Perhaps this won’t surprise many, but it might make a few Republicans a little less comfortable on the floor of Congress today. Soon-to-be Senate Minority Leader Mitch McConnell has arranged to be among the first, if not the first, to object to any challenges to electors from fellow Republicans today. As Fox News reports, McConnell has tried to keep the conflict private, but plans to open up his guns today:
Senate Majority Leader Mitch McConnell, R-Ky., is expected to rebuke the GOP challenge to certify the Electoral College results for President-elect Joe Biden on Wednesday, sources tell Fox News. If so, it would be his first public statement against President Trump’s supporters in Congress on the matter.
A coalition of more than a dozen GOP lawmakers in both the House and Senate are gearing up for a fight during Congress’ joint session, a battle they are likely to lose but that has caused a stir for opponents unhappy with the challenge to the results of the presidential election. The effort by some Republicans is a last-ditch show of unwavering loyalty to President Trump, who has lobbed numerous unsubstantiated claims and filed several lawsuits in battleground states blaming widespread voter fraud for his November loss.
Meanwhile, a source familiar with Wednesday’s vote told Fox News McConnell plans to be one of the first speakers to object to initial challenges by colleagues in his own party, driving home the importance of certifying the votes — which have been approved by all 50 states — and ensuring a peaceful transfer of power.
Needless to say, this will put McConnell fully in Trump’s rhetorical sights. At this point, however, McConnell clearly doesn’t care. He just won his re-election, and Trump arguably cost him control of the Senate. What could Trump threaten him with now? Sending Lin Wood to arrest him for treason?
Put the politics of this aside for a moment, because this raises an interesting procedural question. Can McConnell force a vote to rule the objection to electors out of order? Under the strict terms of the Twelfth Amendment, Congress has no role in objecting to electors. Under the Electoral Count Act, Congress only has that role when states send competing slates of electors. And also under the ECA, Congress is required to accept sole slates of electors as certified as long as the certification takes place by the Safe Harbor deadline set in the ECA. Only Wisconsin missed that deadline this year.
That might give rise to an objection being out of order on any slate of electors duly certified by a state from which there is no competing slate to consider. The ECA itself doesn’t necessarily entertain that option, but it also doesn’t entertain the option of rejecting slates of electors that have been certified by states without competing certified slates, either. If the necessary grounds for objection are not present, one could argue that any objection is out of order at that point and force a floor vote whether to recognize said objections in the first place.
One has to wonder whether that might not work out for everyone, too. That might derail the whole outrage-theater stunt some Republicans plan to stage today, while providing them the floor debate they want. It would also hasten the inevitable by getting the counting done in a couple of hours and allow everyone but Trump to move on. This might end up being the briar-patch strategy that would satisfy everyone.
Update: McConnell’s chief of staff says they’re not “going to war,” but this isn’t a denial either:
A lot of emotions. People are angry. Nobody is declaring war on anything. We’ll get through this. https://t.co/D2PrewgA2M
— Josh Holmes (@HolmesJosh) January 6, 2021