The Normalizing of Electoral College Protests

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When Sen. Josh Hawley announced he would raise an objection during the Electoral College count certification on Wednesday, the Missouri Republican justified it in part by noting Democrats had lodged similar protests. “Following both the 2004 and 2016 elections, Democrats in Congress objected during the certification of electoral votes in order to raise concerns about election integrity,” he said. “They were praised by Democratic leadership and the media when they did. And they were entitled to do so. But now those of us concerned about the integrity of this election are entitled to do the same.”

Is Hawley correct in comparing what he is about to do with what Democrats did following previous elections? To answer that question, let’s take a closer look at what happened in the past.

Hawley left out two other instances of Democratic objections to the Electoral College count. The first came after the 1968 presidential election. Rep. James O’Hara of Michigan and Sen. Edmund Muskie of Maine (that year’s losing vice presidential candidate) formally challenged the count from North Carolina.

A “faithless elector” in North Carolina voted for third-party candidate George Wallace instead of Richard Nixon, who narrowly carried  the state. Faithless electors had been cropping up since the 1948 election (all supporting segregationist politicians) and O’Hara and Muskie worried eventually one would undemocratically tip the election, so they wanted to stop the practice. Unlike other examples of Electoral College count interruptions, these objectors weren’t calling into question the outcome or the integrity of the election. (Their objection garnered significant support in both chambers, but was nevertheless defeated 228-170 in the House and 58-33 in the Senate.)

A more relevant example followed the razor-thin, legally disputed 2000 election. Many Democrats were outraged that the U.S. Supreme Court stopped the Florida recount. Claiming that thousands of Florida voters were disenfranchised, a group of House Democrats interrupted the Electoral College certification count 20 times. But since the Electoral Count Act requires a House member and a senator to object before the two congressional chambers can debate and vote on an objection — and no senator objected — the complaints were ruled out of order.

Returning to the examples Hawley cited, in 2004 another presidential election was close enough that one state could have changed the outcome. This time, it was Ohio. Frustrated Democrats highlighted media reports about problems with Ohio’s election system, including long wait times at the polls and 92,000 ballots that didn’t register votes. Some also raised questions about the 133,000 voters removed (legally) from the rolls by the Republican secretary of state. The margin of victory wasn’t close enough to easily argue that the possible impact of these factors tipped the election, but some corners of the left had been drawn to conspiracy theories. And when the Electoral College count certification occurred, Sen. Barbara Boxer (Calif.) and Rep. Stephanie Tubbs Jones (Ohio) lodged the second formal objection in history.

Then when 2016’s election was marred by reports of Russian interference, seven House Democrats tried to object to the Electoral College count. But as with the 2000 count, they could not get a single senator to join them, so the complaints were ruled out of order.

These examples may seem parallel to what is happening among Republicans now. As Hawley notes, the objections from 2000, 2004 and 2016 were intended to “raise concerns about election integrity,” even though the objectors knew they would not be able to change the election outcome. But the similarities end there.

Hawley’s claim that past Democratic objectors “were praised by Democratic leadership and the media” leaves a lot out. In his statement, he notes now-Speaker Nancy Pelosi offered supportive words to the 2004 objectors, such as, “The Members of Congress who have brought this challenge are speaking up for their aggrieved constituents, many of whom may have been disenfranchised in this process. This is their only opportunity to have this debate while the country is listening, and it is appropriate to do so.” But he doesn’t cite any 2016 examples, nor any examples of media praise in any year.

Hawley also does not mention that when the 2004 challenge was voted on by the House and Senate, it lost by huge margins: 267-31 in the former and 74-1 in the latter (Boxer being the lone vote to accept her own objection). Moreover, Pelosi, along with most Democrats, joined the majority and voted to accept the Electoral College result, showing her praise had its limits.

Another major difference is that in 2000, 2004 and 2016, the losing candidate had already given a concession speech. (Although Hillary Clinton continues to dwell on Russian shenanigans in 2016, calling the election “not on the level,” she nevertheless  conceded shortly after her defeat was clear.) In 2000, the person ruling the complaints from House members as out of order was the Democrat who lost the election, Al Gore, who as vice president of the nation and president of the Senate was presiding over the joint session of Congress. In 2016, it was sitting Vice President Joe Biden enforcing the rules and accepting the outcome.

