The presidential electors from GeneralMagnifico

On the heels of the decision of Vice President Pence, as advised by the Senate parliamentarian, to present only one slate of presidential electors to Congress in a joint session, someone passed along this detail from the Washington Post:

Some of the arguments were spurious, officials said. One included the certification of the electoral college votes in 1801, when Vice President Thomas Jefferson ruled electors from Georgia as defective. Another was that Pence could disregard some states because they sent in multiple electoral ballots. When the vice president’s team met with the parliamentarian, they learned that people send fake electoral college votes every year, including one sender who signs them “GeneralMagnifico,” a senior administration official said. The 1800 election had nothing to do with the current election, officials said.

Can the Senate expel Ted Cruz and Josh Hawley for their actions during the counting of electoral votes?

A few years ago, there was a flurry of discussion about the possibility of expelling Roy Moore in the event he won the Senate election in Alabama. There’d been discussion in recent years about Senator Roland Burris, Senator Bob Menendez, Senator Al Franken, and Representative John Conyers.

A new question has arisen: can the Senate expel Senators Ted Cruz and Josh Hawley for their actions during the counting of electoral votes? (I use “actions” broadly, subject to what I write below.)

Here’s the text of the Constitution:

Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member.

As I’ve explained before, there are few contours to the power to expel, except that it must occur by a two-thirds vote. That vote is mostly a procedural check, and the substance has largely been left to the Senate to flesh out. (Congress can also punish—censure or reprimand are the usual forms—by a simple majority.) No one’s been expelled from the Senate since the Civil War, but investigations have prompted resignations in recent years. And most recent cases have turned on criminal charges, but not all. Wikipedia has a quick and convenient summary of Senate and House cases.

I also note a couple of precedents in some of these Senate decisions (and I noted here, Congress can always overturn its own precedents, but it usually loathe to do so): “First, the Senate has typically wondered whether it has the power to expel members for conduct that arose prior to the candidate taking office. (Some earlier debates actually focused on whether it had to arise during that existing term in office and not from a preceding term, but recent Senate investigations have moved away from that view.) Second, the Senate has generally refused to expel a member for conduct known to the voters at the time of the election, the notion being that it's not for the Senate to expel a member with such baggage sent by the voters.”

The actions of Messrs. Cruz and Hawley arose during their time in office and were not known to voters, so these precedents don’t materially address these concerns.

Another might be for Congress to specify with some precision what was the inappropriate behavior—signing onto an objection under the Electoral Count Act, that, in my view, was shameless and lacking in law and fact; speaking in support of an attempt to overturn the presidential election; voting after the riot consistent with the demands of the rioters; and so on. Speech might be different from behavior. The timing of events may matter, too.

But the fact that a member of Congress engaged in what might otherwise be constitutionally-protected speech is not enough to insulate one from punishment—although, to date, it hasn’t risen to anyone’s expulsion. Consider (on the House side) Representative Joe Wilson’s “You lie!” moment, which led to a formal House reprimand. Lesser charges like censure or reprimand—the Constitution authorizes these by a simple majority—are easier to secure.

Beyond that, it becomes a political judgment of the Senate. I don’t have much more insight to offer at the moment than that. It might be that the Senate would not move forward with anything that would result in failure (i.e., if it did not feel it could secure a majority vote or a 2/3 expulsion vote), but I don’t know how it would assess that. I also think it would look hard at any precedent it would set. My assumption is the Senate would not move forward with expulsion, although it might choose to censure (even then, it might conclude that branding them as martyrs might embolden such actions in the future, another political judgment). But beyond that, it remains within the purview of the Senate’s power to determine what constitutes actions rising to the level of expulsion-worthy behavior. Its history since the Civil War (and in recent years) suggests it’s unlikely to do so.

California bar exam jumps after lowering of cut score

Last summer, I covered the potential changes as the California state bar lowered its cut score from 144 to 139. The October 2020 exam (administered online) was the first such exam. The statistics have been released. A few quick takes, including some comparisons to last year.

First time applicants declined slightly year over year, from 5198 to 4999. (It might be that some of the recent closures or loss of ABA accreditation from some law schools has yielded a decline in prospective test-takers.) Repeaters increased significantly, from 3008 to 3733. Repeaters appeared to be down in most other jurisdictions around the country. But given California’s very high cut score, which yields a high failure rate, students who may have otherwise been inclined not to repeat found value in trying again with a lower cut score.

