The 12th Amendment and the Electoral Count Act
Those who do not learn from history are doomed to repeat it.~~Sir Winston Churchill
Corrected Article: 11:45 am ET.
Issue #72: American History
This article has about a 7-minute reading time and is one of the longest articles I have published. Despite the length, I hope that you find value in this article, especially in light of the current electoral events.
Change in today’s topic: The Jan 6 Hearing for today, June 23, 2022, is scheduled for 3 pm ET. That is too late for me to get this issue published. So I have decided instead to write about the 12th Amendment, which is the Electoral College (EC). Stopping the EC count was at the center of the insurrection and the attempted coup on January 6, 2021. I again encourage you to check the #1 Substack Publication, “Letters from an American,” by historian and professor Heather Cox Richardson. She will publish an article later this evening after this last scheduled Jan 6 hearing until July.
Sidebar: After the Jan 6 Hearing on Tuesday, June 21, 2022, many people were “singing the praises” of Arizona Republican Secretary of State Rusty Bowers for finally finding the red line that he would not cross with Donald Trump. Bowers called on his deep faith which, he said, would not allow him to allow Trump to destroy the “divinely inspired” Constitution and ignore the peaceful transfer of power.
In my summary after that day’s hearing, I included a warning to NOT make “saints” of these Republicans who suddenly decided not to support Trump and his Big Lie.
Rusty Bowers, along with most of the other ultra-conservative Republicans, voted for Trump in 2020 and stated outright that except for the COVID response and the Big Lie, Trump did a “great” job and he would definitely vote for him again.
To you, Trump is a “clear and present danger to the United States,” yet you would vote for him AGAIN? Yes, they hate Joe Biden and the Democrats that much.
The Republicans may SAY that they want to “preserve the Constitution,” but they really want only to lock in permanent minority power and tax cuts for themselves and also to roll back all of the rights and social programs we have gained since the 1930s by calling everything the Left wants for all Americans as “radical” and “socialism.”
The 12th Amendment
The Electoral College was established as part of the U.S. Constitution that was ratified in 1789. It was intended to be a compromise between electing the President by Congressional vote and electing the President by the popular vote. The Electoral College is the process that included the selection of electors from the States, the meeting of the electors where they vote for President and Vice President, and the counting of the electoral votes by Congress. Originally, the idea of political parties was frowned upon.
The 12th Amendment, which was ratified in 1804, was deemed necessary after the 1800 presidential election. The original text of the Constitution reserved candidates and voting for landowning white males, who were deemed the only people “qualified” to be electors. After the electors voted, the top vote-getter was the president, and the person with the second-most number of votes (and who lives in a different state) would be the Vice President.
It wasn’t that easy in 1800. There was an electoral college tie between Thomas Jefferson of the Democratic-Republican Party, and Aaron Burr, the candidate of the Federalist Party. The election ultimately went to the House of Representatives, which elected Jefferson as president.
Finally, even with all of the acrimony associated with the 1800 presidential election, Thomas Jefferson was peacefully inaugurated as the third president on March 4, 1801, setting the unique American precedent for the “peaceful transfer of power.”
The number of electors in each state must match the number of House representatives the state has plus the two senators each state has. (Since the 23rd Amendment, the District of Columbia is assigned three electors for the presidential election.)
However, if the election gets sent to the House of Representatives, each state receives only one vote controlled by the legislature of that state. This was one of the goals of Donald Trump and his illegal “alternate slates of electors”: if Mike Pence didn’t stop the count or count the illegal slates of electors, then Trump hoped there would be so much confusion that the presidential vote would be sent to the House of Representatives where more states would use their one vote for Trump than for Biden.
The 12th Amendment importantly stipulated that starting with the 1804 election, the electors would cast two votes: one for president, and a separate vote for Vice President, even if, as is standard today, the presidential and vice-presidential candidates are from the same political party and run as a unit, with a party’s presidential candidate choosing his/her own running mate.
The Highly Contested 1876 Election
In the original Constitution, only white male landowners had the right to vote. That changed with the passage of the 13th, 14th, and 15th Amendments which, at least on paper, gave full citizenship rights to free and formerly enslaved Black men.
The 1876 election was one of the most contentious, longest, closest, and actual fraud-laden presidential elections in American history. The candidates were the Republican governor of Ohio, Rutherford B. Hayes, and the Democratic governor of New York, Samuel J. Tilden.
