Election law, voting rights, legal education, and miscellany written by Derek T. Muller, Professor of Law, University of Notre Dame Law School
Posted in: Election Law
Over at RealClearPolicy, I have this piece, "The DC Statehood Proposal Could Give a Handful of People Three Electoral Votes.” It begins:
Proponents of District of Columbia statehood believe this is their moment. The House of Representatives has approved H.R. 51, and the Senate might bypass the filibuster to send the proposal to President Joe Biden for his signature. But election questions plague the bill.
I wrote a brief piece for the Boston University Law Review Online, Governing Elections Without Law, reflecting in late 2020 on Professor Rick Hasen’s book Election Meltdown. I opened, “I want to focus on those nonlegal reforms that work alongside the law—places where the law simply runs out, where legislation is worse than the existing problem, or where superior longer-term solutions reside.”
The Facebook Oversight Board released a decision regarding Facbeook’s decision to bar former President Donald Trump from Facebook after the January 6, 2021 riot at the Capitol during the counting of electoral votes. It is precisely this type of private regulation that has become all the more crucial—but private regulation that looks very public in nature.
The framework is an interesting set-up, in my judgment:
The Board’s decisions do not concern the human rights obligations of states or application of national laws, but focus on Facebook’s content policies, its values and its human rights responsibilities as a business. The UN Guiding Principles on Business and Human Rights, which Facebook has endorsed (See Section 4), establish what businesses should do on a voluntary basis to meet these responsibilities. This includes avoiding causing or contributing to human rights harms, in part through identifying possible and actual harms and working to prevent or address them (UNGP Principles 11, 13, 15, 18). These responsibilities extend to harms caused by third parties (UNGP Principle 19).
Facebook has become a virtually indispensable medium for political discourse, and especially so in election periods. It has a responsibility both to allow political expression and to avoid serious risks to other human rights. Facebook, like other digital platforms and media companies, has been heavily criticized for distributing misinformation and amplifying controversial and inflammatory material. Facebook’s human rights responsibilities must be understood in the light of those sometimes competing considerations.The Board analyzes Facebook’s human rights responsibilities through international standards on freedom of expression and the rights to life, security, and political participation. Article 19 of the ICCPR sets out the right to freedom of expression. Article 19 states that “everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.” The Board does not apply the First Amendment of the U.S. Constitution, which does not govern the conduct of private companies. However, the Board notes that in many relevant respects the principles of freedom of expression reflected in the First Amendment are similar or analogous to the principles of freedom of expression in ICCPR Article 19.
Political speech receives high protection under human rights law because of its importance to democratic debate. The UN Human Rights Committee provided authoritative guidance on Article 19 ICCPR in General Comment No. 34, in which it states that “free communication of information and ideas about public and political issues between citizens, candidates and elected representatives is essential” (para. 20).
Facebook’s decision to suspend Mr. Trump’s Facebook page and Instagram account has freedom of expression implications not only for Mr. Trump but also for the rights of people to hear from political leaders, whether they support them or not. Although political figures do not have a greater right to freedom of expression than other people, restricting their speech can harm the rights of other people to be informed and participate in political affairs. However, international human rights standards expect state actors to condemn violence (Rabat Plan of Action), and to provide accurate information to the public on matters of public interest, while also correcting misinformation (2020 Joint Statement of international freedom of expression monitors on COVID-19).
International law allows for expression to be limited when certain conditions are met. Any restrictions must meet three requirements – rules must be clear and accessible, they must be designed for a legitimate aim, and they must be necessary and proportionate to the risk of harm. The Board uses this three-part test to analyze Facebook’s actions when it restricts content or accounts. First Amendment principles under U.S. law also insist that restrictions on freedom of speech imposed through state action may not be vague, must be for important governmental reasons and must be narrowly tailored to the risk of harm.
The Oversight Board is entirely right, of course, that the First Amendment “does not govern the conduct of private companies.” But neither do “international standards of freedom of expression” as set forth in the International Covenant on Civil and Political Rights, a treaty that binds nation-states and not private companies.
