The precedent of 1857 led to procedures that are in place for Wednesday’s congressional certification of the election. Regardless of growing Republican efforts to disrupt the ceremony, the electoral votes will be counted out loud to certify the election of Joe Biden as President and Kamala D. Harris as vice president.
Still refusing to concede the election, Trump is falsely suggesting the ceremony is a last-minute chance for congressional Republicans to reverse the election.
On Wednesday, at an election protest on the Ellipse, Trump urged Pence “to do the right thing” by giving states the right to “recertify” the election. The crowd roared in agreement, chanting, “Send it back!”
Not long afterward, Pence released a letter making it clear he could not intervene. “My oath to support and defend the Constitution constrains me from claiming unilateral authority to determine which electoral votes should be counted and which should not,” Pence wrote. “My role as presiding officer is largely ceremonial.”
The 12th Amendment of the U.S. Constitution requires that the president of the Senate — the vice president — “shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.”
So every four years in the first week of January, House and Senate members assemble in the House chambers along with public spectators for a joint session of Congress. Pages carry in two mahogany wood boxes filled with the sealed envelopes of certified electoral votes from the 50 states and the District of Columbia.
The vice president pulls out each envelope and hands it to one of four lawmakers designated as “tellers” who tally the vote. The vice president announces the final count, so Pence will announce the defeat of the Trump-Pence ticket.
Usually this ceremony is simply ceremonial. That’s the way the one on Feb. 11, 1857, started out — back when the presidential inauguration wasn’t until March 4.
“At an early hour the galleries and lobbies were crowded with eager spectators, awaiting the opening of a ceremony imposing alike for its simplicity and for the dignified formalities which attend the final consummation of a Presidential election,” the Washington Intelligencer reported.
At 12:20 p.m. the doors of the House chamber were thrown open and in trooped the U.S. senators as House members stood. Senate President Pro Tempore James Mason, a Virginia Democrat and a grandson of Founding Father George Mason, served as the presiding officer because the vice president, William King, had died six weeks after being sworn in and had never been replaced.
Mason proceeded with the traditional drawing of the votes. But when he announced Wisconsin’s votes for Republican John Fremont, Rep. John Letcher (D-Va.) jumped up and objected that the Wisconsin tallies were illegal because they had been filed in the state capital of Madison one day after the required deadline.
Mason didn’t know what to do; he ruled Letcher’s objection out of order and finished the count including the Wisconsin votes. The final result was 174 electoral votes for Buchanan, 114 for Fremont and eight for Millard Fillmore of the Know-Nothing Party.
Kentucky’s Sen. John Crittenden, a member of the Know-Nothing Party, demanded to know if by accepting Wisconsin’s vote, Mason was assuming “the privilege of determining a presidential election and saying who shall be President? I protest against any such power.”
Sen. Andrew Butler (D-S.C.) chimed in that such use of “arbitrary power could make a president of the United States without an election.”
The Wisconsin votes didn’t make any difference in the outcome of the 1856 election. But some lawmakers warned that permitting the presiding officer to accept a state’s illegal vote could set a “dangerous precedent,” according to Congress’s record of the debate in the Congressional Globe.
“Suppose the result of the election would depend on the vote of that state,” said Rep. James Orr (D-S.C.).
If anybody was going to decide if votes were valid, it should be Congress, argued Sen. Robert Toombs (D-Ga.).
“I do not consider that the Presiding Officer has a right to close the mouths of Senators and Representatives here, in whose hands the decision of this question must rest,” Toombs said.
Mason protested that he was just doing his job. “Much confusion prevailed” with “half a dozen gentlemen striving at the same time for the floor,” the New York Times reported. At this point, the senators decided to return to the Senate chamber to hash out the issue.
“I will trust no man to determine for me who shall be president of the United States in his arbitrary decision,” Butler told his colleagues. Suppose the presiding vice president had to consider two opposing electoral vote totals from the same state, wouldn’t he be inclined to go with votes for the candidate of his own political party?
“I assure you, sir,” Butler said. “It is a power which in the time of temptation — and God knows when the time of temptation may arrive for someone to desire to be President to rule in this country — I would not like to trust too many people.”
The discussions went into the next day. Then the Senate returned to the House, and eventually a compromise was agreed on. Wisconsin’s votes were counted because Congress had agreed that an “Act of God” had prevented the electors from reaching the state capital of Madison on time.
The process created a sort of unwritten precedent if reforms were made. Cries for reform escalated after the 1876 presidential race between Republican Rutherford B. Hayes and Democrat Samuel Tilden. Three Southern states filed opposing elector slates. Congress had to create an Electoral Commission that in 1877 by a party-line vote gave the presidency to Hayes over Tilden, who had 200,000 more votes.
The fears raised in 1857 were “prophetic of the issue to arise in 1877,” a Richmond newspaper noted in 1887, because they raised fears about challenging votes in a close election. That year Congress finally passed the Electoral Count Act of 1887.
The official name of the measure was: “An act to fix the day for the meeting of the electors of President and Vice-President, and to provide for and regulate the counting of the votes for President and Vice-President, and the decision of questions arising thereon.”
As the title suggests, the act is downright confusing. One observer called it “unintelligible.” But the 809-word act became the framework for the presidential electoral count that Congress uses now.
Following the precedents of 1857, the act bars the vice president from arbitrarily deciding to reject state votes. If there are any valid objections, the House and Senate withdraw to confer separately. Objections must be stated in writing in advance and signed by at least one member of both the House and Senate.
The requirements hardly ever come up. The last time was 2005 when several Democrats unsuccessfully challenged Ohio’s electoral votes for George W. Bush.
Now some pro-Trump lawmakers vow that they will seek to block the certification of Biden’s victory. The effort is all but certain to meet the same fate as the one in 2005: failure.
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