The first-time pass rate among California ABA-accredited law schools rose from 71.3% to 84%. This is a big jump and good news for many law schools. Part might be the loss of some more marginal formerly-accredited schools in this figure. But the bulk is assuredly because California test-takers are more capable than the typical test-taker, and while 139 is still a relatively high cut score, it swept in a lot of new passers. The out-of-state ABA pass rate rose from 73% to 78%, not as dramatic.

Among California accredited schools, the first-time pass rate rose from 26.2% to 40%, as I suggested would provide an opportunity for such schools to thrive.

The repeater rate also rose significantly, from 26.7% to 43.0%. The raw total of passing repeaters doubled from around 800 to around 1600.

We’ll know more about race, school-specific data, and foreign attorneys when more data is released. We’ll see if longer-term access to justice or attorney discipline rates are affected. But it’s good news for law schools and law students in the state of California.

Parliamentarian tweaks in counting of electoral votes reduce opportunities for multiple slates of electors and defer more to Congress

I noticed on January 6 some of the language that Vice President Mike Pence used during the counting of electoral votes was a little different than past years. Two consequential tweaks in the language occurred. First, Mr. Pence affirmed that he was only presenting certain certificates to Congress, and explained which ones. Second, Mr. Pence emphasized that the congressional tellers had verified the regularity and authenticity of the certificates of the vote.

Here’s how Alaska proceeded in 2001. First, the predicate at the beginning of the session.

The VICE PRESIDENT. Mr. Speaker and Members of Congress, the Senate and the House or Representatives, pursuant to the requirements of the Constitution and the laws of the United States, are meeting in joint session for the purpose of opening the certificates and ascertaining and counting the votes of the electors of the several States for President and Vice President.

After ascertainment has been had that the certificates are authentic and correct in form, the tellers will count and make a list of the votes cast by the electors of the several States.

The tellers on the part of the two Houses will take their places at the Clerk’s desk.

The tellers, Senator DODD and Senator MCCONNELL on the part of the Senate, and Mr. THOMAS and Mr. FATTAH on the part of the House, took their places at the desk.

The VICE PRESIDENT. The Chair will open the certificates in alphabetical order and pass to the tellers the certificates showing the votes of the electors in each State, and the tellers will then read, count, and announce the result in each State.

Then to Alaska specifically.

The VICE PRESIDENT. The Chair hands to the tellers the certificate of the electors for President and Vice President of the State of Alaska, and they will read the certificate and will count and make a list of the votes cast by that State.

Mr. THOMAS (one of the tellers). We, the undersigned, being duly elected electors for the State of Alaska, do hereby certify that on the 18th day of December, 2000, A.D., in the Municipality of Anchorage, State of Alaska, duly and regularly met and by authority of law vested in us, voted for President of the United States of America with the following result: For President, George W. Bush, 3 votes.

We, the undersigned, being the duly elected electors for the State of Alaska, do hereby certify that on the 18th day of December, 2000, A.D., in the Municipality of Anchorage, State of Alaska, duly and regularly met and by authority of law vested in us, voted for Vice President of the United States of America with the following result: for Vice President, Dick Cheney, 3 votes.

Signed by the pertinent electors and duly attested.

Mr. President, the certificate of the electoral vote of the State of Alaska seems to be regular in form and authentic, and it appears therefrom that George W. Bush of the State of Texas received 3 votes for President, and Dick Cheney of the State of Wyoming received 3 votes for Vice President.

The VICE PRESIDENT. Is there objection?

The Chair hears no objection.

There was no objection.

Here’s Alaska 2005, with the relevant predicate:

The VICE PRESIDENT. Mr. Speaker and Members of Congress, pursuant to the Constitution and laws of the United States, the Senate and House of Representatives are meeting in joint session to verify the certificates and count the votes of the electors of the several States for President and Vice President of the United States.

After ascertainment has been had that the certificates are authentic and correct in form, the tellers will count and make a list of the votes cast by the electors of the several States.

The tellers on the part of the two Houses will please take their places at the Clerk’s desk.

