Running log of events in the 2021 counting of presidential electoral votes

I’ll be keeping a running log of events in the counting of presidential electoral votes today, January 6, 2021. I’ll offer some feedback through the process, subject to revisions all day long!

The certificates of ascertainment (with some certificates of final determination) and the electoral votes are available on the National Archives website.

1 pm (all times Eastern): Vice President Mike Pence has released a letter about his role, and Congress’s role, today. It’s consistent, I think, with the best understanding of how to proceed.

1:03 pm: It’s obvious there’s a little choreography happening among the parliamentarians, the tellers, the Speaker, and the Vice President.

1:05 pm: Awkward staging about the social distancing guidelines. Speaker of the House Nancy Pelosi instructing many to separate and clear the floor. (Technically, Mr. Pence is supposed to maintain order, but the meeting has not yet begun.)

1:06 pm: Mr. Pence calls the meeting, reading the script.

1:07 pm: There is a point of order raised from the floor about presence on the floor. “I’m not attempting to debate,” the representative is raised. Consistent with the parliamentary inquiry, Mr. Pence rejects the request. (There is no debate in the joint session, and even procedural points must be in writing signed by a senator and a representative, as Vice President Al Gore noted in 2001, even though Mr. Pence did not mention it here.)

1:10 pm: Alabama. Mr. Pence solicits objections and, hearing none, proceeds.

1:11 pm: Alaska. The script appears to be much longer than in previous years, as it clarifies that there is only one certificate that “purports” be authentic. This is to ensure there is just one certificate read ahead when it gets to “alternative” slates of electors…. It’s a preview of what’s about to happen.

1:12 pm: Arizona. “The only certificate of vote that the state purports to be a return from the state, and has annexed to it a certificate of that state, purporting to be the electoral votes of the state.” [I’ll clean up later.]

The certificate of ascertainment signed by the governor that Joe Biden won the state by 10,457 votes.

Forty-five signed the objection over one North Carolina elector in 1969; two signed the objection over Ohio’s 20 electoral votes in 2005. While it only takes two—one senator and one representative—it’s become some political theater to see who signs onto the objection.

The objection has apparently been signed by “60” colleagues (perhaps 61 house members?), and by Senator Ted Cruz. It is not clear what the objection is.

1:14 pm: “We . . . object to the counting of the electoral votes of the state of Arizona on the ground that they were not, under all of the known circumstances, regularly given.” This is precisely the (generic) objection filed by Senator Barbara Boxer and Representative Stephanie Tubbs Jones in 2005. (It’s also not the compound objection that Mr. Cruz suggested he’d file, that they were not lawfully certified and that the votes were not regularly given.)

1:17 pm: It is hard to overstate the impressive precedents being developed in live time. Mr. Pence has refused to precedent certain "irregular" certificates to Congress (as Arizona’s Republican electors claimed they submitted a slate), & no one requested them or objected to them. The parliamentarian's script provided clarity that Mr. Pence was only presenting certificates “purporting” to be from some arm of the state. No other objections can be filed now—all of the objections to Arizona occur at once.

Here’s the rough language from C-SPAN transcripts: “This certificate from Arizona, the parliamentarian advises me, is the only certificate of vote that the state purports to be a return from the state and has annexed to it a certificate from an authority of the state purporting to appoint or ascertain electors.”

1:22 pm: Ms. Pelosi is reading the script about how to proceed with timing. She’s looking to balance support of the objection and in opposition to the objection. She opens recognizing Representative Steve Scalise.

1:24 pm: Over the Senate, things are moving a little slower.

1:35 pm: Mr. Pence is presiding—he doesn’t have to, as in 2005 Vice President Dick Cheney turned it over to Senator Ted Stevens. Senator Mitch McConnell opens strongly defending counting the votes. “Self government requires a shared commitment to the truth, and a shared respect for the ground rules of our system.”

1:41 pm: The Senate is not going pro-con like the House is attempting to do. It opens with Mr. McConnell (con) & Senator Chuck Schumer (con), Republican and Democrat in the alternative.

1:49 pm: Representative Jamie Raskin opens with reflections to his colleagues, as his son recently passed away. Mr. Raskin stands to defend the counting of electoral votes—of course, Mr. Raskin also attempted to objecting to counting some of Florida’s presidential electors in 2017.

1:50 pm: Mr. Cruz reflects that many people “believe” that the election was rigged. (This is similar to the kinds of reflections raised in the last 20 years.)

1:53 pm: Mr. Cruz reflects on his “commission” idea from 1876, which, as I’ve suggested, isn’t great.

1:56 pm: Senator Amy Klobuchar invokes the fact that the Senate rejected the challenge to Ohio’s electors 74-1. (Consistent with what I think is the appropriate role of Congress as I lay out here.)

1:58 pm: Representative Lauren Boebert invokes her “separate but equal” right to speak….

2:01 pm: Back in the Senate, Mr. McConnell passes it over to Senator Pat Toomey—another opponent of the objection. He points out that 1876 wasn’t analogous as there are no alternative slates of electors, among other things.

2:06 pm: Senator Kyrsten Sinema, of Arizona, defends what happened in Arizona. That’s in contrast to some of Arizona’s representatives over in the House.

2:12 pm: In the House, Representative Raul Grijalva is defending his home of Arizona’s process. Over in the Senate, Senator Jim Lankford is the second (ostensible?) supporter of the objection.

2:14 pm: Protestors who have breached the building have paused proceedings in the Senate.

2:17 pm: Probably one of the most surreal feelings in the last couple of minutes trying assess what’s happening. Apparently Mr. Pence has been taken away and the capitol is on lockdown. The House is now being evacuated in part.

