Objecting Electoral College results: Past, present and future
Over 150 Republican congress members are planning to object and/or reject the 2020 Presidential election results when congress convenes to a joint session to certify the election on Jan. 6.
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The Past: A blizzard, the 'Know Nothing Party' and voter fraud
The certification of the election results by congress in the early years of the United States had largely been a ceremonial process and consisted of what the 12th amendment orders to occur:
“The President of the Senate [typically the current Vice President] shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted; -- The person having the greatest number of votes for President, shall be the President.”
However, in the three-way election of 1856 between James Buchanan (D-PA), John Fremont (R-GA) and Millard Fillmore (Know Nothing Party-NY) this process came into dispute.
The controversy came when the President of the Senate at the time, James Mason (D-Va.), was announcing and certifying the results of the election and announced John Fremon, a Republican, had won Wisconsin’s five electoral votes.
Rep. John Letcher (D - Va.) then jumped out of his chair during the hearing and objected to this result. Letcher pointed out Wiscon’s five electoral results were submitted a day late due to a blizzard. Letcher argued the Wisconsin results were illegal because the electoral college votes were filed past the predetermined deadline.
Mason, surprised by the objection, didn’t know what to do and decided to rule the objection was out of order and continue with the election certification process. The results concluded that Buchanan won the election with 174 votes, while Fremon had 114 votes and Fillmore 8 votes.
So, in the end, the objection wouldn’t have caused a different result since Buchanan beat Fremon by more than 5 votes.
Nonetheless, several congress members did not like the idea that one person, the President of the Senate, could decide whether results, ballots or votes were valid or not. Here were some of the arguments made by congress members of the time that allowing this could result in a dangerous precedent:
If the President of the Senate was to disregard any objections to an election’s results made by congress members, it might assume “the privilege of determining a presidential election and saying who shall be President” by the President of the Senate said Senator John Crittenden (Know Nothing Party-KY)
Senator Andrew Butler (D-S.C.) argued: “arbitrary power could make a president of the United States without an election” and proposed if the President of the Senate had two opposing electoral votes from the same state he would likely pick the one that would favor his own party.
“[The power to determine an election] is a power which in the time of temptation — and God knows when the time of temptation may arrive for someone to desire to be President to rule in this country — I would not like to trust too many people.”
- Andrew Butler (D-S.C.)
Robert Tombs (D-Ga.) argued congress was the most qualified to determines if votes are valid, not a single person who runs congress.
“I do not consider that the Presiding Officer has a right to close the mouths of Senators and Representatives here, in whose hands the decision of this question must rest.”
- Robert Tombs (D-Ga.)
James Dorr (D-S.C.) said he worried that this power could influence who the winner of a future election without any objection.
“Suppose the result of the election would depend on the vote of that state.”
- James Dorr (D-S.C.)
In the end, the 1856 election results remained the same as congress ruled Wisconsin’s violation of the electoral process was due to the blizzard was an “Act of God.”
However, the desire for reforms to the electoral certification process in congress persisted and came to a breaking point in the 1876 Presidential election.
The election results between Rutherford Hays (R-OH) and Samuel Tilden (D-NY) were contested for several reasons.
First, three different southern states (Florida, Louisiana and South Carolina) had extensive voter fraud claims and ballot design issues which led to disputed election results.
In addition, Oregon, who had clearly voted for Hays, one of the GOP electoral votes was contested by Governor of Oregon, La Fayette Grover (D), who argued one of the GOP electors was not eligable to be an elector and wanted to nominate a Democrat elector instead.
In the midst of a crisis, Congress passed a law on Jan. 29, 1877 to form a 15 member 'Electoral Commission' consisting of 5 members from the Supreme Court, 5 member of of the House of Representative and 5 members of the Senate to investigate and settle the results in each state.
The Electoral Commission eventually voted 8-7 to give all 20 contested votes from all four disputed states to Hays which gave the Republican the presidency with 185 electoral votes opposed to Tilden’s 184.
The 1876 election only increased the worries that one person, the President of the Senate, might be able to decide the results of an election.
This led to the passing of what is known as today the “Electoral Count Act” that was signed into law in 1887.
