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I am aware of this question, but what I am asking is slightly different.

I remember from January 6, 2001, that during the constitutional counting of the vote of the presidential electors, to be done before a joint session of congress presided over by the vice president, that if at least one representative and one senator together challenge a slate of electors from any state, that this is sufficient to cause congress to stop the routine count and to consider the objection. In 2001, the Congressional Black Caucus, led by Jesse Jackson Jr. objected to the slate from Florida. But no senator joined in, so the objection was not recognized by the presiding officer (who was VP Gore) and the count continued and Bush won as expected.

But there is so much obvious dishonesty coming from Trump and Republican lawmakers in congress that continue to humor him, that I am concerned that on January 6, 2021, they could throw this into the House to choose the president and the Senate to choose the vice president. And, solely for this presidential election, the vote in the House is "by states", which means each state delegation counts as one vote. And a majority of states are "red". They could still steal the election as they are trying to do right now.

Is this still a danger, technically?

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    You are missing a step. If one Senator and one Rep object to a state's EC slate, that is not the end of it for good. It is more complicated, both houses would have to reject the slate, and they can't just reject willy-nilly. If the Q gets reopened, I will try to post an answer, but read here to get you started: law.cornell.edu/uscode/text/3/6 – Damila Nov 16 at 15:18
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    @Damila I have just cast the fifth vote to reopen the question. I look forward to your answer. – phoog Nov 16 at 15:50
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    I've re-titled this question, since the legal maneuvering in the question doesn't really qualify as a "coup". It would be highly contentious and might trigger violence, but it is ultimately a non-violent manipulation of existing law to overturn an election. That's very different from a violent and illegal seizure of power. – Bobson Nov 16 at 20:02
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    @robertbristow-johnson - That's your prerogative. I really don't think this would qualify as a coup, and therefore that your title doesn't match the question (which may explain some of the downvoting), but it's your question. It's an interesting question, either way. – Bobson Nov 16 at 21:41
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    I agree with @Bobson. This question is about constitutional maneuvering. The definitions of coup that I can find invariably use "violent" or "unconstitutional" to describe the term. This is an attempt to subvert the election within the framework of the constitution, without violence, and therefore fails to satisfy any of these definitions. – phoog Nov 17 at 17:54
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Short answer

In general: Yes, it is theoretically possible, but it would require ignoring the law. Presumably it would then go to court, and honestly we would be in uncharted territory, so there is no telling what would ultimately happen. There are no precedents on this specific issue.

In 2021 No. Given the results of the election for Congress, no it will not happen.


Long answer (Note: This answer is going on the hypothetical that a hyper-partisan atmosphere has all state and federal legislators and executives doing whatever they possibly can to tip it to their respective candidate.)

Several steps would have to happen to throw it to the House. The OP misses some. Specifically, the OP seems to suggest that one Representative (Rep) and one Senator objects, and then the electoral collage (EC) count is abandoned for good, and it goes to the House. It would take more steps. The OP is correct that if for some reason it goes to the House to pick a president, that each state gets one vote.

Steps:

  1. During Congress's count of the EC, a written objection is signed by at least one Rep and one Senator. In 2001, they did not get a Senator, as noted in the OP and detailed in the Congressional Record (Thank you @Rick Smith.)

  2. The counting of the EC stops while the objection is considered- not forever. The House and Senate adjudicate the objection. The EC votes are not accepted only if both houses accept the objection. The House will be a majority Democrat in 2021 and the objection will fail. My guess is that at least 2 GOP Senators will also refuse to go along with it, but for the sake of this answer, we are going on the assumption of all GOP doing whatever they can for Trump and all DEM doing whatever they can for Biden. But bottom line: both houses have to reject the votes. See below for an alternate scenario.

  3. After accepting or rejecting the objection, Congress comes back together and announces the determination for that state, then they continue on with the remaining states.

Note: Steps 1 and 2 would have to be successful separately for three states given the current results. In 2001, Florida alone would have tipped it.

