It’s looking increasingly likely that our country could be headed for uncharted territory: members of Congress combining to formally object to states’ electors in an attempt to overturn a presidential election result.
The momentum is clearly building to at least give it a go. And as it has built, proponents of the effort have argued that the effort isn’t actually unheard of. Democrats did it too, they remind us.
That argument, though, glosses over plenty of nuance. It’s worth looking at the actual history of such efforts.
“Apparently, some folks have not done their history,” said Rep. Mo Brooks (R-Ala.), who has led the effort in the House. He added that then-Sen. “Barbara Boxer tried to strike Ohio for George Bush back in 2005, so this is not unusual.”
Rep. Matt Gaetz (R-Fla.) also ran through comparisons.
Was it insurrection when Rep. Maxine Waters objected to electors in 2017?— Matt Gaetz (@mattgaetz) December 12, 2020
Or when Sen. Boxer did in 2005?
Or when the Cong. Black Caucus did in 2001?
A Republican President hasn’t been sworn in absent dem congressional objection since 1988.
But if we object we are traitors. https://t.co/ZuDv9pY7O0
Let’s first be clear: The effort is doomed. Such challenges would be resolved by votes in both chambers of Congress. Democrats control the House, and Senate Majority Leader Mitch McConnell (R-Ky.) said this week that Joe Biden won the election — joining several other Senate Republicans who say it’s time to move on. With the GOP’s narrow Senate majority, the votes just aren’t there.
But even the attempt would be unprecedented. Yes, there have been attempts to object to state’s electors. But only one since 1877 (when rules for electors were established) has succeeded in actually formally challenging an entire state’s electors.
Boxer’s (D-Calif.) attempt was controversial at the time. She objected to Ohio’s 2004 electors, and as with Republicans today, she cited alleged irregularities. But her case was more about long lines and other concerns about how the election was conducted. And while the race was close enough for Ohio to change the result if the challenge succeeded, Boxer made clear that her effort wasn’t about overturning George W. Bush’s win.
“Everyone knows that the election is over,” Boxer said at a January 2005 news conference alongside Rep. Stephanie Tubbs Jones (D-Ohio), who successfully lobbied her to join the effort. “This is not — we know that. … So the election is over. It’s not about overturning the election.”
She added that it was “the opening round, for me personally, in the battle for electoral justice. That’s what it’s about.”
Tubbs Jones also said her effort wasn’t meant to “put the nation in the turmoil of a proposed overturned election” but rather spur a debate about “the process and protect the true will of the people.”
The effort did indeed fail, with the Senate voting 74-1 to reject the challenge and just 31 House Democrats voting for it.
Other key differences between then and now: The candidate who could have benefited, Democratic presidential nominee John F. Kerry, didn’t support the effort. What’s more, that was about one state’s electors; today’s effort would need to overturn four — all for various baseless reasons whose underlying theories have repeatedly been rejected by the courts.
The only other time in American history in which electors have been formally challenged thanks to votes of at least one House member and one senator was in 1969. But that challenge was much more limited. It wasn’t to an entire slate of electors, but rather to a single so-called “faithless elector” — i.e. an elector not voting for the candidate they were supposed to. A North Carolina elector had voted for George Wallace despite having said he would vote for Richard Nixon. The election wasn’t close enough for even the entire slate to matter, but Congress debated the legality of faithless electors and ultimately voted against the challenge.
The other examples cited as some kind of precedent for today’s didn’t get as far. The contested result in Florida in 2000 spurred some House Democrats to try to object to its results, but they couldn’t get any Democratic senators to join them. (Boxer said in 2005 that she regretted not having done so.)
The same happened in 2016, when some Democrats argued that preventing Trump from being installed in office was just that important. But just as Al Gore hadn’t supported the effort after the 2000 election and Kerry hadn’t supported the effort after the 2004 election, Hillary Clinton didn’t support the 2016 effort. And crucially, neither did any Democratic senators.
Reps. Maxine Waters (D-Calif.), Sheila Jackson Lee (D-Tex.), Raúl Grijalva (D-Ariz.), Pramila Jayapal (D-Wash.) and Jamie Raskin (D-Md.) led the effort, but Democratic senators were unmoved and none joined.
Another person who was unmoved was the man presiding over the proceedings — a man by the name of Joe Biden. As Slate recounted:
Biden was having little of it, and banged the gavel loudly, because none of the members were able to find a senatorial co-signator, thus voiding their objections. The much more populated Republican side of the aisle booed or called out “order!” following each denied objection. When Rep. Jayapal gave her objection, Biden finally said, “It is over.” Republicans gave him a standing ovation.
Today, the then-vice president is on the cusp of being installed as president, with only another quixotic effort standing in his way — this one, though, more quixotic than its predecessors in both its intent and its extent.