beginning at 8:00 p.m. eastern on c-span, c-span.org or listen on the c-span radio app. >> tomorrow, the joint session of congress will count the electoral college votes in the 2020 presidential election. and confirm a winner. republican members of the house and senate are expected to challenge the certified 2020 presidential election results. follow the process as the votes are counted. objections debated by members of the house and senate. and a winner confirmed. president and vice president. live coverage begins at 1:00 p.m. eastern on c-span. watch live, streaming or on-demand at c-span.org. or listen on the free c-span radio app. >> you're watching c-span. your unfiltered view of government. c-span was created by america's cable television companies in 1979. today we're brought to you by

these television companies who provide c-span to viewers as a public service. journal" "washington continues. ned foley is with us. he is a law professor, author of " presidential elections and majority rule." than 24 hours away from the start of the process. tell us about the process and walk us through that as it would normally happen on the sixth of january. normally it is a ceremony. it is compelled by the constitution, the 12th amendment talks about this joint session of congress. the purpose is to receive the electoral college votes cast in in states by the electors the states.

congress receives them, opens them and counts them. an hour takes less than and should not be controversial. obviously, this year is different. processnding the requires going back into history. ands a product of the 18th 19th century, the mindset our predecessors had about the electoral college system. technology, transportation and communication as it existed in the 19th century is reflected in actbasic mechanisms of the adopted in 1887 by congress, that implemented the basics set forth in the 12th amendment. host: tomorrow we have the vice president serving in his key role as the president of the senate. perfunctoryally a

role unless he is casting a tie-breaking vote. what are we likely to see tomorrow? officer, the presiding he is supposed to make sure it runs on time. mention, statute i congress did not intend for the vice president to be decisive, to control the outcome of the process or the way the process would be determined about how votes get counted. congress wanted to retain its own power. jointlybers of congress to control the outcome. structurally, the statute makes a key decision on whether or not submissionince one of electoral votes, one package. here are votes we want you to

count. if there is a single submission, the statute has one set of procedures. it is if there are rival submissions from the same state, each claiming to be the true electoral vote. complicatedn more when that has happened, as in 1876, for example. procedures are different in that scenario. that has been largely untested throughout american history. one of the big questions as we think about tomorrow is are we going to see the rival submissions scenario in any of the states that have been under discussion? i have not seen a clear indication on whether the vice president's office thinks it is going to bring a single submission of electoral votes from a state like arizona or there has been talk about

alternative electors having met in december and whether this would be an example of that rival submissions scenario. see some senators objecting and trying to bring or alternative electors. we could potentially see those brought into the argument? those have no official status. , 1870 six is our historical reference point. that was a situation where the rival submissions, which had a plausible claim to speak for the state. we had different institutions of state government backing the claims on the part of different electors. that was hope for here by the trump electors. stephen miller went on fox news

on the morning of the electoral college meeting hoping legislatures or the states would to thesecial sanction alternative electors who have it on separate meetings. that never transpired. fromif a second submission arizona is put forward, it does not have equal status. there will be one official submission from arizona signed by the governor and there will be this other submission claiming to speak for arizona that has no official backing whatsoever. it is clear what should happen. the official submission is the one to be counted. because this is the first time in american history if this is what unfolds, exactly the procedure for how it unfolds, it will set a precedence. the outcome is not in doubt.

the chambers of congress will control counting the votes. know the two chambers will count the official votes from each state. the process for getting to that bottom line is murky because we don't know whether the vice president will announce he has one submission because there is only one official submission, or instead whether he will say i have two packages and congress must deal with them. statute calls for taking the states in alphabetical order. p.m.rocess starts at 1:00 we expect arizona will be the first state where there may be question about how the process moves forward. the first thing to indicate is what pens says.

he is in that role, the presiding officer of the senate. he will have to announce what he has received from the state of arizona to be disposed of under the procedures. ned foley, the director of election law project. democrats, (202) 748-8000. republicans, (202) 748-8001. independents, (202) 748-8002. you touched on this a bit. thent to show viewers opinion piece -- january 6 is not an election do over. you write this is not the time to relitigate the election.

