The Washington PostDemocracy Dies in Darkness

The Electoral Count Act’s history is clear: Vice presidents can’t overturn elections

Vice President Mike Pence presides over a joint session of Congress on Jan. 6, 2021, to count the electoral college votes cast in the 2020 election. (Saul Loeb/AP)
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Many Americans breathed a sigh of relief when President Grover Cleveland signed the Electoral Count Act of 1887, setting procedures for certifying electoral votes in presidential elections. “It is now pretty certain that President Cleveland’s successors will be elected and inaugurated without any resort to partisan war,” declared the Intelligencer of Lexington, Mo.

So much for predictions.

The act grew out of the contested 1876 election that Democrats claimed was stolen for Republican President Rutherford B. Hayes by a special electoral commission. They dubbed Hayes “His Fraudulency.” The wording of the act, which is still used today, is convoluted. But drafters of the measure were clear on one point: The president of the Senate — the U.S. vice president — can’t change the outcome of an election.

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That isn’t the view of former president Donald Trump, who continues to claim falsely that former vice president Mike Pence “could have overturned the 2020 election” by rejecting electoral votes for Joe Biden. He made that claim on Jan. 6 last year, when some Trump supporters attacked the Capitol, shouting, “Hang Mike Pence!”

Pence, in a speech to the Federalist Society last week, sharply rebuked the former president, saying, “President Trump is wrong. I had no right to overturn the election. Frankly, there is almost no idea more un-American than the notion that any one person could choose the American president."

Now the Republican and Democratic parties are expressing interest in revising the 1887 law, and on Sunday, Sen. Joe Manchin III (D-W.Va.) predicted that an overhaul of the law would “absolutely” pass Congress.

But it took lawmakers a decade to pass the 1887 measure, which aimed to ensure that a debacle like the 1876 election wouldn’t happen again. The outcome was decided by a 15-man commission of 10 members of Congress and five U.S. Supreme Court justices, after Florida, Louisiana and South Carolina each presented two slates of electors, one for Hayes and one for Democrat Samuel Tilden. The state elections were rife with fraud and violence against Republican-leaning Black voters.

On a party-line vote, the commission awarded the presidency to Hayes by one electoral vote, although Tilden had received 260,000 more popular votes. Some Tilden supporters threatened a violent march on Washington. The confrontation was headed off by the Compromise of 1877, in which Democrats agreed to allow Hayes to take the White House if Republicans pledged to remove federal troops from the South, ushering in Jim Crow laws, racial segregation and the effective end of Black political power.

After several failed attempts, in late 1886, the Democratic House agreed to consider a compromise version of an electoral count bill passed by the Republican-controlled Senate. The legislation followed a precedent set in 1857, during the certification of President James Buchanan’s election. Lawmakers at the time rejected a ruling by the Senate president — the vice president had died, so Senate President Pro Tempore James Mason (D-Va.) presided — to unilaterally accept Wisconsin’s electoral votes that had been delivered too late because of a snowstorm. “It is not for the President of the Senate … to determine what votes should be counted or rejected,” said Rep. John Bingham (R-Ohio).

A blizzard, a disputed electoral vote count and the 1887 law tying Pence’s hands

The 1887 bill’s chief sponsor, Sen. George Hoar (R-Mass.), said on the Senate floor that the issue of whether the Senate president can decide the validity of electoral votes was already settled: “The President of the Senate is not clothed by the Constitution with the power to count the electoral vote.”

One concern, Hoar added, was that vice presidents who presided over the vote counts were sometimes the losing presidential candidates. “If the President of the Senate is to count the vote, he is to decide who is chosen president of the United States,” Hoar said, with “full and final control” on questions about “whether he himself is chosen to the foremost office on the face of the earth, a choice more an object of human desire than any coronet, or crown or star.” (In 2001, Vice President Al Gore presided over the electoral count that awarded the presidency to the man who had barely defeated him in the election, George W. Bush.)

The 1887 law states that people designated by Congress, known as “tellers,” will read out each state’s electoral votes before a joint session of Congress, and the results “shall be delivered to the President of the Senate, who shall thereupon announce the state of the vote …”

The counting was designed to be “little more than a formal ceremony,” said Sen. George Edmunds (R-Vt.), another sponsor of the 1887 law.

The law authorizes the Senate president to “call for objections,” which must be issued in writing and signed by at least one senator and one House member. Then the Senate and House separately will consider and vote on any objections. The act, however, gives authority to the states to control their electors’ votes, including what’s known as a “governor’s tiebreaker”: In cases of conflicting elector slates, Congress must accept the one “certified by the executive of the state.”

President Cleveland signed the bill into law on Feb. 4, 1887. The law not only “may remove doubts and controversies” in non-contested elections, “but should another presidential crisis ever confront the country, this new law will be found of vital importance,” the San Francisco Examiner wrote.

One Kansas newspaper said the “most important feature in the new law is the denial to the President of the Senate of the right to … declare the result of state elections for electors, a most dangerous claim.”

The Electoral Count Act of 1887 is a confusing word salad of run-on sentences. Nevertheless, “the ECA was initially a success and enabled more than a century of smooth electoral counts,” said the House Committee on House Administration in a recent report. The committee and a bipartisan group of senators have recently suggested possible changes to the law. One is to increase the number of lawmakers needed to object to a state’s electoral vote. Another is to “clarify” the vice president’s role, limiting it to the “constitutional minimum.”

Cleveland’s signing of the 1887 law may have reduced the risk that a single person would overturn an election, but it didn’t end electoral controversy. The next presidential election was again filled with charges of voter fraud, this time in Indiana, the home state of Republican candidate Sen. Benjamin Harrison. On Feb. 14, 1889, Congress approved the certification of electoral votes making Harrison the 23rd president of the United States, after he had received 100,000 fewer total votes than Cleveland.

Read more Retropolis:

Congress investigated an attack on the Capitol 200 years ago. It didn’t go well.

Disputed presidential elections: A guide to 200 years of ballot box ugliness

Presidential Records Act: From Nixon’s Watergate tapes to Trump’s ‘burn bags’

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