BY MICHAEL S. JOHNSON | DEC 22, 2020
“Our mess of an election has finally, officially, irrefutably been resolved. We owe this to the brilliance of our Founders, but we deserve credit too for our continued fidelity to their vision.”
Peggy Noonan, Wall Street Journal 12/17/20
Hallelujah, Sister Peggy. Can we have an amen?
It is indeed over. The Electoral College voted 306-232 on December 14, ratifying the November results and completing a critical formal step in the American tradition of a peaceful transfer of power from one presidency to another.
It’s the Electoral College that calls the election officially.
It seems to be a common presumption in this country that the Constitution authorizes the national media to call our elections based on their keen political intuition, careful analysis of voting precincts, and exit polls. We then are expected to fall in line as though their declarations are formal, official, and final.
I looked again at Article II and the 12th Amendment of the Constitution and found no such instructions. Nor do I believe there are any written into any law other than the law of the political jungle. Good thing. The media of late have not been too swift at calling elections correctly as Thomas Dewey, Al Gore, and Hillary Clinton all discovered.
Four Key Steps
The Electoral College is one of four key steps in the process, the first to really lock in the outcome. The four are the general election, of course; the Electoral College balloting; the certification of the results by a joint session of Congress, which will take place January 6, 2021; and the inauguration of the new President on January 20.
There is usually little attention paid to step three, the congressional certification of the Electoral College vote, but that may not be the case next month. That being the case, I went directly to the Congressional Research Service for more information.
(Those of us in the know know that you’re not in the know in Washington unless you speak in acronyms like they do in the military. So the Congressional Research Service will hereinafter be referred to as the CRS although it is highly unlikely I will ever refer to it again).
The procedures for the joint session of Congress are embodied in Article II and the 12th Amendment of the Constitution. In addition there are reforms adopted in the Electoral Count Act (ECA) of 1887 (enacted to settle disputes surrounding the electoral vote ten years earlier), and congressional rules and precedents.
The joint session of Congress takes place in the House chamber. The President of the Senate, who as you probably know is the US Vice President, is the presiding officer. Each state sends its Electoral College vote results to the Senate President, who then instructs four tellers, two from the House and two from the Senate, to tally the results from the states in alphabetical order. The President of the Senate “shall call for objections, if any” and if there are objections to any state, they must be made by at least one House member and one senator. The House and Senate in separate sessions would consider the objections and only if both houses concur would the objections prevail.
The first case of an objection under the current law occurred in 1969 when Rep. James O’Hara of Michigan and Senator Edmund Muskie of Maine objected to the electoral votes of a North Carolina elector, called a “faithless elector” because he cast his votes for George Wallace for President and General Curtis LeMay for Vice President instead of the winners in North Carolina, Richard Nixon and Spiro Agnew. In North Carolina at the time an elector was not bound to reflect the outcome of the statewide vote. Both houses of Congress rejected the objection and the votes for Wallace and LeMay stood.
There had been reports before the Electoral College votes this year that President Trump may put up an alternative slate of electors to cast votes for him and Vice President Pence. As I understood it, a version of that occurred in 1961 when a slate of Hawaiian electors cast their votes for Richard Nixon and his running mate Henry Cabot Lodge. When it was determined that Senator John Kennedy had actually won the state, another set of electors was presented to the Congress. Ironically enough, the presiding officer of the joint session in 1961 was—guess who?—Vice President Richard Nixon, who ruled in favor of the Kennedy electors.
Next month another Vice President and President of the Senate, Mike Pence, will have the distinction of declaring his opponents, Joe Biden and Kamala Harris, the next President and Vice President, as did Al Gore in 2000.
Line of Demarcation and…a New Era?
The point is that the Electoral College vote and its certification by Congress is a line of demarcation. It puts a formal stamp of approval on the election outcome and clears a large hurdle for one presidency to end and another to begin.
The protests and objections and allegations of fraud essentially become mute, and they should. The allegations have been repeatedly dismissed by the courts and widely discredited by officeholders of both parties.
It is not because there were no ballot discrepancies. There almost always are. The unprecedented state of the balloting and counting procedures created by the Covid-19 crisis and the obsessive hatred of President Trump raised all kinds of questions and suspicions in the wake of the balloting. But, none of the suspicions or accusations were proven or even raised to a level of credibility that warranted any degree of nullification of the results.
