Trump vows legal challenges are ‘not over’ as Electoral College set to certify presidential results
Analysis from constitutional law expert Mark Smith on ‘Fox & Friends First.’
Today is a key day in the certification of the election of President-elect Joe Biden as electors from individual states, pledged to the candidates assemble. This is the tabulation of the Electoral College.
Article II, Section 1 of the Constitution says “Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States."
The day of December 14 is dictated by an obscure, Byzantine 1887 law: the Electoral Count Act.
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 in 1876. There was a sprint to settle the Electoral College tally before Inauguration Day, 1877. Congress created an “electoral commission” to resolve the issues. In that era, the president assumed office on March 4.
The Electoral Count Act dictates that states choose electors no more than 41 days after the election. This is partly why the Supreme Court rushed to complete Bush v. Gore on Dec. 12, 2000. The decision halted the count of ballots in Florida, handing the presidency to George W. Bush.
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The 1887 law establishes a “safe harbor” date so states conclude vote counts and establish electors early. That was the Dec. 8 date last week.
And states are given great latitude as to how they go about deciding electors. My favorite electoral college story comes from Colorado in 1876 and the aforementioned Hayes-Tilden electoral dispute. Colorado had only been a state for a couple of months before the 1876 election. Colorado had no wherewithal nor infrastructure to conduct an election. But, Colorado was a state. So the state elders got together and pledged its then three electoral votes to President Hayes – even though no one on the ground in the Centennial State really had a say. And certainly, no one voted.
Electors can choose for whom they want. There is no federal statute nor constitutional provision which governs this. Electors “pledged” to given candidates. But 32 states and Washington, DC mandate that electors agree to vote for the candidate who prevailed in their given state. Five states penalize an elector who goes rogue and votes for someone other than the winner. Fourteen states do not allow “faithless” electors. A “faithless” elector is someone who casts a ballot for a candidate other than the winner.
There have been 165 faithless electors in U.S. history. Sixty-three faithless electors emerged after Republican presidential nominee Horace Greeley died about a month after election day in 1872 – but before the electoral college met.
There were seven faithless electors in the 2016 presidential race. Here is the list of other candidates receiving electoral college votes other than President Trump and Hillary Clinton: Sen. Bernie Sanders (I-VT), former Ohio Gov. John Kasich (R), former Rep. Ron Paul (R-TX), retired Gen. Colin Powell (three electoral votes) and Faith Spotted Eagle, a member of the Yankton Sioux Nation.
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So what happens after today?
States begin to send in their slates of electoral ballots to the U.S. Capitol over the next few weeks.
The papers sent to Capitol Hill are “Certificates of the Vote,” signed by the electors of each state. They are mailed via registered mail (yes, the U.S. Mail) to the president of the Senate (the vice president of the United States), the Secretary of State, the Archivist of the United States and the federal district court with jurisdiction over where each set of electors convened.
Fox is told of at least one story where congressional officials had to come into the Capitol on Christmas day several years ago because one state sent paperwork that wasn’t “proper in form.”
But, the process isn’t quite over.
This brings us to the ultimate decision of who is president on Jan. 6.
It’s up to the 117th Congress, as dictated by the 12th Amendment to the Constitution.
Lawmakers certify the electoral results in a Joint Session of Congress. The House and Senate huddle in the House chamber together. We don’t quite know how this will look during a pandemic. But Vice President Pence Mike would co-preside over the session in his capacity as president of the Senate alongside House Speaker Nancy Pelosi, D-Calif. Pence’s term doesn’t expire until Jan. 20. The 12th Amendment gives the vice president a little more power than the president in presiding over this session. The 12th Amendment mandates that “the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall be counted.”
The 12th Amendment also says “the person having the greatest number of votes for President shall be President.” But Congress must agree to all of this. And remember, Pence is the one running the show at this stage.
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Do not underestimate the role of the vice president in this process.
