Statement from Richard Pildes, Edward Foley, Rick Hasen, Lisa Manheim, and Nate Persily originally posted on Rick Hasen’s Election Law Blog on January 5, 2021:
Given the levels of anxiety about the process for counting electoral votes in Congress, we want to clarify certain fundamental legal facts about that process. This clarification is necessary because of possible misunderstandings of a recent New Yorker online essay about the process, written by Harvard Law School Professor Jeannie Suk Gerson.
During the election, and even more since then, we have seen one more fevered speculation after another about how the process might be manipulated to keep President Trump in office after Jan. 20th. Professor Suk is addressing one of these scenarios, though even among the various nightmare imaginings that have been conjured up, this is one of the most far-fetched.
Professor Suk asks what happens if the counting process takes more than five days to complete. She speculates that “some Republicans” might argue that Congress has to stop counting at that point, even if not all state electoral slates have been counted or rejected by then. They might further claim that, if no one had reached 270 electoral votes by that point, the election must then be thrown to the House to decide — because the election goes to the House if no one obtains an electoral college majority.
Since the House votes one state, one vote for this, and since a majority of delegations are Republican controlled, the House Republicans would then — in this scenario — vote in Trump as President. Thus, Republicans might drag the process of counting out, so that it lasts more than five days, and then find a way to anoint Trump as President for a second term.
But this is indeed merely a fevered speculation. Things simply cannot play out this way. The statute that governs this process is known as the Electoral Count Act. Under the Act, there is nothing magical that happens on day five, should the counting go on that long (which is not likely). The only thing that changes on day five is Congress can no longer go into recess. That’s designed to put pressure on Congress to complete the process.
But if Congress has not resolved whether to count or reject the vote from all the States and DC by day five, it simply continues the process of debating and resolving the issue for each state. Indeed, in the 1876-1877 disputed election, Congress did not finish the count until March 2 (two days before inauguration day, which at that time was March 4). Congress would continue to resolve any debates about every state, through Wyoming, until it completed the process.
Moreover, even if Congress were not to complete this process by Jan. 20th, the House would still not then decide who becomes President. By virtue of the Constitution and federal statutes, the Speaker of the House (after resigning that position) would then become Acting President, until a new President had been chosen. The only time the House has any role – which it has not played since 1824 – is if, after Congress has resolved matters from every state and the count has been completed, it still turns out that no one has a majority.
We doubt that any member of Congress would actually claim that the election is thrown to the House if Congress does not complete the count in five days (though who knows these days). But there would be no legal basis for that assertion, even were the count to take more than five days. The Republicans who plan to object to the count cannot make Trump President by dragging the process out, even for two weeks, and we are confident they know that.