Precedent
“He who doesn’t know history is doomed to repeat it”. That’s the quote we heard, particularly from our high school history teachers during some slow and arcane chapter in the study of the past. But, like a lot of history, that’s not quite how the quote goes. Philosopher George Santayana gets “the credit” for the idea. He said, “Those who cannot remember the past are condemned to repeat it”.
In our legal processes “the past” is critical to what occurs today. In the American process, we depend on written legislation, codified or statutory law, to determine what the “law” is. But the basis of American law is English Common Law, developed from Law Courts of the medieval times. And English Common Law is based wholly on precedent, on what judges determined in similar cases in the past. Our current legal system is a hybrid: statutory law is important, but how judges interpreted that statutory law is just as important in determining outcomes.
Courts aren’t the only parts of our Government bound by precedent. The United States Congress is highly cognizant of their two hundred and thirty two year history. It should be little surprise that the second Vice President of the United States, Thomas Jefferson originally developed the Rules governing the House and Senate in 1801. Those rules are still part of what governs their actions today. So when they look to procedure in the Congress, their first look is to the past.
Alexander Hamilton
Current Congressman Louie Gohmert is attempting to overturn the Presidential election of 2020. The Texan is calling for a “revolution”; he’s trying to claim a Parliamentary power for the Vice President of the United States, acting as the Presiding Officer (the President) of the Senate. And that is how we head down the “rabbit hole” of precedent.
Here’s where Thomas Jefferson, and Aaron Burr, come in. The United States Constitution (Article II, § 1) established the method of using the Electoral College for choosing the President and Vice President. The states chose Electors, and each Elector cast two votes for President. The winner of the majority of votes became President and second place was Vice President. That worked for George Washington who won and John Adams who got a few votes and became the first Vice President. And it worked for Adams in 1796. He defeated Jefferson and became the second President. But four years later, when Jefferson ran against Adams, things hit a snag.
Jefferson’s Party, the Democratic-Republicans (now Democratic) ran Jefferson for President, and New Yorker Aaron Burr for Vice President. Each elector cast their two votes for President, and Jefferson and Burr tied, with Adams taking third. Since there was a tie, even though it was clear that Jefferson was the “head” of the Democratic-Republican ticket, the choice for President was thrown to the House of Representatives to decide.
The House voted by state to break a tie for President (still does). In the House of 1801, by State the Federalist Party controlled. That meant that the Federalists had to decide which Democratic-Republican candidate they wanted for President. While Adams was the “head” of the Federalist Party, the real power still resided in the Party founder, Alexander Hamilton, Burr’s New York rival. Hamilton threw his support to Jefferson, and Jefferson won. We know how the rest of the Burr-Hamilton story goes.
12th Amendment
Recognizing the flaw in the system, the Congress and states passed the 12th Amendment to the Constitution in 1804. That altered the process so that the Electors cast one vote for President, and one vote for Vice President. There could still be a tie for President or Vice President, but it wouldn’t happen the same way as it did in 1800. And that process worked, even when no candidate won a majority of the Electoral votes for President in 1824. The House acted as the “tiebreaker”, choosing John Quincy Adams from the field of three.
So the process went along its merry way, through the four-way contested election of 1860, and even during the Civil War. It wasn’t until 1876 that the system hit another “snag”. In that election, the Republican Party nominated Ohio Governor Rutherford B. Hayes to run against Democrat New York Governor Samuel Tilden. It was the first election after the Civil War when all of the former Confederate states were allowed to vote again, and, not surprisingly, there was controversy in some of them. In South Carolina two sets of Electors were sent to Congress for President, a set for Tilden, and a set for Hayes. Whichever set was allowed to “count” would determine who would become President.
It all turned into a political mess, tied to the removal of the Union Reconstruction troops from the South. Ultimately, the Democrats gave up the Tilden Presidency in order to get the troops out, and Hayes was declared the winner. But it was a near thing. The deal wasn’t made until March 2nd, only two days before the inauguration.
US Code Title 3
After that close call of “who gets to be President”, Congress passed a law called “The Electoral Count Act of 1887”. In 1948 that law was “codified” into the United States Code, Title 3, the law that governs how Congress determines the President and Vice President today.
US Code Title 3 established an elaborate calendar for the determination of “legal” electors. It places the responsibility of determining electors on the states, and sets a “date certain” when the states decisions are considered final. That date certain was December 14th of 2020 for this election, and every state met that standard. Those Electors were then certified by the Governor of each state, and those certified “Electoral Votes” were transmitted to the “Archivist of the United States”, a guy named David Ferriero at the National Archives, in the proper time. He’s got the votes, and they are all “legal”.
US Code Title 3 then establishes the date when the Congress will meet in joint session (House and Senate together in the House chamber) to actually count the votes. Under the 12th Amendment and the Code, the Vice President of the United States presides over the joint session. He will open and present the certificates of electoral votes to be counted, by state in alphabetical order.
As each certificate is read by the Vice President, “…he shall call for objections, if any”. Under US Code 3 §15, for an objection to be made, it must be made “…clearly and concisely in writing,” and be signed by a least one member of the House and the Senate. If an objection is submitted, the Senate withdraws back to their chamber, and both Houses have two hours to debate the issue. After the debate, each House must by majority agree to the objection for it to be sustained.
Louie’s Folly
So let’s get down to it. Congressman Gohmert can object to the Electoral votes certificate of any state. And, if he can get a Senator to go along with him, the House and Senate can debate for two hours for each objection. But in the end, the Democratic controlled House, and likely even the Republican controlled Senate, won’t agree. So Donald Trump will not be President on January 20th, and Joe Biden will.
And if the Texas Congressman can get a Federal judge in Texas to order Vice President Pence to violate US Code 3 and recognize the non-certified “electors” from Arizona, Georgia, Wisconsin and the other “contested” states, reversing the election, it doesn’t mean Pence will do it. Even if he does, then 222 Democratic Congressmen and 48 Senators will rise up to object. And while the Senate will still be Republican controlled at the time, it is more than unlikely that all 51 Republican Senators will vote to overturn the election results. It would only take two “defections” for Biden to win. (Note: on January 6th the Georgia Senate runoff won’t be “certified”, and Kelly Loeffler will be the only Senator from Georgia).
It would require Vice President Pence to break US Code 3 and read “non-certified” results. And it would make for more “Congressional drama”, as if we haven’t had enough in the past four years. We would get to find out once and for all if the power of the “Trump Tweet” is able to overcome 232 years of precedent. But it would be the fitting place for “Trump’s Last Stand”.