The law states that the President of the Senate is not allowed to singularly decide to reject or accept a states’ votes. The law states if there is an objection, at least one congress member in each the House and Senate is required to state any objections in writing before Congress meets to certify the results.
If the objection is raised in the hearing and deemed valid, the House and Senate will both meet separately to discuss the validity of the objections.
Since 1887, congress has raised objections to two different elections.
In 1969, when certifying the results of the 1968 election, in which former President Richard Nixon was elected, Rep. James O’Hara (D-MI) and Sen. Edmund Muskie (D-ME) objected to the election results due to one faithless elector in North Carolina that would not overturn the Nixon’s election win.
In addition, in 2005, Rep. Stephanie Tubbs Jones and California Sen. Barbara Boxer objected to the election results to give George W. Bush a second term. Jones and Boxer’s objection was largely to address voter suppression in Ohio and was not intended to overturn the election results.
In 2001 and 2017 several Democratic Representatives objected to the electoral results but since the Representative did not have a Senator that would sign onto an objection, the objections did not proceed.
The Present: 150+ Republican congress members plan to object to 2020 Presidential election results
Since Nov. 3, 2020, most mainstream media outlets have declared the Democratic nominee Joe Biden (D-DE) won the 2020 Presidential election 306-232 against the Republican nominee and current president Donald Trump (R).
However, Trump and some of his Republican allies have claimed there was mass voter fraud and corruption in the six swing states Trump lost to Biden in the 2020 election: Arizona, Georgia, Michigan, Nevada, Pennsylvania, Wisconsin.
Since Nov. 3, Trump and his legal team have filed over 60 lawsuits in the six states. All but one of the lawsuits were either denied, dismissed, settled, or withdrawn.
Trump campaign v. Kathy Boockvar and County Boards of Elections was the single lawsuit the Trump team won. The judge’s ruling in the case declared the Pennsylvania Secretary of State 'lacked statutory authority' prior to the Nov. 3 election to extend the deadline for mail-in voters to supply I.D. from Nov. 9 to Nov. 12.
In addition to the efforts by Trump’s own legal team, a Texas lawsuit, signed on by some Republican state’s Attorney Generals, aimed to throw out over 20 million votes in 4 of the 6 battleground states Trump lost: Georgia, Michigan, Pennsylvania and Wisconsin. The lawsuit argued the four states had 'suffered from significant and unconstitutional irregularities' in their election and wanted the state’s legislators to decide who would represent each state’s electors, not the state’s election results.
This lawsuit was rejected by the Supreme Court on Dec. 11. The court, in a short unsigned order, stated the lawsuit had, “not demonstrated a judicially cognizable interest in the manner in which another state conducts its elections.”
Lastly, the most recent lawsuit came on Dec. 28 when several Republican Representatives filed a lawsuit with the goal of declaring current Vice President Mike Pence (R-IN) has the “exclusive authority and sole discretion” to decide which states electoral votes do and do not count. The suit was quickly dismissed.
On Dec. 14 each state’s selected electors convened to officially cast their votes and affirm President-elect Biden’s victory in the 2020 election with 306 electors going for Biden and 232 for Trump.
This led to many Republican politicians conceding, including Senate majority leader Mitch McConnel (R-KY), Biden would be sworn in as the 46th President of the United States on Jan. 20, 2021.
However, Congress still needs to certify the Electoral College results on Jan. 6 in a joint session of Congress.
Consequently, several Republican Representatives and Senators have stated they will object to the certification of the election results.
On Dec. 3, Rep. Mo Brooks (R-AL) was the first congress member to announce he would be objecting to the Electoral College results on Jan. 6. Now, according to Brooks, there are “dozens” of Republican House members planning to object to the results of at least one of the six swing states.
However, it wasn’t until Dec. 30 that Sen. Josh Hawley (R-MO) released a statement saying he would also object during the congressional certification process that a member from both the House and Senate were planning to object (thus, making an objection possible). Hawley is specifically focused on objecting to what he believes to be voting irregularities in Pennsylvania.
Finally, Sen. Ted Cruz (R-TX) and 10 other Republican Senators released a joint statement on Jan. 2 stating they would object as well. Cruz and his colleague's objection has yet to specifically say what State(s) they will be objecting to.
