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How does Congress count electoral votes, and can results be challenged?

McConnell congratulates Biden and Harris
McConnell congratulates Biden and Harris 00:57

President-elect Joe Biden's victory is set to be reaffirmed early next month, when the new Congress convenes in a joint session to count each state's Electoral College votes. 

Required by the Constitution, the event typically occurs with little fanfare. But the joint session slated for January 6 is already expected to bring heightened drama, as some of President Trump's Republican congressional allies have indicated they plan to challenge the electoral votes in certain states, though these efforts are almost certain to be unsuccessful. 

Mr. Trump has refused to concede the election and has lost a slew of legal battles seeking to reverse its outcome, but the march towards Mr. Biden's inauguration continues, with the congressional counting of electoral votes the final step in formally acknowledging his victory.

Here is the rundown of how Congress will count and certify electoral votes next month:

When does Congress meet to count electoral votes?

On January 3, the first meeting of the 117th Congress, the archivist of the United States will transmit the certification of election results from each state governor to both houses of Congress. The date for counting electoral votes is fixed by law as January 6. 

Electoral votes will be tallied in a joint session of the House and the Senate, meeting in the House chamber. The president of the Senate — the vice president — is the presiding officer of the session. If Vice President Mike Pence chooses not to attend the joint session, Republican Senator Chuck Grassley of Iowa, president pro tempore of the Senate, will preside.

As the presiding officer, Pence will have the uncomfortable task of reaffirming Mr. Biden's victory and acknowledging his own defeat, all while Mr. Trump continues to deny he lost the election.

There is precedent for the president pro tempore of the Senate presiding because the vice president was absent. According to a report by the Congressional Research Service, Vice President Hubert Humphrey declined to preside over the counting of electoral votes in January 1969, after he lost to Richard Nixon in that election. 

How are votes counted?

The U.S. Code requires that the presiding officer open and present the certificates of electoral votes in alphabetical order. Then the certificate from each state is read by "tellers." House and Senate leadership will appoint two "tellers" apiece ahead of the joint session to read the certificates, and they are typically members of the Senate Rules and House Administration Committees, which have jurisdiction over election-related matters.

In 2017, when the joint session of Congress convened to count the electoral votes and affirm Mr. Trump's win, Republican Senator Roy Blunt of Missouri and Democrat Senator Amy Klobuchar of Minnesota were tellers on the part of the Senate, while GOP Congressman Gregg Harper of Mississippi and Democrat Congressman Bob Brady of Pennsylvania were the House's tellers.

Once the votes have been read, the tellers will record and count them. The presiding officer will then announce if any candidates have received the majority of votes for president and vice president. 

This process can be expedited if lawmakers agree to do so. In 2017, the process of reading and counting electoral votes took 41 minutes, according to the CRS report.

How can members of Congress challenge election results?

Federal law details the procedures for how lawmakers can make an objection to a state's electoral votes.

After the certificate from each state or the District of Columbia is read, the presiding officer will call for objections, if there are any. An objection must be made in writing and signed by at least one member of the Senate and one member of the House.

It also must "state clearly and concisely, and without argument, the ground thereof."

If an objection is properly made, the joint session suspends, and each chamber of Congress meets separately to consider it. Debate is limited to no more than two hours, and each member can speak only once and for a maximum of five minutes. 

The Senate and House both vote on whether to agree to the objection, with a simple majority the threshold to affirming it. 

But if a simple majority does not sustain the objection, it fails, and the state's electoral votes are counted.

An objection to a state's votes was last considered in 2005, when Senator Barbara Boxer of California and Congresswoman Stephanie Tubbs Jones of Ohio, both Democrats, objected to the electoral votes cast in Ohio, citing voting irregularities. Both chambers, however, overwhelmingly rejected their objection, and Ohio's electoral votes for President George W. Bush and Vice President Dick Cheney were counted.

Is Mr. Trump likely to succeed in his last-ditch effort to reverse the outcome of the election?

It seems highly unlikely any state's electoral votes will be thrown out by lawmakers during the joint session January 6. For one, Democrats will maintain their majority in the House in the next Congress, so any objection is likely to get voted down by the lower chamber. Additionally, while House Republicans have suggested they'll raise objections to the electoral votes cast in some states, their efforts are likely to be hampered by the requirement that an objection must be endorsed by a senator.

Senate Majority Leader Mitch McConnell asked GOP senators last week not to object to the election results when the joint session convenes. Other Republican senators have thrown cold water on the president's hopes Congress will rescue him.

Senator John Thune, a Republican from South Dakota, said the attempt to toss out state electoral votes is "just not going anywhere."

"In the Senate, it would go down like a shot dog," the Senate majority whip told reporters.

Senator Lindsey Graham, a Republican from South Carolina who is a close ally of Mr. Trump's, said challenging the votes would "probably do more harm than good."

Thune's comments, in particular, made him a target of the president, who claimed the South Dakota senator first elected in 2004 will face a challenger in the Republican primary in 2022.

"Republicans in the Senate so quickly forget. Right now they would be down 8 seats without my backing them in the last Election," Mr. Trump tweeted. "RINO John Thune, 'Mitch's boy', should just let it play out. South Dakota doesn't like weakness. He will be primaried in 2022, political career over!!!"

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