Trump’s last-ditch effort to rig the Electoral College hinges on one big question
Mike Pence (Shutterstock)

President Donald Trump's long-shot hopes to overturn his election loss now hinge almost entirely on the Jan. 6 congressional certification of the Electoral College votes.

Congress has voluntarily agreed to follow the Electoral Count Act, passed by lawmakers in 1887 to address inadequacies in the process laid out in the Twelfth Amendment, which simply requires the vice president to oversee the joint session and open each state's certificate of electoral votes -- but Trump and his allies intend to exploit the gaps that remain in the typically ceremonial process, reported Politico.

The House and Senate will adopt rules for the electoral count on Jan. 3, when the new Congress is sworn in, and those guidelines have been unanimously approved without debate for decades, even after contentious elections in 2000 and 2016, but social distancing due to the coronavirus pandemic will necessitate some changes to the rules established by the 1887 act.

Congress could ignore the Electoral Count Act, since lawmakers have broad authority to establish their own internal rules, but legal experts believe they're more likely to add clarity and restrictions to the vice president's authority to prevent Pence from introducing alternate slates of electors in states won by Joe Biden -- which Trump and his allies have called on him to do.

Alternate slates of Trump electors, who gathered informally Dec. 14 as the real electors cast their votes, carry no legal force, but the Electoral Count Act says Congress must consider any documents "purporting to be certificates of the electoral votes" -- which raises a number of questions the new Congress may answer when establishing rules for the process next week.

"What counts as a purported slate of electors from a state?" said Michael Morley, a Florida State University election and constitutional law expert. "Under what circumstances is a vice president allowed to present a potential slate of electors to the joint session? What types of objections are and aren't in order?"

Trump's congressional allies may attempt to jam through rules to sow confusion in the process or give Pence authority to upend the president's loss in key states such as Arizona, Georgia, Michigan, Nevada, Pennsylvania and Wisconsin, but those votes would likely fail.

Some Republicans have urged Pence to consider those alternate slates as legitimate, and Rep. Louie Gohmert (R-TX) and Arizona's GOP electors have filed a widely-derided lawsuit seeking to allow the vice president to make a unilateral decision about which electors should be introduced.

Pence has met with Trump allies who are trying to overturn the election loss, and the vice president has publicly echoed the president's rhetoric on the results -- but the process may hinge on one large question that will likely remain unanswered until Jan. 6.

"What does Pence think?" asked Politico's Kyle Cheney.

"If Pence agrees with Gohmert's theory, he can attempt to assert it when he presides over the Jan. 6 session," Cheney added. "If he doesn't, Trump and his allies are positioning it to be the ultimate betrayal of the president. And if Pence bows out altogether, the duty of presiding would fall to Senate President Pro Tem Chuck Grassley (R-Iowa)."