Election 2020 / Election Coverage / Opinion / Politics

Explainer: Dueling Electors and the Upcoming Joint Session of Congress

congressPresidential candidates in the United States win elections by winning the most electoral votes.

The Electoral College system apportions a certain number of votes to each state. When voters in a state vote for a party’s candidate, they’re actually casting a vote for that party’s slate of electors, or people chosen to cast electoral votes.

Those electoral votes are counted by Congress. If a candidate gets 270 or more, they win the presidency.

Dueling Electors

In seven states on Dec. 14, a slate of Democratic electors chose Democratic presidential nominee Joe Biden. Republican electors, even though Biden was certified as the winner in the states, also cast votes for President Donald Trump.

The phenomenon created seven sets of so-called dueling electors, or alternate slates. Both groups are sending certificates of ascertainment to Congress, which is slated to convene in a joint session on Jan. 6, 2021, to count electoral votes.

Dueling electors are highly unusual, but they have happened in U.S. history. The last time was in the 1960 election, when the governor of Hawaii certified electors for Republican Richard Nixon. Democratic electors cast their votes for Democrat John F. Kennedy.

A subsequent recount determined Kennedy actually won the state, and he was declared the winner in the joint session in 1961.

John Eastman, professor of law at the Chapman University School of Law, pointed to the Kennedy-Nixon scenario when talking about the seven dueling electors this time around.

“We have historical precedent here, and in each of these states, there is pending litigation challenging the results of the election. If that litigation proved successful, then the Trump electors, having met and voted, would be able to have those votes certified and be the ones properly counted in the joint session of Congress on January 6,” he told NTD.

Gary Gregg II, director of the McConnell Center at the University of Louisville, told The Epoch Times that short of “actual evidence of fraud” that would move Congress to certify the alternate set of electors, the ones certified by the state’s governors—all for Biden, in this case—will be the ones counted.

The electoral votes have been “officially counted” and the votes have been sent on, he said. “There’s nothing to be done, until it gets to Congress,” he said.

“It’s obviously a very, very long shot,” added Robert Hardaway, professor at the Sturm College of Law at the University of Denver, because “all the challenges have not been successful by both Trump and his supporters.”

“But that’s the reason for it,” he told The Epoch Times. “If later it’s determined the Republican slate should have been elected, they’ll have the vote already in place.”

In three of the seven states in question—Michigan, Pennsylvania, and Wisconsin—Republicans currently control the state legislatures while Democrats hold the governor’s mansions. In New Mexico and Nevada, Democrats control both. In Georgia and Arizona, Republicans control both.

Republicans have not been able to gain enough support to get the dueling electors certified by the top election official—usually the secretary of state—nor did the state legislatures exercise their constitutional right to take back the power to choose which candidate to give the electoral votes to.

According to the Congressional Research Service, when dueling slates are received, members of Congress in the joint session consider the list when its from a different state authority than the certified list, and conduct a vote. Acceptance of either slate would then require a concurrent agreement in both the House and the Senate.

If there isn’t a conflict in terms of state authority, the one determined to be appointed pursuant to the state’s election laws is counted. If there is no determination by a state authority of which slate was lawfully appointed, the two chambers agree concurrently to accept the votes of one set, or decide not to accept either set. If the two chambers don’t agree, the electors certified by the governor shall be counted.

Joint Session

After electors cast their votes this week, attention turned to the upcoming joint session, which takes place just three days after newly elected members of Congress are sworn in.

At least four people who will be in the House—Rep. Mo Brooks (R-Ala.) and Rep.-elects Marjorie Taylor Greene (R-Ga.), Barry Moore (R-Ala.), and Bob Good (R-Va.)—have committed to filing objections during the session.

Objections must be made in writing by at least one representative and one senator. No senators have committed to objecting.

Challenges were made by Democrats in 2016 but failed because no senators supported them. In 2004, Rep. Stephanie Tubb Jones (D-Ohio) and Sen. Barbara Boxer (D-Calif.) objected to votes from Ohio, but both chambers voted the objection down.

The basis for an objection appears to be that the electoral vote or votes were not “regularly given” by an electors, and/or that the elector was not “lawfully certified,” based on state election laws, according to the Congressional Research Service.

If an objection meets the requirements, the joint session is suspended, and each chamber withdraws to meet and debate the objection and choose whether to vote to uphold it. Unless both chambers vote in the majority for the objection, it fails. If it’s approved, it nullifies the state’s electoral votes, or could lead to the alternate slate being accepted.

Some experts see an objection succeeding as practically impossible.

“It’s so far out of the realm of possibility,” Gregg said. “The chance of getting a senator to agree, a Republican senator to agree, is a difficulty. Then to get the Senate and the House to agree? At this point … this is not going to happen.”

“Both chambers will not approve objections,” Alan Dershowitz, a constitutional law scholar, told NTD Television via email.

Others aren’t so sure.

“I think when you get to the joint session of Congress, there’s going to be a fight about which of the slates of electors need to be counted based on the evidence and the statutory violations that are presented at the time,” Eastman said.