tomorrow could have some feel like it is. -- guest: it's a misunderstanding or abuse of the process. point. a nonpartisan democrats in the past have abused the process in the same way, have made the same mistake. two wrongs do not make a right. understandtant to the constitution expects what is supposed to happen. appoints how to electors. nature is built on

state sovereignty. they talk about it having its own power for appointing its own electors. chosen ae states have form of popular vote. appointto have to electors directly. congress's job is to open packages and ask do we have the electoral votes from persons who were appointed as electors. answer,gress knows the it counts the votes.

it is not a recount and congress for the underlying popular vote. it is not a question of the georgia or arizona make a mistake. the arizona is, did government appoint electors? yes, we know who they are. to revisit the question of did georgia do its recount properly in the joint session of congress, that is inappropriate. that is true in the matter of the constitution and the 12th amendment. after 1887.lear there is a provision of that statute called the safe harbor provision. it uses the word conclusive. congress, act of

congress saying it will treat as conclusive any final that the state itself makes pursuant to its own procedures ofial any litigation of controversy over the appointment of its electors. thatess says it is determine is asian that will be conclusive and govern congress -- congress says it is that determination that will be conclusive and govern congress. have a lawsuit and you resolve the lawsuit definitively, congress will .ccept your resolution we won't second-guess that. as long as we know it is your decision we are looking at, we

will accept it is your decision. some members of congress to reopen that decision . host: how to these votes arrive? how do they get open and read on the house floor? writtenongress has rules on that. it is complicated. there are multiple copies sent from the electors. this was written in the 19th century. it talks about the postal system there by certified mail. one goes to the president of the copy goes to the national archives. a copy goes to the local secretary of state, the local

federal district court. about lostncern copies in the mail, make sure there was no forgery. office --dent pence's there are two parts to the documentation. the electors themselves send in their own votes. officials.vernment certify their own votes. the document called a certificate of ascertainment. provided by the government of state. are electors of the

state. the certificate of ascertainment. arependently, governors obligated to send another copy of the certificate of ascertainment to the federal government. --re are multiple transition there are multiple transmissions so everyone is clear what is going on. a number of those vote counts were counted live. our listeners and viewers can see that, including the signing of those votes and documents people ned foley mention. i am not sure if you had the chance to hear the comments on

trump's expectations for mike pence. [video clip] presidentour vice comes through. he is a great guy. if he does not come through, i will not like him quite as much. mike is a great guy. a is a wonderful man and smart man and a man i like a lot. he will have a lot to say about it. with him, you are going to get straight shots. he is going to call it straight. think trump is putting pressure on mike pence? guest: you can hear what he wants, the outcome he wants. if pence plays it straight, it will not be what trump wants.

playing it straight is following the rules. that does not give the vice president the role trump seems to contemplate. are inmbers of commerce authority of counting the votes. the processes over but he does not dictate or control the process. is inconsistent with the constitution and the law. mike int's hear from belton, missouri. caller: good morning. i would like to say i am a lincoln project republican. i am ashamed of what my party is doing. takei am called a rino, i pride in that. i know i am doing the right

thing. disappointed by people like your last guest, who want to go on and tell lies with no proof and the party of lincoln has become the party of trump. pot.epublican has gone to thank you for listening to my call. host: any response? there is a fight within the republican party for its future. it has come to the point where one part of the republican party seems to want to abide by the basic principles of electoral competition, paying back -- playing by the rules and recognizing when the other side wins, they have a turn of government. americanair play, the way for centuries. , in that phonemp

accepthat he will not defeat and he tries to create this alternative narrative he won when that is not true. there are members of congress who seem to be going along with this untrue narrative. it is inconsistent with the idea of taking turns based on the will of the voters. a voter should be able to decide whether democrats have a turn for the next four years in the white house or the republicans have a turn. that has to be the most basic principle. part of the republican party seems unwilling to accept that basic element of our system. that is dangerous to the project

of republican government. host: rick, the republican line. there are a number of people who want to object to the electoral counts, but there is a condition to that. donald trump wishes the election would be overturned. i don't believe it can be. there has to be confidence in the election process. there is a lot of stress.