The tellers, Mr. LOTT and Mr. JOHNSON on the part of the Senate, and Mr. NEY and Mr. LARSON of Connecticut on the part of the House, took their places at the desk.

The VICE PRESIDENT. Without objection, the tellers will dispense with reading formal portions of the certificates.

There was no objection.

This is a slight change to the verbs, but not, I think, material.

Here’s how Alaska went:

Mr. NEY (one of the tellers). Mr. President, the certificate of the electoral vote of the State of Alaska seems to be regular in form and authentic, and it appears therefrom that George W. Bush of the State of Texas received 3 votes for President and Dick Cheney of the State of Wyoming received 3 votes for Vice President.

Note that the vice president did not speak before or after.

It was a similar process in 2009 nor in 2013, which were not included in the congressional record, but the Vice President did not speak before presenting the certificates. There was also a similar process in 2017, even in light of multiple attempted objections.

The predicate in 2021 was the same:

Madam Speaker, Members of Congress, pursuant to the Constitution and the laws of the United States, the Senate and House of Representatives are meeting in joint session to verify the certificates and count the votes of the electors of the several States for President and Vice President of the United States.

After ascertainment has been had that the certificates are authentic and correct in form, the tellers will count and make a list of the votes cast by the electors of the several States.

The tellers on the part of the two Houses will take their places at the Clerk’s desk.

The tellers, Mr. BLUNT and Ms. KLOBUCHAR on the part of the Senate, and Ms. LOFGREN and Mr. RODNEY DAVIS of Illinois on the part of the House, took their places at the desk.

The VICE PRESIDENT. Without objection, the tellers will dispense with the reading of the formal portions of the certificates.

There was no objection.

Here’s how Alaska went:

The VICE PRESIDENT. Hearing none, this certificate from Alaska, the Parliamentarian has advised me, is the only certificate of vote from that State that purports to be a return from the State and that has annexed to it a certificate from an authority of the State purporting to appoint and ascertain electors.

Ms. LOFGREN. Mr. President, the certificate of the electoral vote of the State of Alaska seems to be regular in form and authentic, and it appears therefrom that Donald J. Trump of the State of Florida received 3 votes for President and MICHAEL R. PENCE of the State of Indiana received 3 votes for Vice President.

The VICE PRESIDENT. Are there any objections to counting the certificate of vote of the State of Alaska that the teller has verified appears to be regular in form and authentic?
There was no objection.

The introductory line offers several caveats—that expressly disclaim responsibility of the vice president taking unilateral action, and that also limits what was presented to Congress.

First, the Senate parliamentarian advised the Vice President about the form of the certificates. This was a decision by a congressional actor, not the Vice President.

Second, the “purports” language tracks a provision from 3 U.S.C. § 15, the Electoral Count Act:

Two tellers shall be previously appointed on the part of the Senate and two on the part of the House of Representatives, to whom shall be handed, as they are opened by the President of the Senate, all the certificates and papers purporting to be certificates of the electoral votes, which certificates and papers shall be opened, presented, and acted upon in the alphabetical order . . . . If more than one return or paper purporting to be a return from a State shall have been received by the President of the Senate, those votes, and those only, shall be counted which shall have been regularly given by the electors who are shown by the determination mentioned in section 5 of this title to have been appointed . . . but in case there shall arise the question which of two or more of such State authorities determining what electors have been appointed, as mentioned in section 5 of this title, is the lawful tribunal of such State . . .

Section 5 refers to “determination of any controversy or contest concerning the appointment of all or any of the electors,” “so far as the ascertainment of the electors appointed by such State is concerned.” Section 6 requires states to send “a certificate of such ascertainment of the electors appointed.”

Let’s return to the language Mr. Pence used:

. . . purports to be a return from the State and that has annexed to it a certificate from an authority of the State purporting to appoint and ascertain electors . . . .

This harmonizes several provisions of the Electoral Count Act. “Purporting” is not just anything, but purporting to be a return from a State. It has to have some imprimatur of the State on it. If there is more than one, only count the certificate that meets Section 5’s appointment, which includes sending a certificate of ascertainment to Congress under Section 6. And further bolstering that “purports” is tied to some state authority, the question of two or more certificates turns on “two or more such State authorities,” disputing “the lawful tribunal of such State.”