The reasoning for these Republicans in objecting at congress’s Electoral College certification on Jan. 6 vary.
Hawley’s argument and goal for objecting to the results is as follows:
“I cannot vote to certify the electoral college results on January 6 without raising the fact that some states, particularly Pennsylvania, failed to follow their own state election laws. And I cannot vote to certify without pointing out the unprecedented effort of mega corporations, including Facebook and Twitter, to interfere in this election, in support of Joe Biden. At the very least, Congress should investigate allegations of voter fraud and adopt measures to secure the integrity of our elections. But Congress has so far failed to act.”
- Josh Hawley (R-MO)
Cruz and the 10 other Republican Senators that signed a joint statement stating they would object have a slightly different reasoning and aim. This is in part what Cruz and his colleagues are arguing:
“Reuters/Ipsos polling, tragically, shows that 39% of Americans believe 'the election was rigged.' That belief is held by Republicans (67%), Democrats (17%), and Independents (31%)…
“Whether or not our elected officials or journalists believe it, that deep distrust of our democratic processes will not magically disappear. It should concern us all. And it poses an ongoing threat to the legitimacy of any subsequent administrations.
“Ideally, the courts would have heard evidence and resolved these claims of serious election fraud. Twice, the Supreme Court had the opportunity to do so; twice, the Court declined.
“In 1877, Congress did not ignore those allegations, nor did the media simply dismiss those raising them as radicals trying to undermine democracy. Instead, Congress appointed an Electoral Commission-consisting of five Senators, five House Members, and five Supreme Court Justices-to consider and resolve the disputed returns.
“We should follow that precedent. To wit, Congress should immediately appoint an Electoral Commission, with full investigatory and fact-finding authority, to conduct an emergency 10-day audit of the election returns in the disputed states. Once completed, individual states would evaluate the Commission's findings and could convene a special legislative session to certify a change in their vote, if needed.
“Accordingly, we intend to vote on January 6 to reject the electors from disputed states as not ‘regularly given' and ‘lawfully certified' (the statutory requisite), unless and until that emergency 10-day audit is completed.”
- U.S. Senators Ted Cruz (R-TX), Ron Johnson (R-WI), James Lankford (R-OK), Steve Daines (R-MT), John Kennedy (R-LA), Marsha Blackburn (R-TN), and Mike Braun (R-IN), and Senators-Elect Cynthia Lummis (R-WY.), Roger Marshall (R-KS), Bill Hagerty (R-TN), and Tommy Tuberville (R-AL)
The other members of the House have similar arguments to Hawley and/or Ted Cruz and the other 10 Senators objecting the Electoral College results on Jan. 6.
These congress members plan to object to the Electoral College results has not come without criticism from Democrats and Republicans.
There have been zero Democrats that have publicly stated they believe the 2020 Presidential election was fraudulent or irregular and no Democrats are planning to object to the Electoral College results.
For example, president-elect Joe Biden’s spokesperson, Mike Gwin, said this about the plan to object to the electoral college votes by some GOP members:
“This stunt won't change the fact that President-elect Biden will be sworn in on January 20th… And these baseless claims have already been examined and dismissed by Trump's own Attorney General, dozens of courts, and election officials from both parties.”
- Mike Gwin
Bernie Sanders (I-VE), Joe Biden’s main competitor for the Democratic nominee for president in 2020, said this in response to the objection efforts:
“What all of this comes down to is that Donald Trump and right wing extremists are refusing to accept the will of the people and the fact that Trump lost the election… In their contempt for democracy, they are using lies and conspiracy theories about 'voter fraud' in an attempt to overturn the election results.”
- Bernie Sander (I-VE)
On the other side of the aisle, many Republicans have criticized Republican efforts to object to the Electoral College results.
Most notably is Senate Majority Leader, Mitch McConnel (R-KY), who has tried to discourage Republicans from objecting in order to prevent division in the party.
However, McConnel has said he believes this is an extremely hard decision for Republican lawmakers to make and even compared the decision to object similar to instances when McConnel had to vote on a war:
“I've voted twice on declarations of war… This is right up there. But… there's a lot of noise out there and I won’t judge anybody for their decision.”