process needs to go through, calling people to support trump. i think that is wrong. i do not think that is healthy for the country. that is all i have to say. thank you. foley, his point that members would use this as an opportunity to point out some problems with voting across the country. rob portman put out a statement that spoke to this. the purposes are not to investigate the underlying popular vote. if there are concerns about integrity of the electoral process, there can be separate hearings for that or a special commission.

it is important we do not buy into fabrications of allegations that have no basis. i agree with the caller that it is imperative both sides believe in the integrity of the system. america has to work to allow for competition. our version is essentially a two-party system. the structure of politics, as we all know, causes it to be a two-party competition. both sides have to believe the system is working and it is fair. obviously we have problems in that respect. we need to figure out how to improve that. there are valid conversations to be had about how to make the system work better for next time, what sort of statutory reforms congress might adopt. i am uncomfortable with using the word treason.

our polarization and the rhetoric is toxic. we need to lower the temperature and get back to the normal version of american politics, where each side recognizes each other as the loyal opposition, it is taking turns and fair play. dothing we can get -- we can to get back to the way it is supposed to work is important. tomorrow's procedure is not an occasion for a hearing on the underlying integrity of the popular vote process. that is not what the count is four. every objection shall be made in writing and shall state clearly and without argument the ground thereof and shall be signed by at least one senator

and one member of the house of representatives. when all objections so made has been received and read, the senate shall withdraw and such -- and suchhould be shall be submitted to the senate for its decision. will they tackle all of the objections out once or do they come back into the joint session to address each separate one? of thethat is one uncertainties and ambiguities about the statute. maybe the parliamentarian offices have been advising the leadership, including vice president pence on how this should go. looking at a report that the congressional research service released, there is some

ambiguity. take each state one at a time alphabetically and cannot move to the next state until resolving all issues under consideration. it cannot package several states together. if we get the situation where there is a claim to be an alternative submission of electoral votes, whether both packages get sent to the chambers for separate deliberation at the same time or whether the packages get taken up one at a time. that is what is unclear. beingatute talks about two hours of debate in each chamber on each objection or question, raised in the joint section that puts in the chambers for deliberation.

rule of thumb, we expect one objection per state, but it is possible there might be multiple objections per state, which could multiply the number .f hours divisivegress faces session, looks at the history of the process. objectionsut the that happened back in the 2004 race, john. george w. bush. and george w. bush. happened there, ohio , this was in the aftermath of the fraught 2000 election.

kerry and bush, ohio ends up being the pivotal state and there are allegations of impropriety in the counting of the popular vote. lines, issues of provisional ballots. the key point to understand is there was no doubt the president won the popular vote in ohio. the margin was over 100,000. team looked at litigation and conceded defeat because the numbers were not there. there were problems, but not in the magnitude that would have affected the outcome. thers and other used litigation and recount process to have a second look. used andcedures were produced the appointment of the electors at the appropriate

date, cast their votes for bush. that goes to congress. an objection signed by a representative that triggered this process. submission of one electoral vote from the state of ohio. there was no rival submission. kerry conceded defeat. it was inappropriate for those objections to be launched. the statute entitles objections in the process goes forward if it is signed, but it is incumbent upon each member to ask themselves if it is appropriate or not under the rules. i think senator boxer should have answered that the opposite way she did. given the provision we talked

about earlier, that any final determination the state makes over its electors and popular vote will be treated conclusive by congress. that happened in ohio. ohio had that litigation. they reached the final to probe -- state reached the final decision based on its laws. senator boxer should have accepted that as conclusive. stephanie tubbs jones lodged her opinion on the floor in january 2005 four some historical perspective. here is a look. [video clip] >> i see two objects [indiscernible] to object

[indiscernible] >> has the senator signed the objection? writing presented in and signed, it complies with the law. the clerk will report the objection. >> we object to the counting of the electoral votes of the state of ohio on the ground they were not under all of the known circumstances regularly given, ,igned stephanie tubbs jones state of ohio. , state ofxer california. objectionse further to the certificate?

