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Reckless Attacks on the 12th Amendment
From the aftermath of Bush v. Gore to Jan. 6, attempts to weaponize the Certification of Electors have grown into a serious challenge to our electoral process.
After the conclusion of each presidential election, Congress meets on the sixth of January to certify the electoral votes for the winners of all 50 states and the District of Columbia. The electors who are chosen by each campaign are selected to cast their votes for the winning candidate in their state on the first Tuesday after the second Wednesday in December. This is where the states will individually confirm their results prior to the January joint session, which is a day where members of the United States House of Representatives and Senate convene to officially count the electoral votes, concluding with the introduction of the new president and vice president leading up to Inauguration Day.
In recent years, the process of counting electors has been questioned from all angles, with losing campaigns from both parties challenging the legitimacy of results. With each state having a deadline on when to certify their electoral votes, recounts and protests about the state’s outcome are largely kept to a minimum, as it is critical that each elector cast their vote by the date it’s due.
The most recent example of an attempt to delay the counting of electors came in the year 2020. In a year with much uncertainty with the COVID-19 pandemic, it was an election unlike any other. In Georgia, Joe Biden narrowly defeated Donald Trump by 11,779 votes. Since neither candidate reached 50% of the vote, an automatic recount of the nearly five million ballots cast was conducted under the watch of Republican Secretary of State Brad Raffensperger.
The Trump re-election campaign claimed there were an unprecedented number of voting irregularities, as well as videos surfacing on social media of election officials mishandling and wrongfully scanning illegitimate ballots. The former president himself called Raffensperger, insisting that he needed to find him enough votes that would put him over his Democratic opponent in the state. To Trump’s dismay, Georgia’s electors were accounted for on time, thus officially declaring Biden the winner of 16 important electoral votes.
This was not, however, the first attempt to disrupt the process of counting electors after a candidate came up short in a consequential state. In 2000, Al Gore’s campaign insisted that they complete a series of recounts of Florida’s votes and focus on counties that leaned in his direction. Of particular concern to the Gore campaign were “hanging chads” that invalidated an unusually large number of votes in certain crucial Florida counties. Al Gore believes to this day that these votes would have been the deciding factor between a Bush and Gore victory, and could’ve changed who went on to be our country’s 43rd president.
A fierce litigation battle ensued, long known as Bush v. Gore, with the intervention of the U.S. Supreme Court putting an end to the long and nerve-wracking proceedings. In the end, George W. Bush was declared the winner of Florida by a staggeringly small 537-vote margin. The electors in Florida cast their 25 votes for President-Elect Bush shortly after Al Gore gave his concession speech. But even though Gore had conceded, there were other Democrats for whom the fight was not over.
The joint session of Congress on the sixth day of January after a presidential election is a time when members of Congress come together to conclude a paramount process. As the electoral votes are read aloud, the candidate for president and vice president who have reached the 270 threshold are the winners and will serve as the top two leaders of the nation over the next four-year term.
This has long been a mostly ceremonial exercise. Barring the unusual circumstance of a state sending multiple batches of electors, in which circumstance votes must be taken to determine which batch will be accepted, the duty of Congress is simply to “open and count.”
But on Jan. 6, 2001, we saw the beginning of a trend where certain members of Congress who disagreed with state-by-state results sought to interrupt the proceedings with objections. Many Democrats loudly interjected on the results of Florida’s electors, asserting that Florida’s election was conducted unfairly and that the presidency had been “stolen” from Al Gore.
Gore, who presided as the president of the Senate following his own electoral defeat, shot down requests to review the results as Florida’s 25 votes had already been verified as a win for Bush. Representative Maxine Waters (D) was one of the objectors who had her request denied, as her objection was not signed by a Senator.
A similar instance took place only four years later, when Ohio was the state at the center of attention. John Kerry and his team complained about voting improprieties that allegedly suppressed the Democratic vote. In the end, the same result from just a few years prior took place, and Bush won Ohio’s election-deciding electoral votes.
Like four years before, even with the state being certified for George W. Bush, there was once more an attempt to delay and stall the counting of electors, this time led by Senator Barbara Boxer (D) and Representative Stephanie Tubbs Jones (D). Because this objection was signed by a Senator and a Representative, the entire joint session of Congress had to vote down the objection, the first time this had been required since 1877.
Hillary Clinton in 2016 met the same fate upon declarations of Russian interference that decided the results in key battleground states like Florida, Wisconsin, Pennsylvania, and Michigan. This time around, objections were raised against not one but ten states’ electors, with Maxine Waters once more being a part of the drama, joined by such members of Congress as Representative Jim McGovern (D) and Representative Pramila Jayapal (D).
With the defeat of Donald Trump in 2020, the trend of attempting to weaponize the Certification of Electors continued, but this time around at the hands of Republicans.
In the aftermath of the 2020 election, Donald Trump claimed that “a corrupt system” had attempted to “steal the election from us.” These assertions were echoed by Trump’s campaign and his supporters. The failure to provide any substantial evidence caused many of these allegations to be thrown out by judges that he even appointed during his term as president.
The rhetoric that election officials had been tampering with ballots and intentionally adding votes to Biden’s column added to a crescendoing attack on the election process that has lasted well over twenty years, leading to record-level distrust in our elections as well as hostility towards election workers and their families.
Leading up to January 6th, 2021, members of groups devoted to Donald Trump started to formulate plans to storm the United States Capitol to disrupt the counting of electoral votes. On that day, Donald Trump’s speech about how they need to “fight like hell” to “stop the steal” created a stir of anger among his supporters, which turned into a violent insurrection where members of law enforcement were beaten with objects by supporters of the president, and rioters infiltrated the capitol, looking to enter the chamber where the joint session was underway.
Trump’s notion that Mike Pence could refuse the electoral votes from states he lost and send them back to the state’s electors was a clearer indicator than ever before of the former president’s disregard for the United States Constitution.
His efforts to halt the counting of electoral votes targeted our Constitution’s 12th amendment, which has laid out the procedure by which a president and vice president are elected since its ratification in 1804. There was no going back to the States to look for the “inconsistencies in data” that he claimed got in the way of a potential victory. He did little to nothing to stop the brutality his fans displayed, even calling them “very special people” following the uprising.
The attack on our Capitol, the immediate efforts to overturn the election leading up to it, and the pattern of weaponizing the Certification of Electors stretching back 20 years is a travesty, a slow-building attack on our constitutional process as attempts to disrupt and delegitimize the peaceful transfer of power continue to grow from both sides of the aisle.
The legitimacy of the 12th Amendment, in particular, has been tarnished by false premises that millions of Americans now believe, narratives that now attacked the efficacy of every presidential election in this century. In the years that follow, we must all commit to reversing this trend and protecting the 12th Amendment from dangerous ideas that undermine the very foundation of our whole process.