In the midst of so many disaster scenarios and worries ahead of this election, it’s worth noting that the more that risks are overstated, the more legitimate those risks appear. It’s been disappointing to see many stories (too many to aggregate, but I did a bit here) continuing to overstate those risks.
The New York Times has two such comments in recent stories, and they are emblematic of themes carried elsewhere in other stories. First, “Trump Hints at ‘Little Secret’ With House Republicans, Setting Off a Panic.”
Still, Mr. Johnson would not be a powerless bystander. He could help organize Republican lawsuits or pressure state boards of elections to throw out legitimate votes. He could reject the electors from certain states, and he could try to refuse to seat new Democratic members of the House.
No single member of the House, from the Speaker on down, has the power to “reject the electors from certain states.” The Electoral Count Act and the Electoral Count Reform Act are crystal clear that it takes majorities of both houses to sustain any objections. The Twenty-Second Joint Rule, the precursor to the ECA in the mid nineteenth century, required at least a majority of one house. Implanting the notion that a speaker “could reject the electors” is legally incorrect but gives not only some fear that it may happen but some suggested legal authenticity to a plainly unlawful act.
Second, “Could the Vote Be Contested Again? 5 Threats to a Smooth Election.“
Congress, however, does play a constitutionally defined role in certifying the presidential results and the slates of electors from the Electoral College, on Jan. 6. In the 2020 election, this process was disrupted by Republicans who voted to challenge several slates of electors and were able to do so with a single protest from each chamber.
Under the new law, challenging a slate of electors will now require a vote from 20 percent of each chamber — a higher bar, but one still likely to be cleared by extreme party loyalists from both sides.
There is no evidence that an objection is “likely.” The Senate has been extraordinarily reluctant to join objections. It did not do so for attempted objections by the House in 2001 or 2017. Only one Senator joined an objection to Ohio’s votes in 2005 and to Pennsylvania’s votes in 2021. And a handful–below 20%–joined on to Arizona’s votes in 2021. That’s in stark contrast to dozens of House members–and in 2021, over 100 House members–who attempted to join objections.
It’s possible, of course, that past performance does not indicate a future likelihood of successful objections. But one good reason for raising the threshold to a figure like 20% is the ability to stave off objections–and had this threshold been in place, counterfactuals concededly aside, none of these objections would have had air time.
With these and other claims, it is important to be precise, to distinguish legally plausible scenarios from implausible ones and to assess risks with caution in the days ahead.