Presidential candidates in the United States must win a majority of the electoral votes to win an election.
The Electoral College system allocates a certain number of electoral votes to each state. When voters in each state vote for a party’s presidential candidate, they are actually voting for that party’s slate of electors. The party announces the slate of electors, who are often the older politicians of the party, in the spring and summer.
The electoral votes cast are counted by Congress, and if a group of candidates receives more than 270 electoral votes, they will win the presidency.
What is a head-to-head electoral vote?
On December 14, seven states’ Democratic electors cast their votes for Joe Biden, the state’s certified Democratic candidate. But at the same time, Republican electors also cast their votes for President Trump (Trump).
This phenomenon resulted in seven groups of so-called “Dueling Electors” (Dueling Electors, also known as “competing electors” and “Electoral College Duel”), or alternative electors. “The Dueling Electors, or alternate slates. The electors of both sides have sent their certification to the joint session of the National Assembly to be held on January 6, 2021.
Although “dueling electors” are extremely rare, they have happened before in American history. Most recently, in the 1960 presidential election, Republican electors voted for Richard Nixon under the certification of the governor of Hawaii, but Democratic electors also voted for Democrat John F. Kennedy.
A subsequent recount determined that Kennedy had actually won the state, and he was declared the winner at a joint convention in 1961.
John Eastman, a professor of law at Chapman University School of Law, referred to the Kennedy-Nixon situation when discussing the seven sets of head-to-head electors.
He told NTDTV, “There is historical precedent where there are pending lawsuits challenging the election results in each of these states. If the lawsuit ultimately proves successful, then Trump electors who have met and completed their ballots can certify those votes and have them counted in a joint session of Congress on Jan. 6.”
The political parties submit their state lists of electors, usually older politicians, in the spring and summer. Pictured is Michigan elector Michael Kerwin, 96, signing the certification of ballots. (CARLOS OSORIO/POOL/AFP via Getty Images)
Gary Gregg II, director of the McConnell Center at the University of Louisville, told the Epoch Times that unless there is “actual evidence of fraud ” that would allow Congress to certify another set of electors, the electors certified by each state’s governor would be counted. In that case, all the electors are for Biden.
He said the electoral votes have been “officially counted” and sent up. “There’s nothing to do until it gets to Congress,” he said.
“The chances are obviously pretty slim,” added Robert Hardaway, a professor at Sturm College of Law at the University of Denver, because “all of the challenges by Trump and his supporters have been unsuccessful” so far.
He told the Epoch Times, “But the reason for doing so is that they have already cast their electoral votes if and when a future Republican slate should be determined.”
In three of the seven states (Michigan, Pennsylvania and Wisconsin) Republicans currently hold the state legislature, while Democrats control the state government. In addition, the governments and legislatures of New Mexico and Nevada, both of which are controlled by Democrats, are in the hands of Republicans, while Republicans have control of Joe and Arizona.
Republicans have not received enough support to have the dueling electors certified by the state’s top elected official, usually the secretary of state, and the state legislature has not exercised its constitutional authority to withdraw the power to choose which candidate to give the electoral votes to.
According to the Congressional Research Service (CRS), when two sets of electoral votes are received, members of Congress must consider and vote on them in a joint session. Acceptance of either list requires the concurrence of both chambers.
Both chambers must agree to accept either set of electoral votes or decide not to accept either set. If there is no consensus between the two chambers, the governor-certified electors are counted.
Pictured are Republican candidate Trump (left) and Democratic candidate Biden (right). (Getty Images/The Epoch Times composite)
How will the joint session of Congress make its decision?
After the Electoral College votes this week, attention turns to the upcoming Joint Session of Congress, which will take place three days after the swearing-in of new members of Congress.
Currently, at least four people will be in the House of Representatives to voice their opposition to the swing state’s electoral votes. These include: Mo Brooks (R-CA), Marjorie Taylor Greene (R-CA), Barry Moore (R-CA) and Bob Good (R-CA).
Objections must be submitted in writing by at least one member of the House of Representatives and one member of the Senate. Currently, Republican U.S. Senator-elect Tommy Tuberville of Alabama has told the media that the Senate should support a challenge to the Electoral College vote, revealing that he would support Brooks’ challenge in a joint session.
President Trump later tweeted, praising Tuberville as a man of courage and a hero.
In 2016, Democrats also challenged the Electoral College results, but lost because no senators supported them. 2004, Rep. Stephanie Tubbs Jones (D-Ohio) and Sen. Barbara Boxer (D-Ohio) opposed the electoral votes from Ohio, but both chambers subsequently overruled the opposition. The opposition was subsequently overruled by both chambers.
According to the Congressional Research Service, the objection should have been based on the ballot not being “routinely cast” by the electors and/or the electors not being “legally certified” under state election law.
If the objection meets the requirements, the joint session is suspended and each chamber retires to debate and choose whether to vote for the objection. Unless both chambers vote in favor of the dissent by a majority, it fails. If it passes, it invalidates the state’s electoral votes or could result in the acceptance of the waiting list.
Some experts argue that a no vote result would be practically impossible to happen.
“It’s so impossible,” Gregg said, “to get both the Senate and the House to pass? At this point … that’s not going to happen.”
“Neither chamber will approve the opposition,” constitutional scholar Alan Dershowitz said via email to NTT.
Some experts, however, see things differently than they do.
“I think when it comes to a joint session of Congress, there will be an argument about which voter rolls should be counted based on the evidence presented at the time versus the violations.” Eastman said.
As of the current certified vote count, Biden has 306 electoral votes to Trump’s 232. The Epoch Times has yet to declare a winner of the race.
In 1877, when a joint session of Congress met to count electoral votes, it also faced dueling electors from multiple states and the vote count was quite controversial. At that time, the Democratic-controlled House and Republican-controlled Senate eventually reached a compromise and formed a committee that included members of the House, Senators and Supreme Court justices.
The committee met for several weeks before deciding on March 2 to award the disputed electoral votes to Republican Rutherford Hayes, who was also successfully elected president of the United States.
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