none.air hears .he two houses will withdraw each house will deliberate separately on the pending objection and report back to the joint session. senate will retire to its chambers. host: the vice president dick cheney presiding officer. that is the correct way to handle it when the objections are lodged. the statute speaks to the procedure and the substance of an objection. vice president cheney handled that properly. we were talking about whether the objection should have been made in the first place. mark, ohio. republican line. i am from california.

anyways, i was calling to say there should be some kind of provision so we can have more transparency in this process. every time i see different things on the news, i see people saying no evidence and i see other people saying other things that -- people are saying there seems to be massive evidence. in all these different battleground states that because this. -- that cause this. it should be more transparent. sayingheard 100 people people were involved in the election. or more people. understand why there is not more transparency, why more

people -- i don't hear democrats saying we need more transparency. oversight or something because it is ridiculous. i feel like the election was totally stolen from president trump. host: mark in california. guest: representative cheney from wyoming issued a statement in the last 24 hours where she documents all the court cases that have happened in all of the states that have reviewed the kind of evidence pointing out there has been transparency and review of this. the ohio example is instructive with the outcome coming the other way.

every election has some degree of problem. this one, to be sure. in 2004, to be sure. the question of the level of the popular vote for each state to is it enough to call the outcome in doubt? there were democrats who claimed the same thing. .hat ohio was stolen for bush that john kerry was the true winner of ohio. there were conspiracy theories. people do not like to lose presidential elections. i understand that but we have to have an evidenced based process for declaring winners because only one side can win and the other side has to acknowledge defeat. i know ohio in 2004, the republicans honestly won that race and the democrats lost it. yes, there were problems.

yes, there were affidavits and litigation and some evidence, but it did not rise to the magnitude that the declared winner was an incorrect declaration. that is the key point to focus on. the office of the secretary of state of general -- secretary state of georgia said yesterday that georgia looked into all of the issues that were raised. this was true of the other states, but i just used torture as an example. the recount -- i just used georgia as an example. it is a pretty significant error in a recount context. there was a problem in that sense. given the margin of victory was 10,000, a0 or roughly

1000-error margin does not negate the validity of the declared outcome. in none of these states -- not arizona, pennsylvania, that is the point that seems to be missed in terms of president trump and his allies. just because there were some problems, you can't say that this meant this election was flawed. there is no election that is given the millions and millions of ballots nationwide. is key to a valid election was the correct winner declared in each of the states? under the structure of electoral college, that is a determination for state law to make.

that is the promise congress has made to the states, that it will treat conclusive those determinations. all of which occurred in -- once the electoral college votes in december, that is what is final. congress does not relitigate those recounts of the popular vote. congress says do we know who the electors of the various states are so we can count the official electoral votes? host: let's get one more call. caller: good morning. i was trying to decide if i was going to get on today. when i was aware that you would be speaking to ned foley, i had some questions. the hayesous about

concept. that has been cited in many different types of things, the compromise of 1837. i would love to hear about that. the other historical thing, and witht to kennedy some court challenges were made, ,oth in illinois and texas which may or may not have had to gouaded nixon not ahead with the challenge. it ended up in something like this. host: we will get a response. isst: the election of 1876

the most contentious one we have had. there were these rival claims of different groups of electors to speak on this -- speak on behalf of states. senator cruz has invoked that history. is itk my understanding is just a different circumstance because the dispute back then was genuine in terms of -- we do not have time to go into all the the fight was real over florida and louisiana and south carolina in terms of disenfranchisement and manipulation of the vote tallies. the allegations this year are not of the same character. there is not any underlying reality. aere is no dispute that

second submission of electoral votes had this backing of state governments. that is what is missing today compared to back then. if there is a claim in arizona of a second set of electors, it does not speak for the legislature. it does not speak for the governor or the judiciary. it just speaks for individuals wishing they had been appointed electors, but they were not. >> we take you live now to olympia, washington, where governor inslee is briefing on the coronavirus. gov. inslee: the first case in washington state just short of a year ago today. we are not where we want to be today. we remain concerned about the general stat thousands of pandemic a