By Gloria J. Browne-Marshall
Gloria J. Browne-Marshall
Presidential voting drama will continue into 2021. One hundred Republicans in the House of Representatives joined a failed Texas lawsuit challenging the Presidential election results rebuffed by the U.S. Supreme Court. A Joint Session of Congress must certify the Electoral votes received from the Electoral College or meeting of the state Electors. Then, the Vice-President, sitting as President of the Senate, must announce those results. That means Mike Pence must proclaim Joe Biden as the next President of the United States.
This is all based on the rules of the Electoral College. The Electoral College is not a college. It’s a group of political leaders formed to balance the popular vote of the people. The Framers of the Constitution didn’t quite trust the power of regular people to elect the leaders of the country, especially the Commander and Chief of the military.
The Framers created the Electoral College in 1787, under Article II of the Constitution. In the beginning, most leaders of the Federal government were selected by the Electoral College and the Senate. That changed in 1804, with ratification of the 12thth Amendment. Now, the Electoral College elects the President and Vice-President. Interestingly, the electors vote for the President and Vice-President, separately.
After we vote, meaning the regular people, the electors take over. Each State’s electors gather and certify the number of Presidential popular votes. In most states, the candidate with the highest number of popular votes receives that state’s electoral votes. There are 538 electoral votes. This number is equal to the total of U.S. Representatives and Senators in Congress. Then, the Presidential candidate who attains at least 270 electoral votes, the majority, is the winner. This year, on December 14, the Electoral College meets. The Electoral College members tally the popular votes. Then, the electors send their total electoral votes to Congress.
This is under federal law 3 U.S.C. § 15. The law states that Congress meets in a joint session to count the electoral vote, implying that the President of the Senate is the presiding officer. Under §16, the President of the Senate temporarily takes the position of Speaker of the House. Then, under §18 of the law specifies that the President of the Senate becomes the presiding officer of the joint session of Congress.
On January 6, Congress counts the electoral votes from each state. The sitting Vice-President oversees the count. Once counted, the Vice-President announces the next President and Vice-President of the United States. So, the Vice-President, in this case Mike Pence, is President of the Senate, announces the President-elect. Under federal law, Mike Pence must announce Joseph Biden as the next President of the United States. The concern is whether Pence will follow the electoral laws and traditions. Perhaps a deeper worry is if Donald Trump will order Pence to ignore the law and over two-hundred years of tradition. There are no legal consequences if the Vice-President refuses to make the announcement. Such behavior will probably follow the undignified tantrum Trump has displayed as a sore loser.
“Famously (or infamously), Vice-President Al Gore announced George Bush as President-elect in January 2001,” says Miriam Vincent, Staff Attorney, Legal Affairs and Policy Division of the National Archives. The National Archives houses the final Electoral College vote counts. For this election, the battle will not end until January 20, Inauguration Day.
Gloria J. Browne-Marshall is a Professor of Constitutional Law at John Jay College (CUNY), the author of “She Took Justice: The Black Woman, Law, and Power” and a playwright. Parts of this article were written for “Your Democracy with Gloria J. Browne-Marshall” on WHYY radio (an NPR affiliate) in Philadelphia.