- Mitch McConnel (R-KY)
Other Republicans are less sympathetic such as Ben Sasse (R-NE). Sasse, in a Facebook post on Dec. 30, responded to his Republican colleagues’ plan to object by explaining why he does not see evidence of mass voter fraud to affect any elections by reading lawsuits by the Trump legal team. Sasse said the Trump lawsuits are not arguing the same type of fraud and irregularities in courts that they are in the media.
Sasse also said he believes objecting to the Electoral College is not an effective way to address specific voter fraud claims and election irregularities.
In addition, Sasse states why he thinks the objections made by many of Republicans are more of a political play to President Trump’s base. For example, Sasse says:
“When we talk in private, I haven't heard a single Congressional Republican allege that the election results were fraudulent -- not one… Instead, I hear them talk about their worries about how they will 'look' to President Trump's most ardent supporters… Let's be clear what is happening here: We have a bunch of ambitious politicians who think there's a quick way to tap into the president's populist base without doing any real, long-term damage. But they're wrong -- and this issue is bigger than anyone's personal ambitions.”
- Ben Sasse (R-NE)
The Future: Inauguration Day, 2024 and/or Chaos
The most likely outcome, since neither the House nor the Senate will have even close to a majority of congress members willing to object to election results, the joint session by congress will last several hours due to the number of objections, but, in the end, President-Elect Biden will likely be confirmed as the winner of the 2020 Presidential Election and be sworn in as the 46th President of the United States on Jan. 20 at 12 p.m.
However, if both the House and Senate would somehow come up with a majority, which would require at least some Democrat Representatives willing to object to the election (extremely unlikely), most likely an Electoral Commission would be formed (like the one in the 1876 election and the one proposed by Sen. Cruz of Texas) to investigate voter fraud and election irregularities in one or more states over a 10-day period.
Again, this is extremely unlikely and even if this would happen, most likely not enough evidence would be gained to flip any states from Biden to Trump. So, in this unlikely scenario, Biden is still inaugurated on Jan. 20.
However, most likely, Republicans objecting are hoping this political play will help them in future elections such as the 2022 midterms or the 2024 Presidential Primaries by appealing to the Trump base.
The last, and most unprecedented scenario, is one President Trump has been harping on the past week: for Vice President Mike Pence to “reject fraudulently chosen electors.”
An overwhelming majority of legal and constitutional scholars believe this would be illegal and unconstitutional because of the 12th Amendment, The Electoral Count Act of 1887 and the U.S. Code of Congress.
Despite this, Trump released a statement to some media members on Jan. 5 stating:
“The November 3rd election was corrupt in contested states, and in particular it was not in accordance with the Constitution in that they made large scale changes to election rules and regulations as dictated by local judges and politicians, not by state legislators. This means that it was illegal
“Our Vice President has several options under the U.S. constitution. He can decertify the results or send them back to the states for change and certification. He can also decertify the illegal and corrupt results and send them to the House of Representatives for the one vote for one state tabulation.”
- Donald J. Trump
Trump may be hoping Pence can do this due to a precedent set by Thomas Jefferson in the 1800 election.
In the 1800 election, Thomas Jefferson set the precedent that Trump argues allows Pence to invalidate a specific state’s Electoral College results if the President of the Senate (typically the Vice President) determines the vote was conducted in an illegal fashion.
Pence could, Trump and his allies might argue under these precedents, not to allow Congress to consider or certify a state’s results because the Vice President found an election or votes to be illegal. By doing this the Vice President could deny a state’s electoral votes or send the results back to a state for change and certification. If Pence did this in enough states, he could essentially upend the entire election.
Lastly, Pence could send the presidential election fate to the House to vote on who would be the next president.
But again, this is deemed as illegal by an overwhelming majority of legal and constitutional scholars because of the 12th Amendment, The Electoral Count Act of 1887 and the U.S. Code of Congress.
Specifically, The Electoral Count Act of 1887 was put into law to prevent a Vice President from singularly deciding an election.
In addition, a report from The New York Times said Pence told Trump on Jan. 5 that he “lacks power to change election results.”
In a statement late Jan. 5, Trump said this report was “fake news.”
Again, it is overwhelmingly most likely the 2020 election results will be certified by Congress on Jan. 6 and former Vice President Joe Biden will become the 46th President of the United States on Jan. 20.