In 2005, 32 Democrats in Congress attempted overturn the results of the presidential election by objecting to Ohio's electoral votes
On the heels of news that some Republicans in Congress will object to counting electoral votes from certain states when Congress convenes to count electoral votes January 6, 2021, we have an opportunity to reflect on the last failed objection in Congress during the counting of electoral votes: that of Ohio’s electoral votes, disputed in 2005.
Senator Barbara Boxer continues to perpetuate a mythology about the moment that many are uncritically repeating: as she recently explained, “Our intent was not to overturn the election in any way. Our intent was to focus on voter suppression in Ohio.”
Congress could, of course, hold hearings about voter suppression in Ohio (which it did), or introduce or enact legislation pertaining to federal voting rights.
But in the joint session, an objection filed under the Electoral Count Act is specific. It is an objection to counting the electoral votes from that state.
George W. Bush received 286 electoral votes, including 20 from Ohio, a state he won by around 118,000 votes over John Kerry. A candidate needs a “majority of the whole number of electors appointed,” or 270 electoral votes, to win the presidency. If a candidate fails to get a majority, the election is thrown to the House of Representatives, where each state receives one vote, and it chooses among the top three vote-getters.
When Ms. Boxer and Representative Stephanie Tubbs Jones filed an objection, here’s what they formally provided, as printed in the Congressional Record:
We, a Member of the House of Representatives and a United States Senator, object to the counting of the electoral votes of the State of Ohio on the ground that they were not, under all of the known circumstances, regularly given.
If the objection were sustained, it would throw out Ohio’s 20 electoral votes—which represented the preferences of more than 2.8 million voters who supported Mr. Bush in the state.
Tossing out Ohio’s electoral votes would have dropped Mr. Bush to 266 electoral votes. In that scenario, it is likely that Mr. Bush would have failed to have a “majority of the whole number of electors appointed”—that is, the Ohio electors had been appointed, but their votes were deemed not “regularly given” and not counted. Mr. Bush would have been denied the presidency from the Electoral College. And the election would go to the House of Representatives to choose among Mr. Bush, Mr. Kerry, and John Edwards (who received one electoral vote for president, despite being Mr. Kerry’s vice presidential candidate).
The objection, then, was not an abstract proposition, a chance to discuss voter suppression, a two hour debate session. It was a formal request to throw out Ohio’s electoral votes.
One can read through the congressional record to find a report filed by Representative John Conyers of the House Judiciary Commtitee, including “ample grounds for challenging the electors from the State of Ohio.” A conclusion of the report opined, “We believe there are ample grounds for challenging the electors from Ohio as being unlawfully appointed,” including violations of state law, voting machine irregularities, and denial of access to election observers in the election process.
Many in Congress admitted that the debate would not change the outcome of the election. But admitting that it would not change the outcome of the election is different from still seeking to do so.
After two hours’ debate, each house voted on the question about whether to agree to the objection—that is, whether to object to counting the electoral votes from the state of Ohio. It failed in the House 267-31, and in the Senate 74-1.
But those 32 members of Congress (all Democrats) still voted to reject the counting of Ohio’s electoral votes. It might have been a doomed effort. But their votes were actually cast in an attempt to toss out the vote as reported by the state of Ohio. To say “our intent was not to overturn the election,” but to cast a vote that seeks to overturn the election, is nonsensical.
It’s also a reason I’m very down on some Republicans’ efforts to do so in 2021. Tossing out a state’s electoral votes is a big deal. It’s not merely some chance to talk about state law, election irregularities, or tech giants. It’s the request to throw out election results.
I don’t believe there were grounds to toss out Ohio’s votes in 2005, and I don’t believe there are grounds to toss out any of the certified electoral vote totals from states in 2021. I’m sure some favor the Democrats’ approach in 2005 and not the Republicans’ approach in 2021, or vice versa; some will make factual or legal distinctions between the two; some will find some whatabout-isms to cite. I’m not particularly interested in that. I think both efforts are embarrassing. But I want to provide the context about what formally occurred in 2005, rather than merely parroting the media lines of the politicians involved.