Polling indicates that as much as 54% of the country feels the presidential election was not fairly and honestly conducted and, therefore, that the outcome is illegitimate. So, at this point, what can be done about that?
Short of the U.S. Supreme Court deciding to hear a case that challenges the voting procedures in the contested states, the only likely constitutional and/or statutory path left is an objection in the Joint Session. The objection would have to be based on the allegation that an electoral vote was “not regularly given” or that an elector was “not lawfully certified.” (3 U.S.C. § 15). These two grounds are considered by legal scholars to include objections to individual electoral votes or to state returns as a whole.
The specific procedure for making objections to the counting of electoral votes is as follows: The objection must be presented in writing and must be signed by at least one Senator and one Representative. The objection must state clearly and concisely, and without argument, the grounds for the objection. When an objection is properly made in writing and endorsed by at least one Senator and one Representative, the joint session is suspended, and each house then meets separately to consider the objection.
So, the House meets alone and the Senate withdraws from the House chamber to also separately consider and debate the objection for no more than two hours and then vote whether to count the electoral vote (s). If both houses then vote separately and, by a simple majority, don’t each agree to the objection, the objection fails and those electoral vote (s) are counted.
Of course, the reason the electors are so important is because the Electoral College is the formal body that actually elects the President and VP. Each state has as many “electors” in the Electoral College as it has Representatives and Senators in the U.S. House and U.S. Senate. (LA. has 8). So, when voters vote in a Presidential election, they are actually voting for a slate of electors who vow to cast their ballots for that ticket in the Electoral College.
On Jan 3, 2021, the new Congress will be sworn in. On Jan. 6, 2021, at 1:00 pm, the new Congress counts the electoral votes at a joint session of the U.S. Senate and U.S. House in the U.S. House chamber. The President of the Senate, Vice President Mike Pence, presides over the joint session. This process usually certifies a winner of the presidential election.
We will see whether it does this time.
Even if the outcome of the election is not changed, making objections that must be separately heard and voted upon is a highly visible—and highly principled—manner by which to formally declare on the record whether this election was conducted in a way that deserves the faith in, and support of, millions of American voters.
(P.S. As an aside, I offer again that the State Legislatures in each of the disputed states—Michigan, Wisconsin, Georgia, and Pennsylvania—clearly possess the plenary (complete) constitutional authority to decide which electors to certify. Recall that because the new Congress doesn’t meet until Jan. 3rd, electoral votes are not counted until Jan. 6, and a new president is not inaugurated until Jan. 20th, any certification that has been made—remember Dec. 8th and Dec. 14th are statutory deadlines not constitutional ones—can still be rescinded and a correct certification of electors made by each legislature. It is the state legislatures that must act).