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FAQ's from the National Task Force on Election Crises
Wait, isn’t this election over?
Let’s start at the top. Here’s the timeline we’re on.
Though last year is quickly fading from our minds, reach back to just a few weeks ago when on December 14, 2020, slates of electors from each state voted 306-232 in support of President-elect Biden and Vice President-elect Harris as the next president and vice president of the United States.
Yesterday, on January 3, 2021 the 118th Congress was sworn into office. On January 6, Congress will meet in a joint session to officially count the electoral votes cast in December.
Will there be challenges to the election results on January 6?
Yes, President Trump’s supporters in Congress have announced their intention to object to counting electoral votes for Biden on January 6.
How do objections to election results work in Congress?
According to the Electoral Count Act, if a member from both the House and Senate sign on to an objection to a state’s electoral votes (likely AZ, NV, MI, WI, PA, and GA), the House and Senate then meet separately to debate and vote on the objection. The debate time is limited to a maximum of two hours. During that time, each member is allowed to speak only once and for no more than five minutes.
A state’s slate of electors cannot be rejected unless both chambers agree to do so (and even then, the law limits the reasons for the chambers doing so). That’s fairly implausible, given Democratic control of the House and the announcement from many Republican Senators that they will not vote against certification. Electoral votes may be challenged as a political exercise but the election outcome will not change.
How seriously should we take challenges?
Not at all.
Our election system makes individual states responsible for conducting elections and certifying the results in accordance with their own state law. Once state officials have certified the results of the election in their state,it is not for Congress to second-guess or disagree with the results, but rather to recognize and count the votes of lawfully appointed electors.
All states have conducted and certified their elections in accordance with their own state laws, and all of them except Wisconsin did so and resolved any disputes before the “Safe Harbor” deadline on December 8th, which means Congress must accept those results as “conclusive.”
Simply put: Congress’s job on January 6 is simply to count electoral votes and declare the winner. These objections are irresponsible and will serve only to corrode confidence in a free and fair election.
Can Vice President Mike Pence weigh in?
No.
As the President of the Senate, Vice President Pence only has a ministerial role in the January 6th session. Under the Electoral Count Act, his specific duties as the presiding officer include: preserving order and decorum; opening and handing electoral vote certificates to the tellers; calling for objections; and announcing the results of votes on objections. During any separate meetings of the Senate to debate objections, the vice president calls a vote on objections after a statutorily limited period of debate, and may break a tie, but otherwise has no vote.
The ECA also provides that the vice president shall announce the result of the overall electoral vote count at the end of the vote-counting process — meaning the vice president announces the winning candidates for president and vice president. None of these duties include the power to decide controversies that might arise over counting electoral votes or to otherwise decide the outcome of the election.
Have objections of this kind happened before?
Objections to slates of electoral votes are not unheard of. After the2016 election, for example, Democratic House members objected to the electoral certificates for a number of states, but no members of the Senate joined in the objection in writing—which is required to force a debate. After the2004 election, Senator Boxer and Rep. Tubb-Jones objected to the results to make a point about election security, but Kerry had already conceded. And in the case of the2000 election, over a dozen Democratic House members objected to Florida’s electoral votes, but Gore had already conceded—because no Senatorjoined the objection, their objections did not lead to a debate.
Though objections have happened before—and this challenge will fail—those objections havenever risen in a context where a candidate has refused to concede and the losing party is questioning the election results. The current context makes these kinds of bad-faith objectionsa serious threat to our democracy and our tradition of smooth transitions of power.
What about the argument that concerns about fraud and other irregularities have not been addressed?
This is simply false.
Every state has canvassed and certified its results — some of them after recounts and/or audits. Of note, all the battleground states have conducted post-election audits. International observers, including a 28 member team from the Organization of American States (invited to observe the election by the Trump Administration) issued a report indicating there were no serious irregularities in the election. In addition, there have been both state and federal lawsuits in all of the battleground states —none of which produced any evidence of widespread fraud or other irregularities that mightchange the outcome.In fact, scores of court decisions have rejected challenges to Biden’s victory as meritless: the current count is 59 losses in 60 lawsuits filed since Election Day.
All official state electoral appointments and votes this year will have been “lawfully certified” by state officials and are beyond good-faith dispute. Former cabinet officials of both parties, business leaders, and members of Republican Senate leadership have urged the politicians leading this dangerous threat to our democracy to stand down.
What can we do?
We again urge you and your networks to encourage Republican members of Congress, particularly Republican senators, to refuse to participate in this effort to undermine the will of the voters that will have no effect on the outcome but will undermine confidence in our electoral system and democracy.
We will provide additional updates as events warrant in the coming days.
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Our mission transcends party and ideology. The National Task Force on Election Crises is a diverse, cross-partisan group of more than 50 experts in election law, election administration, national security, cybersecurity, voting rights, civil rights, technology, media, public health, and emergency response. The Task Force’s core mission is to ensure a free and fair 2020 presidential election by recommending responses to a range of election crises. Our focus is ensuring that the election runs smoothly during challenging circumstances, that disputes are handled in a way that maximizes confidence in the outcome, and that there is a peaceful transition or continuation of power on January 20, 2021. The only electoral outcome the Task Force advocates is that the election is free and fair.
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