  1. If enough states' EC votes (in this case three states) are rejected and bring Biden below 270, then we get to the scenario where no one has the requisite "majority of the electors appointed." (U.S. Constitution, Article 2 and 12th Amendment) I do not know if the now missing votes are counted in the whole (the denominator- meaning a candidate needs a majority of all including the missing votes). I believe they are, but I don't think that has ever been tested. In 1876 it seems that they were included in the denominator. If no one has the majority of the EC votes appointed, then yes the House decides with each state getting one vote. In the House as it will be in 2021, this would mean a majority of states have a GOP majority.

Law that would have to be stretched to reject the EC votes All of this procedure of counting the EC votes is in 3 USC Section 15. It includes the following:

and no electoral vote or votes from any State which shall have been regularly given by electors whose appointment has been lawfully certified to according to section 6 of this title from which but one return has been received shall be rejected, but the two Houses concurrently may reject the vote or votes when they agree that such vote or votes have not been so regularly given by electors whose appointment has been so certified.

So the House and Senate would have to say that :"these are not the real votes." They are not supposed to second guess the states' certification by saying 'Yeah but a dead person voted in Atlanta" or whatever.

Alternate scenario: There was musing (Commentary; Especially pre-election, I found all of this to be noise. And honestly I don't know if anything the current president says is serious, showmanship, or just trying to get people riled up. They act so serious,, especially his "lawyer" but I can't take him seriously.) that a GOP state legislature could override the vote and send a different EC slate. In other words, the governor sends the Biden electors but the legislature sends the Trump electors, say in Pennsylvania. Then we have a case where Congress must decide. However, assuming that the DEM House says it's the Biden electors and the GOP Senate says it is the Trump electors, the slate sent by the governor gets in:

But if the two Houses shall disagree in respect of the counting of such votes, then, and in that case, the votes of the electors whose appointment shall have been certified by the executive of the State, under the seal thereof, shall be counted.

Has anything like this happened before? Yes! In 1876 sort of. But back then, it was not even clear who was authorized to submit the slate of electors in some of these states. Congress agreed to a commission as a compromise to sort it out, so it never made it to the vote by state in the House and never made it to the Supreme Court. But the candidate who seemed to win in enough states (Tilden) did not become president.

In 2000, Bush v. Gore stopped a recount that had been ordered by the Florida state supreme court, effectively allowing the state's certification of the EC slate for Bush. Again, there were not two separate slates sent to the Congress. So the Supreme Court was never asked to rule on how Congress went about sorting out which slate to accept.

Summary: -They would need a Senator and a Rep to object on three separate states. -Then The House and Senate would independently need to reject the EC votes from each of those three states. (Will not happen in 2021)
-Alternately, they would need to get three states to have their legislature send the Trump slate along with the Biden slate (also not going to happen) but after a couple steps, the governor's slate (for Biden) would be accepted for example in Michigan and Pennsylvania.

In reality, even the GOP governor of Georgia is not going to go along with these shenanigans and the GOP Senators such as Mitt Romney and at least one other won't either.

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  • I thought that if a states vote gets invalidated by objection, the pool shrinks, and the threshold lowers to (270-that state's EVs). In that case, tossing PA and MI would result in needing 252EVs, still 20 short for Trump's total. – dandavis Nov 16 at 19:48
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    @dandavis Honestly I do not know and I think it counts as uncharted territory. The wording of the 12th amendment is "a majority of the whole number of Electors appointed. " – Damila Nov 16 at 20:55
  • i am close to check-marking this answer. but will let it hang for a day. see what other people say. – robert bristow-johnson Nov 16 at 21:16
  • @dandavis it is conceivable that congress could find that an elector's (purported) appointment to the office was invalid, which would affect the threshold required to achieve a majority. It's also possible that they would find that an individual elector's appointment was valid, but that the vote cast by the elector was not. That would leave the majority threshold unchanged. Another possibility is that they might find that the "number of electors" is "appointed" by the constitution, but that seems unlikely in the face of the clause "Each State shall appoint...a Number of Electors...." – phoog Nov 17 at 15:46
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    @dandavis I suppose that the first is most likely, in line with the thinking reflected in your comment, but I agree with Damila that it is uncharted territory. I also note (not directed at you particularly, but against two incorrect definitions of "majority" that one frequently sees) that the majority threshold is "more than half," which is not precisely the same as "50 percent plus one," and is certainly not the same as "51 percent." – phoog Nov 17 at 15:50
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You wrote, "the vote in the House is 'by states'". That is incorrect. AMENDMENT XII , referring to electoral votes, "The person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed". Barring some strange occurrence, Biden will have a majority of electoral votes. There will be no vote in the House "by states".

