While there is little doubt that Joe Biden will be sworn in as the 46th President of the United States on January 20, 2021, the coming week will have major implications not only for the effectiveness of his administration but also for the future direction of U.S. politics and society.
At present, Republicans hold 52 seats and the Democrats 48 seats. Therefore, Republicans control the Senate. Unless the Democrats win both the runoff elections in Georgia, this situation will continue. Even winning one seat, which under normal circumstances would be a credible achievement, will not do any good as the Republicans will still have a majority of 51 against 49. Depending on the loyalty Donald Trump commands after January 20th and the political ambitions of the Senate majority leader, Mr. Biden may find it difficult to get even some, if not many, of his appointments ratified by the Senate let alone some of his major legislative bills. Therefore, the first issue of consequence for the Biden administration will be the results of the January 5 Senate by-elections in Georgia.
Also read | GOP Senators to oppose Biden victory
Announcing electoral votes
The second issue that will not have any direct impact on the Biden administration but would definitely affect the future course of party politics in U.S. will be on January 6 when the electoral votes are formally announced and tabulated in a Joint Session of Congress. Normally this is a sedate affair lasting less than a couple of hours and hardly attracts any attention. This year, however, it is likely to stretch out over a longer period and is likely to get minute-by-minute TV coverage and commentaries. (But that would not be unusual this election. In normal times, neither the media nor the public even notices the State Electoral College voting. This year, however, there was a day-long minute-by-minute media coverage of this process across all States.)
Why is this important this year? This process is a rather routine affair set out in the Electoral Count Act of 1887. It requires the opening and counting of electoral votes from the States — as required by the Twelfth Amendment — to commence at 1:00 p.m. on January 6, with both the Senate and the House of Representatives present in “the Hall of the House of Representatives” and the President of the Senate serving as “their presiding officer”.
It then provides that the opening and counting of each State’s electoral votes will proceed State-by-State in alphabetical order. If there is only one submission of electoral votes from a State, the operation of the statute is acceptably straightforward and comprehensible: this submission must count according to the electoral votes contained therein unless there is an objection to the State’s electoral votes. The Act takes into account a situation where such objections are made. According to the Act, “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.”
In the present instance, already a number of Republican Senators and Congresspersons have made known their support for such objections to be made when the results of some States carried by Mr. Biden are read out and announced. What happens when such objections are made?
The Act requires in such case: “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.”
What happens then? In the present instance where, from all accounts, only one “return” of electoral votes have been submitted for each of the States, the Act provides that“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.” In plain language, both the Houses must agree separately to uphold the objections and reject the votes. In the present instance, the objections will only be in respect of electoral votes won by Mr. Biden.
On January 6th, the Republicans will control the Senate with a majority of 51-48. Theoretically all the Republican Senators can vote to sustain the objection. However, the Democrats, having a strength of 222 members in a full house strength of 435, will control the House of Representatives. The House will, therefore, in all likelihood reject the objections. Since there will, under the circumstances, be no agreement between the two Houses to sustain the objection, it will be rejected and Mr. Biden’s electoral votes will not be disturbed. Therefore, the objections raised by some Republican Senators and Congresspersons are destined to fail. The lack of unanimity will be ascribed to partisan politics.
Danger for the Republicans
The real danger (to the Republican Party) is, however, that there may be unanimity between both Houses in rejecting the objections. As mentioned earlier, on January 6th there will be 51 Republican Senators and 48 Democrats. If two or more Republican Senators vote with their Democratic colleagues in rejecting the objections, then the Senate, too, would be rejecting the objections. Already according to press reports, a number of Senate Republicans have acknowledged Mr. Biden’s victory, and several — including Senator Susan Collins (Maine), Patrick J. Toomey (Pennsylvania) and Mitt Romney (Utah) — have said that they plan to oppose any challenge to the electoral college vote. In addition, the Republican Senate Majority Whip John Thune isn’t whipping for or against Mr. Trump saying that the GOP leadership is letting members “vote their conscience.” Therefore, those Republican Senators who vote to sustain the objections cannot fall back on the excuse that they were following party directives. They will have to admit that they were either following their “conscience” or Mr. Trump. Both are unlikely to go well in future electoral battles.
Therefore, there is a strong possibility that there will be a unanimous rejection of the Republican objections to Mr. Biden’s electoral votes on January 6. It cannot but have some repercussions on the future direction of the Republican Party and U.S. political developments.
Dr. G. Balachandran is former Development Correspondent of The Hindu