Wednesday, December 30, 2020

Electoral College Rules for 2021

The least-understood aspect of Congress’ Electoral Vote Certification occurs days before the Main Event. On Jan. 3rd, the First Day of the New Congressional Session, the House and Senate will Adopt a Set of Rules that Govern the Jan. 6th Meeting.

The so-called Concurrent Resolution usually originates in the Senate, where the Rules Committee, Chaired by Sen. Roy Blunt (R-MO), would issue the First Version. In recent Decades, even after fiercely Contested Elections like in 2000 and 2016, the Rules have been Adopted Unanimously and Without Debate.

Those Rules have been Unaltered for Decades, and they simply Reaffirm that Congress will Abide by the Processes in the Constitution and in the Electoral Count Act. Those Processes include a Requirement that the Vice President, in this case Mike Pence, will Preside over the Jan. 6th Session and that Electoral Votes are to be Read Aloud one State at a time, Alphabetically.

Those Rules also lay out the Process for Challenging State's Electoral Votes: It Requires One House Member and One Senator to join together in Writing to Object. If that happens, the House and the Senste Recess to their Chambers and hold a Two-Hour Debate, with each participant Speaking up to Five Minutes. Then the Chambers Vote on whether to Accept or Reject the Challenged Electoral Votes and then Return to the Joint Session. A simple Majority in the House and Senate would be Expected to Defeat any Challenge to Biden’s Votes, as they did in 2005, when Democrats forced Debate on a Challenge to Ohio's Electors.

But the Rules aren’t Etched-in-Stone, and in fact some Experts say Congress could Ignore them altogether, since the House and Senate have broad Authority to Set their own Internal Rules and can’t necessarily be Bound by the Decisions of 19th-Century Lawmakers. But Ignoring the Electoral Count Act altogether would Create a New Degree of Legal Peril that Congressional Leaders are loath to Unleash.

Rather than take the Extreme Route of Bypassing the Electoral Count Act altogether, Constitutional Scholars say Lawmakers could use the Opportunity to Clarify and Add to Existing Processes in order to stave off Uncertainty stoked by Trump’s Hard-Line Allies. That could include Restricting Pence’s Power to make Sweeping Procedural Rulings or Setting Criteria that Prevent him from introducing Alternate Slates of Presidential Electors in States Won by Biden, a Gambit some Trump Allies have urged him to Attempt, but the Supreme Court already Rejected.

Trump Allies could also seek to make a Stand on Jan. 3rd by Attempting to amend the Rules in their Favor or Opposing any New Constraints adopted in either Chamber. Although those Votes would likely Fail, they would provide an Early Window into the Level of Support for any Callenges that they intend to bring on Jan. 6th, and just how many Republicans are Prepared to Vote to Affirm Biden’s Victory as well.

The Twelfth Amendment requires that the Vice President oversee the Joint Session of Congress and Open each State’s Certificate of Electoral Votes. The Electoral Count Act spells out his Role further, requiring him to Hand Over the Opened Certificates to Four “Tellers”, Two appointed by the House and Two by the Senate, who then read them Aloud to the Chamber. Pence then asks for any Objections.

Pence has huddled with the Trump allies who are attempting to overturn the results, and his Public Rhetoric has Increasingly matched Triump’s. One Conservative, Rep. Louie Gohmert (R-TX, 1st District), filed a Lawsuit this week to Throw-Out the Electoral Count Act Procedures altogether, which he argues Violate the Twelfth Amendment’s Requirement that Pence use his Own Judgment about which Electoral Votes should be Counted. The Suit isn’t being taken Seriously in Legal Circles, but it does raise one Crucial Question: What does Pence think? Gohmert's Attorneys revealed that they had attempted to Reach Agreement with Pence before filing Suit but were Unable to come to Terms.

Federal Laws also stack sharply in Favor of Counting Only Elector Sets that have been Certified by a Dec. 8th “Safe Harbor” Deadline and, when Disputes arise, to Count Only the Slate Certified by the State’s Governor.

There’s One Aspect of the Jan. 6th Process that House and Senate Aides say will necessarily have to Change and it could have untold Consequences. It’s simply Untenable, they say, to cram 535 Lawmakers into the House Chamber, possibly for a Daylong Session, while Trump Allies could Lodge Objection after Objection.

Though No Final Procedures have been Adopted, Pelosi’s Office indicated that she is considering Protocols that the House has relied on since the start of the Pandemic: asking some Lawmakers to Sit-In the Public Galleries to maximize Social Distancing and Requiring Votes to occur in Small Groups, with Access to the Floor strictly Limited.

“The procedures are outlined in the Electoral Count Act but the Speaker will continue to Consult with the Attending Physician on COVID Protocols,” said Spokesman Drew Hammill.

It’s unclear, though, how those Limits might impact the Broader Proceedings, and whether it could Complicate the Ability of Trump’s Allies to Upend the Smooth Transition of Power.

Pelosi on Tuesday rolled out a Strict Set of Social Distancing Procedures that will Limit Access to the Floor of the House on Jan. 3rd, when Members of Congress will also be Sworn-In for a New Session. The Rules Restrict Access to No more than 72 Lawmakers at a time. It's Unclear whether similar Restrictions will be Enforced on Jan. 6th.

The Republicans will be One Senate short. David Perdue's (R-GA) time in the Senate ended, so he will Not be Sworn-In on Jan. 3rd, 2021 with his Runoff Election on Jan. 5th, 2021.

NYC Wins When Everyone Can Vote! Michael H. Drucker

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