Counting Ballots and Stealing Elections

Rep. Louie Gohmert speaking at the Conservative Political Action Conference in 2016. (Gage Skidmore, https://flic.kr/p/E42Pwn; CC BY-SA 2.0, https://creativecommons.org/licenses/by-sa/2.0/) On Jan. 6, the vice president, in his constitutional role as president of the Senate, and the members of Congress will gather together in the capitol building and do their constitutional duty. We have now reached the final step in the constitutional process of selecting a president.  The presidential electors have already met and voted in their respective states, they have made a record of their votes, and they have sealed, certified and transmitted those votes to the president of the U.S. Senate. As the Constitution requires, the “President of the Senate shall, in the presence of the Senate and the House of Representatives, open all the certificates and the votes shall then be counted .” This solemn ceremony has been conducted for more than two hundred years, and it should be a celebration of American democracy and the peaceful transfer of power. In 2021, this moment will instead be marred by farcical and ominous tones. Republican Rep. Louie Gohmert has indicated that he will object from the floor to the counting of the electoral ballots in several battleground states. And he won’t be alone. What at first seemed like eccentric grandstanding will now reportedly be joined by over a hundred more of his Republican colleagues. Not to be outdone, Republican senator and likely presidential aspirant Josh Hawley announced that he too would object from the Senate side. Now at least eleven of his Republican Senate colleagues are likely to join him. This won’t change the end result. By the end of the day on Jan. 6, Democratic candidate Joseph Biden will still formally be declared to be the president-elect. So what will happen as a result of the grandstanding? Under existing statute , the objections raised from both the House and the Senate will trigger a debate in each chamber and a majority vote in each chamber as to whether or not to sustain the objection to the counting of any particular state’s electoral ballots. If even one chamber votes to overrule the objection — as the Democratic-controlled House will undoubtedly do — then the count will continue. The recognition of Biden’s electoral victory will be delayed, but it is inevitable. The counting of the electoral votes in Congress has not quite been reduced to the same kind of mechanical process to which the casting of electoral votes at the meeting of the Electoral College has been. For almost the entire history of the country, the public has expected presidential electors to faithfully and without thought cast an official ballot for the candidate to whom they are pledged. Being a presidential elector is an honorary and ceremonial role and nothing more. Members of Congress, of course, are elected to exercise more discretion and responsibility. It’s not hard to make the case that Congress ought to also play a merely ceremonial role. Breaking from the ceremony would be extraordinary and might be justifiable in extreme circumstances. We are not in that kind of extreme circumstance. Congress itself has taken the view, embodied in the Electoral Count Act of 1887, that there are circumstances in which Congress must deliberate on whether to count electoral ballots. That power can obviously be abused, and Congress has tried to create high barriers to exercising it and the decades of disuse should suggest strong norms against invoking it. Congress has indicated that it is in the states themselves that election controversies should be resolved. The presidential election of 1876 posed the problem that eventually gave rise to the 1887 statute. In the midst of widespread and bipartisan accusations of election fraud, four states had disputed slates of presidential electors as the date approached for Congress to count the votes. The congressionally created Electoral Commission of 1876 was an ad hoc solution to that particular problem that no one wanted repeated. Other, more permanent changes, arose as a result of the chaos. Congress tried to anticipate the possibility that election disputes might drag out for weeks again. It created a “ safe harbor ” provision that set up a default acceptance of electoral votes when election disputes were resolved by the procedures laid down by the state at least six days before the electors voted. It specifies that the valid certificates of the electoral votes shall include the official list of electors certified by the governor. In the case of objections on the floor of Congress, even when there are purported alternative slates of electors, the votes of the presidential electors certified by the state executives in line with the safe harbor provisionare in a privileged position to be counted. What can explain the general principle of putting legislatures in charge of election dispute resolution? At the time that the founders were drafting the Constitution and through most of the nineteenth century, the most natural assumption was that the democratically elected legislature would be the most trusted body for resolving election disputes. When there were contests over whether a member of Congress had been duly elected, it was the legislative chamber to which that member had been elected that would determine the electoral winner and seat that person. It was Congress where the votes of presidential electors would be opened and counted. But this logic fell apart as politics changed. With the emergence of political parties, having legislatures resolve election disputes began to make much less sense. It was increasingly obvious that the partisan legislative majority would be sitting as a “judge in its own case.” The majority would not simply be determining the fate of an individual politician; it would potentially be determining the immediate political fortunes of the party itself. It seems unlikely that we would design the Constitution the same way today. The country has worked around it by relying on courts to arbitrate election disputes. In the Electoral Count Act, Congress itself suggested that states might use “ judicial or other methods or procedures ” to resolve controversies over the election of presidential electors, and states have generally followed through by adopting statutes that feature courts as the ultimate vehicle for resolving such controversies. It is not impossible that Congress might one day be forced to confront cases of disputed electoral votes in which the dispute had not been formally resolved through state procedures, but such a possibility is exceedingly unlikely. The 2020 presidential election does not come close to creating such a situation in which Congress has a legitimate reason or need to deliberate on whether to count any electoral votes. Republican Rep. Louie Gohmert, who has advocated the view that the vice president could unilaterally set aside electoral votes , has baselessly asserted that “rampant fraud and unconstitutional actions” “ stole this election ” and that multiple states had “sent dueling slates of electors” to Congress. Republican Senator Josh Hawley has suggested more of a protest vote, by which he would raise “the fact that some states ... failed to follow their own state election laws” and that “ mega corporations ” had effectively supported Joe Biden. A group of Republican senators led by Ted Cruz have asserted that in light of “ unprecedented allegations of voter fraud ” Congress should “consider and force resolution” of those claims. Every bit of this is the flimsiest of fig leaves for continuing the president’s efforts to overturn the results of the election. The “unprecedented allegations of voter fraud” and violations of state election law that underlie Gohmert’s objections to electoral votes are entirely imaginary. The allegations are unprecedented to the extent that they are fictional, and yet the Oval Office itself has persisted in shamelessly promoting them.  Far from being ignored, the Trump campaign has been given ample opportunity to prosecute such claims before election officials and state and federal courts. Campaign officials have been singularly ineffective in marshaling credible evidence of any significant irregularities and certainly of no irregularities that would alter the presidential election outcome in any state, let alone for the election as a whole. The campaign has lost an unprecedented number of lawsuits filed to challenge the election results. For federal legislators to lend credence to such claims by using them as a basis for objecting to electoral votes would be to simply feed rather than dispel partisan doubts about the legitimacy of the election. For federal legislators to use such baseless allegations as the grounds for throwing out electoral votes would be to announce that Congress can simply change the outcomes of presidential elections that a majority of the legislators do not like. The premise of the objections to electoral votes is that there are alternative electoral slates from multiple states that need to be evaluated. The premise is false. No state sent more than one list of certified presidential electors to Congress. The election of presidential electors was certif
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