2:20 pm: The House is now in recess, too. I feel like I’m partially live journaling right now for a later moment, because I feel physically ill witnessing these events take place.

2:31 pm: There is basically a domestic insurgence happening in the Capitol right now.

2:40 pm: A real time reflections, which may be utterly wrong with time. I wonder if this is a breaking point for the Republican Party—and while I know people have been saying it for years, there’s a real Dixiecrat movement that may be afoot, and one not restricted to one part of the country. We might be experiencing a live break-up here.

2:43 pm: The counting of electoral votes seems unimportant at this moment. But it’s worth noting that we’ll get through this. There are 14 days until Inauguration Day, and I wonder if Republicans will start to second-guess entertaining these objections.

3:02 pm: There are reports that the Senate will move to an alternate location to proceed. It might be that debate ends on this objection, and there’s a prompt vote.

4:30 pm: Much seems surreal; reactions seem hollow. It’s finding respite in the small things. This Wall Street Journal report, for instance, mentions whisking away the certificates of the electors. In the silliest fashion, I thought about how wise it was for the Electoral Count Act to have six copies of certificates in various locations. The small things indeed.

6:10 pm: With a 6 pm curfew in place, and the National Guard on patrol at the Capitol, a different kind of surreal moment arrives—a significant showing of armed forces protecting our legislature so it can function.

6:15 pm: For months, I’d been in discussions about the Twelfth Amendment and the Electoral Count Act. I’ve written a bit about it, I have some research going on it, and I had a number of conversations about it. And on reflection, of many blog posts or media hits or public commentary about it, what I thought was going to be some technical legal questions and some intriguing novel hypotheticals… all feel very distant. It’s been four hours trying to secure the safety of Congress in what is typically a banal process. It’s something seemingly unfathomable (to me, but I’m sure others would disagree about what they could fathom…).

6:40 pm: I love the resilience of these legislators who won’t back down. They plan on coming back by 8 pm.

7:30 pm: It appears both houses will reconvene shortly. Mr. Pence apparently will return, too. I wonder about a few different ways to deescalate—asking unanimous consent to end debate about Arizona rather than running the remainder of two hours; voting “nay” on any objection (even if someone signed an objection); and refusing to object to later states (or at least no Senator will sign on).

8 pm: Senators with armed escorts are turning to the floor. (Both chambers have been in recess subject to the call of the chair.)

8:03 pm: Professor Keith Whittington’s tidy summary of the case for impeachment and removal, along with a bar on future service in office, is worth reading as this day winds down.

8:07 pm: Mr. Pence opens with remarks strongly condemning the violence.

8:10 pm: Mr. McConnell receives unanimous consent so that he and Mr. Schumer can speak, not against their 5 minutes (as both have spoken) and not against the two hours. Mr. McConnell’s statements take the same path as Mr. Pence’s. He calls it a “failed insurrection.” Mr. Schumer’s statements also take the same path.

8:20 pm: Mr. McConnell reference to Mr. Lankford for two minutes. So I suppose it won’t be unanimous consent to end debate.

8:22 pm: Jess Bravin of the Wall Street Journal has a useful piece about instances of violence in the Capitol.

8:23 pm: Senator Catherine Cortez Masto is called upon and speaks about the danger of rejecting electoral votes. So, again, it appears that debate will press on…..

8:33 pm: Senator Mike Lee makes the structural claim that the counting power is greatly circumscribed, particularly given that there are not competing slates of electors.

8:41 pm: Senator Kelly Loeffler (who just lost a runoff election last night) had announced she would object to Georgia’s electors. On the floor, she now says she won’t.

8:45 pm: Senator Tim Kaine emphasizes (as many have) the disenfranchisement point, and he also links back to the late John Lewis, where Congress’s response to Bloody Sunday was to enact legislation pertaining to voting, then the Voting Rights Act.

8:53 pm: Looking like the House will reconvene soon. Apparently it took some time to clean out the mess in the House that the mob made.

9:04 pm: The House is back in session and Ms. Pelosi is presenting a statement condemning the violence at the Capitol.

9:05 pm: Senator Tammy Duckworth’s statement opens with a persuasive argument about the transition of power—how she served in a war she opposed under the authority of a Commander in Chief whom she did not vote for.

9:12 pm: Senator Rand Paul rightly emphasizes this is not a “protest vote.” It’s a vote to throw out the votes of electors and overturn a state’s election results.

9:19 pm: Senator Josh Hawley raises Pennsylvania as a source of concern with, essentially, a reverse independent state legislature doctrine about absentee ballots (i.e.,arguing that the state legislature in a presidential election must be bound by the state constitution) in the middle of Arizona’s debate. But it remains a bit unclear how he’ll proceed when we get to Pennsylvania….

9:30 pm: Senator Mitt Romney has a powerful line that the goal is not to come up with audits, which would never convince the people or the president; the goal should be to tell the truth.

9:35 pm: As a young student, I recall learning about George Washington and how he emulated Cincinnatus. Or, how these two men took on extremely powerful roles in government, could have remained indefinitely, and yet voluntarily walked away. In a day where there are 15-term incumbents in some offices, perhaps it seems a little silly. But there’s something really difficult about walking away from a political office, whether voluntarily or after a political loss. And it’s so stunning to see what we’re seeing because it’s become the expectation in the United States. But despite it being an expectation, it is still a difficult thing. And while we have that expectation, it is inculcated in the people and elected officials, and it is not, we’ve learned, I think, to be taken for granted. This is a hard time to come to this realization, and maybe others deem it obvious, but it’s just struck me over the course of the debate today.

