(Photo : Getty Images: Tasos Katopodis / Stringer)
On the 6th of January, at 1 p.m. local time, Congress members will assemble in the House of Representatives chamber to witness the Electoral College formal certification of electoral votes for the United States president.
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Former Vice President Joe Biden has received 306 electoral votes while incumbent President Trump got 232, based on current election results. Meanwhile, in the seven states where Biden claimed triumph, Republicans have sent their own sets of electoral votes to Washington, and some members of the House in some states have shown that they will object to Biden electors. For opposition to be considered, it will entail backing from one House member and one senator, and at least one senator has left the possibility open that he would join the effort.
If that happens, all must refer to the Electoral Count Act of 1887, or currently known as 3 U.S. Code Section 15, as it has established a procedure for how the votes are counted, how to raise objections how to resolve disputes. In counting votes, it says that the vice president supervises the proceedings. At the same time, the House and Senate leaders each have elected two tellers. The VP opens the envelopes with the vote certificates and hands them to the tellers for counting. The tellers then read them out loud, count them, and hand them back to the VP to proclaim the results.
In handling objections, the law says that at least one complaint from each chamber is needed to start a separate vote by both House and Senate. If both chambers approve, the objected electoral votes are rejected. That's virtually out of the question, given the Democrats are the majority in the House.
The House and Senate need to separately vote, which will be counted and rejected if two sets of electoral votes are presented for counting. If each chamber votes otherwise, the group certified by the state's governor should matter, and, in this case, it will hand the victory to Biden.
The problem is, there's a capacious body of legal analysis in a conflict that the Electoral Count Act is unconstitutional. Congress has no business compromising itself the authority to choose which electoral votes slate is the correct and which electoral votes should be rejected. Nor does Congress have the power to designate state governors as the final arbiters, a lineup of lawmakers and legal scholars have reasoned.
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There are two opinions for who has the constitutional power to decide which votes to choose.
According to some jurists, it's the VP who has the sole discretion to decide which electoral votes to count. The argument is that the framers intended the sole authority of counting electoral votes over to the VP because the unanimous resolution attached to the Constitution said that the Senate should appoint its President "for the sole purpose of receiving, opening, and counting the votes for President."
Furthermore, it was always the VP counting the electoral votes before adopting the Electoral Count Act, while sometimes the significant objections from Congress. In the 1800 election, Thomas Jefferson did as the VP, counting Georgia's constitutionally deficient electoral votes and de facto fortifying his presidency.
Still, not everybody agrees.