Instead, it is because earlier this year—but after it suspended Mr. Trump—Facebook announced that its corporate human rights policy will be committed to the the United Nation’s Guiding Principles on Business and Human Rights:
On March 16, 2021, Facebook announced its corporate human rights policy, where it commemorated its commitment to respecting rights in accordance with the UN Guiding Principles on Business and Human Rights (UNGPs). The UNGPs, endorsed by the UN Human Rights Council in 2011, establish a voluntary framework for the human rights responsibilities of private businesses. As a global corporation committed to the UNGPs, Facebook must respect international human rights standards wherever it operates. The Oversight Board is called to evaluate Facebook’s decision in view of international human rights standards as applicable to Facebook.
The Board analyzed Facebook’s human rights responsibilities in this case by considering human rights standards including:
-The right to freedom of expression: International Covenant on Civil and Political Rights ( ICCPR), Articles 19 and 20; as interpreted in General Comment No. 34, Human Rights Committee (2011) ( General Comment 34); the Rabat Plan of Action, OHCHR, (2012); UN Special Rapporteur on freedom of opinion and expression report A/HRC/38/35 (2018); Joint Statement of international freedom of expression monitors on COVID-19 (March, 2020).
-The right to life: ICCPR Article 6.
-The right to security of person: ICCPR Article 9, para. 1.
-The right to non-discrimination: ICCPR Articles 2 and 26; International Convention on the Elimination of All Forms of Racial Discrimination ( ICERD), Articles 1 and 4.
-Participation in public affairs and the right to vote: ICCPR Article 25.
-The right to remedy: ICCPR Article 2; General Comment No. 31, Human Rights Committee (2004) ( General Comment 31); UNGPs, Principle 22.
It is, of course, entirely within the rights of Facebook to choose whether the First Amendment, international law, or some other standard will govern how it operates. Perhaps there is little daylight between a strict First Amendment approach and this one. But it’s worth noting that while the First Amendment requires an “important” (or sometimes described as “compelling”) reason to restrict speech, the test here is a “legitimate” aim, described as:
The requirement of legitimate aim means that any measure restricting expression must be for a purpose listed in Article 19, para. 3 of the ICCPR, and this list of aims is exhaustive. Legitimate aims include the protection of public order, as well as respect for the rights of others, including the rights to life, security, and to participate in elections and to have the outcome respected and implemented. An aim would not be legitimate where used as a pretext for suppressing expression, for example, to cite the aims of protecting security or the rights of others to censor speech simply because it is disagreeable or offensive (General Comment No. 34, paras. 11, 30, 46, 48). Facebook’s policy on praising and supporting individuals involved in “violating events,” violence or criminal activity was in accordance with the aims above.
“Legitimate,” then, is a term of art with an “exhaustive” fixed list of reasons. But it does appear to sweep more broadly and would allow regulation of more speech than the First Amendment.
There was also some dispute within the Board about how to assess Facebook’s human rights responsibilities:
A minority believes that it is important to outline some minimum criteria that reflect the Board’s assessment of Facebook’s human rights responsibilities. The majority prefers instead to provide this guidance as a policy recommendation. The minority explicitly notes that Facebook’s responsibilities to respect human rights include facilitating the remediation of adverse human rights impacts it has contributed to (UNGPs, Principle 22). Remedy is a fundamental component of the UNGP ‘Protect, Respect, Remedy’ framework, reflecting international human rights law more broadly (Article 2, para. 1, ICCPR, as interpreted by the Human Rights Committee in General Comment No. 31, paras. 15 - 18). To fulfil its responsibility to guarantee that the adverse impacts are not repeated, Facebook must assess whether reinstating Mr. Trump’s accounts would pose a serious risk of inciting imminent discrimination, violence or other lawless action. This assessment of risk should be based on the considerations the Board detailed in the analysis of necessity and proportionality in Section 8.3.III above, including context and conditions on and off Facebook and Instagram. Facebook should, for example, be satisfied that Mr. Trump has ceased making unfounded claims about election fraud in the manner that justified suspension on January 6. Facebook’s enforcement procedures aim to be rehabilitative, and the minority believes that this aim accords well with the principle of satisfaction in human rights law. A minority of the Board emphasizes that Facebook’s rules should ensure that users who seek reinstatement after suspension recognize their wrongdoing and commit to observing the rules in the future. In this case, the minority suggests that, before Mr. Trump’s account can be restored, Facebook must also aim to ensure the withdrawal of praise or support for those involved in the riots.