9:47 pm: Representative Chip Roy is emphasizing that no “legislature” has stepped in.

9:55 pm: Senator Lindsey Graham notes that the 1877 Commission is a terrible idea given that it was the beginning of the end of Jim Crow. He emphasizes that he’ll accept the decisions of courts, much like Mr. Gore did in 2000, even if he’d be inclined to side with the dissenting opinions at times like in Wisconsin.

10 pm: Time expired in the Senate and a vote is coming on Arizona.

10:10 pm: Since the end of Reconstruction, only one Senator has ever voted to refuse to count a state's entire slate of electoral votes—Barbara Boxer in 2005 regarding Ohio. Just now, 6 did so with Arizona’s votes in 2021. The objection is not sustained by a vote of 93-6.

Yeas: Cruz, Hawley, Hyde-Smith, Kennedy, Marshall, and Tuberville. (There were 11 who joined Mr. Cruz’s “joint statement,” but only 4 voted yea on the objection.)

I also wondered whether Senator Kamala Harris, the vice president-elect, would participate. She did.

10:!5 pm: It appears Mr. Hawley will ultimately object to Pennsylvania. The House may not complete voting on Arizona until midnight. This could take some time….

10:25 pm: As it appears that the House will not vote so late, it also appears that the Senate will be in recess until tomorrow’s joint session (although some are still speaking tonight). I’m mildly surprised, as I thought they might press through to finish the task and prevent any more shenanigans on a new day, but I guess the prospect of working until 3 am (or worse) is not attractive….

10:27 pm: The House is beginning its vote now. Of course, it doesn’t matter as the Senate already rejected the objection and both houses must consent to the objection. The nays had it in an oral vote, but a recorded vote is now underway.

10:33 pm: Senator Marco Rubio’s story of his grandfather’s experience under the oppressive and unsafe government in Cuba is another moving story today, in my view.

10:38 pm: There were 31 members of the House in 2005 who voted to reject counting Ohio’s electoral votes. There’s already 62 members supporting it now with half the Republican caucus to go.

11:11 pm: The objection, to no surprise, failed in the House by a vote of 303-121. Republicans actually favored the objection by a vote of 121-83, but that wasn’t nearly enough, particularly as Republicans are in the minority. (121 seems, sadly, very high, but given some earlier hyping that votes might exceed 160, maybe I feel slightly better….)

The disparity between the House and the Senate in both 2005 and 2021 remains interesting, as does House interest and the absence of a Senate sponsor in 2001 and 2017. Part is surely just a numbers game. But another is, I think, the incumbency safety of some members or the fear of primaries among others.

I wonder if this is a watershed moment for future electoral counts. The last 20 years have had a bubbling up among Democrats. Republicans have taken that bubbling and run with it, apparently believing that the political consequences will not be that great. I wonder if that happens in future years, too.

About 45 minutes to vote with Covid-19 protocols. Any future objections might be limited to 2 hours’ debate, but the voting and all other interstitial time takes a long, long time….

11:20 pm: Well I wish I were more of a congressional process expert…. Because I thought the Senate was going to recess but it appears that is not the case.

11:40 pm: The joint session about to resume! On to Arkansas.

So that took just over 10 hours to handle Arizona’s electoral votes… with some rioting in between obviously.

11:46 pm: California. Colorado. Connecticut. Delaware. District of Columbia. Florida.

11:48 pm: Georgia. Like 2001 and 2017, members of the House attempt to object to Georgia’s electors, but they lack a Senator to join them. (Note earlier that Ms. Loeffler opted not to object and withdrew her objection, as perhaps others did.) Representative Jody Hice had in the vicinity of 74 (!) members of the House who joined him signing the objection on allegations of fraud, but no Senator.

11:59 pm: Hawaii. Idaho. Illinois. Indiana. Iowa. Kansas. Kentucky. Louisiana. Maine. Maryland. Massachusetts.

12 am: Well, only in a nightmare scenario did I think we’d cross midnight, and here we are.

12:01 am: Michigan. Like 2001 and 2017, an objection of 71 members of the House of something about the error rate of the vote, but not signed by a Senator. (I mean, this is all so eerily similar to 2017 complaints.)

12:05 am: Minnesota. Mississippi. Missouri. Montana. Nebraska.

It’s worth reflecting that this year’s script, which includes that predicate language to indicate just one certificate “purporting” to be from the state, is slowing things down substantially. Additionally, Mr. Pence’s script includes a question about objections that adds a qualification that the tellers have verified that the certificate appears to be regular in form and authentic. (This is also a nice touch, in my view, as a judgment that it’s members of Congress who are making the recognition, not the vice president.)

12:06 am: Nevada. Like 2001 and 2017, an objection of 56 members of the House object, but no Senator.

One small precedential update: Congress tacitly ratifies the remote electoral votes cast by the presidential electors in Nevada. Nevada state law does not specify a physical location, & while the Twelfth Amendment says the "electors shall meet in their respective states," looks like remote meetings are okay. These electors met over Zoom and cast their votes.

12:13 am: New Hampshire. New Jersey. New Mexico. New York. North Carolina. North Dakota. Ohio. Oklahoma. Oregon.

12:14 am: Pennsylvania. 80 members of the House, led by Scott Perry, and a senator, Josh Hawley. “We . . . object to the counting of the electoral votes of the commonwealth of Pennsylvania on the ground that they were not, under all of the known circumstances, regularly given.” Again, this is precisely the (generic) objection filed by Senator Barbara Boxer and Representative Stephanie Tubbs Jones in 2005.