Is this still a danger, technically?

No.


[The following text was divided into paragraphs, otherwise it would be "wall of words". The first part (removed) deals with the opening and counting of votes. The third part (removed) deals with multiple slates.]

3 U.S. Code § 15 - Counting electoral votes in Congress

[...]

Upon such reading of any such certificate or paper, the President of the Senate shall call for objections, if any. Every objection shall be made in writing, and shall state clearly and concisely, and without argument, the ground thereof, and shall be signed by at least one Senator and one Member of the House of Representatives before the same shall be received. When all objections so made to any vote or paper from a State shall have been received and read, the Senate shall thereupon withdraw, and such objections shall be submitted to the Senate for its decision; and the Speaker of the House of Representatives shall, in like manner, submit such objections to the House of Representatives for its decision; and no electoral vote or votes from any State which shall have been regularly given by electors whose appointment has been lawfully certified to according to section 6 of this title from which but one return has been received shall be rejected, but the two Houses concurrently may reject the vote or votes when they agree that such vote or votes have not been so regularly given by electors whose appointment has been so certified. [Emboldening added]

[...]

When the two Houses have voted, they shall immediately again meet, and the presiding officer shall then announce the decision of the questions submitted. No votes or papers from any other State shall be acted upon until the objections previously made to the votes or papers from any State shall have been finally disposed of.

In the emboldened part, note that no "lawfully certified" votes "shall be rejected", if the governor of the state follows the requirements under 3 U.S. Code § 6. However, both the House and Senate must agree in order to reject votes not certified. which is not likely to occur in this election. Note that there is nothing in the law permitting the House to reject electoral votes "by state" and that rejecting the votes of any state requires that both the House and Senate must agree.


On January 6, 1969, during the counting of electoral votes, an objection was raised to the votes of North Carolina. The vote was twelve for Richard M. Nixon and one for George C. Wallace. The objection was raised and signed by James G. O'Hara, M.C. and Edmund S. Muskie, U.S.S., with additional Representatives and Senators joining the objection. The objection was due to a so-called "faithless elector".

We object to the votes from the State of North Carolina for George C. Wallace for President and for Curtis E. LeMay for Vice President on the ground that they were not regularly given in that the plurality of votes of the people of North Carolina were cast for Richard M. Nixon for President and for Spiro T. Agnew for Vice President and the State thereby appointed thirteen electors to vote for Richard M. Nixon for President and for Spiro T. Agnew for Vice President and appointed no electors to vote for any other persons. Therefore, no electoral vote of North Carolina. should be counted for George C. Wallace for President or for Curtis E. LeMay for Vice President.

The Senate retired to their chamber to consider the objection. The House began its consideration after the Senators left. This discussion lasted for nearly three hours.

Among the issues was whether "regularly given" applied to faithless electors.

During the consideration in the House, it was stated that the Governor had certified the vote and that North Carolina had no law prohibiting the vote for Wallace.

After the Senate returned to the House, the votes were given. The Senate voted against sustaining the objection 33 to 58, the House against 170 to 238. The vote for Wallace was allowed.

The remaining electoral votes were counted.

The PRESIDENT pro tempore. The state of the vote for President of the United States, as delivered to the President of the Senate, is as follows:

The whole number of the electors appointed to vote for President of the United States is 538, of which a majority is 270.

Richard M. Nixon, of the State of New York, has received for President of the United States 301 votes;

Hubert H. Humphrey, of the State of Minnesota, has received 191 votes.

George C. Wallace, of the State of Alabama, has received 46 votes.

The state of the vote for Vice President of the United States, as delivered to the President of the Senate, is as follows:

The whole number of the electors appointed to vote for Vice President of the United States is 538, of which a majority is 270.

Spiro T. Agnew, of the State of Maryland, has received for Vice President of the United States 301 votes.

Edmund S. Muskie, of the State of Maine, has received 191 votes.

Curtis Lemay, of the State of California, has received 46 votes.

This announcement of the state of the vote by the President of the Senate shall be deemed a sufficient declaration of the persons elected President and Vice President of the United States, each for the term beginning on the 20th day of January, 1969, and shall be entered, together with a list of the votes, on the Journals of the Senate and House of Representatives.

