Trump’s Ultimate Chance to Overturn the Election

It’s doubtful it’ll work, but the 1887 Electoral Count Act's wording allows for one last loophole.

Story updated on January 3 to reflect the latest developments

For weeks, Trump has been stirring his base with calls to show up in D.C. on January 6, 2021. What his supporters can achieve from outside the Capitol, no one truly knows. What his sycophants can or at least attempt to achieve from within has been made clear this week when senator Josh Hawley from Missouri stated he would object to the electoral vote count.

According to the Electoral Count Act of 1887, one member of each chamber must concurrently object for an objection to stand. They don’t need a reason to object. They can do so at will.

Already, around 20 GOP House representatives have said they would object. Hawley is the first senator to do so, but his lone voice ensures that the challenges will have to be debated.

Update: Ted Cruz and ten other senators (bringing the total to 12) have announced that they intend to object the results of the Electoral College vote. They state their intention without ambiguity:

We intend to vote on January 6 to reject the electors from disputed states as not ‘regularly given’ and ‘lawfully certified.

The 12 senators are now joined by over 140 House members in their efforts to overturn the election results.

The Act clearly states that it is not within Congress’s purview to overturn the electoral votes, as the votes have to be considered “conclusive.” Any objection arising must still be debated for a maximum of two hours by both chambers separately and the issues resolved by a vote.

Assuming there is only one slate of electors for the state’s votes being objected, even if the chambers disagree (say the House rejects and the Senate upholds), Congress has to certify the result and move on.

The problem, and Trump’s opportunity, arises when there are multiple slates of electors.

All states and D.C. have certified their results, and there are no known official competing slates, so it would seem this ship has sailed.

However, the 1887 Act provides for one last chance to mess with the process. 3 U.S. Code § 15 provides that:

[T]he President of the Senate [must open] all the certificates and papers purporting to be certificates of the electoral votes.

Three times in history (1801, 1877, 1889), the Vice-President acting as President of the Senate has opened and read unofficial or, as in 1877 and 1889, prank certificates. Jefferson even got elected in 1801 with a dubious certificate from Georgia.

The important word in the law is “purporting” which would indicate that the document doesn’t have to be a certificate; it merely has to be intended as one. And here’s the troubling part. In a recent filing, “Kraken”-famed conspiracy-nut attorney Sydney Powell claimed that:

[T]here are now competing slates of electors from the four states at issue in the four cases mentioned above, (as well from Nevada, New Mexico, and Pennsylvania). These four slates of electors have received the endorsement of the legislatures in each of these States, as reflected in permission for them to cast (or attempt to cast) their electoral votes, as an electoral body, for President Donald J. Trump in the respective State Houses at the time and place as set forth under applicable State law, the Electoral Count Act, and the authority delegated under the U.S. Constitution’s Electors Clause. U.S. Const. Art II, § 1, cl. 2.

While none of it is true, the Trump legal team claims that there are indeed competing slates of electors. If one of these documents, however fraudulent it might be, finds its way onto Pence’s desk on January 6, Pence would have to read it. That’s what the law suggests.

Congress can debate whether the President of the Senate must read the document or not, but should both chambers disagree. The decision rests with Pence (source, p. 639).

Therefore, assuming (1) an objection is made to a state’s electoral vote (will certainly happen), (2) that the fraudulent and counterfeit electoral slates find their way to Pence’s desk (unlikely, but possible), and that (3) both chambers disagree on what to do with the results (unlikely, but possible), the result certification would fall on the state’s Governor.

Powell claims that there are competing slates in Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania and Wisconsin. Only two of those states have GOP governors (Arizona and Georgia), representing only 27 Electoral Votes.

That’s not enough to get Biden below the 270-vote threshold and send the vote to the House, per the 12th Amendment. But should it happen, the country would be plunged into a constitutional crisis without precedent.

Maybe that’s what Trump wishes for. Maybe all he wants is chaos. We’ll know for sure in one week.

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