This is the first time in the history of the Electoral Count Act of 1887 that multiple states have had objections formally lodged against them in a single presidential election.

12:24 am: The House moving fairly rapidly as it begins debate. But I am guessing it’ll last the whole two hours….

12:30 am: Now the Senate in session… and there is no debate, so there is a prompt call of the question.

12:41 am: One vote closer this time, but the objection overwhelmingly fails, 92-7.

Yea: Cruz, Hawley, Hyde-Smith, Lummis, Marshall, Rick Scott, and Tuberville. (Looks like Kennedy dropped off, and Lummis and Rick Scott got on.)

So I can update my previous take: Since the end of Reconstruction, only one Senator has ever voted to refuse to count a state's entire slate of electoral votes—Barbara Boxer in 2005 regarding Ohio. Just now, 6 did so with Arizona’s votes in 2021, and 7 did so with Pennsylvania, adding 13 more votes.

Ms. Harris again participated.

Given that this objection failed in the Senate, it will fail regardless of what the House does (which, well, it’ll fail there too).

12:45 am: Representative Mike Doyle of Pennsylvania rightly noting the inconsistency in the positions of objectors from Pennsylvania—that is, if the presidential election had illegalities, why not the congressional election?

…I’m going to call it for the night. I would anticipate another attempted objection in Wisconsin without a Senator’s signature and wrap up of vote totals (306-232) around 3 am. I’ll likely review C-SPAN in the morning….

7 am: Pennsylvania’s objection, I’d assumed, would receive more objections, as it received more litigation, and it had more doubts sowed about the legal process (e.g., changes by non-legislative actors—although Mr. Hawley’s point earlier raised doubts about the legislative process) than just about anywhere else. But some, assuredly, pointed to allegations of fraud, and more. I’ll peruse the Congressional Record for more in the weeks ahead. (It also remains unclear whether some believe courts got some of these questions on the merits wrong, or simply are voting without a real awareness of that process. It’s also not clear how many believe it affected the outcome. All the frustrating of a general motion and dozens of inchoate preferences.)

The objection to counting Pennsylvania’s electors failed 282-138, with Republicans voting in favor 138-64. If 2005 was a protest vote among 31 objectors, the protest has swelled in size and scope and starts to threaten future electoral votes, precisely as some (in the Senate, mostly) warned.

As I wrote in my New York Times op-ed, Democratic objections in recent years were naive at best, shameless at worst, and Republican objections were different in advance of the cause of a candidate who refused to conceded. It added a layer of salience today given the, in the words of Mr. McConnell, “failed insurrection.” I thought some of the posturing (and fundraising efforts and primary election self-preservation) may end (earlier, steps I outlined as “deescalation”).

No such fortune. Shameless, escalated.

At 3:37 am, Wisconsin did receive an attempted objection from 71 House members. Listening to it, Mr. Pence allowed the framing of the objections from attempted objections to last longer than Mr. Biden in 2017. He allowed objectors to articulate the totality of the objection (beyond the formal words, I think, given the formal words in the two states that were signed were fairly pro forma). They did not go on and on in their objections, but they did get a long sentence in before Mr. Pence asked about a Senator’s signature.

It wrapped up around 3:45 am in prayer. A long day to yield a long inevitable result.

NYT op-ed on Congress's role counting electoral votes

I have this op-ed in today’s New York Times, “Democrats Have Been Shameless About Your Presidential Vote Too.” It begins:

As Republicans in Congress prepare to formally contest the outcome of the 2020 presidential election on Wednesday, many of them have cited precedent for their effort: similar complaints lodged by Democrats in other presidential elections. After Republican victories in 2000, 2004 and 2016, for instance, Democrats in Congress used the formal counting of electoral votes as an opportunity to challenge election results.

But the history of Democratic efforts to contest the outcomes of presidential elections is not a history worth emulating. On the contrary, it only underscores that the certification of a president-elect’s victory by the House and Senate is an improper forum for the airing of political grievances and an inappropriate occasion to readjudicate the decisions of the states concerning things like vote tallies, recounts and audits.

Four distinct paths for congressional Republicans in counting electoral votes

A lot of commentary over the last few weeks about Congress’s role in counting electoral votes that treats the decisions of members of Congress as binary: count, or object to counting. In reality, it’s a more subtle suite of options available to Republicans. There’s one option to count without protest formal, one option to count with some formal protest, and two options to refuse to count with some formal protest. Each could come with nuances depending on the state or the political situation. And there might be other objections other than “reject the counting of electoral votes,” but I’ll use that as shorthand for now. (And one could, of course, not vote, which adds further nuance, which maybe should be treated closer to a “nay” vote.)

Option One: Refuse to sign an objection, vote “nay” to rejecting the counting of electoral votes.

This is the most straightforward path that most Republicans and Democrats haven taken in 1969 and 2005 when objections were lodged and needed to be voted upon. One could take to the floor and express sympathy with the objection (as many Democrats did in 2005), but still refuse to sign onto the objection and vote “nay” at the end (i.e., vote in favor of counting the electoral votes).

Option Two: Sign an objection, vote “yea” to rejecting the counting of electoral votes.

This is the path of Senator Barbara Boxer and Representative Stephanie Tubbs Jones, the only two who signed an objection to Ohio’s electoral votes in 2005. (And it was the position of 42 members of Congress in 1969.) Those who are filing an “objection” ensure two hours’ debate on that state’s electors. At the end of the debate is a vote on the objection. Typically, of course, if you signed the objection, you’d probably vote in favor of the objection. Typically—more on that in Option Four.

