It has been mesmerizing and exciting – and most recently heart-breaking and sad – to witness the sudden interest in the presidential electoral process. On January 6, a group of insurrectionary rioters breached the Capitol while the Congress met to confirm the election of Joe Biden and Kamala Harris. Now more than ever, we need to recognize how dangerously unprecedented this week has been, but we also need to understand the long history of the procedures that guide presidential elections in the United States.
For generations, the electoral process surrounding the presidency received little media and voter attention. Many in our Congress have tried to challenge the Electoral College, the process by which delegates, selected by state political party officials, represent the electorate when they meet in December after the people vote. In a winner-take-all approach, a number of politically splintered states matter more than others for presidential candidates, operatives, and pundits.
As a result, the Electoral College has become increasingly unpopular. Congress has even attempted to disband it, though that likely will not happen any time soon. State governments have also tried to circumvent aspects of the Electoral College through proportional vote shares instead, an approach that could be a more effective avenue toward reforming the electoral process (whether our state of Connecticut would consider such a measure like nearby Maine, might be a stretch).
But since President Donald Trump won the Electoral College delegate count over the popular vote in 2016, more Americans than ever have been consumed by our centuries-old system. And after last November’s election, the president politicized concerns surrounding voter fraud and voter suppression. He also questioned the formal process of states certifying the election results leading to various lawsuits, recounts in swing states, and the Capitol going under lockdown because of his wayward supporters.
The formal tally of the Electoral College votes by Congress is a pro forma process that few Americans previously cared to understand. But many of us were intrigued this past election, as we witnessed the president’s attempt to disrupt the confirmation of the electoral process. To be clear, state governments are responsible for certifying voter results. Our national lawmakers merely confirm what has already been certified by the states. Neither the vice president nor the president can unilaterally change the electoral results in the states or the Electoral College.
Two important, though often overlooked, pieces of legislation have guided the election process to date: the 12th Amendment to the Constitution, enacted in 1804, and the subsequent Electoral Count Act of 1887. Both resulted from contested elections. The election of 1800 between Thomas Jefferson and John Adams actually resulted in a tie. The Election of 1876 between Rutherford B. Hayes and Samuel Tilden produced a special electoral commission to determine which electoral results to count from three states – Florida, Louisiana, and South Carolina. Electoral fraud was certainly at work. For example, the turnout in South Carolina was calculated to be 101% of eligible voters. In Florida, incoming and outgoing governors battled to certify their state’s electoral votes.
Credit goes to President Grover Cleveland – a reform-minded Democrat – who signed the Electoral Count Act into law in 1887. The Electoral Count Act built upon the 12th Amendment by providing exact procedures as to how the electoral votes should be counted. In addition, the Electoral Count Act created a “Safe Harbor” within a 35-day window, which mandates that Congress accept whatever electoral vote count that the state reports as long as it finishes counting within that period. This requirement has been successfully met in every election since 1888, including the contested election of 2000 and the current election.
The timing and procedures of the recent Jan. 6 vote were similarly prescribed by the Electoral Count Act. “The Senate and House of Representatives shall meet in the Hall of the House of Representatives at the hour of 1 o’clock in the afternoon on that day,” the law requires. From there, the “President of the Senate [i.e., the Vice President] shall be their presiding officer.” Nevertheless, Congress does not certify the results of the election – that duty belongs to the states. Rather, the two bodies witness the counting of the votes already certified by the various states.
After reading the certified results, the Act states that the Vice President “shall call for objections, if any.” In 2005, several Democrats did just that and unsuccessfully challenged Ohio’s electoral votes for George W. Bush. The objections recently made by Republicans to the results in Arizona and Pennsylvania represent another unsuccessful effort. As required by the Electoral Count Act, the House and the Senate “immediately” meet again, and the Vice President announces “the decision of the questions submitted.” Vice President Pence fulfilled this legal duty early in the morning on Jan. 7.
The election of 2020 was unprecedented in many ways. Yet the provisions of the Electoral College, as mandated by 12th Amendment and the little-known Electoral Count Act of 1887, acted as the legal basis for the events that unfolded this week, including the backdrop to why Trump’s supporters besieged the Capitol to disrupt the Constitutional duty of Congress. At stake continues to be nothing less than American democracy.
Jonathan L. Wharton, Ph.D. is associate professor of political science and urban affairs and the School of Graduate and Professional Studies Associate Dean at Southern Connecticut State University in New Haven.
Thomas J. Balcerski, Ph.D. is associate professor of history at Eastern Connecticut State University. He is a frequent contributor to CNN and other media outlets. Find him on Twitter @tbalcerski
The views, opinions, positions, or strategies expressed by these authors are theirs alone, and do not necessarily reflect the views, opinions, or positions of CTNewsJunkie.com.