As of the current certified vote count, Biden has 304 electoral votes to Trump’s 232. The Epoch Times is not calling the race at this time.

In 1877, a joint session of Congress met to count electoral votes and faced dueling electors from multiple states where vote tallies were controversial. The Democrat-controlled House and the Republican-controlled Senate eventually came to a compromise, creating a commission that included House members, senators, and Supreme Court justices.

The commission met for weeks before deciding on March 2 to award contested electoral votes to Rutherford Hayes, a Republican, handing him the election.

Kevin Hogan, Cristina Kim, and Paul Greaney of NTD contributed to this report.

Reprinted with Permission from - Epoch Times by - Zachary Stieber

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Chris
30 days ago

What I meant to say was, the WHOLE ELECTION will be tossed in the trash if its proved that Joe isnt fit to take office.

Chris
30 days ago

Why cant someone just prove Joe Biden has dementia, therefore he ran for office misrepresenting himself and THE WH OL

Bill Brown
1 month ago

In general terms, establishment Republicans were big-government politicos who appeased their base with the pretense of fiscal conservatism, but were moderate or even liberal in regard to the size and role of government. Form a new Political Party – The Freedom Pasty!!! President Trump and FreedomWorks.org have consolidated the base!!!!The American Revolution 2.0.!!!!!

Bill Brown
1 month ago

Our Supreme Court is compromised and has ceased to valid! Roberts has told his “colleagues” that, if they rule anything in President trump’s favor, there will rioting and that, using a severe expletive, he will do anything he can to get rid of President Trump!!! If Roberts had even a 100th of an ounce of honesty, he would immediately resign!!! Understand, when a government stops following it own laws, it has ceased to be legitimate!!!! The House and Senate has become terrorists also. It just may be time for honest Americans to physically remove the liars and cheats from office!!!! We no longer have fair and honest Elections!!!!!

Danny Estridge
1 month ago

I have to go by what the people voted, regardless if China helped send in the mail in ballots. If I don’t believe the results (which I don’t) we’re screwed. It’s kinda hard to fight commies if the people decide, regardless of where they came from. Very sad. But I’ve been ripped off in the past, just not to this degree. Well, I did 20 in the mil for this, to be able to vote. I have to abide like I did before, God Help Us. I don’t want to learn gook.

Victoria Johnson
1 month ago

So who was President from inauguration day until March 2 in 1877?

Gunny Joe
1 month ago

There is two letters in the mail one to each Senator of the State of Missouri, one might find fertile ground, the other to the RINO will sure be discarded. I shall not stop there more mail and phone calls to follow. Not for a correction and cure in the future, but to correct this election now. This is not the time of the Pinegrass machine, nor Chicago in the 1960 election. Enough is enough, stand now your elected Reps should do their jobs.

John A. Fallon
1 month ago

Again I ask, how much evidence is needed? I have seen videos, heard eye witnesses, sworn affidavids, without all the evidence against chinajoe and hunter, I have seen enough, special counsels, investigations going on for decades AND NONE of these traitors and thieves are being punished, we should have a revolution and throw all the lawyers in prison, because thry are responsible for the decline of AMERICA!

Frances Lail
1 month ago

I’m sick of cheating lying politians. As for machines that change votes to other party is just wrong! I checked my voting history and found that I supposedly voted from 2014 -2019 as a democrat ,libiterian,unaffiliated to.I am a registered Republican and HAVE NOT voted as stated .Only republican.I want to know how do I find out about who used my idenity to do all those years of voting illegally against me. I contacted my local branch but no one has given me any answers.

Gunny Joe
Reply to  Frances Lail
1 month ago

You need a good lawyer, a lot of guts, time and very deep pockets, yours is winnable!

Dave
1 month ago

I have an idea. Who cares about precedents? Let’s try doing the right thing and not allow this obviously fraudulent election to succeed. Problem is, we only have Republicans to fight with, and that’s like being unarmed.

Gunny Joe
Reply to  Dave
1 month ago

Kind of like a knife to a gun fight!

Susan P
1 month ago

First. AMAC would you please move that floating red dot to some place on the screen where it does NOT obscure the text. It is very annoying! If I want to comment, I know where to find it!

Looks like someone didn’t do enough research. What about Florida in 2000 allowing both a Republican and a Democrat slate of Electors. I clearly remember news headlines the day after the election saying Al Gore was our new POTUS. But when the EC vote came in, it was Bush who had won. Surely you all remember the “hanging chad” problems in Florida.

With the overwhelming evidence being presented in several states that show FRAUD, it will be a true tragedy if the current vote is allowed to stand.

Michael Venaccio
1 month ago

Good Day Everyone..

Not sure what to do except keep the pressure on our elected senators and congresspeople by inundating them with emails and phone calls demanding that they stand up to this Crime against the American People. Have called both the RNC in Washington and my state Republican Party and have essentially told them I will not contribute again unless we see the party standing up for the citizens. If they do not stand against this stolen election and any consequences stemming from it, then they are s guilty as those who perpetrated this fraud. Am also sending emails to all the senators and congresspeople I send cvontributiions to.

