While the electoral votes cast Monday put Donald Trump another step closer to officially becoming the next U.S. president, the Republican businessman-turned-politician must jump through one more legal hoop on Jan. 6: the tabulation and review of Electoral College votes during a joint session of Congress.
Although it’s never been done before, Democrats could employ an obscure 1887 law during the process in a last-ditch effort to stop Trump from taking the oath of office.
The law, 3 U.S. Code section 15, allows for a challenge to electoral votes — either on an individual basis or statewide — if one member of the House and one member of the Senate submit a letter asserting that votes were not “regularly given.” From there, a win for Hillary Clinton is theoretically possible, although it’s almost certainly not going to happen.
“You’ve got to be honest and say there’s a huge amount of uncertainty in this,” said Ohio State law professor Edward Foley, whose book “Ballot Battles,” about the history of disputed elections, came out earlier this year. “It is the most convoluted law, and Congress knew at the time they wrote it that it didn’t make any sense, but it was a compromise.”
After a representative and senator file their objection, both chambers meet separately for two hours to deliberate. For example, two Democrats, one from each body, could file an objection about Pennsylvania’s electoral votes cast for Trump and cite Russia’s interference in the election.
“If it was proved by the CIA and FBI investigations that there had been some particular districts that were manipulated — for example, in Pennsylvania, Michigan, or Wisconsin — then that could be a condition [for Congress to object],” said Pippa Norris, a McGuire Lecturer on Comparative Politics and professor at Harvard and Sydney universities.
Since Republicans have a majority in both chambers of Congress, however, the objection would likely be voted down. In fact, Congress has never sustained one of these objections; in the past, they’ve stemmed from a procedural lapse, like duplicate electoral votes, and not from ideological issues, according to Derek Muller, associate professor of law at Pepperdine University.
“I highly doubt anything terribly irregular will happen,” Muller said. “The closest analogs — 1960 with electoral votes from Hawaii and 2000 with electoral votes from Florida — went by without a hitch.”
Then again, this election was terribly irregular. A foreign country has never stood accused of hacking an election to help one candidate, and a record number of “faithless electors” voted against the results of the general election in their state this year.
In the new Senate, Republicans will have only a two-vote majority, and if those two votes sustain the objection, the tie-breaking vote goes to Vice President Joe Biden. Then, if the Senate approves the objection but the House votes against it, the law suggests the state’s governor awards the contested electoral votes. If Pennsylvania’s electoral votes, for example, were challenged, Democratic Gov. Tom Wolf could, in theory, give his state’s 20 electoral votes to Clinton. Democrats would then still need at least one more state to reach 270.
If both chambers approve the objection, then Pennsylvania’s electoral votes wouldn’t be counted, putting Trump 15 votes away from losing his majority in the Electoral College. In the event of no majority, the decision diverts to the House, which would likely elect Trump.
Even if Democrats successfully used the law, Trump’s team would probably hit Clinton with a barrage of lawsuits, resulting in an unclear verdict on who assumes the presidency on Jan. 20. Such a scenario would lead to the largest constitutional crisis since the Civil War.
In the wake of Trump’s victory, Democrats have been searching for any means to overturn the results. First, they donated to a $7 million campaign started by Green Party presidential nominee Jill Stein to file recounts in three states — Wisconsin, Michigan, and Pennsylvania — where Clinton narrowly lost. In Wisconsin, Trump’s margin of victory grew after the recount, and judges’ decisions halted efforts in the other two states.
Then, two Democratic electors launched the “Hamilton Electors” movement to plead with members of the electoral college to defy their state’s popular vote and rally around an alternative Republican candidate. In the end, seven “faithless electors” cast their votes for an alternate candidate — but five of them went against Clinton.