I don’t have strong thoughts on the moment on the overall framework or how Facebook ought to behave. The Board recognizes that Facebook’s actions have a significant role in democratic discourse and voting. Providing clear ex ante standards is important. And how it applies in future disputes remains to be seen.
I have this piece at the Illinois Law Review Online entitled A Bully Pulpit Approach to Elections in the Early Biden Administration. It begins:
2020 yielded innovation to administer an election during a pandemic, high voter participation, divisive social media maelstroms, and extraordinary doubt cast by the losing presidential candidate on the results, all culminating in a riot at the Capitol during the counting of electoral votes. Election disputes looked bad in 2016,1 but they appear to have become even worse. Election law has attracted President Joe Biden’s attention, but much less in legislative reforms and much more in the bully pulpit to advance his agenda.
On the heels of Rita Hart’s decision to withdraw her congressional election contest in Iowa’s Second Congressional District dispute, the final formal ratification of the election Congresswoman Mariannette Miller-Meeks, I want to return to one point about the nature of Iowa’s contest court.
I’ve argued that failure to exhaust state remedies is a reason for Congress to reject an election contest. True, as some of the briefing has pointed out, (a) it is not a reason under the Federal Contested Elections Act for a prompt dismissal before discovery, as the Act contemplates four specific categories for early dismissal; and (b) it is not a requirement, as Congress can, of course, alter its precedents as it sees fit. But it has, in the past, required exhaustion of post-Election Day mechanisms in state court as a basis for rejecting a complaint.
That’s for a couple of good reasons, in my view. The first is the development of a contemporaneous fact record. Indeed, consider one remark by the Hart campaign’s attorneys to Congress during the contest: “With no written rules of procedure or official records of recount board votes, descriptions of these ad hoc processes are subject to the limitations of human memory.” Of course, a process that plays out months later in Congress looks very different from a process that plays out days after the recount concludes in state court.
The second is an interpretation of state law. Many of the allegations in the Hart contest turned on definitions of state law—what kinds of unsealed envelopes can or cannot be counted, when “commissioner” refers to the commissioner of a voter’s county or a commissioner of any county, and so on. They were nuanced questions of state law. And for the most part, Congress defers to state law—although in exceptional circumstances, as the Hart contest notes, “the Committee should therefore exercise its discretion to depart from Iowa law.” But starting with state law is best understood as starting with what a state’s courts interpret the law as—not starting with members of Congress construing it.
To do so—to address challenges closely in time to ensure there’s a fresh record, and to ensure state courts get a first look at questions of state law—the Iowa contest court has a fixed jurisdiction. It is a creation solely of statute, and the Court cannot exist beyond the jurisdiction authorized by the legislature.
It also has no authority to engage in a second recount—the recount process is performed by county boards, created statute. Instead, here are the grounds for a contest:
2. Grounds for contesting an election under this chapter are:
a. Misconduct, fraud or corruption on the part of any election official or of any board of canvassers of sufficient magnitude to change the result of the election.
b. That the incumbent was not eligible to the office in question at the time of election.
c. That prior to the election the incumbent had been duly convicted of a felony, as defined in section 701.7, and that the judgment had not been reversed, annulled, or set aside, nor the incumbent pardoned or restored to the rights of citizenship by the governor under chapter 914, at the time of the election.
d. That the incumbent has given or offered to any elector, or any precinct election official or canvasser of the election, any bribe or reward in money, property, or thing of value, for the purpose of procuring the incumbent’s election.
e. That illegal votes have been received or legal votes rejected at the polls, sufficient to change the result of the election.
f. Any error in any board of canvassers in counting the votes, or in declaring the result of the election, if the error would affect the result.
g. That the public measure or office was not authorized or required by state law to appear on the ballot at the election being contested.
h. Any other cause or allegation which, if sustained, would show that a person other than the incumbent was the person duly elected to the office in question, or would show the outcome of the election on the public measure in question was contrary to the result declared by the board of canvassers.
The only recanvass right is as follows:
The parties to any contested election shall have the right, in open session of the court or tribunal trying the contest, and in the presence of the officer having them in custody, to have the ballots opened, and all errors of the precinct election officials in counting or refusing to count ballots corrected by such court or tribunal.
