we should fear most is the one we still have a chance to prevent: The United States Congress cancels the election.

Donald Trump in 2020 and early 2021 tried to use Congress to do just that, but he also tried so many others that it’s hard to remember the details. The details, however, are important. Trump’s desperation after losing the election led him to push to ban the vote wherever he could – taking on state legislatures, local boards of elections, state courts, federal courts and finally the US Congress on January 6. It all failed spectacularly, but this was an amateur. effort, and one that would have required near-perfect execution to pull off. Joe Biden had won 306 electoral votes to Trump’s 232, meaning Trump would have had to flip the results in several states to become president.

This time, the election results could be closer. A tight margin would allow Trump to play in all the same forums as last time and now with people who have spent years developing the art of stealth. Even if Trump loses every court case, every attempt to convince a state governor or state legislature to forego the popular vote, and every maneuver to try to pressure state and local officials, he can still use Congress as backup plan.

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

On January 6, 2025, the House and Senate will meet to watch the opening and counting of electoral votes in each state.
If a member of Congress has an objection to a vote from a particular state, the objection must be signed by at least 20% of the members of both houses for it to be carried.
Only two categories of objections are allowed: if a state’s electors were not “lawfully certified” (such as if a state certified a false list of voters), or if an elector’s vote for a candidate was not “given regularly’ (such as if voters were bribed, voted for an ineligible candidate or voted incorrectly). Otherwise, Congress will treat a governor’s certification of a list as “conclusive.”
If the 20 percent threshold is reached in both chambers, the issue will be debated for up to two hours.
After that, both the House and Senate must vote. The objection is sustained if a simple majority supports it in both chambers.
If a simple majority of both houses sustains an objection to the designation of a state’s electors as “legally certified,” then that state is excluded from the Electoral College, changing the nominator from the College. (If a particular elector is struck under the “regularly given” provision, by contrast, the denominator does not change.) This means that the number of votes needed to win the Electoral College drops accordingly when a state’s electors are struck out because I am not “legally certified”. For example, if an objection to Pennsylvania’s slate were sustained, the state’s 19 electoral votes would be eliminated, and winning the presidency would take 260 electoral votes instead of 270.

Congress’s 2022 reform act was meant to reduce the opportunities for harm, but even so, harm can occur. For example, what does “legally certified” mean? If Trump claims undocumented immigrants voted in a state, does that mean the state’s vote was not “legally certified”? What about claims that absentee ballots were miscounted? Or that the ballots arrived late?

The answer to all of these is an unequivocal no. Legal certificate has long had a much more precise and technical meaning in terms of procedure—only if the state’s governor certified the vote. That narrowness has led some to say there’s nothing to fear, especially because Congress tightened the rules in the 2022 act and made it harder for Congress to guess election results. I really hope this is correct. It should you are right It it is correct. But we live in a world where the whole enterprise and meaning of law is being challenged and where politicians are stretching laws beyond their breaking point. James Madison warned us about this in Federalist documentscalling the law a mere “parchment barrier”. This time, the parchment may not hold.

Here’s how the nightmare scenario could play out. Imagine the election puts Kamala Harris in the lead with 277 to Trump’s 261 votes. What’s more, imagine that some of that lead comes from Pennsylvania. And then imagine that Pennsylvania decides to count the mail-in ballots that are the required handwritten date on the envelope is missing. Trump then challenges that practice, arguing that the Pennsylvania legislature established rules that prohibit those ballots from being counted. He works his way through the Pennsylvania courts, all the way to the Pennsylvania Supreme Court, which rejects his appeal and allows the ballots to be counted. Trump then goes to the US Supreme Court, which also rejects his appeal.

While this should be the end of the madness, it might not be. On Jan. 6, one-fifth of the House and one-fifth of the Senate may argue that the Pennsylvania Supreme Court acted improperly in counting those ballots in defiance of state law. They can argue that they have the right to interpret the law independently and that Pennsylvania acted without the law. The good news here is that in 2022, Congress ruled out that independent way of congressional determination and said the court’s decisions are binding on Congress when it acts on January 6. Sen. Ted Cruz) have already said they believe the 2022 act is unconstitutional. So, despite the very strong efforts of Congress in 2022 to do so, an unprincipled House and Senate could try to assert these powers. The assertion of such powers would be false, but a mass debate would then follow, and if a raw majority of the House and Senate sustained the objection—no matter how specious—Pennsylvania’s 19 electoral votes would be nullified, leaving 258 of electoral votes. 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 appealed all the way to the United States Supreme Court, where the appeal should prevail. Congress would defy parts of the 2022 law that tightly restricted the types of objections, as well as provisions of the law that make court decisions binding on Congress. The question is, if Congress acts without a law, what will the Supreme Court do about it? Some point to the Court’s recent decision to allow Virginia to strike 1,600 people from voting rolls as evidence of its politicization, but defenders of the Court may point to the fact that it has stayed far from harm in 2020, with the hope that you will again act responsibly in this round. However, the situations are different. The 2020 request was from mischief-makers, asking the Court to affirmatively intervene in Trump’s favor — something the Court was apparently not averse to doing. This time, non-intervention favors Trump. The court can say it is acting neutral if it doesn’t hear the case, and in doing so it effectively hands over the presidency to Trump in defiance of the will of the people.

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

If Harris claims a decisive victory in the Electoral College after the Nov. 5 vote, then there is nothing to fear, however much Trump may try to fight. And even though the Electoral College is right around the corner, remember that Americans are also voting for the House and Senate on November 5th. And the new House and Senate, not the existing ones, will make all the decisions outlined above on January 6, 2025. If the Democrats control the House or hold the Senate, this divided government will prevent the nightmare scenario from happening. And even if Republicans control both chambers in 2025, electing people who will honor the language and intent of the 2022 Voter Number Reform Act — which, again, was written to prevent this scenario — will end the madness.

So when you vote, vote for candidates who will ensure that the will of the people will govern. James Madison in “Federalist No. 55” reminds us that “the degree of depravity in mankind . . . requires a certain degree of . . . mistrust,” but “there are other qualities in human nature which warrant a certain amount of esteem and confidence “. Republican government, Madison continued, depends on the latter. Let’s pray that those qualities will lead Americans to the polls on Tuesday and, once there, vote to protect our democracy.