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.