By Ben Lenhart, The People’s Constitution
The riots and break-in at the U.S. Capitol on Jan. 6, shocked and saddened the nation. They happened during a crucial—but normally uneventful—process whereby Congress counts the electoral votes to confirm the winner of the presidential election. But Congress’s effort to count the votes was disrupted this year by violence. These events are hard to fully comprehend—no one thought they would ever see rioters breaking into the House and Senate chambers. But these events are better understood against the backdrop of Constitutional provisions that were in play leading up to the Jan. 6 riots.
The Electoral College
Under the Constitution, a group of people—known as “electors”—are authorized to choose the next president using the electoral votes assigned to each state. Article II of the Constitution states that: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress …”Although not required by the Constitution, the states have long used the popular vote—the vote of the people—as the method to choose electors, and most states require electors to vote for the candidate selected by the people of their state. The 12th Amendment provides: “[t]he Electors shall meet in their respective states, and vote by ballot for President and Vice-President … they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President …” In other words, each state chooses its electors, and then the electors choose the president (and vice president) by casting the electoral votes assigned to their state. To win the presidency, a person needs a simple majority of electoral votes, and that number currently is 270.
The 12th Amendment and the Jan. 6 Vote Count
The original Constitution did not require the electors to designate votes for president versus vice president. This caused confusion in the 1800 election because Aaron Burr and Thomas Jefferson (both from the same party) tied with 73 electoral votes, and it took a long and messy fight in Congress (helped by lobbying from Alexander Hamilton) before Jefferson finally won the vote and became our third president. The 12th Amendment fixed this by requiring that electoral votes designate the vote for president and the vote for vice president. The 12th Amendment also provided—importantly for the Jan. 6 riot—that the power to choose the president falls to the House of Representatives if none of the candidates obtains a majority of electoral votes. But there is the twist: for this purpose, the House votes by state—with each state delegation having one vote—rather than by the normal majority vote.
As of Jan. 6, 2020, Republicans controlled more than half of the 50 state delegations in the House, even though the Democrats had more House seats overall. The upshot: if the 2020 election were thrown to the House, then the Republicans—and presumably President Trump— would have the advantage. After the states certified their votes in 2020, President-elect Biden had 306 electoral votes: more than the 270 simple majority needed to win the presidency. Trump argued that some of Biden’s 306 votes should be disqualified because of election fraud or other problems with the election. If at least 37 of Biden’s votes could be disqualified by Congress—a very big “if”—then, under the 12th Amendment, the House (with one vote per State) would decide the next president.
The 1887 Election Law and Trump’s Plan to Stay in Power
But how could Congress legally disqualify at least 37 of Joe Biden’s electoral votes? The answer lies in the 1887 Electoral Vote law, which was born out of the chaos of the 1876 presidential election. That chaos was partly caused when some states sent in competing slates of electoral votes for President, and Congress did not have a clear way to resolve the situation. The 1887 law sought to solve this problem, and had several key features relevant to the Jan. 6 riot. First, the law creates a “safe harbor” presumption that electoral votes sent to Congress by each state will be considered valid if certain conditions are met (including, for example, the state meeting deadlines for vote certification).
Second, the 1887 law set up a process for Congress itself to object to electoral votes. If at least one senator and one congressperson objected to a state’s electoral votes, and if—a very big if—both the House and the Senate approved the objection by majority votes in each chamber, then those electoral votes from the relevant states would not be counted. This provided at least a theoretical—if extremely remote—avenue for Trump and his allies in Congress to take away 37 or more electoral votes from Biden, and then—with Biden lacking a electoral majority—throw the matter to the House where Republicans had the advantage on Jan. 6.
Third, although not stated in the 1887 act, Trump suggested that Vice President Pence, who presided over the electoral vote count, had the power himself to reject certain electoral votes, and achieve the same result—throw the final vote for president over the House (or send the votes back to the disputed States where, somehow, friendly legislatures would side with Trump).Either way—through Pence or through objections by Republicans in Congress—Trump and his allies envisioned a path—however narrow and flawed—for Trump to be declared the next president.
Riot vs. Democracy
The problems with Trump’s plan were many. First, the safe harbor rule should have shielded Biden’s electoral votes from objections by Congress during the Jan. 6 count. Second, just before the Jan. 6 count, Pence rejected Trump’s invitation to disqualify certain electoral votes and stated: “I do not believe that the Founders of our country intended to invest the Vice President with unilateral authority to decide which electoral votes should be counted during the Joint Session of Congress, and no Vice President in American history has ever asserted such authority.”Third and most fundamentally, Trump’s plan would contradict democracy itself. Trump was correct that the 1887 Act provided a theoretical path for him to win. But that path, by design and by common sense, was extremely narrow. The Act gives Congress power to alter votes only under the most narrow and extraordinary circumstances, such as if there were proof of serious bribery of election officials (in sufficient numbers to change the result), or if some states failed to submit their electoral votes or submitted competing slates (as happened in the 1876 election).
But nothing of the kind occurred in the 2020 election. To be sure, Trump alleged massive voter fraud sufficient to alter the outcome. But these allegations had been rejected by more than 50 state and federal courts, including by many judges appointed by Trump himself, by the U.S. Supreme Court, by state election officials including many who voted for Trump, by multiple recounts in swing states, and by Trump’s own Justice Department.
By the time of the Jan. 6 riot, Trump was left with mere allegations of fraud. These were no longer “untested” allegations, but rather allegations that had been exhaustively tested and rejected across the board. If the 1887 Act were interpreted so broadly as to allow Congress to overturn an election on this slim basis—on the basis of rejected allegations of fraud—then the Act itself would violate the Constitution on several grounds (including separation of powers by giving too much power to Congress, and the 12th Amendment, which directs that the states, not Congress, have most of the power to conduct presidential elections). If Congress had followed Trump’s plan on Jan. 6, and overturned the 2020 election, it would have taken the power to choose the president away from the people and given it to the political party that happened to control Congress at that time. As Republican senate majority leader Mitch McConnell said in opposing Trump’s plan: “If this election were overturned by mere allegations from the losing side, our democracy would enter a death spiral. We would never see the whole nation accept an election again. Every four years would be a scramble for power at any cost.”
Some rioters said their actions were aimed at preserving democracy. In truth, they attacked democracy and threatened to destroy it. American has long enjoyed unprecedented success because we are a strong and stable democracy with more than 220 years of peaceful transitions of power. We have never had a leader use force to hold on to power, something which, sadly, is all too common in other nations. This invaluable track record was put at risk by Trump’s refusal to accept his election defeat and the ensuing attack on the Capitol at the key moment when Congress was counting the electoral votes. It is said that what does not kill you makes you stronger, and we all hope that this proves true for America after the events of Jan. 6, 2021.
[Ben Lenhart is a graduate of Harvard Law School and has taught Constitutional Law at Georgetown Law Center for more than 20 years. He lives with his family and lots of animals on a farm near Hillsboro.]