Am all for the President invoking the articles of the Executive Order concerning election interference since the DNI preliminary report lays out foreign interference. The Democrats have not shown that they are interested in election integrity.

To almost everyone, except those who do not choose to see it, there was massive electoral fraud, from pristine ballots, to discarded ballots for Trump to all the issues with voting machines. The evidence is massive and irrefutable. Problem is that political judges do not want to hear the evidence, and the Supreme Court was derelict in its duty. They are letting mob rule prevail and so does any politician who does not stand up for this.

So, if all we have left is to nag our officials, let’s do it.

Dave from San Antonio
1 month ago

The fraud in this election has been proved. What is stopping the fraud process are dems, who consider winning in ‘any way’ possible, who will not call out the fraud for what it is. Several counties and states certified votes that totaled more than registered voters. Again, as usual, the dead voted a straight dem ticket. The voting machines used have been proven to have a ‘design flaw’, wink wink, that caused votes to be wrongly recorded and counted. The companies making these machines have been involved in election fraud in other countries. Our own Congress discussed these machines a number of years ago and the concerns with them, but nothing was done because the dems did not condemn the machines. Why? Mail-in votes appeared, miraculously, when Biden needed them, and were delivered past the deadline set. Speaking of Biden, he stated in one speech that they had the best election fraud team they ever had and in his last speech in Michigan, he stated he didn’t need voters to vote for him…to win the election. Go figure…

Linda King
1 month ago

If the average American Citizen can see the outright fraud, why can’t the people who are picked or voted to represent them see it? Unfortunately the swamp extends way past the White House. Too bad we couldn’t drain the whole swamp.

Ruth Pierce
1 month ago

This was a very interesting article. Thanks, AMAC.

Angus
1 month ago

I have come to the conclusion that there are NO handcuffs in Washington !! Nothing Ever happens to the crooked !!

Nina Rae
1 month ago

I am re-reading a most interesting book, “…When Ye Shall See All These Things..” by Roger K Young. It was written in 1997, but it fits the political problems of today. He explains the plan that the Communist nations are following to overcome every Nation on the Earth & subject them to Communism.
It is hair-raising to read this and realize it was written 23 years ago but perfectly explains what is happening in our Nation today. There’s too much detail to go into here, but if you have the opportunity to read this you should! It is an eye-opener!

Linda King
Reply to  Nina Rae
1 month ago

And the whole Biden family are in bed with China. That’s how he got elected. Are we going to stand for this?

Ross Owens
Reply to  Nina Rae
1 month ago

Like my wife said, an ol country girl that she is said ” Harris is your next President. She’ll make sure he gets Covid and Kirks out, or be declared incompetent. ”
Just wait.

Gunny Joe
Reply to  Ross Owens
1 month ago

This has been the plan all along, in my humble view.

Genevieve
1 month ago

The Constitution of the United States is not a suggestion. ODNI John Ratcliffe recently declassified and released to Congress – to Congress – info that should be considered educational. There is a massive educational campaign being conducted aimed both at We The People and at our lawmakers. In a nutshell the education is this: “I caught them all.” Congress has boxed itself in. They now know it irrefutably because their noses are being rubbed in the proof. This is going to be GLORIOUS!

Judy
Reply to  Genevieve
1 month ago

I sure hope you’re right! Seems though that we have many backstabbing Republicans not willing to do the ‘Right’ thing, to clean up the election. It’s as if our current Congress believes they control our elections. This country is at stake, and I believe now that ONLY God will show us what He is ‘willing to do’ for us. We have gone by the Wayside.

David B.
1 month ago

We need to win this process in Jan.! C’mon Senators, show us your commitment!(talkin’ to you Marsha B.) If all this fails, the next chapter will be ugly.

Carol
1 month ago

Nothing short of our Lord coming back is going to keep Biden from becoming the next president! No court, or body of government is going to change what the vote, fraud or not, that the electoral college voted for on Dec. 14th. If anyone changes the outcome now, Civil War will break out by the leftist terrorist thug groups and no one wants war in this country! I like the idea of splitting the country into a constitutional country (Red) and a socialist country (Blue) and let the people decide where they want to live. It may take awhile to relocate folks, etc. but anything to keep war from happening and letting the socialists destroy themselves so the indoctrinated can see the reality of what they think is utopia! It happened in Europe with the split in Czechoslovakia, Yugoslavia, and the Soviet Union! Why can’t it happen here?

Linda King
Reply to  Carol
1 month ago

There’s going to be a war either way. I believe the American People are sick and tired of being taxed without representation. Do you really think Antifa and BLM are going away anytime soon?

Last edited 1 month ago by Linda King
Gunny Joe
Reply to  Carol
1 month ago

There is merit, to your observation, but when thought through is would result in what the DEMS and their handlers want. the destruction of the United States. And the masters after that, will be no better than Mr. Biden, it will only be bloodier.

Victoria Johnson
Reply to  Carol
1 month ago

I agree with your sentiments from the sentence “I like the idea of splitting the country…..” to the end of your comment.