Who Will Be President and When is Still Not Clear

Last week, I told you about the contested election of 1876, which was only resolved with the creation of a 15-member Electoral Commission.  The Electoral Count Act was passed in 1887 to prevent another election debacle like 1876.  Today, Representative Mo Brooks, Republican of Alabama, is hoping to use the Electoral Count Act this January 6th to get Donald Trump declared the winner of the 2020 election.  Brooks said he wants to get the Electoral College votes of five states - Arizona, Pennsylvania, Nevada, Georgia, and Wisconsin - thrown out for voting irregularities. 

To go down this path, Brooks has to find a senator willing to co-sign the challenge.  Rand Paul indicated he might do so.  Ron Johnson is also receptive, but wants to see what transpires at his hearing this week on election irregularities before committing to Brooks.   If Brooks can get a senator to sign on, each house of Congress would go to its own chamber for a two-hour debate and then a vote on whether to disqualify the electoral votes of one or more states.  Both houses would have to agree.  If one house wants to throw out votes and the other does not, the votes remain valid and the process goes from there.  But if votes are tossed, one possible outcome is that neither candidate achieves a majority of electors, throwing the election into the House of Representatives where a majority of state delegations picks the winner under the 12th Amendment.  However, that’s not the only possible outcome.  The Electoral Count Act has so many confusing, ambiguous, and contradictory provisions it makes your head spin.  For example, it’s ambiguous, in the case of multiple slates of electors from one state, as to whether the slate certified by the Governor should be counted or no slate is counted at all.   

That’s not even the worst of it.  The process under the Electoral Count Act is supposed to be completed by the time the term of the outgoing president ends.   Under the 20th Amendment, that’s set hard and fast at noon on January 20th.   The process might not be concluded by then because the two houses of Congress might disagree whether the electoral count has been completed, or disagree that a new president has been selected.  There could be two people claiming to be president at noon on January 20th.  If the process is not concluded by that time, then the Speaker of the House - Nancy Pelosi in this case - is sworn in as acting president under the 20th Amendment and the Presidential Succession Act. 

They say Congress is where the sausage is made.  Not pretty, is it?