Can Congress Interfere With Biden’s Electoral Win? Probably Not.

Topline

As President Donald Trump’s push to overturn his election defeat crumbles, some Trump allies have contemplated trying to reject President-elect Joe Biden’s Electoral College votes when Congress gathers to certify him as the winner in January, but this last-ditch effort to keep Trump in office has virtually no chance of success.

Key Facts

Crucial Quote

“The Constitution does not provide Republicans — including the state legislatures, Congress or Vice President Pence — with a second chance to override the will of the people when a state legislature’s method of choosing its electors did not work to the party’s political advantage,” former prosecutor Simon Cataldo told Time earlier this month.

Key Background

Despite his loss to Biden, Trump is waging an unprecedented and so-far unsuccessful fight to stay in office, underpinned by baseless voter fraud claims. His campaign launched a flurry of lawsuits aimed at throwing out votes or halting states from certifying their results, but judges have rejected most of these legal challenges at a rapid clip. Lacking a clear judicial strategy, Trump has encouraged Republican officials and legislators in various swing states to delay their certification processes or choose their own competing slate of pro-Trump electors, a legally dubious idea almost no Republicans have seriously pursued so far. 

Tangent

Even if objecting to the Electoral College’s votes is a dead-end strategy, some members of Congress might pursue it for symbolic reasons. Some staunch Trump defenders have tied themselves to the president’s rapidly fading bid to stay in power, motivated by a desire to stay in Trump’s good graces and a belief that the president’s supporters expect a fight. A series of objections could serve as their last official opportunity to send a message.

Surprising Fact

Symbolic Electoral College objections are not unprecedented. In 2016, several House Democrats objected to electors over complaints about voter suppression and Russian election interference, though no Senator backed their objections so the process was not seriously delayed. Also, in 2004 several Democrats in the House and Senate objected to Ohio’s electors, claiming voting irregularities in that state, a gambit that ultimately failed.

Further Reading

What to Know About the Electoral College Process That Will Take Joe Biden From Election to Inauguration (Time)