What Will Happen on January 6th in Congress? A Congressional Civil War that Trump Needs to Win – And He May Be Forced To Just Take It
Seaborn Hall, 1/02/21, updated 1/06/21
For an Executive Summary see the Bottom Line section at the bottom of this page.
What happens January 6, 2021 in a session of Congress to confirm the Electoral College results for the Presidential Election will possibly determine the fate of America.
On that date Congress comes together to officially certify the Electoral vote count for Presidential candidates Joe Biden and Donald Trump. Joe Biden presently has 306 Electoral votes; President Trump has 232 Electoral votes. 38 votes separate the 270 needed for a majority.
The controversy of this election is whether or not there was Election Fraud in at least six battleground states. And, was it large enough to change the Election results?
According to White House Economic Advisor Peter Navarro’s independent research investigation it was. Millions and millions of Americans are now convinced as well and seven Republican State legislatures (some reports say only five states) – Pennsylvania, Georgia, Michigan, Wisconsin, Arizona, Nevada & New Mexico – have sent alternate, but non-certified electors, to Congress on January 6.
Congressional members in the House and Senate also plan to stage an Electoral Vote challenge. But, because of the Congressional make-up any such challenge of Democratic certified electors is destined to fail.
According to one article, “The situation is complicated by a lack of clarity on the legal and constitutional guardrails for the process. The joint session of Congress may well result in gridlock, in which a clear winner of the race isn’t announced at all.” This is true.
How Vice-President Pence, who presides over the Electoral count and the unified session of Congress, ‘counts’ the votes could determine the fate of the nation – and will certainly determine the outcome of the Congressional Session.
What Happens January 6?
The Vice-President opens the Session of Congress at 1 p.m. He is handed the certified – and also likely the non-certified – Electoral certificates state by state, alphabetically, beginning with Alabama. Arizona will be the third, and the first controversial, state.
What VP Pence does relative to Arizona will likely determine the outcome of the Congressional session.
The problem with this whole process is that the Constitution is unclear on the exact procedure for a situation like this and scholars are divided on how it should be interpreted. In addition, the Electoral Count Act of 1887 (discussed more extensively in our other articles – see Related Links at page bottom) may or may not be un-constitutional, depending on who’s side you are on. There, at least, there is precedent from Al Gore, the sitting VP in the 2000 Election controversy. As a sitting VP, standing for election – like VP Pence – he followed the Electoral Count Act procedure.
If VP Pence does not follow the 1887 Act, he can be accused by the other side of breaking from historical precedent that took place in a similar election controversy.
What are VP Pence’s options when Arizona is called – and Why?
When the State of Arizona’s electoral certificates are handed to the VP he has several primary options.
First, he can accept the State certified Biden electors, handing them to the tellers for verification and recording. The tellers will then hand them back to him for the announcement of the vote to Congress. As other states are roll-called, Biden will become the official President-Elect.
Second, VP Pence can independently assert his Constitutional authority as the ‘counter’ and announce that he is only accepting the non-certified state votes for President Trump. He can refuse the State certified electors and offer alternate electors to the tellers. Since one Teller is Democrat and one Republican, this may cause a tumult in Congress. The tellers could refuse to accept those electors. It could, however, force a debate and vote in Congress over Arizona’s electors.
Unfortunately, even here Trump would likely lose because, unlike the Democrats, Republicans are cowardly and divided and a cabal among them is against the President. The vote would likely go against accepting the non-certified Electoral votes in both houses, the House and the Senate. This would mean that the Biden Electoral votes would stand and be accepted.
Where does this leave things? VP Pence would have to stand against Congress and refuse to count the Biden votes and insist that all electoral votes from Arizona be set aside. But exercising questionable authority to make this call in this situation would take great courage and would result in much anger toward him in Congress.
The exact result of a situation like this is unclear because the Constitution and the Electoral Count Act of 1887 (discussed more extensively in our other articles – see Related Links at page bottom) are both ambiguous as to the Vice-President’s authority in a situation like this. But, it is probable, because of the Constitution’s simple language, that any subsequent Supreme Court decision would go against such action.
If somehow Congress could agree to set aside the Arizona votes – an unlikely scenario – then the next set of certificates would be presented. So it would proceed through each of the states and all of the battleground states. Georgia, Michigan, and Nevada would be debated next, then Pennsylvania and Wisconsin, each in turn. If Pence set aside all electors in all of the battleground states then, technically, Trump could win based on a majority of the remaining electors.
But Congress is unlikely to accept such a procedure or result without great tumult and a firefight. There are many who have suggested that this could lead to Civil War. Unfortunately, or fortunately depending on your view, VP Pence has already telegraphed that he will not present non-certified electors to Congress and that he will follow the 1887 Act procedure.
