The count of the Electoral College ballots during a joint session of the 117th United States Congress, pursuant to the Electoral Count Act, on January 6–7, 2021, was held as the final step to confirm then president-elect Joe Biden's victory in the 2020 presidential election over incumbent president Donald Trump.
The event drew unprecedented attention because of the efforts of Trump and his allies to overturn the election results. A group of legislators from Trump's Republican Party announced they would formally object to counting Biden's votes in swing states, while Trump unsuccessfully sought to have Vice President Mike Pence use his presiding role over the count to change the outcome. The joint session adjourned twice to debate objections against the votes won by Biden in Arizona and Pennsylvania; both objections were defeated in the House and Senate, with only six Republican senators supporting the former and seven supporting the latter. Republican representatives also raised objections against votes for Biden from Georgia, Michigan, Nevada, and Wisconsin, but these objections failed because they were not co-signed by a senator.
Amid the debate on Arizona's votes, rioters stormed the Capitol building, causing the count to be temporarily halted until officials could safely return to their chambers. The counting resumed in the evening after the Capitol was secured and concluded by the following morning.
Pence was the first incumbent vice president since Al Gore in 2001 to have presided over an electoral vote count in which they were a losing candidate for the election.
Background
Electoral College
The United States Electoral College is the group of presidential electors required by the Constitution to form every four years for the sole purpose of electing the president and vice president. Each state appoints electors according to its legislature, equal in number to its congressional delegation (senators and representatives). Federal office holders cannot be electors. Of the current 538 electors, an absolute majority of 270 or more electoral votes is required to elect the president and vice president. As stated in the Twelfth Amendment to the United States Constitution, if no candidate for either office achieves an absolute majority there, a contingent election is held by the United States House of Representatives to elect the president, and by the United States Senate to elect the vice president; under this amendment, only the election of 1824 failed to produce a majority for president, and the election of 1836 for vice president.
Each state and the District of Columbia produces two documents to be forwarded to Congress, a certificate of ascertainment and a certificate of vote. A certificate of ascertainment is an official document that identifies the state's appointed College electors and the tally of the final popular vote count for each candidate in that state in a presidential election; the certificate of ascertainment is submitted after an election by the governor of each state to the archivist of the United States and others, in accordance with 3 U.S.C. §§ 6–14 and the Electoral Count Act. Within the United States' electoral system, the certificates "[represent] a crucial link between the popular vote and votes cast by electors". The certificates must bear the state seal and the governor's signature. Staff from the Office of the Federal Register ensure that each certificate contains all legally required information. When each state's appointed electors meet to vote (on the first Monday after the second Wednesday of December), they sign and record their vote on a certificate of vote, which are then paired with the certificate of ascertainment, which together are sent to be opened and counted by Congress.
The 12th Amendment mandates Congress assemble in joint session to count the electoral votes and declare the winners of the election. The Electoral Count Act, a federal law enacted in 1887, further established specific procedures for the counting of the electoral votes by the joint Congress. The session is ordinarily required to take place on January 6 in the calendar year immediately following the meetings of the presidential electors. Since the 20th Amendment, the newly elected joint Congress declares the winner of the election; all elections before 1936 were determined by the outgoing Congress.
A state's certificate of vote can be rejected only if both houses of Congress, debating separately, vote to accept an objection by a majority in each House. If the objection is approved by both Houses, the state's votes are not included in the count. Individual votes can also be objected to, and are also not counted. If there are no objections or all objections are overruled, the presiding officer simply includes a state's votes, as declared in the certificate of vote, in the official tally. After the certificates from all states are read and the respective votes are counted, the presiding officer simply announces the final state of the vote. This announcement concludes the joint session and formalizes the recognition of the president-elect and of the vice president-elect. The senators then depart from the House chamber. The final tally is printed in the Senate and House journals.
Attempts to thwart the electoral college
President Trump, his campaign, and his supporters engaged in numerous attempts to overturn the results of the 2020 United States presidential election.
Proposal for the military to decide the winner
On December 18, 2020, a team of Trump allies including Ret. Lt. General Michael Flynn, attorney Sidney Powell, Patrick M. Byrne, Emily Newman, and others met the president in the White House and urged him to issue a drafted executive order, "Presidential Findings to Preserve Collect and Analyze National Security Information Regarding the 2020 General Election." According to the draft order, the military would seize voting machines; the Trump White House would delay the transition to the Biden administration while Director of National Intelligence John Ratcliffe and the Defense Department decided whether the election had been fair; and Trump would appoint a special counsel to prosecute those involved in the election. Powell additionally proposed that Trump appoint her to the last position.
