America’s Founding Fathers were stubbornly argumentative in their debates about the government they were creating. Not only verbally, but also physically. They challenged each other to pistol duels, resulting in Alexander Hamilton’s death.
That passion for duels has since found its way into the Electoral College they devised.
Electoral College votes are allocated to the fifty states and the District of Columbia on the basis of congressional representation with each contender—Republican and Democrat—commanding equal number of electors. Thus, 538 electoral votes determine the winner in the 2020 presidential election. These votes, however, are not cast by a common rule.
Forty-eight states grant all their electoral votes to the candidate who wins the majority of their popular votes. In Maine and Nebraska, the electoral votes are divided between the candidates proportionately to the popular votes each has scored. Seven of the 48 states that command a total of eighty-four electoral votes—Pennsylvania (20), Michigan (16), Georgia (16), Arizona (11), Wisconsin (10), Nevada (6), and New Mexico (5)— have certified both their Republican and Democratic electors for Trump and Biden respectfully. It creates dual electors in Congress, or two competing slates of electors.
Trump’s legal team has cases from six of the states alleging that millions of votes were illegally cast, counted or processed, and waiting to be heard by the U.S. Supreme Court. The Court’s decisions before, or after, the joint session of Congress on January 6, will determine which of the dueling slate of electors should be counted at the joint session. The looming duel between the Democratic and Republican slates of electors could be merciless.
The last such duel took place after the 1960 presidential contest between Richard Nixon and John Kennedy. Then, the governor of Hawaii had certified the Republican electors for Nixon and the Democratic electors cast their votes for Kennedy. A recount determined Kennedy to be the winner of the state vote and he was declared the winner in the joint session of 1961.
“We have historical precedent here, and in each of these states there is pending litigation. 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,” says John Eastman, professor of law at Chapman School of Law, and counsel representing Trump in the Supreme Court appeals of the cases from six of the seven states with dueling electors— Michigan, Georgia, Arizona, Wisconsin, Nevada and New Mexico.
When there are dueling electors, members of the joint session of Congress consider the dueling lists and conduct a vote. Both the House of Representatives and Senate have to agree on which slate of electors to accept.
If the two chambers can’t agree, the slate certified by the state are counted.
The chance of both the House and Senate agreeing on any legal objection is slim. Only a Supreme Court decision can force them to agree.
Alabama Republican Congressman Mo Brooks is leading the charge to win as many congressional hearts and minds as possible to disqualify at least 36, if not more, of Biden’s 306 electoral votes so that Biden doesn’t meet the 270 thresholds to win the presidency.
“The only thing that will get the congressmen and senators to do what is right for our country on this issue of voter fraud and election theft is active participation by American citizens who want honest and accurate elections. Now, can American citizens actively participate? Very simply, they have to call their congressmen and their senators and demand that they support this effort to protect our election system from fraud and illegal conduct,” says Brooks. Millions of Trump supporters are likely to heed Brooks call to arms.
In Brooks’ view, the way in which congressmen and senators can do the right thing is by rejecting the Electoral College votes of those states found to have badly flawed election systems.
More than 130 Republican congressmen have said they will join Brooks and challenge the electoral votes.
All that is needed to throw the election in disarray is one member of the House and one senator compelling each house to listen to the arguments in support of the challenges and, then, vote.
Senator Ted Cruz is leading a group of 10 senators to challenge and audit the votes.
“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,” Professor Eastman warned.
“Jan 6 challenge is on,” tweeted Republican Representative Marjorie Taylor Greene of Georgia.
Trump has asked his supporters to rally and protest in Washington on January 6. “Be there, will be wild,” he tweeted.
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