Hawaii wasn’t a determinative state in the 1960 presidential election between President John F. Kennedy and President Richard Nixon. Kennedy was going to win the White House, regardless of Hawaii. Initial results from Hawaii showed that Nixon captured the Aloha State. But a recount shifted the win to Kennedy. Hawaii sent two slates of electoral votes to Washington: one for Nixon and one for Kennedy, both signed by the governor. By the book, Hawaii’s electoral votes should have gone to Nixon. But when the Joint Session of Congress convened in January, 1961 Congress handed Hawaii’s then three electoral votes to Kennedy. Nixon, then Vice President, presided.
But what would have happened had Nixon intervened, potentially, as the GOP presidential nominee who lost to Kennedy?
We’ll never know.
The House and Senate go through each state’s slate of electoral ballots in alphabetical order. Congress is supposed to accept the version signed by the governor. But Congress really isn’t bound at this stage. It can do what it wants when it comes to certifying the electoral college results.
After the 2000 Florida election dispute, a cavalcade of Congressional Black Caucus members paraded through the well of the House chamber to contest the outcome during the Joint Session. Vice President Al Gore, then President of the Senate, and like Nixon, the vanquished Democratic nominee, presided.
“Mr. Vice President, I rise to object to the fraudulent 24 Florida electoral votes,” declared Rep. Maxine Waters, D-Calif.
“Is the objection in writing and signed by a member of the House and a senator?” inquired Gore.
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Congressional rules require a House member and senator simultaneously challenge a state’s electoral slate. But Waters lacked a Senate sponsor.
“The objection is in writing!” snapped Waters. “And I don’t care!”
Gore, stood firm, despite having the most to benefit from Waters’ entreaty.
“The chair will advise that the rules do care,” Gore intoned, triggering applause throughout the House chamber.
Questions arose in January, 2005 about Ohio’s slate of electoral votes. In that instance, the late Rep. Stephanie Tubbs Jones, D-Ohio, and former Sen. Barbara Boxer, D-Calif., teamed up to challenge Ohio’s electoral votes. The House and Senate then met separately to consider Ohio’s slate. But after a short debate, Congress decided that President George W. Bush was victorious in Ohio.
Rep. Mo Brooks, R-Ala., indicates he will likely challenge some electoral college results from various states. Brooks will need a sponsor from the Senate to launch a debate contesting a state’s electoral slate.
If there is a House and Senate member appealing a state’s slate of electors, the Joint Session of Congress is dissolved and the House and Senate meet separately for two hours to debate a contested state’s electoral vote. Each body then votes whether to accept or reject that state’s slate of electoral votes. Then the House and Senate reconvene in the Joint Session.
This could literally consume all day on January 6 and probably bleed into the wee hours of Jan. 7 before this is all resolved. Challenges to electoral slates are anticipated from Georgia, Pennsylvania, Nevada, Wisconsin and Michigan. And, voting on each state’s slate will take longer due to the pandemic. So Jan. 6 and 7 could be LONG ones.
However, it is important to note that a state’s slate of electoral votes is only tossed if BOTH the House and Senate vote to do so. We doubt the House will reject any challenged electoral slates. But there will be a roll call vote, indicating how many House Republicans vote in favor of dismissing a given state’s electoral vote.
And, keep in mind, the Senate starts the new Congress at 51-48 in favor of the GOP. Sen. David Perdue, R-Ga., will not be a senator at the beginning. Sen. Kelly Loeffler, R-Ga., will. How fast will Georgia certify the winners of the Georgia runoffs on Jan. 5? And could that impact how the Senate votes? What happens if it’s clear Democrats have won BOTH Georgia races and the Senate will be 50-50 – and we learn of such news in the middle of challenges to a state’s electoral slate?
We don’t know.
To take the presidency, 270 electoral votes are required. But what happens if a candidate falls short because a state’s electoral votes are in dispute?
Or, if there is an impasse when certifying the electoral college?
First, there’s no immediate game clock dictating that Congress has exhausted all options. But if Congress determines there’s a stalemate, the 12th Amendment directs the House to elect the president.
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This is called a “contingent election.” The House has chosen two Presidents via contingent elections: Thomas Jefferson in 1801 and John Quincy Adams in 1825.
Each state casts one ballot as a House delegation during a contingent election. The House only considers the top three electoral college vote getters in a contingent election. Each state casts one ballot in a contingent election. And Republicans should control more state delegations in the House next year – even though Democrats are in the majority.
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