Rep. Mo Brooks' challenge to Electoral College certification: the roadmap

"It happened in 2001, it happened in 2005, it happened in 2017, almost all the time it doesn't go anywhere — and we probably won't this time, just based on mathematics," said Tom Spencer, vice president, Lawyers Democracy Fund.

Published: December 4, 2020 4:12pm

Updated: December 4, 2020 11:24pm

Rep. Mo Brooks (R-Ala.) faces an uphill battle if he challenges the Electoral College and backs President Trump on Jan. 6, when Congress is scheduled to certify Democrat Joe Biden as the winner of the 2020 presidential race.

Brooks said this week he has been sharing his plan with fellow House members in hopes of invoking the 12th Amendment and helping Trump win. At least one senator must partner with Brooks to trigger a vote on an electoral challenge, and Brooks told Fox News Radio on Thursday, "We have some leads for United States Senators who may do it."

Under the 12th Amendment to the Constitution, in a contingent election no candidate wins a majority of Electoral College votes, and the election is thrown to the U.S. House of Representatives. There, each state's delegation has one vote, and a candidate must receive the votes of a majority of state delegations to win. Because of the calendar, the new Congress is the one that decides, not the outgoing one.

In the new Congress, there are more states with Republican delegations than Democratic ones, so in that scenario, Trump would win.

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"Thank you to Representative Mo Brooks," Trump tweeted Thursday morning after news of Brooks' intention broke.

"Ask your senators and congressman if they will object to any Electoral College certification of Joe Biden on January 6," Tom Fitton, president of Judicial Watch tweeted Nov. 23.

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It's unlikely, however, that Brooks would be able to successfully invoke the 12th Amendment if he can't get a majority of both the House and the Senate to support his efforts. Brooks said he doesn't think he needs a majority. Legal experts disagree, arguing that while a single member of the House and Senate can raise an objection, majorities in both the House and the Senate would have to approve it for any electoral votes to be tossed out. This would not happen under a Democratic-controlled House.

"They are misunderstanding the law," says election law expert Hans von Spakovsky.

The procedures for the counting of Electoral College votes in Congress are set forth in 3 U.S.C. 15, according to von Spakovsky, a former member of the Federal Election Commission and manager of the Heritage Foundation's Election Law Reform Initiative.

"What it says is that an objection can be filed to the certification of votes from the states when they are being counted in the joint session of Congress on Jan. 6, if it is signed by one member of the House and one member of the Senate," he told Just the News. "However, the Senate and the House then each have to stage a vote on the objection, which obviously will not go forward unless a majority of senators and a majority of representatives approve of the objection." 

America's founding documents state that it is Congress that must officially certify the presidential winner. Various media outlets are projecting 306 electors for Biden and 232 for Trump, though these electoral votes are not formally cast until Dec. 14. Under an 1887 law called the Electoral Count Act, the House and Senate must meet in joint session on Jan. 6, at 1 p.m. and vote on the certification of the electors.

Federal statute outlines that if at least one House member and one senator both object to the electors, they are able to stop the process temporarily through a written statement. If that happens, the House and Senate must each debate the outcome for no more than two hours before taking a vote. 

"It happened in 2001, it happened in 2005, it happened in 2017, almost all the time it doesn't go anywhere," said Tom Spencer, vice president of the Lawyers Democracy Fund and an attorney representing the George W. Bush 2000 campaign. "And we probably won't this time, just based on mathematics. But, I got to hand it to him and, you know, good for him. He's doing the right thing. And Democrats who did it before in 2001, 2005, 2017, etc. — you know, [it's] their right to do it. We've got a Constitution, we've got to follow it." 

American Enterprise Institute scholar Norman Ornstein said Wednesday that at least one House member and one Senator could likely challenge electors, but he does not believe it will sway the outcome.

"What happens is the House and Senate meet together, and if there's a challenge, they go back to their respective chambers and resolve the issue," Ornstein explained at a Zoom meeting for the National Task Force on Election Crises. "That can happen pretty quickly. I would think it would not have significant debate, although it could have some debate before you get votes." 

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