This question gets asked again and again, in thread after thread, whenever the possibility of an objection in the House to the counting of Ohio's electoral votes is brought up. As a public "service," and to further indulge my fetish with process, I offer this explanation.
We all remember the moving scenes, broadcast by C-SPAN, of Members of the Congressional Black Caucus trying desperately to find a Senator to join them in making an objection to receiving Florida's slate of electors in 2000.
What? You saw it in Fahrenheit 9/11 and not on C-SPAN? Well, OK, fine. But pay attention next time a Constitutional crisis plays itself out on national television, will you?
Right, where were we?
So, here we are again, looking ahead to January 6, 2005, when Rep. John Conyers (D-MI) says he plans to make a similar objection. We all remember the proper procedure, right?
3 U.S.C. §15:
Every objection shall be made in writing, and shall state clearly and concisely, and without argument, the ground thereof, and shall be signed by at least one Senator and one Member of the House of Representatives before the same shall be received.
Hence, the necessity for a Senator.
And what happens if, unlike last time, on January 6th, at least one Senator does agree to object in writing? Apparently, many here still believe that this seals the deal, and the election results are either overturned, or an immediate investigation into allegations of electoral fraud, voter suppression, and the like is triggered. Unfortunately, this is not the case.
So, what does happen?
When an objection is received, each house is to meet and consider it separately. The statute states that "[n]o 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... .
[T]he joint session [the House and Senate sitting together in the House chamber, for the purpose of counting the electoral votes] is suspended while each house meets separately to debate the objection and vote whether, based on the objection, to count the [electoral] vote or votes in question. Both houses must vote separately to agree to the objection... . Otherwise, the objection falls and the [electoral] vote or votes [objected to] are counted."
How do they vote?
3 U.S.C. §17:
When the two Houses separate to decide upon an objection that may have been made to the counting of any electoral vote or votes from any State, or other question arising in the matter, each Senator and Representative may speak to such objection or question five minutes, and not more than once; but after such debate shall have lasted two hours it shall be the duty of the presiding officer of each House to put the main question without further debate.
Each house debates the objection for up to two hours, with each Senator and Representative individually limited to five minutes apiece. This is a familiar procedure in the House, which often operates under the "five-minute rule." (Or at least it used to be, back in the days when bills were debated under "open rules," but that's another story.) The Senate, however, does not have a standing "five-minute rule" procedure, and almost never operates under such strict time limitations in its debates. It was probably for that reason that when an objection to an electoral vote was last debated, in 1969, that the Senate, by unanimous consent, agreed instead to split the two hours evenly between a proponent and an opponent of the objection, and instead allow those floor leaders to yield their time to Senators wishing to speak.
So, absent some serious parliamentary maneuvering, the most likely upshot of getting a Senator on board with an objection to Ohio's electoral votes is this:
Step 1: An objection is made in writing by at least one Representative and one Senator.
Step 2: The House and Senate debate for two hours on the merits of the objection.
Step 3: The House and Senate each vote separately on whether or not to accept and count the electoral votes being objected to.
Step 4: After two hours debate and a vote in both Republican-dominated houses to reject the objections, the joint session reconvenes to finish counting the electoral votes, and Bush is elected.
And, what if, by some chance, the objections are sustained by the defections of several Republican Senators and Representatives? Then the electoral votes objected to are not counted, and neither Bush nor Kerry will have the necessary majority. Of course, that throws the election to the House, under the procedures outlined in the 12th Amendment--each state having one vote, a scenario no less likely to elect Bush. (Interestingly, though, with the vote of one Minnesota elector having been cast for John Edwards instead of John Kerry, the House could technically choose from among Edwards, Kerry and Bush for president, the 12th Amendment permitting the choice to be made from up to three of the top electoral vote-getters.)
But could debate on an objection go on for longer than two hours, as suggested here by resident Ohio issue expert georgia10? Probably not. While the Constitution (Art. I, Sec. 5.) says "Each House may determine the Rules of its Proceedings," Deschler's Precedents, v. 3, ch. 10, §3.8 strongly suggests that the statutory procedure may only be altered by unanimous consent:
It may perhaps be implied from the Chair's remarks here and throughout the debate that a proposed departure from statutory provisions such as those in question is in any event permissible if no point of order or objection is raised.
If no point of order or objection is raised, you're looking, by definition, at a condition of unanimous consent. The objection of a single Senator to a suggestion that the procedure be changed would force the Senate to operate under the prescribed statutory rules--i.e., five minutes apiece, for no more than two hours.
But, what if a similar objection is filed to electors from Florida, or from other states where similar allegations of voter suppression and/or electoral fraud are made? Would each such objection be entitled to its own two hours? Very possibly. And...
What if objections were made individually to each of Ohio's electoral votes? Would each such objection then be entitled to its own two hours, for a total of 40? And two more hours for each electoral vote from any other state whose votes are objected to? Much less likely, but still, an open (and interesting) question.
There would doubtless be a motion made by Republicans to consider all objections concurrently, but the case for deciding all the many and disparate allegations of voting irregularities across several states in a single two hour debate is pretty weak. Much more likely to pass muster, at least logically-speaking (which is simply not the world we're operating in), would be a motion to consider concurrently all individual challenges to individual electoral votes within a single state, the basis for the challenges being the same--i.e., that all the electoral votes of that state are invalidly cast, resulting, as it is alleged, from an invalid election. But lumping the allegations made against the electors of multiple states into one single objection is a much harder logical sell.
Not that the Republicans wouldn't make such a motion and win it, of course. And they'd be able to point to innumerable sources among the political left itself, who claim such irregularities as have been alleged are all part of a single, grand scheme. Why not then, they would argue, consider the irregularities precisely as the proponents of the pending objections describe them? As a coordinated and cohesive unit?
Wouldn't that suck?
Even without the benefit of actual logic, all debate can still be compressed into two hours, regardless of the number of objections made. The decision is ultimately in the hands of the Members of Congress themselves, as Art. I, Sec. 5., cited above, reminds us: "Each House may determine the Rules of its Proceedings," meaning that by majority (i.e., Republican) vote, the House and Senate both may simply decide that there will be two hours of debate no matter how many objections are filed.
Still, it'd be a story in itself if numerous objections were not only made and summarily rejected, but if both houses of Congress were forced to dispense with the objections on party-line votes. It'd certainly make the evening news, and make a splash at a lot of family dinner tables. And as many of you know, I'm not above using parliamentary procedure to shake people from their slumber now and again. An exciting Congress is a watched Congress, and that can't be anything but good.