A quick reminder: the “Democrats” of that era were more closely related policy-wise, to today’s Republicans, and the “Republicans” of the era were more closely related policy-wise, to today’s Democrats.
By election night, Tilden had a very large lead in the popular vote, but there were four of the 38 states in dispute, and if the electors in those states voted for Hayes, he would win by one electoral vote.
Republican supporters of Hayes, unlike today, had clear evidence of voter fraud and intimidation (primarily against Black voters) and were accusing the Democrats of stealing the election. Remember, this was still the post-Civil War atmosphere and Reconstruction was in progress to solidify the rights of Black men, particularly in the South, who tended to vote Republican.
Democrats used “repeaters,” people who voted repeatedly. They also printed fraudulent ballots to trick mostly illiterate Black voters into voting for Democrats.
In South Carolina, a majority Black state at the time, armed white men dressed in red shirts joined “rifle clubs” to harass Black Republicans and they killed six Black Men. A separate paramilitary group threatened to kill the Republican governor of South Carolina, Daniel Chamberlain.
Republican President Ulysses S. Grant sent federal troops to the southern states to help keep the peace.
On December 5, 1876, all of the current states sent their official results to Washington to be counted and readied for the announcement by the president of the Senate.
However, for the four contested states, Republican and Democratic officials filed separate tallies for Hayes and Tilden, which threw the election into chaos.
Congress finally created a 15-member Electoral Commission composed of five senators, five House members, and five Supreme Court justices. The Commission voted separately on the four disputed states and conclusively awarded all of the states—a total of 20 electoral votes—to Hayes by an 8-7 vote.
The Democrats charged that the election was stolen, began a filibuster, and started yelling “Tilden or Blood!” They threatened to send a mob to the national Capital to see that the count was made according to their wishes.
Finally, on March 2, 1877, two days before the March 4 inauguration date, Congress reached an agreement, and the president of the Senate formally declared that Hayes had been elected by an electoral college vote of 185 to 184. Tilden continued to maintain that “the country knows that I was legally elected president.”
During his inaugural speech, the new Republican President Rutherford B. Hayes stated that it was time to allow the Southern states to govern themselves again and soon after withdrew federal troops from the South. Just twelve years after the end of the Civil War, the rights of Blacks in the South were demolished and white rule again prevailed with Jim Crow laws and segregation policies that stayed in place for the next several decades.
The 1887 Electoral Count Act
The elections of 1876, 1880, and 1884 were all very close, and it was found that leaving the results of a close election up to partisans in Congress was not working.
In 1887, and in response to those recent elections, Congress passed the Electoral Count Act, which added to the original Constitutional procedures for counting the electoral college votes.
Although the Act has been called confusing, open to misinterpretation, and in some instances contradictory, the major points are:
The slates of electors are officially certified by the states on the second Wednesday of December after the November presidential election. Only one officially certified slate each for President and Vice President can be forwarded by the governor of the state to the National Archives and to the president of the Senate.
Making or using any false writing or document is a felony punishable by five years in prison.
Written objections to a state’s certified electors can be made by at least one House member and one Senator, but the president of the Senate has the right to accept or reject the objections.
The Vice President of the United States, acting in the role of President of the Senate cannot “change” the official count or accept non-official slates of electors.
Currently, the counting of the electoral votes has been a mostly ceremonial event and is usually barely noticed by the general public.
Despite the pressures from Trump and the threats against his life by the insurrectionists on January 6, 2021, then Vice-President Mike Pence fulfilled his Constitutional duty to count the officially certified votes submitted by the states the previous December.
As the members of Congress were being evacuated from the Capitol Rotunda minutes before the rioters broke into that room, Senate pages from both parties had the presence of mind to grab the official Electoral College ballot boxes and take them to safety.
There have been several attempts to revise the Electoral Count Act, and Donald Trump specifically and falsely stated that Mike Pence had the legal ability to either change the final count or refuse to count the votes for Joe Biden.
It was the ambiguity of the Electoral Count Act that allowed Trump to falsely state that Pence could have and should have overturned the election.
Proposed reforms to the Act state that several provisions should be revised and/or “tightened up,” particularly before the 2024 election, so that nothing similar to January 6, 2021, happens again.
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