A majority in the Democratic controlled House of Representatives would have to vote in favor of the objection in order for it to succeed, not to mention the fact that it would also need a majority in the senate, where Romney and Murkowsky and Collins and Cornyn will vote against the objection.
But all it takes is the House alone.
You wouldn't know this if you get your news from conservative message boards.
Now you know.
Objecting to the Counting of One or More Electoral Votes
Section 15 establishes a procedure for making and acting on objections to the counting of one or more of the electoral votes from a state or the District of Columbia. When the certificate or equivalent paper from each state or the District of Columbia is read, “the President of the Senate shall call for objections, if any.” Any such objection must be presented in writing and must be signed by at least one Senator and one Representative. The objection “shall state clearly and concisely, and without argument, the ground thereof.” During the joint session of January 6, 2001, the presiding officer intervened on several occasions to halt attempts to make speeches under the guise of offering an objection. When an objection, properly made in writing and endorsed by at least one Senator and one Representative, is received, each house is to meet and consider it separately. The statute states, “No votes or papers from any other State shall be acted upon until the objections previously made to the votes or papers from any State shall have been finally disposed of.” However, in 1873, before enactment of the law now in force, the joint session agreed, without objection and for reasons of convenience, to entertain objections with regard to two or more states before the houses met separately on any of them.
Disposing of Objections
The joint session does not act on any objections that are made. Instead, the joint session is suspended, the Senate withdraws from the House chamber, and each house meets separately to debate the objection and vote whether, based on the objection, to count the vote or votes in question. Both houses must vote separately to agree to the objection by simple majority. Otherwise, the objection fails and the vote or votes are counted. (3 U.S.C. §15 provides that “the two Houses concurrently may reject the vote or votes.”) These procedures have been invoked twice since enactment of the 1887 law. The first was an instance of what has been called the “faithless elector” problem. In 1969, a Representative (James O’Hara of Michigan) and a Senator (Edmund S. Muskie of Maine) objected in writing to counting the vote of an elector from North Carolina who had been expected to cast his vote for Richard Nixon and Spiro Agnew, but who instead cast his vote for George Wallace and Curtis LeMay. Both chambers met and voted separately to reject the objection, so when the joint session resumed, the challenged electoral vote was counted as cast.13 In that instance, the elector whose vote was challenged was from a state that did not by law bind its electors to vote only for the candidates to whom they were pledged. In a 2020 decision, Chiafalo v. Washington, the Supreme Court unanimously held that a state may penalize electors who do not cast their ballots for the presidential and vice presidential candidates who won the state’s popular vote. According to the Court, state authority to appoint electors under Article II of the Constitution includes not only the power to condition their appointment upon a pledge to support the state’s popular vote winner; it also includes the ability to impose penalties on those electors who violate that pledge. At the time of the ruling, the Court identified laws in 32 states and the District of Columbia requiring electors to pledge to cast their ballots for their parties’ nominees for President and Vice President, with 15 of those states providing for sanctions on electors for noncompliance. The second instance related to reported voting irregularities in Ohio.18 In 2005, a Representative (Stephanie Tubbs Jones of Ohio) and a Senator (Barbara Boxer of California) objected in writing to the Ohio electoral votes. The chambers withdrew from the joint session to consider the objection, and the House and Senate each rejected the objection. When the House and Senate resumed the joint session, the electoral votes were counted as cast.
Procedures for Considering Objections
Section 17 lays out procedures for each house to follow when debating and voting on an objection. These procedures limit debate on the objection to not more than two hours, during which each Member may speak only once and for not more than five minutes. Then “it shall be the duty of the presiding officer of each House to put the main question without further debate.” Under this provision, the presiding officer in each house held in 1969 that a motion to table the objection was not in order.20 In the House, the Speaker announced both in 1969 and 2005 that he would attempt to recognize supporters of the objection and opponents in an alternating fashion for the duration of the twohour period. In one instance in 1969, the Speaker inquired whether a Member supported or opposed the challenge before he agreed to recognize him to speak. Members can yield to each other during debate as they can during five-minute debate in the Committee of the Whole, and many chose to do so in 2005. The Speaker also entertained unanimous consent requests to insert material in the Congressional Record.
Basis for Objections
The general grounds for an objection to the counting of an electoral vote or votes would appear from the federal statute and from historical sources to be that such vote was not “regularly given” by an elector, and/or that the elector was not “lawfully certified” according to state statutory procedures. The statutory provision first provides in the negative that “no electoral vote ... regularly given by electors whose appointment has been lawfully certified ... from which but one return has been received shall be rejected” (3 U.S.C. §15). The provision then reiterates for clarity22 that both houses concurrently may reject a vote when not “so regularly given” by electors “so certified” (3 U.S.C. §15). It should be noted that the word lawfully was expressly inserted by the House in the Senate legislation (S. 9, 49th Congress) before the word certified. Such addition arguably provides an indication that Congress thought it might, as grounds for an objection, question and look into the lawfulness of the certification under state law. The objection that votes were not “regularly given” may, in practice, subsume the objection that the elector was not “lawfully certified,” because a vote given by one not “lawfully certified” may arguably be other than “regularly given.” Nevertheless, the two objections are not necessarily the same. In the case of the “faithless elector” in 1969, described above, the elector was apparently “lawfully certified” by the state, but the objection raised was that the vote was not “regularly given” by such elector. In the above-described 2005 case, the objection was also based on the grounds that the electoral votes “were not, under all of the known circumstances, regularly given.”
