Some legal scholars recently said that Biden would be powerless if the joint session of Congress on January 6 certified the election results when overturned Biden’s victory. But they also stressed that it is unlikely that the two chambers will overturn the Electoral College results. And if that happens, the judge will not accept Biden’s lawsuit.
“I doubt the Supreme Court really wants to hear a case like this,” said David Schultz, a professor at Hamline University. Historically, he argues, the court has not wanted to interfere with how Congress runs its internal affairs.
In 1993, the high court refused to participate in the Senate impeachment proceedings against a federal judge. The latter tried to challenge the lack of a trial before the full court voted. The court held that the judiciary should not address such political issues. Experts say the justices may handle such a lawsuit in the same way in this year’s congressional challenge to certify the Electoral College.
Some law professors also believe that Congress will not oppose certification in swing states. Samuel Issacharoff, a law professor at New York University, said that Congress’ duty is a ceremonial one and that it would recognize all state certifications of the November results. It’s not Congress’ job to challenge or oppose the Electoral College.
He said, “It would be just a political stunt, just an opportunity to yell at each other. There’s no substance to it.”
But some Republican senators and House members have said they plan to challenge and debate election results in several swing states. President Trump has also alleged widespread general election fraud.
Under the U.S. Constitution, members of Congress would have to overturn the electoral vote results in at least three to four states this time to have a real impact.
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