Let‘s see now. The incontrovertible results of the 2020 presidential election have been met by the Orange Incumbent and his slavish adherents with (a) refusal of the O.I. to concede; (b) loud, repeated, but unsubstantiated claims of fraud at the ballot box; (c) lawsuits in state and federal courts to prevent the completion of vote counting or, alternatively, to demand recounts; (d) recounts; (e) pressure on state legislatures and executives of several swing states not to certify their Electoral College votes and/or to submit slates of pro-Trump electors in their stead; (f) more loud, repeated, and unsubstantiated claims of fraud at the ballot box, embellished by claims of voting machine pre-programming engineered by a dead Venezuelan dictator to favor Democrats; (g) personal threats of physical violence against vote supervisors and personnel; and, finally, (h) a lawsuit by the State of Texas, joined by 17 other states and over half of Republican delegates the House of Representatives, against four swing states, demanding that their popular votes be overturned, which suit was peremptorily dismissed by the U.S. Supreme Court.
Deep breath. That’s almost half the alphabet. The only thing oddly missing from this litany of attacks on American democracy was a call from the O.I. for electors to go rogue and vote for him in spite of their states’ outcomes. Unlike past elections, there were exactly zero “faithless electors” this time around (no doubt due in part to the Supreme Court’s ruling last summer that the states were at liberty to fine, remove, or otherwise punish them). The electoral votes were counted in the fifty states on Monday, and even Mitch McConnell has had a seizure of institutional probity and congratulated Joe Biden on his win.
Surely that wraps things up, right? Surely we can now move on to more productive national endeavors, like getting a Covid relief bill passed, finding out what’s in that dirt the Japanese space probe brought back from that asteroid, and preparing for the critical Ohio State – Northwestern football contest this weekend.
But let’s not be too hasty. Let’s not assume that no further political skullduggery lies in wait between now and Inauguration Day. There’s one more act to this partisan farce, and it’s coming this January 6th to a Congress near you, courtesy of the Electoral Count Act of 1887 (the “ECA”).
Faithful readers may recall that the ECA came into being because the mechanism for electing presidents broadly outlined in our genius Constitution proved sadly unreliable in practice. In the election of 1876, Samuel Tilden, a Democrat, won the popular vote over Rutherford B. Hayes by a significant margin, sweeping all of the states that had been part of the Confederacy. However, in three of those states –Florida, Louisiana, and South Carolina – Republicans (yep, even then) held the statehouses. They, like their unscrupulous political descendants of today, challenged the validity of the popular vote count in each of their states, and submitted their own slate of electors in support of Hayes, effectively presenting Congress with two alternative Electoral Colleges to pick between.
The resulting fistfight, won by Hayes, led eventually to the passage in 1887 of the Electoral Count Act, a turgid, nearly impenetrable statute that regrettably has survived without amendment or repeal ever since. It requires, among other things, that the new Congress will meet in joint session on January 6 to count the presidential electoral votes, presided over by the President of the Senate — in our case, none other than the squinty-eyed, impeccably coiffed, God-fearing Mike Pence. He does the counting (and hopefully no more than that), and any disagreements over whether and which states’ electoral slates have been appropriately submitted (“regularly given,” in the profoundly unhelpful language of the statute) are supposed to be resolved between the two houses.
Under the ECA, objections to a particular state’s votes (can anyone say “stop the steal”?) have to be raised by at least one member of the House and one member of the Senate. If this happens, the statute says that the respective houses are to recess to separately debate the matter for two hours (query if they’re allowed to spend less time, but they’re evidently not allowed their usual filibustering, lollygagging, bathroom breaks, etc.). Then they reconvene and announce their respective votes. Both houses have to agree with the objection for the contested electoral votes to be thrown out; all those Republicans in the Senate, even if they’ve won in Georgia a day earlier, won’t be enough.
But those two hours of debate in the House and Senate will give new meaning to the phrase “political theater.” We were just treated to CNN actually broadcasting the usually pro-forma and supremely boring process of state electors casting their votes in their drab statehouses and hastily-decorated auditoriums, and putting up graphics of the running electoral vote totals as though we were caught in a time warp and it was still — or again — election night. How much more fun will it be for them to do a split screen where we can watch, on one side, Jim Jordan of Ohio in his skinny yellow tie explaining to Georgia how they got it all wrong, and on the other, apple-cheeked Lindsey Graham reminding us all that the United States really isn’t a democracy (it’s a republic!), so get over it.
And of course there can be objection after objection, as long as a pair of Republicans can dream them up. It should be all over by, oh, sometime on January 7th. If we’re lucky. Then it will be a long fallow period until January 20, when we’ll find out if Donald Trump will really pass up, for the first time in his life, an opportunity to be on national television.