The Serious Side of Silly Political Theater: Republicans' Challenges to Biden's Electors on January 6 (a Dorf on Law classic)

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Note to readers: The middle of the week between Christmas and New Year's Day is the time for Dorf on Law classics.  Today and Friday, I am posting a pair of columns that discussed the January 6 certification process for the 2020 presidential election.  Today's column ran on December 16, 2020, three weeks before the session; and Friday's ran on January 7, 2021, the day after.  Note that in the final paragraph of today's classic, I refer to the then-upcoming certification vote as a "nonserious" event.  It was nonserious, as a legal matter.  But we now know that it was extremely serious in every other way.
 

by Neil H. Buchanan

Mitch McConnell made news yesterday by acknowledging on the floor of the United States Senate what every sane person has known for weeks: "Today, I want to congratulate President-elect Joe Biden."  This is a big deal only because McConnell had insisted on silently abetting Donald Trump's attempted coup over the past six weeks.  Even so, it is important because McConnell could have chosen to continue to be silent -- or even suddenly to adopt a vocal stance in favor of Trump's madness.  So this is good.

Of course, McConnell used some strategic wording.  I was particularly annoyed that he described the election in this way: "The Electoral College has spoken."  I am not saying that this is false.  Indeed, the Electoral College's vote was the precipitating event for McConnell's long-delayed acknowledgement of reality.  Even so, he could instead have said: "The people have spoken."  Or at least something like this: "The Electoral College has reflected the will of the people under the law."
 
But given that McConnell is the leader of a party that has lost the popular vote in seven of the last eight elections, winning two of those only because of the anti-democratic design of the Electoral College, he apparently thinks it important to say that what matters is that the Electoral College has spoken, not the people.  If, as I have recently predicted, Republicans at the state level now try to make it easier than it was in 2020 to overturn the will of the voters to appoint non-majority-backed Republican electors in 2024 and beyond, McConnell cannot afford to be heard to say that the people's will matters.

This means that even McConnell's grudging acceptance of reality references the basis for future minoritarian rule.  He also is surely going to do everything possible to block Biden's nominees for the judiciary and executive branches, to strangle the economy, and so on.  Mitch gonna Mitch.

Even so, McConnell did reportedly make another surprisingly positive decision yesterday, which was to tell/beg his fellow Senate Republicans not to go along with Trump's attempt to use the January 6 ceremonial congressional counting of votes as a last stand.  What is that all about, and what if McConnell fails to keep everyone in line?

Yesterday, Professor Dorf wrote a column describing recent reports that pro-Trump groups are planning to submit "papers purporting to be certificates of the electoral votes" to replace the duly-appointed Biden electors in some number of states.  The Dorf analysis is spot-on, and I hope that everyone will read that column, which points out how utterly lawless the Trumpists have become.  He rightly analogizes this situation to the French and Russian revolutions, with people having no legal authority claiming to take power simply because they say that they can do so.
 
That usurpers at various points in history have succeeded in taking power is not proof that their legal claims were valid but that the revolutions were revolutions.  Some revolutions are more justifiable than others, but by definition they are not legal.  As un-American as the national Republican Party has become, I agree with Professor Dorf that this gambit is (at least currently) a bridge too far, even for these Republicans.  And McConnell's call to his colleagues not to support this attempted revolution confirms as much.
 
Notably, of course, McConnell did this because he knows it is a losing strategy, that is, because he does not want his colleagues to be forced to choose between voting against Trump or in favor of treason.  Although it is good that he would expect them to be at least patriotic enough not to conspire in a coup, it is depressing that he sees political disadvantage in having his caucus stand up and say that they support the United States Constitution over Donald Trump.

Cynicism aside -- more accurately, that particular species of cynicism aside -- what would happen if one or more of McConnell's Senate colleagues goes rogue and joins with the House dead-enders who will try to lodge complaints on January 6?  More to the point, what would happen if such objections were somehow to succeed, with one or more slates of electors actually rejected by both houses of Congress?

Because this process requires both houses to reject Biden-committed electors, this is not at all a realistic scenario.  But hey, I write about law and policy for a living, so why not think about this as an intellectual exercise?  In private correspondence, another Florida-based law professor, Howard Wasserman (located hundreds of miles away from Gainesville in South Florida), asked a particularly interesting question about the total number of electors who would be eligible to vote after any successful objections.
 
On September 30 of this year, I co-authored a Verdict column with Professors Dorf and Tribe in which we addressed the language in the Twelfth Amendment that requires a majority vote in the Electoral College.  Some Trump supporters had at that point been hoping simply to stop the official appointment of electors for Biden, on the theory that getting Biden's total under the 270 mark would prevent him from having a majority of 538.
 
