Supreme Court analysis: Trump v. Anderson

This is a high level overview of the decision in Trump v. Anderson, written in a format as I’ve been presenting in various ways over the last few days. Disclosure: I did file an amicus brief in support of neither party in this case, and in the court below.

On March 4, 2024, the Supreme Court decided Trump v. Anderson. It issued a per curiam opinion reversing the Colorado Supreme Court and effectively permitting Donald Trump’s name to appear on the Republican primary ballot.

Section 3 of the Fourteenth Amendment provides:

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

The State of Colorado, after a divided decision by the Colorado Supreme Court, had held that Donald Trump had engaged in insurrection for purposes of Section 3 for his role in the January 6, 2021 riots at the Capitol. It concluded he could not appear on the Republican primary ballot in that state. While he was excluded from the ballot, it stayed the ruling, so he appeared on the ballot as the case was appealed.

The United States Supreme Court expedited review and issued its decision in a little less than a month. It was mostly unsurprising after listening to oral argument. The sense was that at least eight justices, if not all nine, were inclined to reverse the Colorado Supreme Court on some theory that the that the state of Colorado, or any single state, didn't have this power to exclude ineligible presidential candidates from the ballot and didn't have the power to enforce this provision for varying structural or practical reasons. There was just the question from the court about how it got there.

Trump v. Anderson is a per curiam decision, which means we do not know the author, and, although I shouldn't speculate, it reads in some respects like the voice of Chief Justice Roberts. The result was unanimous, 9-0, essentially saying that Colorado lacks this power. But there are sharp elbows on the path there—the path not only to that one holding, but whether other holdings should be reached. So six justices, Chief Justice Roberts, Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett all agreed with heart of the reasoning in the per curiam opinion. Justice Barrett wrote separately to explain she only agreed with part of the majority per curiam opinion. And then there was a concurring opinion jointly authored by justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson concurring in the judgment only, but they too agreed with the heart of the reasoning of the majority.

I’ll focus on the consensus view of the court for a moment. That part of the decision really focuses on sort of this overall constitutional point, the text, structure, context, and so on. It begins with a quotation from U.S. Term Limits v. Thornton, a 1995 case, which says that that states had no power to add term limits or additional qualifications for congressional candidates. That case had in turn cited the great Justice Joseph Story in his Commentaries in the Constitution, to say that if states are exercising power in federal elections, that power has to come from some source in the constitution.

So if you are looking at Section 3 in the context of a presidential election, where is the state power? Well, it's certainly not going to be found in the 14th Amendment, which is a constraint on state power. And Section 5 gives Congress the power to enforce it, but it gives no power to the states. As you run through the rest of the Constitution, you can't find other provisions of the Constitution empowering states to enforce this provision against a presidential candidate. Articles I and II deal with congressional elections and presidential elections. But it's not clear that implicitly within them is the later power to come back and enforce Section 3.

By the structure of the Constitution, this is a provision that's designed for congressional enforcement, for national remedies and national mechanisms. As a practical matter, it makes very little sense for states to add the sorts of burdens on presidential candidates. If they want to do it for state candidates, it's their own thing. But to do so for presidential candidates makes very little sense. That makes very little sense given that Congress can lift the disability by a two thirds vote, so for a state to step in and hold a candidate not qualified for Congress to swoop in later and have to say, well, now we're going to lift the disability, would seem to force Congress’s hand rather than leave the power to Congress.

And the very end of the opinion are a series of practical concerns that one state’s evidentiary law or state’s procedural setup for how these challenges are filed could have a ripple effect throughout the United States, and we might reach inconsistent verdicts across the United States. And states in particular have less of an interest in presidential elections, simply because they are national offices, and the notion that states could adjudicate qualifications make these determinations and contested factual claims, and then reach kind of a patchwork result across the United States, not something that makes a whole lot of sense structurally.

That was Part II-B of the per curiam opinion, joined in full by Justice Barrett, and joined again in logic, if not in full, by the concurring opinion by Justices Sotomayor, Kagan and Jackson. So that that could have been it. That would have been easy in a way, for the Court.

But instead, there is a lot of friction on the court in a different context. So Part II-A of the opinion, where Justice Barrett peels off, along with the other concurring justices, addressed this sort of a separate question, which is not simply whether states have the power to enforce Section 3. It's more a question of who else and in what context has the power to enforce it. And for that, the court turns to the way that Section 3 is set up.

The five-justice majority speaks about how Congress has this role now to enforce the provisions of Section 3. Section 5 of the Fourteenth Amendment Amendment provides for Congress to have the power to enforce this provision of the Constitution with appropriate legislation, that appropriate legislation must be, in the words of other Supreme Court precedent, including City of Boerne v. Flores, a “congruent and proportional” remedy for the concerns that are addressed by these provisions of the Constitution.