Pressure on Vice President Pence to obstruct the certification of electoral votes
On December 28, 2020, Republican U.S. representative Louis Gohmert of Texas and the slate of Republican presidential electors for Arizona filed a lawsuit in the U.S. District Court for the Eastern District of Texas against Vice President Mike Pence, seeking to force him to decide the election outcome. Gohmert argued that the Electoral Count Act of 1887 was unconstitutional, that the Constitution gave Vice President Pence the "sole" power to decide the election outcome, and that Pence had the power to "count elector votes certified by a state's executive", select "a competing slate of duly qualified electors," or "ignore all electors from a certain state." On January 1, 2021, U.S. district judge Jeremy Kernodle dismissed the suit for lack of standing. The next day, the U.S. Court of Appeals for the Fifth Circuit affirmed the dismissal of Gohmert's suit in a unanimous decision by a three-judge panel.
President Trump had repeatedly raised with his vice president the notion he could delay or obstruct the Electoral College vote count set to occur in Congress on January 6 and was "confused" on why Vice President Pence could not unilaterally reject electoral votes and overturn the results of the election. Trump had argued that Pence, instead of simply acting in his constitutionally prescribed role, could delay the count beyond January 6 and ultimately force the question of who won the election to either the House of Representatives or the Supreme Court. However, on January 5, Pence told Trump that he did not have the authority to block counting of votes for President-elect Joe Biden's win in the joint session of Congress to count electoral votes. On July 5, 2023, in the lead up to the 2024 Iowa Republican presidential caucuses, Pence responded to questions from an Iowa woman about his Constitutional authority saying that "The Constitution affords no authority—to the vice president or anyone else—to reject votes or return votes to the states."
Fake electors sent by the Trump campaign in seven states
Another proposed method was to reject results in Pennsylvania, Georgia, Michigan, Arizona, Wisconsin, Nevada and New Mexico by alleging that these states had sent competing sets of electors. If the results from those seven states had been rejected, neither candidate would have had the 270 votes required in the Electoral College, and the House would have had to decide the election.
This strategy, including the drafting of fake documents for the supposedly competing electors, was coordinated by Rudy Giuliani in December 2020. Boris Epshteyn acknowledged being involved. Attorney John Eastman mentioned it in a January 4 meeting with Trump and Pence.
In reality, the states only sent one set of electors each. The Trump campaign sent its own supposedly competing electors and backed them by forged documents. While real state certificates tend to have "their own quirks, their own fancy or not fancy paper and decorations and seals," the Republicans' fake documents had the "same formatting, same font, same spacing, almost the same exact wording, all of them," as MSNBC commentator Rachel Maddow noted.
In Pennsylvania and Nevada, the documents explicitly admitted that these "electors in waiting" were not the state's official electors and were only being proposed as alternate electors pending the outcome of Trump's election lawsuits. In the other five states, however, the documents falsely identified the Trump allies as the official state electors. As of January 2022, the Justice Department is investigating the matter. The 59 people who presented themselves as fake electors could face federal and state charges.
Announcements of planned Electoral College vote count objections
In December 2020, several Republican members of the House led by Representative Mo Brooks of Alabama, as well as Republican senator Josh Hawley of Missouri, declared that they would formally object to the counting of the electoral votes of five swing states won by Biden during the January 6, 2021, joint session. The objections would then trigger votes from both houses. In December Brooks organized three White House meetings between Trump, Republican lawmakers, and others, including Vice President Pence and members of Trump's legal team. As Brooks confirmed at the time, the purpose of the meetings was to strategize about how Congress could overturn the election results on January 6.
The last time an objection was successfully filed was after the 2004 presidential election, when Senator Barbara Boxer of California joined Representative Stephanie Tubbs Jones of Ohio in filing a congressional objection to the certification of Ohio's Electoral College votes due to alleged irregularities. The Senate voted the objection down 1–74; the House voted the objection down 31–267.
At least 140 House Republicans reportedly planned to vote against the 2020 counting of electoral votes, despite the lack of any credible allegation of an irregularity that would have affected the election, and the allegations' rejections by courts, election officials, the Electoral College, and others, and despite the fact that almost all of the Republican objectors had "just won elections in the very same balloting they are now claiming was fraudulently administered."
Senate majority leader Mitch McConnell, who on December 15 acknowledged Biden's victory the day after the Electoral College vote, privately urged his Republican Senate colleagues not to join efforts by some House Republicans to challenge the vote count, but was unable to persuade Hawley not to lodge an objection. Hawley used his objection stance in fundraising emails. Twelve additional Republican senators and senators-elect (Ted Cruz, Ron Johnson, James Lankford, Steve Daines, John Kennedy, Marsha Blackburn, Mike Braun, Cynthia Lummis, Roger Marshall, Bill Hagerty, Tommy Tuberville, and Kelly Loeffler) eventually announced that they would join Hawley's challenge, while acknowledging that it would not succeed.
On January 2, 2021, Vice President Pence expressed support for the attempt to overturn Biden's victory. Neither Pence nor the senators planning to object made any specific allegation of fraud; rather, they vaguely suggested that some wrongdoing might have taken place. Other Senate Republicans were noncommittal or opposed to the attempt to subvert the election results.