The Electoral Count Challenge Procedure Option
If VP Pence does not save the day by presenting the non-certified Electors to Congress then Trump’s chances are left to an Electoral Count Challenge that he has almost no chance to win.
In an Electoral Challenge the 1887 Act would need to be followed: VP Pence would present the Biden Electors for Arizona to Congress, knowing that there was to be a Congressional Challenge. One House member and one Senate member would then present a challenge to the Electoral votes – having prepared that challenge in writing before the Session.
According to the Electoral Count Act of 1887 there are clear procedures when more than one set of electors has been sent to Congress because the ‘Act’ came into being as a direct result of the 1876 Election in which this situation occurred.
His proposal is a Bi-partisan Commission, modeled after the Electoral Commission of the 1876 Election – out of which came both a determination for President and the subsequent Electoral Count Act of 1887 – that would be made up of 5 Republicans, 5 Democrats, and 5 Supreme Court Justices. This is an interesting solution, rooted in Law and Precedent. However, the partisan nature of even The Supreme Court today will be an impediment to a satisfying resolution. As far as we can determine, this proposal will only be seriously considered if there is a stalemate of some sort that results from any Electoral Count Challenge. In other words, the procedures and options outlined on this page will still be in effect and have to play themselves out.
His proposal is a Bi-partisan Commission, modeled after the Electoral Commission of the 1876 Election – out of which came both a determination for President and the subsequent Electoral Count Act of 1887 – that would be made up of 5 Republicans, 5 Democrats, and 5 Supreme Court Justices.
This is an interesting solution, rooted in Law and Precedent. However, the partisan nature of even The Supreme Court today will be an impediment to a satisfying resolution. As far as we can determine, this proposal will only be seriously considered if there is a stalemate of some sort that results from any Electoral Count Challenge.
In other words, the procedures and options outlined on this page will still be in effect and have to play themselves out.
If multiple states send more than one set of electors to Congress than the Houses must adjourn and debate for two hours which set of electors to accept. Yet, even here there may be some legal question as to whether the alternate set of electors are legally certified or should be counted as ‘regular votes.’
If it does go to debate, at the close of debate each House votes independently in a roll-call vote to accept one slate of electors. Both Houses must agree on their choice. If they do not, that state’s electors will be dis-allowed and the President will be the candidate receiving the majority of electoral votes from the remaining qualified states.
In this situation, for example, if six states’ electoral votes were challenged – Georgia, Pennsylvania, Wisconsin, Michigan, Arizona, and Nevada for a total of 79 electoral votes – assuming a split vote between the House and Senate, all of those states’ electoral votes would be dis-qualified. That would give Biden 306 – 79 = 227. Trump wins with 232 of the remaining states.
According to the Act, “if two or more returns from a state can claim the safe harbor, then neither will be counted unless both houses agree to count one of them as the true return supported by state law.” The key here is the phrase ‘claim the safe harbor.’ Apparently, both sets of electors must be able to claim certification as of the Safe Harbor Day, six days prior to the Electoral College Vote.
The real problem here is that, depending on the outcome of the Georgia Senate Election January 5th, the Republicans would need a unanimous vote in the Senate to uphold the challenge of Biden Electors. Since Mitch McConnell, John Thune, Mitt Romney and several other anti-Trump Senators are questionable Trump votes without extensive national and/or Congressional pressure from obvious voter fraud evidence, Trump is not likely to win an Electoral Vote Challenge, even if both Senators from Georgia win their Special Election.
What About The State Legislatures? Another Remote Option
Could State Legislatures de-certify Biden electors – and certify Trump electors – before January 6th, either forcing a Contingent Election in the House or giving the election to Trump outright?
The same article linked in the introduction also asserts that state legislatures cannot hold a Special Session without permission of the Governor of the State. Untrue.
This is only true in 14 states, including Michigan and Minnesota. In the other battleground states the process varies, but mostly a 2/3 or 3/5 majority of legislators can call a Special Session in some fashion. The State Legislatures in those states did not do this, probably because they could not get the majority in a poll to vote for a Special Session.
State legislatures meeting before January 6th to de-certify is therefore an unlikely, remote option.
For more on how an Electoral Count Challenge and a Contingent Election would unfold, and the differences between them, see our ‘Red Box’ and our articles on the Electoral Process on the Politics Page and Related Links below.
Bottom Line: Cowardice and compromise of a few Republicans could Shut-out Trump
- Trump can only cleanly win three to four ways at present:
- One, State legislatures in states with a total of 38 Electoral votes or more meet to de-certify Biden Electors before January 6.