Option Three: Refuse to sign an objection, vote “yea” to rejecting the counting of electoral votes.

It only takes one senators and one representative to prompt two hours’ debate on a state’s electoral vote. Some members of Congress might hang back, then vote in favor of the objection at the end. While Ms. Tubbs Jones was the only signatory to an objection in 2005, 30 other House Democrats joined her in voting “yea” to reject counting of Ohio’s electoral votes.

Option Four: Sign an objection, vote “nay” to rejecting the counting of electoral votes.

This may seem like the strange scenario. Why sign the objection, then vote against it? But that happened in 1969. Senator Hugh Scott voted against his own objection. He signed the objection then voted "nay" on it. Representative William St. Onge & Senator Warren Magnuson signed the objection but did not vote (Magnuson at least was "absent on official business"). It’s possible that some members of Congress just want a two-hour window to air their grievances by means of the objection, then at the end of the day still vote to count the electoral vote.

*

There are more subtle permutations, there are alternative ways of looking at these votes, and it might vary by state. But these, I think, are four distinct paths for voting. (Of course, at the end of the day, no objection will be successful—maybe a topic for another time.)

Ted Cruz misreads the history of 1876 in his bid to secure Acting President Nancy Pelosi

Senator Ted Cruz is the latest to lead a charge in Congress to object to counting to electoral votes from some states. It’s on the heels of embarrassing efforts by other Republicans, which is on the heels of other embarrassing efforts by Democrats in 2001, 2005, and 2017.

But Mr. Cruz’s proposal holds its own unique flaws I’ll lay out. First, it misunderstands a historical example he cites as precedent. Second, its timeline would ensure that Representative Nancy Pelosi, the presumptive Speaker of the House, would have the opportunity to serve as Acting President.

Mr. Cruz’s press release, on behalf of several other senators, provides in the relevant part:

The most direct precedent on this question arose in 1877, following serious allegations of fraud and illegal conduct in the Hayes-Tilden presidential race. Specifically, the elections in three states—Florida, Louisiana, and South Carolina—were alleged to have been conducted illegally.

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.

(Set aside the necessity of an “emergency” audit in a presser January 2 from an election held November 3.)

How does an emergency 10-day audit happen? Congress would need to enact a statute to amend the Electoral Count Act of 1887 before January 6, when it's compelled by law to meet. That seems unlikely. Indeed, the presser suggests that they will object pursuant to the “statutory requisite,” having a stronger view of the Act than some others have written about. By its terms, any objections to a given state’s electors cannot yield debate lasting longer than two hours. There are fixed periods for adjournments, including a ban on any recess after five days. That means Congress would need to enact a new statute.

Mr. Cruz hasn’t publicly released any such draft. So the first stage is to get a statute drafted. It then has to go through both houses of Congress (including whatever filibuster rules make their way in the Senate) and secure the president’s signature.

The “commission” he envisions is not the same as the commission of 1877. That commission had the power to “resolve the disputed returns.” That was crucial to the commission’s work because of how electoral vote counting arose before the Electoral Count Act was enacted.

Before the Electoral Count Act, both Houses had to affirmatively agree to count votes. In 1873, for instance, one house refused to count votes cast for Horace Greeley, who had died before the Electoral College convened. If one house refused, the votes weren't counted—and in 1873, one house didn’t want to count votes for Mr. Greeley, so they weren’t counted.

The thick of Reconstruction was causing greater rifts in Congress and in the states. Electoral vote counting in 1873 was messy, including the decision to throw out votes from Arkansas and Louisiana—Louisiana, in particular, because some in Congress believed it lacked a republican form of government at the time. Lynchings of Black voters and the Colfax massacre were just a couple of the egregious acts occurring in the South.

In 1876, things were still messy, and the presidential election was extremely close. Democrats controlled the House, and Republicans controlled the Senate.

Republican electors, in favor of continuing Reconstruction, carried Florida, Louisiana, and South Carolina from the canvass, but alternative Democratic slates of electors also cast votes—in Florida with the assent of the attorney general and later the legislature, but in South Carolina with little legal authority. By today’s terms, the Republican slates were the “valid” ones. Both sides complained of fraud—the losing Democrats complained more, obviously.

When presented to Congress, the problem was that neither house would agree in a hyper-partisan atmosphere. The House would vote to count the Democratic electors, and the Senate the Republican electors. A dispute resolution mechanism was needed.

Enter the “commission.” It was maybe the best solution at the time because both candidates and both houses of Congress agreed to it.

The Commission would resolve any stalemate that might otherwise arise in Congress. The Commission was given the "same powers" as Congress, & its decisions could only be overridden if both houses of Congress agreed. (That wasn't just to "audit" & let the states know what happened. It was to, as Cruz notes, "resolve the disputed returns.")

The Commission, in a series of 8-7 votes, affirmed the Republican electors.

Importantly, the Electoral Commission wasn't principally created to investigate "allegations of fraud." It was created to resolve disputes to prevent electoral votes from getting thrown out because of disagreement between the two houses. Allegations of fraud confused the process, undoubtedly.

But it’s also a reason why Congress enacted the Electoral Count Act of 1887—to improve the process for counting electoral votes to prevent this problem again! Some highlights of the Act:

-When the president of the senate reads a state's votes, there can be an objection, but both houses have to vote to sustain it. That’s a presumption in favor of counting and prevents deadlock scenarios.

-If there's more than one slate of electors, each house votes, and if they agree they count that slate. If they disagree, they count the slate with the governor's signature. Again, a presumption in favor of counting, and a presumption of deference to any state canvass, recount, & contest.

