President-elect Joseph R. Biden would have little recourse if Congress moved to overturn his election win this week when a joint session of Congress convenes to accept the 2020 results, according to legal scholars.
But it’s unlikely a majority of members from both the House and the Senate would overturn a state’s electors, they stressed.
If by chance that were to happen, judges would likely buck any legal challenge.
“I doubt the Supreme Court would really want to hear a case like this,” said David Schultz, a professor at Hamline University.
He reasoned that historically courts have not wanted to intervene on how Congress governs internal affairs.
In 1993, the high court refused to get involved with the way the Senate had handled an impeachment proceeding for a federal judge, who attempted to challenge the lack of a trial before a full floor vote.
The court reasoned it is a political question that the judicial branch should not resolve. Experts say the justices could rule the same way in a challenge over Congress certifying the election.
Some Republican senators and members of the House have said they plan to object and force debate against several state’s results, pleasing President Trump, who has alleged widespread election fraud.
Still, even if Congress successfully objected to one swing state’s electors, Mr. Biden would still be over the required 270 electoral votes.
The lawmakers would have to toss out three to four states to have a real impact. If that did happen, the House and Senate would then decide the president and vice president.
But Samuel Issacharoff, a law professor at New York University, said Congress’ role is really a ceremonial act, acknowledging the authorities from all of the states certified the November results. It is not the role of Congress to challenge or contest the election.
“This is going to be used for a political stunt that will be an occasion for shouting,” he said. “It will have no effect.”