All these things require specificity. There is no freestanding right to a second recount. In a way, that entirely makes sense. The recount is over. The contest court is about specific legal challenges. For instance, the recount board could not count ballots that were not counted on Election Day. The recount board does not determine whether there was fraud. And so on.
One could, I suppose, construed any “error” in “counting” so broadly that the whole district needs to be recounted. But given the extensive and specific rules elsewhere about how to engage in a recount, and the absences of such mechanics in the contest provision, it seems to be an inappropriate remedy.
Some commentary in recent weeks, however, lamenting Ms. Hart’s loss has misconstrued, I think, the nature of the contest court.
Consider this take from John Deeth of Johnson County:
After the recount that left her six votes short was canvassed on November 30, Hart had an extremely short timeline, just over a week to request and complete a state level challenge to the election. Team Hart decided, and they weren't wrong, that a week was insufficient time. The challenge process is designed for small city councils or maybe a legislative district, not for a quarter of the state.
That’s demonstrably false—the challenge process was specifically designed for statewide presidential elections, and later included all congressional contests, both Senate and House. It was specifically designed for large elections. It was enacted shortly after the federal Electoral Count Act of 1887 was enacted, designed for presidential elections. It was updated in 1970 to allow for congressional election contests—again, specifically for congressional contests.
Consider, too, this take from Laura Belin over at Bleeding Heartland:
For the sake of optics, Hart should have attempted to contest the election in Iowa before going to Congress. But her legal team was correct about the time constraints. The Iowa contest court could never have thoroughly considered the issues at hand, much less order the full recount the situation warranted, by the December 8 deadline. (Some states allow much more time for federal election contests; Norm Coleman’s contest of Minnesota’s 2008 U.S. Senate race took months to resolve.)
This, too, inaccurately describes the law. The contest court is not a court in Iowa to offer a second recount (or a third count). It is a limited venue for particular grievances.
I also want to offer some contrast about why the Iowa contest court can move dramatically faster than the Minnesota contest court, specifically in the context of Coleman-Franken 2008:
Coleman-Franken looked at 3 million ballots, not the 400,000 in Hart—Miller-Meeks; admittedly, a statewide contest in Iowa would also involve far more ballots, but not in this case.
The election in 2008 was not certified until January 5; in Iowa, the congressional race was certified November 30.
To that end, the 2008 election had litigation about 12,000 rejected absentee ballots that delayed the initial certification.
The Minnesota Supreme Court took two weeks to select a trial panel; by statute, the Iowa Supreme Court has two days to select a panel.
After the Minnesota trial court issued its decision, there is a right of appeal to the Minnesota Supreme Court; in contrast, there is no appeal from the Iowa contest court.
To that end, there was a ten-week delay between the trial court’s decision appealed to the Minnesota Supreme Court.
All that is to say, if you delay certification, delay the selection of the contest court, and allow a right of appeal, of course the process is going to take dramatically longer. By my count, Iowa’s law offers at least 17 weeks of increased efficiency over Minnesota’s at a bare minimum—by constraining the certification deadline, fixing the time to compose the court, and eliminating a second level of judicial review, Iowa’s contest court procedure offers far more efficiencies.
Now, it’s entirely plausible, I think, to consider extending the timeline a couple of weeks, for congressional elections (not presidential elections). And with some light modifications, the recount boards can still meet their end-of-November deadline with some added personnel to assist counting; instead, it would be to give the contest court an extra couple of weeks to decide any issues. All this could easily be wrapped up by January 3—to allow a state to have full representation in Congress and to avoid needless delays and vacancies that occurred in Minnesota.
Over at RealClearPolitics, I have this piece, "The Diamonds Hidden in H.R. 1’s Massive Mine.” It begins:
At a whopping 886 pages, H.R. 1, the For the People Act of 2021, has stirred plenty of controversy. It passed the House along almost perfectly partisan lines: 220 Democrats supported it; 209 Republicans and one Democrat opposed it. The Senate is considering a similar bill.
But within those 886 pages are at least a few provisions that can generate some consensus. Most are rolled over from previous failed bills in Congress, and if they were standalone measures, perhaps they could garner supermajority bipartisan support.
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.
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.
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.
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.