Amidst all of the drama surrounding the January 6 counting
of the electoral votes, there is no realistic path to derail the election of
Joe Biden to the presidency.

Theories to the contrary imagine a rogue Vice President
Pence taking over the counting process or delays and deadlocks in the counting
that throw the election to the House of Representatives (where Republicans
control a majority of state delegations). But all of these doom and gloom
scenarios forget one important fact: There is almost certainly a majority of
both the House and Senate that will support Joe Biden’s slates of electors no
matter what challenge is brought.

First, the rogue Mike Pence scenario. Proponents of this theory worry that he will use his power as presiding officer over the joint session of Congress to defeat Biden slates of electors or elevate the informal Trump slates. However, there are many reasons to doubt this scenario. Pence himself has indicated that the primary power of counting the electoral votes lies with Congress, not the vice president. Congress also has avenues to object to a wayward ruling of the chair, so majorities of the House and Senate would ultimately prevail over a vice-presidential ruling.

Second, the deadlock scenario. Republican challenges would draw out the process of counting or cause a deadlock so that Republicans could use their majority in state delegations in the House of Representatives to decide the presidential election. Even if one could imagine such unresolved deadlock (unlikely, as cross-partisan majorities of both houses would surely resolve disputes), the election would not go to the House of Representatives because the count would be incomplete rather than a final count where no one has a majority. In this event, a vacancy in the presidency and vice presidency, if it lasted until January 20, would bring us acting President Nancy Pelosi, not Donald Trump.

There are election-related matters to worry about: the
regularization of protests and challenges to slates of electors which Democrats
have used in each of the last three Republican presidential victories and that
Republicans may bring to an even higher level in 2021; the general damage to
our sense of the finality and legitimacy of election results; the questioning
of the legitimacy of the Electoral College itself. But there should be no real
concern as to whether all of the machinations on January 6 will succeed.

John Fortier is a resident scholar at AEI and author and editor of the third and newly released fourth edition of After the People Vote: A Guide to the Electoral College. The late AEI constitutional scholar Walter Berns first looked at the issues the House and Senate will debate on January 6 in the first and second editions.

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