-The Act also fixed limited times with circumscribed opportunities to object to prevent prolonged investigations into counting electoral votes. Again, given that the commission ultimately ratified what the initial state process yielded anyway, debate would be limited.

Mr. Cruz’s putative commission ignores all of these benefits to revert to the 1877 process—and a process that wasn’t principally driven by investigations of fraud.

Let’s set all this aside for a moment. The Constitution fixes the end of the terms of office of president and vice president for noon January 20. Mr. Cruz calls for a “10-day audit.” So between now (as I write, January 3) and January 20, here’s what would need to happen:

-A congressional statute (noted above), drafted, approved in each chamber of Congress, and signed by the President.

-An ensuing 10-day period of time, pursuant to that statute, to investigate allegations in some unspecified number of states.

-A report filed to “individual states” with time to “evaluate” the findings.

-A subsequent opportunity for states to “convene a special legislative session to certify a change in their vote, if needed.”

-An opportunity after that, which Mr. Cruz does not mention, for states to convene a new slate of electors to cast a new set of electoral votes, in the event that some new slate was certified as the true winner.

-A meeting of Congress to count the new set of electoral votes.

That cannot happen by January 20, Mr. Cruz’s statement asking for “[a] fair and credible audit-conducted expeditiously and completed well before January 20” notwithstanding. If that does not happen by January 20, then Ms. Pelosi, if she resigned from her office (and she might, as she might be able to run again quickly in an ensuing special election) would serve as “Acting President.”

Of course, no one is taking Mr. Cruz’s proposal seriously. Not even himself, as he writes, “We are not naïve. We fully expect most if not all Democrats, and perhaps more than a few Republicans, to vote otherwise.”

But it shows how poorly, even as a fundraising tool for Mr. Cruz’s 2024 presidential campaign, he has thought out his plan.

In 2005, 32 Democrats in Congress attempted overturn the results of the presidential election by objecting to Ohio's electoral votes

On the heels of news that some Republicans in Congress will object to counting electoral votes from certain states when Congress convenes to count electoral votes January 6, 2021, we have an opportunity to reflect on the last failed objection in Congress during the counting of electoral votes: that of Ohio’s electoral votes, disputed in 2005.

Senator Barbara Boxer continues to perpetuate a mythology about the moment that many are uncritically repeating: as she recently explained, “Our intent was not to overturn the election in any way. Our intent was to focus on voter suppression in Ohio.”

Congress could, of course, hold hearings about voter suppression in Ohio (which it did), or introduce or enact legislation pertaining to federal voting rights.

But in the joint session, an objection filed under the Electoral Count Act is specific. It is an objection to counting the electoral votes from that state.

George W. Bush received 286 electoral votes, including 20 from Ohio, a state he won by around 118,000 votes over John Kerry. A candidate needs a “majority of the whole number of electors appointed,” or 270 electoral votes, to win the presidency. If a candidate fails to get a majority, the election is thrown to the House of Representatives, where each state receives one vote, and it chooses among the top three vote-getters.

When Ms. Boxer and Representative Stephanie Tubbs Jones filed an objection, here’s what they formally provided, as printed in the Congressional Record:

We, a Member of the House of Representatives and a United States Senator, object to the counting of the electoral votes of the State of Ohio on the ground that they were not, under all of the known circumstances, regularly given.

If the objection were sustained, it would throw out Ohio’s 20 electoral votes—which represented the preferences of more than 2.8 million voters who supported Mr. Bush in the state.

Tossing out Ohio’s electoral votes would have dropped Mr. Bush to 266 electoral votes. In that scenario, it is likely that Mr. Bush would have failed to have a “majority of the whole number of electors appointed”—that is, the Ohio electors had been appointed, but their votes were deemed not “regularly given” and not counted. Mr. Bush would have been denied the presidency from the Electoral College. And the election would go to the House of Representatives to choose among Mr. Bush, Mr. Kerry, and John Edwards (who received one electoral vote for president, despite being Mr. Kerry’s vice presidential candidate).

The objection, then, was not an abstract proposition, a chance to discuss voter suppression, a two hour debate session. It was a formal request to throw out Ohio’s electoral votes.

One can read through the congressional record to find a report filed by Representative John Conyers of the House Judiciary Commtitee, including “ample grounds for challenging the electors from the State of Ohio.” A conclusion of the report opined, “We believe there are ample grounds for challenging the electors from Ohio as being unlawfully appointed,” including violations of state law, voting machine irregularities, and denial of access to election observers in the election process.

Many in Congress admitted that the debate would not change the outcome of the election. But admitting that it would not change the outcome of the election is different from still seeking to do so.

After two hours’ debate, each house voted on the question about whether to agree to the objection—that is, whether to object to counting the electoral votes from the state of Ohio. It failed in the House 267-31, and in the Senate 74-1.

But those 32 members of Congress (all Democrats) still voted to reject the counting of Ohio’s electoral votes. It might have been a doomed effort. But their votes were actually cast in an attempt to toss out the vote as reported by the state of Ohio. To say “our intent was not to overturn the election,” but to cast a vote that seeks to overturn the election, is nonsensical.

It’s also a reason I’m very down on some Republicans’ efforts to do so in 2021. Tossing out a state’s electoral votes is a big deal. It’s not merely some chance to talk about state law, election irregularities, or tech giants. It’s the request to throw out election results.

