5 things to know about Congress, electoral votes and the GOP’s last stand

In a final stage of a bumpy election season, Sen. Josh Hawley (R-Mo.) announced his intention to object as Congress formalizes President-elect Biden’s victory — a move that threatens to complicate a process that is historically ceremonial.

Each election season is marked by the same conclusion: On Jan. 6, a joint session of Congress officially counts the electoral college’s votes, and then votes to accept the results, formalizing the winner.

Hawley’s announcement sets the stage for Trump loyalists to take advantage of an 1887 law and mount a final challenge to Biden’s victory, even amid warnings from party leaders to drop the issue.

Biden spokeswoman Jen Psaki brushed off Hawley’s challenge to the electoral college certification as “antics.”

“This is merely a formality and certainly should be treated as such by people who are covering it and regardless of whatever antics anyone is up to on Jan. 6, President Elect Biden will be sworn in on the 20th,” she said.

No objection has ever changed the election results, and lawmakers who pose them face a steep climb to legitimize their claims. Still, an objection peels back the curtain on the finale of the American electoral process. Here’s how it all works.

What is Congress’ role in the election results?

When Congress begins a new session after a presidential election, formally accepting the results is one of its first actions. The House and Senate convene together to count the votes cast by the electoral college and certify the final count.

“It’s usually a pretty simple ritual,” said Derek T. Muller, a professor at University of Iowa College of Law.

But the rules governing the process are decades old and that makes everything a little bit trickier, said Gayle Alberda, an assistant professor of politics at Fairfield University.

In 1887, Congress passed the Electoral Count Act, much of which remains unchanged. The 1876 election, when Rutherford B. Hayes ran against Samuel Tilden, had been a mess; some states sent multiple sets of ballots with competing results.

Seeking to avoid a repeat, lawmakers set guidelines for how to count ballots and what to do when disputes arise. Congress would be the arbiter.

What’s an objection?

In the distant past, lawmakers routinely disagreed with the results.

The objection process was designed with three scenarios in mind, said Michael T. Morley, an assistant law professor at Florida State University’s College of Law. In the post Civil War years, multiple sets of electoral votes were submitted. Lawmakers also anticipated disputes about an elector’s vote, or about whether it could be cast in the first place.

If two lawmakers — one from each chamber — dispute a state’s count, they can file a formal objection. By law, Congress must entertain that objection, according to the Congressional Research Service.

Up to two hours of debate in each chamber will follow to determine whether the objection has merit, followed by a vote on which results to accept.

In recent decades, there have been fewer opportunities for Congress to receive disputed results, even as the mechanism to address them has remained in place. State governors certify their state’s popular votes, which Congress typically accepts as a stamp of approval. Then there’s safe harbor day, the federal deadline that forces states to settle any disputes about their vote count.

The result, Muller said, was that the debate over objections has “become a theater for members of Congress to air their grievances about the outcome of the presidential election.

Hawley’s announcement aligns him with Rep. Mo Brooks (R-Ala.), who said earlier this month that he, too, planned to object. That’s enough to file a formal objection.

What happens next?

If Brooks and Hawley follow through, they’ll voice their objection on Jan. 6.

Both chambers will have to follow the procedures laid out by the law.

But Brooks, Hawley and their supporters are unlikely to get the simple majority vote they need to legitimize their claims and toss out electoral votes. Democrats hold the majority in the House. In the Senate, Majority Leader Mitch McConnell (R-Ky.) warned Republicans not to engage with Trump’s efforts to upend the election results.

Still, as Muller said, they’re likely well aware of their chances. He notes a series of attempted objections since George W. Bush narrowly defeated Al Gore in 2000, largely intended to express unhappiness with the outcome or the electoral process.

“Counting electoral votes isn’t supposed to be the forum for this,” Morley said. “But [the planned objection] appears to be in line with how the process has been used in the last few decades.”

Only two formal objections have ever been filed — one in 1969 and 2005. Neither was successful, Alberda said.

So why are some Republicans objecting at all?

There’s plenty of reasons someone might want to object, even if failure is all but certain.

“Do I think the challenges that we’ll see will have merit? No, I expect Biden to be certified,” Alberda said. “But do I think there’s a lot of politics at play? Absolutely.”

Trump has been applying intense pressure on Republicans to object in the hopes of derailing Biden’s victory as part of his campaign to throw out results from swing states that went for his opponent. For Hawley, there’s speculation that he plans to run for president in 2024. In a tweet Wednesday, Rep. Adam Kinzinger (R-Ill.) accused Hawley of using the objection to bolster a future run.

Alberda said it may also be a bid for Trump loyalists to retain the support of his voting base, while also forcing critics into a tough spot. A vote on the legitimacy of an objection is a vote recorded in public record.

“This is really tricky for the Republican elected officials. You have to go on record now, either upholding the results or not,” she said. “That puts you in a really sticky position. That could come back to haunt you down the road.”

Where do we go from here?

On all sides, the objection appears less about challenging the results and more about highlighting broader dissatisfaction with our electoral system.

“At the very least, Congress should investigate allegations of voter fraud and adopt measures to secure the integrity of our elections,” Hawley said in his statement. “But Congress has so far failed to act.”

There is no evidence of voter fraud and the integrity of the election has been repeatedly affirmed at the state level, in the courts and in Washington.

But 2020 was a perfect storm of strain, between a polarized electorate and Trump’s refusal to concede. Amid a pandemic, states had to adapt, overhauling absentee ballot procedures and introducing technology like live streaming at vote counting centers, all as voters at home had the time to pay attention.

“There was a lot of litigation and changes to what we might think of as the typical process,” Muller said. “That uncertainty has yielded increased frustration with the outcome.”

Times staff writer Janet Hook contributed to this story.