President Trump himself exaggerated the problems to such an extent (“I won by a landslide”), he and his loyalists detracted from their own credibility and diluted their own cause. His unseemly and apparently lifetime penchant for lies, exaggeration, personal insults, and abusive treatment of others caught up to him in this case.
That was the conclusion widely drawn by knowledgeable people on both sides of the political aisle and on both sides of the ideological spectrum, including the US Attorney General.
Let’s be clear, however. Trump team protestations are an exercise of legitimate rights and warranted by those early accusations of ballot abuse and glitches in massive mail-in voting prior to the recounts and the probes of potential abuse.
But in the end the protests did not, could not, carry the day. It was an end sadly symbolized by a once mighty and beloved public figure standing in front of some shabby building conducting a press conference with what looked like cheap hair dye running down his cheek as he perspired through a message that no longer resonated.
There is a contingent of unflinchingly loyal Trump supporters who will never accept the outcome, including perennial populist insurgent House Speaker and presidential candidate Newt Gingrich. After a litany of injustices inflicted upon President Trump and taking a cheap shot at Mr. Biden’s son, Mr. Gingrich wrote further in the Washington Times: “…Nor do I have any interest in pretending that the current result is legitimate or honorable. It is simply the final stroke of a four-year establishment-media-power grab…”, Gingrich captured the outrage and frustration built up over four long years in millions of Trump enthusiasts.
All of it is reminiscent of a time two decades ago when a body of bitter Democrats refused to, and never did, accept the 2000 election of George W. Bush, whom they scorned and branded an illegitimate president. In both cases then and now the media had a field day of fun and profit taking.
Another outcome of this year’s campaign and the four years preceding the vote is the incivility and distrust in government and each other and the severe political stridency that has its roots in the politics of several decades past. While the political brutality was subdued in the aftermath of 9/11 and the pundits and pollsters assured us it would not return, it came roaring back and ultimately bestowed upon the country and the globe, Donald Trump, the rebel without reason.
Now, once again, the predictions of a new era of calm, consensus, and national spirit under President-elect Biden are being made with reckless abandon and a Pollyanna naivete. Beware.
The conspiracy theories and accusations surrounding the voting were just part of a mudslide triggered on both the right and the left wings of our politics that continue to foment division and distrust among the citizenry today.
On the right, the persistent and retooled anti-Biden narratives have included fears of packing of the Supreme Court, creeping socialism, wide-open borders, the enactment of extreme Green New Deal-type environmental regulations, and collusion with our enemies in the Middle East.
The left’s anti-Trump fear-mongers evoked images of another great civil war and economic collapse immediately following his inauguration in 2017. Then began the whispers that President Trump was a secret Russian agent, a conspiracy theory that concluded with full-blown congressional hearings and FBI investigations that he conspired with the Russians to ensure his election in 2016. There were stories that he was feeble and had some mysterious illness. Now we are told that he will declare martial law and refuse to leave the White House.
Turning the Page to Governing
It is all great theater and gives those who need it, a reason to be angry. The proliferation of this kind of incitement is an indictment of our news media, our partisan political parties, and society as a whole. It makes national unity, which is absolutely necessary to meeting the crises we face and governing ourselves effectively, an American dream turned nightmare.
Joseph Biden will be our next President. It’s time to sheathe the swords, flush the poison pills, and disarm the grenades. Mr. Biden deserves a shot at governing, not for his sake, but ours.
It is mind boggling how actually governing the country the way it ought to be done is such an afterthought to so many staring with the rest of us down the barrel of one crisis after another: natural disasters; cyber attacks; a yet uncontrolled pandemic that has exacerbated already critical challenges in health care, education, hunger, homelessness, and equity; a crumbling infrastructure; and a chronic division and distrust permeating our society, made more explosive by racial tensions.
Is anyone in politics or the media paying attention? I hope so. If the most recent fiasco in Congress playing politics with coronavirus humanitarian and economic relief and the embarrassing mismanagement of our entire budget and appropriation process is any example of what we have to come, our Republic may be in serious trouble.
Editor’s Note: Mike Johnson is a former journalist, who worked on the Ford White House staff and served as press secretary and chief of staff to House Republican Leader Bob Michel, prior to entering the private sector. He is co-author of a book, Surviving Congress, a guide for congressional staff, co-founder and member of the Board of the Congressional Institute, and a participant in the Congress of Tomorrow congressional reform project. Johnson is retired. He is married to Thalia Assuras and has five children and three grandchildren.