When we look at the fact that we're dealing with this question, the factual dispute of a class of individuals barred for engaging in an “insurrection,” as Justice Kavanaugh at oral argument noted, we must ascertain who is covered. That requires a determination. This is something the Colorado Supreme Court recognized was necessary, in this case—the determination of whether someone engaged in insurrection ,which required procedures and factual findings.

And this is also what Justice Chase on the United States Supreme Court, then writing circuit as a circuit justice in 1869, noted in a case call Griffin's Case. It has a lot of attention and in some of the scholarly discourse, where a federal judge was deciding this case one year after ratification of the 14th Amendment, which was ratified in 1868. Justice Chase is hearing a habeas challenge from Griffin, who had been convicted in West Virginia state court. And he's challenging that conviction in federal court to say, well, I my conviction is invalid because it was adjudicated issued by a judge who was barred from holding office by Section 3. And Chase, writing this opinion says, Look, I'm not in a position to be able to determine these things. In part I have to make a determination, and “proceedings, evidence, decisions, and enforcement of decisions are indispensable.” Unless he's given some guidance, especially from Congress to figure out what to do here, the justice is not in a position to make this adjudication.

So Part II-A of the opinion really rides heavily on Congress's role here, because the Constitution empowers Congress. It enables Congress, subject to judicial review, to pass appropriate legislation, and Congress's Section 5 power is “critical” when it comes to Section 3. The per curiam opinion provides these sorts of statements before it then leads into the argument that the state lacks the power.

At the very end of the opinion, the per curiam opinion says these two things kind of go hand in hand. All of these things are essential. It's that Congress is the one that does these things, and that states lack the power to do so.

Now, Justice Barrett writes separately to say, I agree on the state's lack the power, we don't need to decide anything else today. I would not go in the path of the majority has done.

And then you have the concurring opinion the concurring opinion by Justices Sotomayor, Kagan, and Jackson. They seem to agree with part two of the opinion essentially agreeing that states don't have any such authority. They fracture very badly with the majority's approach, thinking about this congressional role. Some of the language the court that the concurring opinion uses, saying that these musings about Griffin's Case and about congressional power are as inadequately supported as they are gratuitous. And they go on to suggest that Section 3 is not special and does not require congressional enforcement alone. They point out that other provisions of the Constitution, including the Reconstruction Amendments, including things like Due Process, Equal Protection, and the abolition of slavery, which don't require additional congressional implementing legislation. They worry about how this is going to be applied in the future and whether or not they're adding these constraints, and how Congress goes about enforcing Section 3 or prohibiting other actors from enforcing Section 3.

The only concrete example they give is the concern that the forecloses judicial enforcement of that provision such as might occur when a party is prosecuted by an insurrectionist and raises a defense on that score. The notion being that without congressional implementing legislation, if you have someone who had taken an oath to support the Constitution, engaged in insurrection, and now we're serving as a prosecutor, it could be impossible for somebody to raise a defense to say this prosecutor is not authorized to hold this office. So there were some sharp elbows.

A few things to talk about here.

The first is the court doesn't touch really any factual issues. It doesn't touch questions about whether January 6 was an insurrection, or their Donald Trump engaged in an insurrection, whether his speech or his conduct was protected. These are just pure legal questions that the court is focused on.

Another is that this really closes the door and any of these ballot challenges going forward, whether it's the primary election or the general election. The court is quite clear that there's no role for the state and enforcing these provisions.

Another is that the opinion is very centered on section three of the 14th amendment. So it doesn't seem to foreclose the possibility that states exercising their power under Article II of the Constitution, to exclude, say, a 21 year old from the ballot or a Nicaraguan national from the ballot, and states might continue to be able to do so. Instead that the opinion looks much more at Section 3 and how the Fourteenth Amendment shifts this balance of power among the the federal government and the state governments to say that it's foreclosing some authority from the States. And there's not affirmative enforcement authority given to the States as a result. So it seems very much limited to what's happening with the Fourteenth Amendment and doesn't really touch on other presidential qualifications, disputes, election disputes, ballot access disputes, if we're just dealing with Section 3.

It also seems that it would appear to foreclose some challenges even might arise after the election. This is some of the opinion that I'm still wrapping my mind around and trying to understand how different parts of the opinion interact with one another. But the courts emphasis on speaking about Congress and legislation, and how that remedy needs to be tailored adequately to the remedy that are to the harm that you've identified, really does seem to say that other challenges would be inappropriate—at least without specific congressional legislation. But it's very hard to identify exactly what the court is doing when it is when it is suggesting that Congress has a role here with legislation.

What are those things that Congress can do apart from legislation such as seating its own members, as opposed to enacting legislation? What things by as the concurring opinion points out general federal statutes, such as (which the concurring opinion does not mention) the Administrative Procedures Act or the Electoral Count Reform Act? What kinds of deference is going to be given to Congress when it is acting pursuant to those rules, or when courts are acting pursuant to those rules, rather than things under its enforcement authority under Section 3? So there are some myriad questions that are ahead. And it fails to provide some of the clarity, which I think was part of the goal of the opinion

Matters are now largely left to the political process. There will be major questions about presidential immunity coming up in the weeks ahead, as the Supreme Court hears that case, and a number of criminal challenges to Trump in the United States. I think there's not going to be a closing off of the fact that the public will continue to intensely dispute, what is an insurrection, whether Trump engaged in an insurrection, and so on going forward, but that will be a matter of debate in the general election. The Court has at least closed that door when it comes to states attempting to enforce it for their ballot access provisions.