- This option is almost impossible for reasons stated above.
- Two, The Supreme Court makes a decision de-certifying Biden electors in three states equaling 38 electoral votes or more by January 6.
- Equally improbable, based on recent Supreme Court decisions.
- It is possible, but not likely, that some Supreme Court decision following January 6 – either with or without a Biden elector confirmation – could change events on the ground and lead to a Trump inauguration. The Court has several pending State election fraud cases docketed between January 6 and 20.
- Three, If Vice-President Pence has the courage to stand alone under fire and stretch the Constitutional limits.
- Not likely, for reasons stated above.
- Vice-President Pence has signaled he will not intervene to guide the Electoral Vote Count. If true, and not a head fake, this spells certain doom for President Trump’s clean election remedies.
- One, State legislatures in states with a total of 38 Electoral votes or more meet to de-certify Biden Electors before January 6.
- Four – Trump’s Best Chance: If the Procedure of the Electoral Vote Count Act of 1887 is interpreted and followed regarding two dueling sets of electors so that any set of electors must be unanimously approved by an independent vote of the House and Senate, Trump could win when three to six states’s electors were set aside and considered invalid. The fact that Republicans are divided makes this unlikely.
- As long as Congressional Republicans are split and divided – as they are – they have no authority or ability to support any Electoral Vote challenge, whether it is a challenge to Biden Electors, or whether it is a Democrat Challenge to Trump Electors. At present, at least, Trump will be defeated by both (for the beat by beat rationale, see the sections above).
- This makes any Electoral Vote challenge by House Republicans, or a Senator like Josh Hawley of Missouri or a cabal of Ted Cruz organized Senators a moot point.
- Any Electoral Challenge of Biden Electors will likely be defeated
- Even if VP Pence were to replace Biden Electors with Trump Electors – as he should have the courage to do, in our opinion (but he probably won’t) – the Democrat challenge to the Trump Electors would be supported by Republican betrayers like Mitch McConnell and John Thune and other anti-Trump Republicans.
- That means that the Biden Electors would be accepted instead
- There is a small chance that presented Voter Fraud evidence during an Electoral Challenge January 6 could persuade Senate Republicans to unite and unanimously vote to support a challenge to Biden Electors. This would likely result in a Trump win by simple majority, without a Contingent Election.
There is one final way that Trump could win. If Biden Electors are confirmed on January 6, but Trump challenges the constitutionality of The Electoral Count Act of 1887 to the Supreme Court – and they decide in his favor, forcing the election back to a Contingent Election in the House. This is also a very low probability scenario.
Unfortunately, as of the morning of January 6, there are both House Republicans and Senate Republicans that oppose challenging the Biden Electors. They have various reasons for doing so. Some believe that under the Constitution it is the State Legislatures, not Congress that has the authority to challenge. We believe this to be a pedantic reading of the Constitution, especially considering the indigent circumstances. Others, are anti-Trumpers and RHINO’s and will be against Trump no matter what the issue. All said, this process is likely to extend past January 6 as Congress debates the issues.
Unfortunately, as of the morning of January 6, there are both House Republicans and Senate Republicans that oppose challenging the Biden Electors. They have various reasons for doing so. Some believe that under the Constitution it is the State Legislatures, not Congress that has the authority to challenge. We believe this to be a pedantic reading of the Constitution, especially considering the indigent circumstances. Others, are anti-Trumpers and RHINO’s and will be against Trump no matter what the issue.
All said, this process is likely to extend past January 6 as Congress debates the issues.
- The Present Reality is this: The most probable way that Trump will remain President is if he fights for it and he takes it.
- He will likely need a landmark event, or events, exposing Voter Fraud and Foreign interference to justify this type of intervention.
- Given that event he could use the Foreign Interference Act and the National Emergency Powers Act and The Insurrection Act of 1807 to retain the Presidency and enforce martial law and a voter fraud investigation
- Without a doubt, this would cause some level of Civil War to erupt in the US in 2021, but it would save America from almost certain disintegration into Socialism and Elite corruption and control, from this time forward.
- Over time Biden and Harris – and Hillary Clinton – and their allies might be fully exposed and indicted for their crimes and the nation brought back together in a semblance of its former unity
There is also a chance that none of these scenarios will take place and Trump finds another way to win. The nature of the law is interpretive and the Constitution and the Electoral Count Act are ambiguous in parts, needing final authority from the Supreme Court in many cases. The 1887 Act may or may not also be unconstitutional. The only sure thing is that this will be the most interesting and educational American election in some time.