As we explained, however, if a state fails to appoint electors, the Twelfth Amendment's requirement that the winning candidate receive "a majority of the whole number of electors appointed” (emphasis added) would simply mean that Biden would need to win a majority of those who had successfully been appointed, not of the legal maximum that could have been appointed.  In an example involving Pennsylvania's 20 electors not having been appointed, we showed that Biden could have won on a vote of 268-250, which would have been a majority of the electors appointed.

We remain confident in our analysis of that issue.  Even so, our ultimate point was that Trump could not win by cutting Biden's number under 270 and then using the Twelfth Amendment's bizarre one-vote-per-state-caucus House vote, which Trump would win 26-24.  As I explained in a followup column on Dorf on Law, our analysis was thus a reluctant statement that one counter-majoritarian mechanism (the Electoral College) is the constitutionally required venue for choosing the president and vice president, not an even more counter-majoritarian mechanism (that strange House vote).
 
If our logic regarding the meaning of the Twelfth Amendment were to carry over to any January 6 objections, one would think that objections to the four states targeted in Texas's insane Supreme Court challenge (Georgia, Michigan, Pennsylvania, and Wisconsin) would -- even if successful -- be pointless.  After all, Biden's 306 electoral votes exceed Trump's 232 by 74 votes, whereas those four states combine for only 62 votes (16, 16, 20, and 10 respectively).  Biden would still win, 244 to 232.

But why would Trump's minions stop with those four states?  Taking out Arizona's eleven votes would not quite do the trick either, but Nevada's additional six would.  I suppose it is possible to imagine Senators or Representatives voting on the individual merits and finding substantive reasons to believe that only some of those six states had illegitimate results, but this is entirely a non-substantive exercise.  After all, prior to certification of results and appointment of electors, Trump had the opportunity -- too many opportunities, in fact -- to make fact-based legal arguments showing that voting irregularities changed the outcomes in various states.  He failed to do so -- repeatedly and spectacularly -- and barring the sudden and very late arrival of smoking-gun evidence, nothing will be different on January 6.

In other words, if there were enough anti-American House members and Senators to sustain objections to Biden-committed electors in one state, there would be enough votes to sustain objections to enough states to hand the election to Trump.  (That they would then say that this was not a coup, because they had followed the letter of the law in overturning the election, only reminds us that the Rev. Dr. Martin Luther King, Jr. once wrote from a Birmingham jail: "We should never forget that everything Adolf Hitler did in Germany was 'legal.'")
 
As a practical matter, then, it almost assuredly does not matter whether the final electoral vote must be a majority of the 538 maximum or of some smaller number.  Trump's followers could get their way under either scenario.

Interestingly, it appears that the process by which the January 6 objections would be handled prevents this question even from arising.  The language of the Electoral Count Act of 1887 (3 USC 15) is infamously murky, so I offer this analysis with the caveat that nothing is as clear as it should be.  Having said that, however, the Act states that "no electoral vote or votes from any State which shall have been regularly given by electors whose appointment has been lawfully certified to according to section 6 of this title from which but one return has been received shall be rejected."
 
In other words, a state's slate of electors cannot be challenged unless a competing group purports to be the properly appointed slate.  A slate can be rejected without replacement if both houses decide that the vote was not "regularly given" or that the slate was not "lawfully certified," but those are separate issues, and it is not my impression that the challenges will focus on regularity or certification.  If I am wrong, my analysis above -- they will do as much of this as needed -- applies.
 
Otherwise, the Act further states: "[I]n case there shall arise the question which of two or more of such State authorities determining what electors have been appointed, as mentioned in section 5 of this title, is the lawful tribunal of such State, the votes regularly given of those electors, and those only, of such State shall be counted whose title as electors the two Houses, acting separately, shall concurrently decide is supported by the decision of such State so authorized by its law."
 
Again, there is a lot more detail in the Act, mostly covering other contingencies.  At least by my reading, however, the only way Trump's people can get rid of a Biden slate is to replace it with a Trump slate.  If that is correct, then there will definitely be 538 electoral votes at the end of the process.  Only a 269-269 tie would send the decision to the House's contingency process under the Twelfth Amendment.
 
In the end, even if McConnell and the Republicans decide to support the challenges, they will fail because the House's vote on the challenges is not a one-vote-per-state vote but is a regular House vote, with Democrats holding a majority of the seats.  That is almost surely why McConnell seems intent on not following Trumpists into a spectacularly public failed last stand.
 
Trump might yet try to invoke martial law or something else, so we are hardly out of the woods.  But the January 6 circus will be a nonserious event that nonetheless seriously undermines this country's continued viability as a constitutional democracy.