The joint session ended with no further action.

The House Manual shows this as the only case where an objection was acted on under the current law, which was enacted in 1948.

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    I think you're incorrect, Rick. --------- "If no candidate for president receives an absolute majority of the electoral votes, pursuant to the 12th Amendment, the House of Representatives is required to go into session immediately to choose a president from among the three candidates who received the most electoral votes. Each state's delegation votes en bloc, with each having a single vote. A candidate must receive an absolute majority of state delegation votes (currently 26 votes) to become the president-elect." – robert bristow-johnson Nov 16 at 7:50
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    And the point is that bad actors in the joint session could cause enough electoral slates from the states to be rejected (on false grounds) so that no majority would remain. – robert bristow-johnson Nov 16 at 7:53
  • @robertbristow-johnson - The Wikipedia entry is incomplete. It does not include the relevant part of Amendment XII that refers to a candidate having a majority of votes. – Rick Smith Nov 16 at 15:51
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    @robertbristow-johnson there are two points here: first, it's not clear whether the rejection of electoral votes would change "the whole number of electors appointed," but if it does, then the only way this election could go to the House is with a tie between Biden and Trump. If it doesn't, then the election still would not go to the House unless both the House and Senate vote separately to reject votes from each of a sufficient number of states that Biden is left with fewer than 270. – phoog Nov 16 at 16:07
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    no @phoog, that (a tie) is not the only way that the election could go to the House and Senate. If congress, in whatever procedure, rejects enough slates of electors so that no candidate has the minimum 270 electoral votes, they, in whatever procedure, might be able to send it to the House to choose the president and the Senate to choose the VP. And in the House, they vote "by states" (my quote is correct) not by individual representatives. – robert bristow-johnson Nov 16 at 16:46
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Allow me to be coldly analytical for a moment. There are two political facts that we should always keep in mind:

  1. Every government is subject to the possibility of coup d'état. Coup d'état is by its nature a criminal activity — an effort to break the rules of political succession within a nation — and it is impossible to stop people from trying to commit crimes. All we can do is make it difficult for them to succeed. But if they succeed, they succeed, and successful criminals (as mob bosses like to say) are ex post facto legitimate businessmen.
  2. Democracies of every sort are particularly vulnerable to coup attempts, because democracies rely heavily on institutional norms (as opposed to raw civil or military power). Institutional norms are easily manipulated and abused. To perform a coup in (say) a militaristic dictatorship one must gather a fighting force sufficient to suppress the regime's forces, or suborn enough elements of the regime's forces that the current leaders can be displace. But performing a coup in a democratic nation merely involves suborning the institutions by which leaders are elected; it requires the skills of a scammer or con artist, not a military leader.

Democracies are always vulnerable to the threat of coup d'état, which is why (as the saying goes) one must be constantly vigilant. Which we as a nation have most decidedly have not been...

With respect to the current conditions of the 2020 elections... It's clear that Trump began planning a legal strategy for claiming a second term long before the elections were held. This Politico article (dated a month and a half before the election) suggests that the GOP and Trump administration had been planning out challenge cases for up to a year beforehand, gathering law firms and strategizing options. It is not clear whether this planning was setting the stage for an overt coup or merely preparing various angles for squeezing out a marginal victory in a tightly contested race (in the style of Bush v. Gore). I suspect the latter, if only because the Trump administration didn't seem to be prepared for the kind of large-scale defeat it received, where the margins are too large to be effectively squeezed. Whether Trump and the GOP will push the issue towards more overt methods is an open question. The administration's attempts to block states and districts from certifying the election results is a worrying indicator, though to date it has largely been unsuccessful. Trump's replacement of top-level law enforcement and military appointees is also worrying, pointing at the option of a military coup if the electoral results cannot be juridically massaged in his favor. But Trump himself has shown little overt inclination to take those more exaggerated steps. His tendency over the years has been to sidestep rules when necessary but not break them outright, so I imagine his current rhetoric and actions are designed more to give him a monetizable, face-saving exit strategy: the political equivalent of declaring bankruptcy and walking away.

But again, the possibility of a coup is never entirely off the table, ever. Vigilance is key.

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