I don’t believe there were grounds to toss out Ohio’s votes in 2005, and I don’t believe there are grounds to toss out any of the certified electoral vote totals from states in 2021. I’m sure some favor the Democrats’ approach in 2005 and not the Republicans’ approach in 2021, or vice versa; some will make factual or legal distinctions between the two; some will find some whatabout-isms to cite. I’m not particularly interested in that. I think both efforts are embarrassing. But I want to provide the context about what formally occurred in 2005, rather than merely parroting the media lines of the politicians involved.

Should Kamala Harris participate in disputes over the counting of electoral votes in Congress?

Only twice since the Electoral Count Act of 1887 has Congress entertained formal objections to the counting of presidential electors. If a member of the House and a member of the Senate file a written objection to a state’s presidential electors, each house would separate and deliberate for two hours before voting on the objection.

Senator Kamala Harris of California is the vice president-elect. She can remain in the Senate until she resigns (presumably some time before January 20). The counting of electoral votes is January 6. Should she participate in any votes on any objections?

I say should because I think she can. It’s simply a political decision.

The Twelfth Amendment (and before that, Article II) puts the President of the Senate—the Vice President—in charge of opening electoral college certificates when the votes are counted in Congress. There’s obviously a conflict of interest where the vice president is a candidate—see Thomas Jefferson in 1800, for one, even before the Twelfth Amendment—but the Constitution firmly places this person in this position. Indeed, it’s perhaps made certain losses easier with a gracious loser—Richard Nixon in 1960 and Al Gore in 2000, to name two. Vice President Mike Pence will preside (in his absence, the responsibility would fall to Senator Chuck Grassley), and he, of course, has an interest in these objections, as many vice presidents have before him. But the vice president has played a fairly small role in recent years—Mr. Nixon’s request for unanimous consent to the counting of Democratic electors in Hawaii over a rival slate of Republican electors an outlier, but, one that was against his self-interest and one that expressly sought the consent of Congress.

In both objections lodged since 1887, however, we’ve seen Senators with a stake in the outcome potentially participate. One did participate, one deliberately chose not to.

First, in 1969, a faithless elector in North Carolina had voted for George Wallace instead of Richard Nixon. Members of Congress objected to determine whether to count the vote. Senator Edward Muskie was the losing vice presidential candidate, the running made of Hubert Humphrey. But it was Mr. Muskie, a member of the Senate, who actually signed the objection requesting that the vote for Mr. Wallace not be counted, on the grounds that it was not “regularly given.” In the end. Mr. Muskie voted on the losing side of the objection, as the objection failed in both chambers and the vote for Mr. Wallace was counted. (Incidentally, the losing presidential candidate, Hubert Humphrey, was the vice president and did not preside over the counting of electoral votes, as he was attending a funeral overseas.)

Second, in 2005, Senator Barbara Boxer and Representative Stephanie Tubbs Jones filed an objection that Ohio’s electoral votes were not regularly given. They would have refused to count the 20 electoral votes for George W. Bush and Dick Cheney. The losing candidate, Senator John Kerry, would have been the beneficiary of the objection. But, as reported in a statement printed in the Congressional Record, “I do not believe that there is sufficient evidence to support the objection and change the outcome of the election and I am not joining their protest of the Ohio electors.” It was printed, because Mr. Kerry did not attend the session and did not vote. (He opted to travel to the Middle East to meet with soldiers.) As Senator Mitch McConnell put it at the time, “Senator Kerry said that he would not participate in this petulant protest.”

One political principle, then, that unites these episodes is that Mr. Muskie voted in a way that would have been adverse to his interest as a candidate, and Mr. Kerry refused to participate in a process that would benefited his interests. (Of course, Mr. Kerry might have participated and voted “no” on the objection.) And it might be, then, that Ms. Harris should not participate in a vote that would be beneficial to her interests.

But, that’s for her to decide. This post is simply to note the political process as it’s played out previously. Again, Ms. Harris emphatically can vote on these objections on January 6. The Senate is closely divided on a partisan basis, but, like 2005’s vote that yielded a 74-1 rejection of the objection, I do not expect any votes to be particularly close.

But if she does participate, and if she votes in a way that benefits her candidacy, it would be a contemporary first under the Electoral Count Act.

New lawsuit perpetuates falsehood that Arizona legislature "endorsed" rival slate of electors

Earlier, I highlighted the erroneous assertion in some legal briefs that a state legislature has “endorsed” some rival slate of presidential electors. A new lawsuit from Arizona filed in Texas does the same, and more.

Here are some allegations from the complaint:

The Arizona Electors have cast Arizona’s electoral votes for President Donald J. Trump on December 14, 2020, at the Arizona State Capitol with the permission and endorsement of the Arizona Legislature, i.e., at the time, place, and manner required under Arizona state law and the Electoral Count Act.

As I explained earlier, “‘Permission’ to appear in the state capitol is no more an endorsement than allowing any group of tourists to step foot in the capitol and engage in some kind of activity.” It also is not clear that the legislature, as a legislature, endorsed such an activity.

The more deceptive claim is here:

On December 14, 2020, members of the Arizona Legislature passed a Joint Resolution in which they: (1) found that the 2020 General Election “was marred by irregularities so significant as to render it highly doubtful whether the certified result accurately represents the will of the voters;” (2) invoked the Arizona Legislature’s authority under the Electors Clause and 5 U.S.C. § 2 to declare the 2020 General Election a failed election and to directly appoint Arizona’s electors; (3) resolved that the Plaintiff Arizona Electors’ “11 electoral votes be accepted for … Donald J. Trump or to have all electoral votes nullified completely until a full forensic audit can be conducted;” and (4) further resolved “that the United States Congress is not to consider a slate of electors from the State of Arizona until the Legislature deems the election to be final and all irregularities resolved.[n. 11]

n.11: See Ex. A, “A Joint Resolution of the 54th Legislature, State of Arizona, To The 116th Congress, Office of the President of the Senate Presiding,” December 14, 2020 (“December 14, 2020 Joint Resolution”).

