Trump vows legal challenges are ‘not over’ as Electoral College set to certify presidential results
Analysis from constitutional law expert Mark Smith on ‘Fox & Friends First.’
Presidential electors from all 50 states and Washington, D.C. will meet on Monday to officially cast their ballots for president and vice president of the United States.
The meetings will happen after weeks of failed legal challenges by President Trump's campaign and his allies, culminating in the Supreme Court on Friday swatting down a lawsuit from Texas that aimed to essentially nullify the presidential elections in Pennsylvania, Wisconsin, Georgia and Michigan.
Monday's votes are the next step in the process of President-elect Joe Biden officially becoming the 46th president of the United States. They will inch the country closer to yet another peaceful transfer of power between presidents as the U.S. has done since the 1790s.
In tweets Sunday night, Trump appeared to be backtracking earlier reports that he would accept an adverse Electoral College result, saying, "THIS ELECTION IS UNDER PROTEST." But the mechanisms of the Constitution and its checks and balances continue to turn.
In this Dec. 12, 2020, file photo, President Trump walks on the South Lawn of the White House in Washington before boarding Marine One. Trump has yet to concede the presidential election. (AP Photo/Patrick Semansky)
The Biden presidential transition organization said in a call with reporters Sunday that it is confident that the votes Monday will go smoothly.
"Tomorrow obviously is a big day as it takes on a little bit more import than maybe traditionally it does," spokesperson Jen O'Malley Dillon said. "But the electors will vote in a process determined by their own states throughout the day. And it will clearly reinforce exactly what's been true for weeks and weeks and weeks that the president-elect and the vice president-elect have won."
Here's a guide to how the Monday Electoral College votes work, how to watch them and what comes next.
Where is this in the Constitution?
The Constitution describes the process for presidential electors to vote in Article II, Section 1, and in the 12th Amendment. There are also federal laws that detail other parts of the process.
President-elect Joe Biden announces his choice for several positions in his administration during an event at The Queen Theater in Wilmington, Del., Friday, Dec. 11, 2020. The Electoral College is set to vote on Monday, inching Biden one step closer to officially becoming the next president. (AP Photo/Susan Walsh)
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Where is it happening?
Electors will meet "in their respective states," according to the Constitution. In practice, the electors usually meet in their state capitol buildings and cast their votes in a ceremony overseen by the state's secretary of state.
Specifically, the electors vote on paper ballots, separately for president and vice president. Then, six lists of the vote totals for president and vice president respectively, called "Certificates of the Vote" are created and signed by the electors. One of each list is then sent to Vice President Pence in his role as the president of the Senate, two to the archivist of the United States, two to the secretary of state in each state and one to the chief federal district judge in the district where the electors voted.
When is it happening?
The Constitution does not require a state's electors to meet at a certain time. When they cast their ballots varies by state.
Meetings will happen between 10 a.m. EST and 7 p.m. EST, with the largest bulk of state meetings between 11 a.m. EST and 1 p.m. EST.
Supporters of U.S. President Donald Trump gather outside of the U.S. Supreme Court on December 11, 2020 in Washington, DC. The justices on Friday swatted away a lawsuit by Texas that aimed to nullify the presidential elections in four states that President-elect Biden won. (Photo by Stefani Reynolds/Getty Images)
Can I watch?
In many cases, the states will livestream their Electoral College meetings. Georgia's meeting at 12 p.m. will livestream here on Georgia Public Broadcasting. Maryland's meeting at the same time will be streamed on its official state website.
Here are some other streams for the critical states' Electoral College votes:
- Pennsylvania, 12 p.m. EST, via C-SPAN
- Michigan, 2 p.m. EST, via Gov. Gretchen Whitmer's Facebook page, according to The Detroit News
- Wisconsin, 1 p.m. EST, via WisconsinEye
- New Hampshire, 10 a.m. EST, via New Hampshire Department of State
- Arizona, 1 p.m. EST, via official state website
- Nevada, 11:30 a.m. EST, via official state website
Who are the electors?
Electors are chosen by the state parties earlier in the year. For the most part, they are mid-level state party officials, though sometimes they can be higher-profile individuals. Other times, they are simply lower-level activists recruited by the state parties to fill what is largely viewed as a simple, one-time role.
Some states put the names of the electors on their ballots along with the presidential candidates, although in most cases only the presidential and vice-presidential candidates are on the ballots. Despite this, votes for the presidential tickets technically go toward electors and not directly for the candidates.
2016 Washington state presidential electors Esther John, center, and Bret Chiafalo, right, sit behind their attorneys Tuesday, Jan. 22, 2019, during a Washington Supreme Court hearing in Olympia, Wash., on a lawsuit addressing the constitutional freedom of electors to vote for any candidate for president, not just the nominee of their party. (AP Photo/Ted S. Warren)
Is it possible for the result to be different than 306 electoral votes for Biden to 232 for Trump?
Technically, yes. There is nothing in the Constitution that requires electors to vote for the candidate that won their states' popular vote.
In fact, in 2016 there was an effort by some Democrat electors, in order to prevent Trump from becoming president, to vote for somebody besides Hillary Clinton in order to convince GOP electors to do the same. Colin Powell was the most popular consensus candidate, but the movement gained very little traction with Democrat electors and essentially none with Republicans.
That 2016 effort prompted a Supreme Court case on whether or not states may punish electors who don't vote for the winner of the state's popular vote, which the Supreme Court ruled they could. Many states have laws that do this, or at least require a pledge from electors to vote for the state's popular vote winner.
So while it is possible there is a handful of electors who do not vote for the winner of their state, it would be nearly impossible for enough to defect from Biden to bring him under 270 electoral votes.
Is this the end of the process for choosing the president?
Technically, no. Congress will meet on Jan. 6 in a joint session, with Pence presiding, to count the electoral votes and officially certify the next president and vice president.
At this point, if a member of the House and a member of the Senate both bring an objection to a state's electoral slate, the bodies will vote separately to consider that objection.
Rep. Mo Brooks, R-Ala., and a handful of other GOP House members have said they plan to challenge the electoral votes of states that vote for Biden. But to this point, no senator has said he or she will join them. And even if Brooks does succeed in getting a senator to join him, it is almost certain that neither the House nor the Senate will vote to toss any state's slate of electors.
Brooks' plan may tee up a similar situation to what happened in 2001, when Rep. Maxine Waters, D-Calif., and several other House members objected to the electoral votes for then-President-elect George W. Bush.
"The objection is in writing and I do not care that it is not signed by a member of the Senate," Waters said in the joint session.
"The chair will advise that the rules do care," then-Vice President Al Gore responded to laughter and applause from much of the chamber.
Fox News' Madeleine Rivera contributed to this report.
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