All of this ties into next component, which Mr. Pence explains includes only those certificates “annexed to it a certificate from an authority of the State purporting to appoint and ascertain electors.” This again includes the “authority” language about the multiple returns in Section 15.

While several “alternative slates” of electors were allegedly submitted to the Vice President and to the National Archives, none could meet these conditions. In particular, none had annexed a certificate from “an authority of the State purporting to appoint and ascertain electors.” The ascertainment is crucial, because it provides the popular vote totals in each states to identify which electors received the most votes. While some “alternative slates” could have mailed in their votes, none included a certificate of what the vote totals were in their states of their appointment. And certainly none claimed to be “an authority of the state.”

At the same time, this does not give the Vice President (or, really, the Senate parliamentarian) unfettered discretion. It is a formal assessment of the statutory language, and here no alternative certificates met it. IT also abides by the fact that Vice President Richard Nixon in 1961 presented certificates with some state authority—both had the governor’s signature.

Let’s turn to how Mr. Pence closed the reading of votes. Like Mr. Gore, he awaited objections after each state, but he included additional language:

Are there any objections to counting the certificate of vote of the State of Alaska that the teller has verified appears to be regular in form and authentic?

There was no objection.

Now, the tellers already say that the certificates “seem to be regular in form” and that it “appears” what the vote is. But this language ties a ribbon on it—the teller, a member of Congress, has “verified” its regularity and authenticity. Any objection, then, is an objection to an act of a teller’s verification that the certificate was “regularly given.”

Maybe the language isn’t really needed here. But it provides additional framing that the question is one of Congress counting—and Congress verifying—not the Vice President. In a way, while Congress is limited in what papers “purporting” to be from a State are presented to it, the verification of the tellers is an added element of description of empowerment.

The script is, in my judgment, a good one, consistent with the Electoral Count Act’s provisions and carefully threads the needle of controlling what Congress does while reserving to its judgment potential legitimate questions. It may well be a script here to stay in future electoral counting.

"The 147 Republicans who voted to overturn election results"

That’s the headline of a New York Times interactive. I’ve made much of the fact, here and elsewhere, that 32 Democrats did so in 2005. As I reflected after the votes, shameless Republicans have escalated the war on the legitimacy of the counting of electoral votes.

A Twitter hiatus

What’s a blog if not a place for musing…?

For some time last year, I tried to engage as little as possible on Twitter, relying instead on posting blog links there. I tried to continually delete my tweets over time. I assiduously avoided reading or engaging in replies, which I’ve often found were some of the worst parts of Twitter. Increasingly over the last few months, I engaged more in the face of extensive election litigation. I also found a lot—a lot—of false election law claims arising on Twitter, particularly by defenders of President Donald Trump’s conspiracies about the election.

My goal at the beginning of the election season was to really taper back my Twitter use after the convening of the Electoral College January 6. But I ended up doing it a few hours earlier than I expected.

I am increasingly frustrated with the echo chambers of social media, the “virality” of false claims, the addiction of “likes” and new followers, the time spent on trivialities, and more.

If it sounds familiar, it should, because I said similar things three years ago. Womp womp.

Cutting back on my use of Twitter (and other digital sources, to be frank) improved my spiritual life, my scholarship, my recreational reading, and my exercise habits. What a terribly sad statement about my own self control….

When I’d cut back before, I’d still push this blog’s content to Twitter. I won’t even do that anymore.

I tried to cut back, but I think I’ll take the rest of the year off. Or so I hope. I felt acutely aware of it as I felt ill watching rioters storm the Capitol. Much of this arose because of social media communities spreading falsehoods. I don’t know that I can think of much good regulation of Twitter that can take place, either public or private. But I do know that I can remove myself from assisting its growth.

Maybe I’ll return. Maybe things will improve. Maybe I’m overreacting based on a moment in time. But I think it’s worth stepping away for a bit. The print edition of the Wall Street Journal each morning, and my Feedly RSS subscriptions, will, I hope, be adequate without, shall we say, “doomscrolling.” Ostensibly, I like to think it’s more about Twitter. But, really, on reflection, it’s more about me.

This post has been updated.

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.)