"Electoral Votes Regularly Given"

I have this (late stage!) draft at SSRN on a piece forthcoming in the Georgia Law Review, entitled “Electoral Votes Regularly Given.” Here’s the abstract:

Every four years, Congress convenes to count presidential electoral votes. In recent years, members of Congress have objected or attempted to object to the counting of electoral votes on the ground that those votes were not "regularly given." That language comes from the Electoral Count Act of 1887. But the phrase "regularly given" is a term of art, best understood as "cast pursuant to law." It refers to controversies that arise after the appointment of presidential electors, when electors cast their votes and send them to Congress. Yet members of Congress have incorrectly used the objection to challenge an assortment of pre-appointment controversies that concern the underlying election itself. This Essay identifies the proper meaning of the phrase "regularly given," articulates the narrow universe of appropriate objections within that phrase, and highlights why the failure to object with precision ignores constraints on congressional power.

Senate Committee hearing: "Examining D.C. Statehood"

I’ve written a little about D.C. statehood issues. I had the honor of participating in the U.S. Senate’s Homeland Security and Government Affairs Committee this week on “Examining D.C. Statehood.” A video of the proceedings, along with my written testimony, are here.

DOJ attorneys routinely mocked 2020 conspiracy theories ahead of January 6

From Professor Rick Hasen, the House Oversight Committee has documents showing the pressure that Mark Meadows and others in the White House had on the Department of Justice to investigate allegations of fraud. Principal officers in the Department of Justice, from my reading, ever flinched. Several resigned in the aftermath of the 2020 presidential election. But two emails struck me.

First was an email January 1 from Mr. Meadows to Acting Attorney General Jeffrey Rosen. Mr. Meadows alleged “signature match anomalies in Fulton county, Ga.” Mr. Rosen forwarded the email to another, “Can you believe this? I am not going to respond to the message below.”

Second was an email forwarded by Mr. Meadows to Mr. Rosen, with the title—I can’t make it up—”Brad Johnson: Rome, Satellites, Servers: an Update - YouTube.” Richard Donaghue at the Department of Justice emailed Mr. Rose, “Pure insanity.” Mr. Rosen responded about why these conspiracy theorists never brought evidence to the FBI, and about why he would not discuss these matters with Rudy Giuliani.

In short, the conspiracy theories surrounding the 2020 presidential election never got off the ground within any faction of the officials in the Department of Justice.

Would-be faithless 2016 presidential electors return as electors in 2020, faithful this time

We can look back at the 2016 faithless elector litigation to see what happened to the many who attempted (or were successfully in their attempts) to vote for someone other than Donald Trump or Hillary Clinton. I anticipated that parties would change how they select and scrutinize presidential electors in 2020. There were no faithless elector this time and, on the heels of Chiafalo v. Washington, faithless elector laws would be enforceable. In 2020, there were not even attempts at casting faithless votes.

But, despite all that, several would-be faithless electors—and one, in fact, faithess elector—from 2016 were still chosen as electors. We can find out who they are. From the Archivist:

Vinzenz Koller, California: he wanted to cast a vote for someone other than Mrs. Clinton and Tim Kaine in 2016 and filed a lawsuit, but he ultimately voted for them. He was a Democratic elector in 2020, too.

Polly Baca, Colorado: she was one of the three plaintiffs in Baca v. Colorado Department of State who sought to vote for someone other than Mrs. Clinton and Mr. Kaine in 2016. Micheal Baca was the lead plaintiff who attempted to cast a faithless vote and was replaced. Ms. Baca ended up voting consistent with her pledge. (She was also the reason Justice Sonia Sotomayor had to recuse from the case.) She was a Democratic elector in 2020, too.

David Bright, Maine: he attempted to cast a vote for Bernie Sanders for president in 2016, but, upon a re-vote in Maine, cast a vote for Mrs. Clinton. He was a Democratic elector in 2020, too.

Muhammad Abdurrahman, Minnesota: he attempted to cast a vote for Mr. Sanders for president in 2016, and he was replaced. He sued, and he lost. He was selected an elector again in 2020.

I’m surprised that these individuals made it again as electors. But, maybe added pressure from the party, litigation culminating in Chiafalo, and simply different political circumstances in 2020 (e.g., these Democratic electors felt it more important to vote for Joe Biden in the face of Mr. Trump’s efforts to “decertify” and otherwise contest election results in several states) ensured they’d vote consistent with their promise and their party’s nominee.

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.

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.

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.