• Allon Advocacy

"It Is Over"

Vice President Al Gore certifies the election of his opponent, President George W. Bush, in January 2001.

In a blog post last September discussing the Electoral College, we reminded readers that, when election results are read aloud during a joint session of Congress, lawmakers are able to “object to the returns from any individual state as they are announced.” If the objections are made in writing by at least one member of both the Senate and House of Representatives then “the joint session recesses and the two houses separate and debate the question in their respective chambers for a maximum of two hours.”

After that, the two houses “vote separately to accept or reject the objection … reassemble in joint session, and announce the results of their respective votes.” An objection to a state’s electoral vote must be approved by both houses in order for contested votes to be excluded from the Electoral College vote count.

We said: “If this process sounds time-consuming, it is because it is.” And we’re about to find out just how time-intensive this process is, starting tomorrow.

The members of the House and Senate of the just inaugurated 117th Congress will meet tomorrow, January 6, in a joint session to consider the votes of the Electoral College. The process of counting and objecting to individual states’ vote counts likely will take well into the evening, and could continue into Thursday, or even longer.

To be sure, Joe Biden will be certified as the winner of the 2020 election at the end of the tallying, but there will be plenty of drama before then. And while it’s true that objections to the Electoral College vote in Congress aren’t unprecedented, the scale we expect to see of objectors on Wednesday could be historic. In fact, according to USA Today, this week’s Electoral College vote count could be the most contentious in 144 years.

Over the last several weeks, several outlets have offered a look at past Electoral College objections. And there have been a few, but most have been mild. That precedent perhaps was set by the nation’s third president – in an earlier election where he lost to the second.

The campaign to succeed George Washington, between John Adams and Thomas Jefferson, was bitter, but, according to National Public Radio, when the results proclaiming Adams the victor were read in Congress, Jefferson proclaimed that “he did not wish to make a fuss over the ‘form’ of the vote when the ‘substance’ was clear.” He made that statement despite the fact that there had been “some controversy” over how the state of Vermont conducted its certification process.

Adams, of course, was declared the winner and became the second president of the United States.

As USA Today suggested, the fiercest debate over the Electoral College results probably came in 1876 during the post-Civil War contest between Republican Rutherford B. Hayes and Democrat Samuel Tilden. As USA Today tells it, Tilden and Hayes both claimed victory in Florida, South Carolina, Louisiana, and Oregon and “submitted electoral votes from rival slates of electors, presenting a constitutional crisis before Congress.” Vermont’s results also were called into question.

It took more than a few hours of debate by lawmakers to settle the question. In fact, Hayes only was declared the winner “after the creation of a special commission to decide disputed electoral votes.” The commission, which included five members of the House of Representatives, five senators, and five Supreme Court justices, came up with a compromise: the incoming Republican administration would pull troops out of the south and Democrats would accept Hayes as leader of the free world.

USA Today noted the Compromise of 1877 essentially “usher[ed] in the end of Reconstruction.” The experience also led to the eventual passage of the Electoral Count Act of 1887, which, as the National Constitution Center explains, created the current process for certifying Electoral College results.

The 1877 Electoral College skirmish also impacted the inauguration. Indeed, President Hayes “secretly took the oath of office March 4, 1877, in the Red Room of the White House.” It could have been worse. Ned Foley, director of the election law program at Ohio State University's Moritz College of Law, told USA Today, the nation “came within two days of having simultaneous inauguration ceremonies, which would have been intolerable because you can't have two presidents.”

Flash forward more than 80 years to the election of 1960. Democrat John F. Kennedy won the popular vote and the Electoral College vote count on election day, but, according to USA Today, Republicans challenged results from 11 states. (Adding to the drama: Kennedy’s opponent, Richard Nixon, was vice president at the time and had to preside over the joint session of Congress that was to declare Kennedy the winner. The same scenario played out in 2001 when then-Vice President Al Gore oversaw the certification of his election loss and it will happen again this year with Vice President Mike Pence.)

Republicans were not successful and, according to USA Today, the only state that had its results change between Election Day and the certification of results was Hawaii … and that shift actually went in favor of Kennedy. As USA Today recalled, Hawaii “initially certified Nixon as the winner, but a post-election recount found Kennedy won Hawaii by 115 votes.”

Nixon not only accepted the results, but after the certification procedures noted it was the first time in a century that a presidential candidate had to announce the result of an election that he lost. Nixon said he could not think of “a more striking and eloquent example of the stability of our constitutional system.” He continued, “In our campaigns, no matter how hard-fought they may be, no matter how close the election may turn out to be, those who lose accept the verdict and support those who win.”

As the outgoing Vice President, Nixon stood on the steps of the U.S. Capitol as President Kennedy took the oath of office on January 20, 1961.

Eight years later, in 1969, another sitting vice president was expected to oversee the certification of his election loss. Hubert Humphrey was supposed to be presiding over a joint session of the Congress when Nixon’s defeat of Humphrey was certified but Humphrey did not attend. The president pro temp of the Senate oversaw results instead. There were not many fireworks, otherwise, but according to USA Today, Rep. James O’Hara (D-Mich.) did object to one of North Carolina's 13 electoral votes, which went to segregationist George Wallace. That vote was supposed to be cast for Nixon, but an elector failed to follow the will of the state’s voters and cast his ballot for Wallace instead.

Rep. O’Hara’s effort failed.

Thirty-two years later, in 2001, most Americans had happily put the drama of the Bush-Gore election aside when a handful of House Democrats challenged Florida’s outcome when Congress convened in January to certify the presidential election results. The lawmakers, according to USA Today, spent all of 20 minutes objecting to the results, but then-Vice President Gore “slammed his gavel to quiet his House allies.”

The House lawmakers not only did not have Gore’s support, they failed to attract a single senator to their effort, which ultimately doomed the challenge since, as noted above, a challenge must be supported by at least one member of the House and one member of the Senate to go to a debate.

Having dispensed with the House Democrats’ challenge, and just as he gaveled the certification process to a close before the joint session of Congress, Gore declared, “May God bless our new president and our new vice president.”

According to the National Archives, in 2005, after President Bush beat Democrat John Kerry, lawmakers challenged Ohio’s 20 Electoral votes. This time, members of the House did have a sitting member of the Senate sign on to their efforts. But, after debate, the Senate and the House failed to reject the votes. Sen. Barbara Boxer (D-Calif.), who led the effort in the Senate, said, “I hate inconveniencing my friends, but I believe it is worth a couple of hours to shine some light on” her concerns about Ohio’s outcome.

Kerry, who still was serving in the U.S. Senate at the time, did not support the effort.

The next time Electoral College objections were raised in Congress was just four years ago, when President Trump prevailed over Hillary Clinton in the Electoral College count but lost the popular vote. As vice president, Joe Biden presided over the joint session. When six Democratic House members raised objections (without support from their Senate counterparts), Biden, according to USA Today, “repeatedly slammed the gavel on debate, saying the objections could not be entertained.”

Just as it has this week, the state of Georgia was central to questions about the election outcome. A member of the House from Washington state pleaded with Biden, saying “people waited hours” to vote in the Peach State. Biden interrupted, arguing, “There is no debate. There is no debate. If there is not one signed by a senator, the objection cannot be entertained.” The lawmaker interjected again and Biden simply responded:

“It is over.”

And so too will be the 2020 presidential election. The only question is how many hours – or days – it will take Congress to certify the results once the process begins tomorrow.

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