WASHINGTON — The Electoral College will officially vote to make Joe Biden the next president on Monday, the latest constitutional blow to President Trump’s legally dubious if politically dangerous attempts to overturn Biden’s clear win.
The Electoral College vote is actually a series of votes for the 538 representatives in 50 states and Washington D.C., set by law to take place Monday, December 14. The Constitution mandates that the day that the electors vote “shall be the same throughout the United States.” That means once they’ve voted, all that’s left is for Congress to count up the electoral votes in a joint session on Jan. 6.
The Electoral College vote will make the ludicrous attempt by Texas’ attorney general, Trump, and their allies to toss out the results of four states that Biden won an even tougher sell at the Supreme Court.
“Monday is a big deal,” Ned Foley, an election law expert and law professor at the Ohio State University, told VICE News. “As a practical matter, things will be set in stone after Monday.”
Foley said that because of the constitutional requirement that the Electoral College all votes on the same day, it further raises the bar for the Supreme Court to step in to help Trump once the states’ votes occur.
“If Monday comes and goes, [the Texas case] really is moot because there’s no way you can undo the meeting of the electors once they’ve met,” he said.
It’s indisputable how important the vote is legally. A number of state and federal courts rushed to wrap up any outstanding election litigation before this past Tuesday’s “safe harbor” deadline, the day by which the states had to certify their election results to make them ironclad in the Electoral College.
Every state in the nation has certified its elections already, and all but Wisconsin got theirs in before the safe harbor date. Biden won enough states for 306 electoral votes, and those will be officially cast on Monday.
Democrats see Monday’s vote as the latest blow for Trump.
“Once the electors vote then the process is done. That is the end of the road.”
“Once the electors vote, then the process is done. That is the end of the road, and there is nothing further for a state to do at that point,” Marc Elias, Democrats’ top election attorney, told VICE News during a press call on Thursday. “The returns then go to Congress for their approval, but there’s no further action that a court or a state can take.”
Some Republicans have also marked the moment as when they’d be willing to acknowledge Biden’s win: Senate Majority Leader Mitch McConnell said last month that “the Electoral College will determine the winner.”
The Electoral College vote is just icing on Biden’s cake. The former vp won fair and square, and Trump’s increasingly desperate legal attempts to overturn his comfortable wins in multiple states have gone nowhere. Trump and his allies have lost more than 50 legal cases and won just one minor case.
Texas Republican Attorney General Ken Paxton’s legal case to try to overturn the election results is essentially a Frankenstein’s monster that stitches together the already-rejected arguments from the other cases. On top of that, Texas is adding in another bizarre and legally suspect argument, especially coming from the part of states’ rights: that it has the right to sue to try to dictate how other states conduct their election results.
And while conservatives have a 6-3 majority on the Supreme Court, including three Trump appointees, they’ve shown no desire to get involved in the election. On Tuesday, the court unanimously rejected a GOP effort to toss Pennsylvania’s election results.
It’s unclear whether the Supreme Court will flatly refuse to hear this case or whether an esoteric bit of law known as “original jurisdiction” that sets them up as the arbiter of disputes between states might convince the justices to issue a full opinion. They might move swiftly to try to knock down the case before the Electoral College’s Monday-night deadline. But legal experts agree that the Texas case is almost certain to be rejected—and the Electoral College’s vote could give the highest court the impetus to speed up that slapdown.
The Electoral College vote isn’t the absolute final moment. On Jan. 6, Congress will meet to receive the certified votes. A few Republicans have made noise about rejecting some states’ slates of electors. But it would take a vote by both houses of Congress to do so—and there’s zero chance that the Democratic-controlled House would do that.
What’s more, in the key states that were Biden’s narrowest wins—Arizona, Georgia, Michigan, Pennsylvania, Wisconsin—Republican state legislators didn’t try to challenge their own states’ laws and appoint rival slates of electors for Trump. That means it’s very unlikely that there will be any attempts by Republicans to seat rival slates of electors on Monday, leaving Trump’s allies in Congress without a way to try to reverse Biden’s wins in the Jan. 6 session.
Biden’s campaign said the event marked the latest proof that his victory can’t and won’t be undone.
“President-elect Biden won decisively, those results have been certified, and the Electoral College will soon meet to affirm his victory. As has been clear for weeks now, there is nothing Trump or his allies can do to overturn the will of the American people,” Biden campaign spokesman Mike Gwin told VICE News.
Trump’s campaign declined to respond to multiple requests for their legal rationale for fighting on after the Electoral College’s vote.
There’s no sign that anything will stop the Electoral College from voting on Monday: Even Texas didn’t ask the Supreme Court to go that far. And while Texas’ filing suggested they could keep fighting in court until and possibly after Biden’s Jan. 20 inauguration, frivolous lawsuits don’t create any real legal threat, even if they do alarming damage to Americans’ trust in democracy. (A Quinnipiac poll out Thursday found that 70 percent of Republicans don’t believe Biden’s victory is legitimate).
The lawsuit itself is so out there that some top elected Republicans have pushed back.
On Thursday, Ohio’s Republican attorney general, Dave Yost, filed an amicus brief that warned that “the relief that Texas seeks would undermine a foundational premise of our federalist system: the idea that the states are sovereigns, free to govern themselves.”
And a number of GOP lawmakers rolled their eyes at the case.
Texas Sen. John Cornyn, a former state attorney general himself, wondered why any state would “have a say so on how other states administer their elections.”
“I just don't know why a state like Texas, which never wants anybody telling them what to do, now wants to tell a bunch of other states how to run their elections.”
“I just don't know why a state like Texas, which never wants anybody telling them what to do, now wants to tell a bunch of other states how to run their elections,” South Dakota Sen. John Thune said on Thursday.
Nebraska Sen. Ben Sasse went even farther, accusing Paxton, who is under FBI investigation, of fishing for a Trump pardon.
“I'm no lawyer, but I suspect the Supreme Court swats this away,” Sasse said in a statement. “From the brief, it looks like a fella begging for a pardon filed a PR stunt rather than a lawsuit—as all of the assertions have already been rejected by federal courts and Texas' own solicitor general isn't signing on.”
The weakness and obvious anti-democratic efforts laid out in the case haven’t stopped most Republicans from rallying to support their leader. Seventeen red states filed an amicus brief supporting Texas’ case on Wednesday, and on Thursday 106 GOP congressmen joined local Republicans from a number of states including Pennsylvania’s own legislative leaders to back the case. Twenty states filed an amicus brief opposing the case.
But that doesn’t mean it’s going to go anywhere. And Monday’s big vote throws up another constitutional roadblock in Trump’s path to overturning the will of the American people.