Here’s how GOP Rep. Mo Brooks is planning to challenge election certification of Joe Biden

Rep. Mo Brooks said Wednesday he is planning to challenge the certification of Democrat Joe Biden as president when Congress meets in January, alleging that the election was fraudulent.

The Alabama Republican has been informing colleagues of his plan as long as he can get a GOP member of the Senate to go along with him, Politico reported.

That said, Brooks may yet proceed even without a Senate backup, though if that were to happen, he acknowledges his objection would then just be symbolic.

Under Congressional rules, a formal challenge to electoral result certification requires at least one member of the House and Senate, Fox News’ Chad Pergram reported last month.

“In my judgment, if only lawful votes by eligible American citizens were cast, Donald Trump won the Electoral College by a significant margin, and Congress’ certification should reflect that,” Brooks, a member of the House Freedom Caucus, said. “This election was stolen by the socialists engaging in extraordinary voter fraud and election theft measures.”

Brooks said he’s had “indirect communications” with some Republican senators but he did not elaborate on that further, Politico reported. Brooks also told the outlet that he has discussed his plan with House GOP leaders who did not give him a “thumbs up” or a “thumbs down” verdict.

“A lot of time is being wasted in court … the Supreme Court does not have the lawful authority to determine whether to accept or reject a state’s Electoral College submissions,” Brooks told Politico.

“Under the United States Constitution and U.S. law, that is the job and duty of elected officials … And so it’s the United States Congress that is the final judge and jury of whether to accept or reject Electoral College submissions by states and to elect who the president and vice president of the United States might be,” he said.

That’s exactly what Pergram wrote on Nov. 4.

“The Constitution makes Congress the ultimate arbiter determining which candidate wins each state. Congress must approve certificates of election from all 50 states. You may have thought November 3rd was the most important date on the election calendar. But a more crucial date is December 14, dictated by an obscure, Byzantine, 1887 law: The Electoral Count Act,” he stated.

“Congress passed the legislation after the disputed 1876 Presidential election between President Rutherford B. Hayes and Samuel Tilden. Electoral votes were far from certain in Florida, South Carolina, Louisiana and Oregon. There was a sprint to settle the electoral college tally before Inauguration Day, 1877. Congress created an “electoral commission” to resolve the issues. In those days, the President assumed office on March 4,” Pergram writes.

The law requires that states choose electors no more than 41 days following the election. He explained further that deadline is a large part of the reason why the Supreme Court “rushed” to its Bush v. Gore ruling following the 2000 election: The hard-and-fast elector date that year was Dec. 12.

There are other potential land mines that Congress, when it begins its new session on Jan. 6, may have to navigate.


The 1887 law establishes a “safe harbor” date so states can conclude vote counts and establish electors early. But what happens if there are problems with the mail? The cryptic nature of the statute could give some states the green light to continue counting – or cease counting.

So what happens if a state sends inconsistent slates of electoral votes to Congress? The new, 117th Congress must hammer all of that out, starting on January 6, 2021.

He notes further that electoral vote “certificates” normally begin arriving at the U.S. Capitol Building in December from states that have completed uncontested certification.

But right now, President Donald Trump’s campaign legal team has been holding hearings with state legislators to layout their vote fraud case, complete with witnesses and sworn affidavits, in order to convince them to either refrain from certifying their results for Biden or withhold their electors altogether.

If enough states withhold electors, then it could result in both candidates failing to achieve the 270-electoral vote threshold necessary to win the presidency. Then, constitutionally, the election decision falls to Congress.

Nancy Pelosi as Speaker of the House and Vice President Mike Pence as president of the Senate will have to convene a joint session of Congress (remember, Pence is VP until Jan. 20). Pergram points out that, under the 12th Amendment, “the President of the Senate shall, in the presence of the Senate and the House of Representatives, open all the certificates and the votes shall be counted.”

“That phrase is key. It has vexed Constitutional scholars for decades. The 12th Amendment doesn’t dictate ‘how’ the votes are counted. That’s why this could get dicey,” Pergram writes.

The amendment also states that “the person having the greatest number of votes for President shall be President.” But Congress has to agree to everything, “and remember, Pence is the one running the show at this stage,” says Pergram.

“Do not underestimate the role of the Vice President at this critical stage.”

President Trump tweeted a hearty “Thank you” to the congressman.


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Jon Dougherty


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