(Note that Exhibit A includes only 4 pages, not 5, which is the total number of original signatories. You can see that Twitter thread here. It appears the plaintiffs may have accidentally included only the 4 images in the first Twitter post without scrolling down to the second post.)

“Members” of the legislature are distinct from the legislature. They cannot “pass” a “Joint Resolution” under state law unless they go through the lawmaking process. It is not a “Joint Resolution” under any recognized authority of the state legislature, except that these lawmakers want it to be so.

A review of the signatories shows 17 members of the 60-member house, and 5 members of the 30-member senate, which means that it fails majority requirements in both chambers (of course, the presence of a quorum may mean fewer than all members present).

It’s also signed by 8 members-elect, who, of course, are not a part of the legislature right now and cannot engage in the lawmaking function.

And the “joint resolution” has no bill number and is not enrolled in any journal. No roll call was taken. No legislative session was established by any entity.

These members of the legislature are so strongly advancing the independent state legislature doctrine while simultaneously undermining legislative claims by asserting legislative power in contexts where the legislature is not acting.

UPDATE January 1, 2021: A similar falsehood was included regarding Michigan’s electors in a motion to intervene in Gohmert v. Pence. Here are the allegations:

Intervenors include portions of the slate of Republican Presidential Electors for the State of Michigan. Intervenors have cast their Presidential electoral votes for the State of Michigan for President Donald J. Trump on December 14, 2020, at the Michigan State Capitol with the permission and endorsement of the Michigan Legislature, i.e., at the time, place, and manner required under Michigan state law and the Electoral Count Act.
...
On December 14, 2020, pursuant to the requirements of applicable state laws and the Electoral Count Act, Intervenors, with the knowledge and permission of the Republican-majority Michigan Legislature, convened at the Michigan State Capitol, and cast Michigan’s electoral votes for President Donald J. Trump and Vice President Michael R. Pence.

"Texas v. Pennsylvania Would Have Upended the Electoral College"

Over at Law and Liberty, I have this post, “Texas v. Pennsylvania Would Have Upended the Electoral College.” It begins:

The Electoral College is a designedly decentralized process for the selection of the President of the United States. Each State may choose its presidential electors in the manner that the legislature deems appropriate.

The State of Texas, in Texas v. Pennsylvania, sought to upend this system in advance of one end: get the Supreme Court to do something, anything, to prevent President-Elect Joe Biden from taking office.

Despite what Court briefs say, no state legislature has appointed--or "endorsed"--a rival slate of presidential electors

Briefs before the Supreme Court are making deceptive (at best) claims about what state legislatures have done this December when it comes to presidential elections and the selection of presidential electors.

Consider this statement from a brief in King v. Whitmer:

As a result of the foregoing, there are now competing slates of electors from the four states at issue [Arizona, Michigan, Pennsylvania, and Wisconsin] in the four cases mentioned above, (as well from Nevada, New Mexico, and Pennsylvania).

These four slates of electors have received the endorsement of the legislatures in each of these States, as reflected in permission for them to cast (or attempt to cast) their electoral votes, as an electoral body, for President Donald J. Trump in the respective State Houses at the time and place as set forth under applicable State law, the Electoral Count Act, and the authority delegated under the U.S. Constitution’s Electors Clause. U.S. Const. Art II, § 1, cl. 2.

Or these statements from a brief in In re Pearson:

While the Georgia Legislature did not go so far as to formally withdraw or nullify this delegation of authority on December 14, 2020, its endorsement of the contingent slate of Republican electors preserved its right to do so at the time and in the manner of its choosing.

...

Any contention that the federal courts lack subject matter jurisdiction over these controversies is likewise without merit. The events of December 14, 2014 giving rise to competing slates of electors for the State of Georgia – one endorsed by the State Legislature and one by the Respondent State executives – creates a new and very live “case or controversy” under Article III of the U.S. Constitution.

The “legislature” is the elected lawmaking body in a state, but that lawmaking body has some rules. To act as a legislature, it has to be in session. It has to have a quorum present. It has to hold a vote. It typically requires a public report in a journal, like the federal Constitution requires. These aren’t controversial propositions for even most the ardent defender of a state legislature’s power under the Presidential Electors Clause.

But no legislature has done any such thing. No legislature has appointed a slate of electors. No legislature has “endorsed” the actions of a slate of electors that attempted to vote contrary to the electors certified from the popular election in the state.

“Permission” to appear in the state capitol is no more an endorsement than allowing any group of tourists to step foot in the capitol and engage in some kind of activity.

While some individuals purporting to be groups of Republican electors cast votes in their respective states recently—arguing they were a “rival” slate opposed to the winning Democratic slate—none of these slates were appointed by the legislature. All acted on their own. While individual legislators may have approved of their decisions, no legislature did so.

In contrast, one can go back to 2000 and the special session of the Florida legislature that met to consider choosing a slate of electors as Bush v. Gore languished in the courts. One can open the House journal to find the vote of the Florida House approving a slate of electors. Yet it still wasn’t an appointment of the legislature, as the Senate never acted on it.

These statements in the briefs before the Supreme Court are designed to sow confusion and uncertainty, to act as if there are questions of the legitimacy of more than one slate of electors when, in reality, there is only one slate in each of the fifty states that has any legally-recognized authority.