This year, the incumbent president along with Vice President Mike Pence have refused to concede and have cast baseless doubt on the election’s integrity. Trump has been calling the election fraudulent ever since the polls closed, and on Saturday Pence’s office issued a statement saying he “shares the concerns of millions of Americans about voter fraud and irregularities in the last election” and “welcomes the efforts of members of the House and Senate to use the authority they have under the law to raise objections … on January 6th.”

Even after Democrats felt wronged by the Supreme Court in 2000, Senate Democrats and House Democratic leadership sought to preserve trust in our democratic institutions. House Minority Leader Richard Gephardt counseled his caucus not to raise objections, and Sen. Pat Leahy (Vt.) said, “As much as I disagree with the court's decision, I uphold it as the law of the land and won't object.” Though Senate Majority Leader Mitch McConnell is reportedly trying to dissuade his colleagues from objecting, several are planning to do so anyway. House Minority Leader Kevin McCarthy still hasn’t acknowledged Biden won, and there are reports that a majority of House Republicans will participate in the Electoral College challenge.

Finally, the attempt by Hawley and others to cast the objection as an honorable protest to “raise concerns about election integrity” falls flat considering the election has been repeatedly litigated in courts by the Trump campaign. Those efforts have universally been rejected by both Democratic- and Republican-appointed judges, up to and including the U.S. Supreme Court. Democrats, in contrast, had some evidence of irregularities in 2000, 2004 and 2016, evidence that was at least partially validated in the months after the Electoral College certification.

In 2000, two vote-by-vote reviews of Florida’s ballots conducted by media consortiums found that, as the Associated Press put it, “George W. Bush would have narrowly prevailed in the partial recounts sought by Al Gore, but Gore might have reversed the outcome – by the barest of margins – had he pursued and gained a complete statewide recount.” (Gore’s legal recount strategy focused on “undervotes,” ballots for which vote machines didn’t register a vote for any candidate, but overlooked “overvotes,” ballots that had markings for Gore and another candidate.) A congressional Democratic review of the 2004 election in Ohio concluded, “There is no evidence from our survey that John Kerry won the state of Ohio,” but it still documented weaknesses in the system that warranted reforms. The Mueller report found that “The Russian government interfered in the 2016 presidential election in sweeping and systematic fashion.” Republicans have nothing of the sort to cite today.

Case in point: Hawley has claimed Pennsylvania’s new law allowing for expansive mail voting violated its state constitution, and on Saturday he said legal challenges were thrown out by the state Supreme Court without considering the merits. What Hawley doesn’t mention is the case was thrown out because it was filed after the election, since if the plaintiffs really had a problem with the new mail-voting law they would have challenged it before votes were cast, not waited to see who won first.

In other words, while Democrats in the past expressed concerns of voters being disenfranchised, the Republican lawsuits seek to disenfranchise by throwing votes out.

Having said all that, those Democrats who sought to disrupt the Electoral College certification should not be lauded for their extreme tactics. For all the concern of the past four years over “normalizing” Trump’s destructive behavior, these few Democrats have effectively normalized the Electoral College certification protest. Hawley and others can and will say they are just doing what Democrats did, and in the simplest sense, they will be correct.

What will likely transpire on Wednesday will be corrosive for our democracy. Dozens of Republicans, egged on by a lame-duck president, will egregiously fan the flames of doubt among their supporters about the integrity of our institutions, without basis in fact. They may well have done so without Democrats doing it first, but they can more easily play the “everybody does it” card because Democrats did do it first.

Even though most Democrats did not take part, and even though the Democrats who did had far more legitimate concerns than Republicans do today, the fact remains that past Electoral College protests should not have been normalized. The benefits were nil, and the costs high.

Bill Scher is a contributing editor to Politico Magazine, co-host of the Bloggingheads.tv show “The DMZ,” and host of the podcast “New Books in Politics.” He can be reached at [email protected] or follow him on Twitter @BillScher.





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