The Debates about Federal Election Certification
Why are there so many problems with the Electoral College Process?
The distribution of the 2020 Electoral College votes in January 2021: 306 for Biden v 232 for Trump.
AZ, WI, MI, PA, and GA flipped from Trump in 2016 to Biden in 2020.
Issue #192 Government December 8, 2022
In state and local elections in the United States, candidates are elected directly by the results of the popular vote. For federal presidential elections, however, the President and Vice President are chosen by electors through the Electoral College.
At first, the Founders were against using the popular vote for presidential elections for several reasons, one of which is that they thought choosing the president and vice president should be left up to the most important and deserving citizens only (i.e., white men who were also property owners).
The current Electoral College process was ratified in 1804 through the passage of the 12th Amendment to the United States Constitution. It is seen as a compromise between using the results of the popular vote by citizens and votes in Congress after most candidates were then members of a specific political party.
Every state is assigned as many electors as it has members in both houses of Congress. Washington, D.C. has three electors, bringing the current total of electors to 538. The winning presidential and vice presidential candidates each need to win 270 electors to win the election and cannot reside in the same state.
The majority of states assign their electoral college votes as “winner takes all.” Only Maine and Nebraska assign their electoral college votes proportionally.
Residents of the five unincorporated territories of the United States, American Samoa, Guam, the Northern Mariana Islands, the Commonwealth of Puerto Rico, and the United States Virgin Islands, cannot vote in presidential elections nor are they assigned electors, although they are American citizens.
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How Does the Electoral College Work?
When you cast your vote for a presidential and vice presidential candidate, you are actually casting a vote for a specified elector who was previously chosen by the political party of your state or district, based on the statewide tally.
Often in the 19th century, the president and vice president were from different political parties and did not run as a team. This is why the electoral votes for president and vice president are counted separately.
The tradition of the candidates for President and Vice President running together on the same ticket didn’t become standard until the beginning of the 20th century.
Although in most cases, the winner of the presidential election is announced by the major networks on Election Night or soon after (Joe Biden’s election wasn’t called until November 7, 2020, four days after the November 3, 2020, Election Day), the actual electoral college vote is taken in mid-December when the chosen electors meet in their respective states.
The electors are constitutionally required to meet, vote, and send their results to their state’s governor on the first Monday after the second Wednesday in December.
Any conflicts or challenges must be completed six days before the official meeting.
The governor signs the official certification of ascertainment and the official certification to vote with the number of electors assigned to the presidential and vice presidential candidate. The certificates are then sent to the National Archives and Records Administration (NARA) and to the president of the Senate for safekeeping until the votes are officially counted on January 6 of the year after the election.
Those are the votes that are counted by the president of the Senate, who is the current vice president until the January 20 inauguration, during a joint session of Congress, despite the fact that the new Congress was sworn in on January 3.
If no candidate receives the majority of electoral college votes, the vote then goes to the House of Representatives, which chooses the new president from among the top three candidates. The Senate elects the new vice president from the remaining top two candidates.
This happened only once in American History when the House of Representatives elected John Quincy Adams as president in 1824.
How Donald Trump tried to overturn the 2020 election during the official counting of the electoral college votes in 2021
Attempting to send “alternate” (read: false) slates of electors and to disrupt the official counting of the electoral votes by a violent attempted coup at the Capitol Building, and then hoping to have the official count reflect less than a majority were the goals of Donald Trump for the 2020/2021 election process.
It was hoped that the final count based on fraudulent slates of electors would be sent to the House where each state would have one vote and there were more Republican-led states than Democratic-led states, and therefore the House would vote for Trump as president instead of the actual winners of the Electoral College, Joe Biden and Kamala Harris.
While the Capitol Building was being attacked and members of Congress (including Josh Hawley) were running for their lives, two assistants had the presence of mind to grab the box containing the certificates and take it with them to where the Vice President was being hidden from harm.
Can you imagine what would have happened if the insurgents got their hands on that box with the certified votes?
Speaker of the House Nancy Pelosi and Senate Majority Leader Chuck Schumer (the Dems secured the Senate majority just hours prior on the night of January 5) worked with other Congressional leaders to get the building secured.
Finally, at about 1:30 am on January 7, 2021, Congress resumed their Joint Session and completed the official count. Even though about 147 Republicans still voted against certifying the results, Joe Biden and Kamala Harris were officially elected to their respective positions by the entire Congress.
Where do we go from here?
The Electoral Count Act of 1887 is a United States federal law adding to procedures set out in the Constitution of the United States for the counting of electoral votes following a presidential election.
The Act was enacted ten years after the disputed 1876 presidential election, during which several states submitted competing slates of electors and a divided Congress was unable to resolve the deadlock for weeks.
The Electoral College process is constitutionally mandated, and only a new constitutional amendment can change/revoke it.
While many have been trying to enact a new Electoral College Act since the Jan 6, 2021 insurrection, any changes are still being debated in Congress.
Meanwhile, the current Supreme Court of the United States (SCOTUS) is hearing oral arguments in Moore v. Harper, discussing whether state legislators can be given total control over the results of a presidential election with no oversight possible from the state’s governor or Supreme Court as is possible currently.
The issue is particularly significant because Republican executive branch officials and state and federal judges issued opinions that altered existing election laws and procedures in various states—using the COVID-19 pandemic as an excuse—during the 2020 election, without seeking or obtaining the approval of the state legislatures in those states.
The majority of states are still controlled by Republican legislatures that want to have the ability to change the outcome of presidential elections if they do not like the results.
If the SCOTUS decides to rule on the case, a decision will be announced in June 2023.
So far, our democracy is safe. But we must remain vigilant.
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