To be sure, McConnell might have acknowledged that we traditionally rely on the media to make unofficial pronouncements about the winner and that it is customary for the losing party to graciously concede and congratulate the apparent winner — even as the rule-of-law processes play out to their official conclusion.
Now that has happened. Once the electoral college has elected Biden president, the undeniable truth is that Biden is “president-elect.” The nation should move on in recognition of this basic fact.
The electors are the ones who get to vote for president. It’s an antiquated system from the 18th century, but it’s what the Constitution provides. Citizens vote only to appoint the electors, and that’s only insofar as the legislatures in each state have chosen this “manner” of appointing them.
Once appointed, each state’s electors meet to cast their ballots for president. Congress gets to set the date, and the Constitution requires that this “day shall be the same throughout the United States.” Thus, on the first Monday after the second Wednesday in December — this year, Dec. 14 — the president is elected.
It’s over. At that point, the outcome can’t be changed. New electors can’t be appointed in any state, by legislatures or any other means. No time machine exists to undo the meetings of each state’s electors that already have occurred.
There is nothing for Congress to do except to accept that Biden has won based on a majority of the electoral college ballots cast on Monday.
Of course, Congress still must receive and count these electoral college votes and formally pronounce Biden the winner, in a special joint session on Jan. 6. But that will be a mere formality. No officially sanctioned slates of rival electors — from state legislatures, as previously feared (and urged by President Trump), for example — exist for Congress to decide between. Republican senators can go ahead now and publicly acknowledge the result.
Indeed, the delay between the electoral college vote and congressional announcement of that result is a relic of the 19th century, with its slower methods of transportation and communication. After the electoral college has elected Biden president, there is no reason — other than sheer obstinacy or reality-denialism — to withhold public recognition of Biden’s victory.
This obvious step may prove harder for the 126 House Republicans who signed onto an amicus brief submitted in the Supreme Court case seeking to overturn Biden’s victory. These signatories amounted to nearly two-thirds of the GOP caucus, including Minority Leader Kevin McCarthy (Calif.).
But perhaps now that the Supreme Court has peremptorily dismissed the case, these House Republicans will come to their senses. The electoral college vote offers a second, face-saving chance.
It is true that Congress must accept these electoral college votes to count them. But it is important to understand Congress’s limited role. Its job is not to “go behind the returns” — to use the parlance of the 19th century — to judge for itself whether state law was properly followed in appointing electors. The only question for Congress is whether the electoral votes it receives from a state are the ones the state itself has sent pursuant to the state’s own laws.
Rep. Mo Brooks (R-Ala.) reportedly plans to launch an official objection to the electoral college result. This would be not only doomed to failure but also constitutionally inappropriate.
As long as no senator joins Brooks in a formal objection, the Electoral Count Act — which governs this special joint session of Congress on Jan. 6 — doesn’t permit its consideration at all. If you have any doubts about that, watch the proceedings from four years ago, with then-Vice President Biden presiding and ruling out of order comparable objections to Trump’s victory. “It is over,” Biden said then.
Even if a single senator is foolish enough to entertain this farce, a proper respect for constitutional principle should keep the number of objecting senators and representatives to a minimum.
To be sure, it would help restore faith in the nation’s system of electoral competition if congressional Republicans could go a step further and acknowledge that Biden genuinely won the popular vote in the states that give him his electoral college majority.
But for constitutional purposes, they don’t need to take this extra step. Just start calling him president-elect — and, as of Jan. 20, president.