Rep. Louie Gohmert (R-Texas) filed a federal lawsuit (pdf) on Dec. 27 against Vice President Mike Pence in order to give Pence exclusive authority over the electoral votes that will be counted on Jan. 6.
This federal lawsuit embodies the idea that desperate times call for desperate measures. If I felt the suit had any chance of being accepted, I would call the lawsuit dangerous, even deadly to the republic.
What Gohmert is proposing, even demanding (since that’s what lawsuits like these are), is antithetical to the whole republican premise, and I’m not referencing the party. The idea of a republican form of government, which is what we are, is that we’re represented by elected officials. We 300-plus million people have dispersed our trust into 538 legislators and one executive (not to mention our state and local officials). Now, whether that trust is misplaced is another matter.
The problem that Gohmert addresses is a very real one. That the Electoral Count Act (ECA) of 1887 (pdf) gives ultimate power over a state’s electoral votes not to Congress or even the state’s legislature, but to its governor. This happens, however, only when more than one slate of electors is issued from a state. Unfortunately, this is the case for seven states this year: Arizona, Georgia, Michigan, New Mexico, Nevada, Pennsylvania, and Wisconsin.
The ECA came about because of the 1876 election between Republican Rutherford B. Hayes and Democrat Samuel J. Tilden.
The similarities between 1876 and 2020 are glaring. By the end of that election, it had all the markings of a landslide victory for Tilden. He had won the popular vote by approximately 250,000 votes and was only one electoral college vote shy of the majority at 184, with four states yet to be called. Those four states―Florida, Louisiana, South Carolina, and Oregon―however, had issued competing slates of electors.
The first slate to be addressed was Oregon, which had three electoral votes at the time. Hayes won the state by approximately 1,000 votes. The top three vote-getters for the electorate were Republican, but John W. Watts, who received third most, had been a postmaster, which, according to Article II of the U.S. Constitution, excluded him from being an elector. He had actually resigned his position due to this concern, and had done so before the Electoral College met, but after the election had taken place.
Democrats pointed out that Watts being an elector was in direct violation of the Constitution and should be replaced by E.A. Cronin, who had received the fourth most votes. Cronin was a Democrat elector. La Fayette Grover, the Democrat governor of Oregon, certified Cronin as one of the electors.
Cronin’s vote would have given Tilden the presidency. Republicans fought this by claiming Watts had resigned in time, since the Constitution didn’t specify when an elector could not hold an “office of trust or profit under the United States”: before the election or before the Electoral College vote. Republicans also claimed that it wasn’t the job of the governor to fill an elector vacancy, but the electors themselves (which the two Republican electors did by reinstating Watts), and that the citizens of Oregon had spoken and that their votes should be represented accordingly. Watts remained an elector. Hayes went from 163 to 166. Tilden remained at 184.
Regarding the other three states―Florida, Louisiana, and South Carolina, which totaled 19 votes―the Democrat-held House and the Republican-held Senate could not agree on which slate of electors to accept. Republicans, similarly enough, also accused the Democrats of cheating while tallying the votes.
Due to the disagreements, Congress created an electoral commission with the Act Creating an Electoral Commission on Jan. 29, 1877, nearly three months after the election took place. The commission was composed of five representatives, five senators, and five supreme court justices. The votes for the three remaining states ended 8–7 (all along party lines) in favor of Hayes giving him 185 votes. Tilden remained at 184.
This controversy brought about the convoluted Electoral Count Act of 1887. Yes, it took that long for Democrats and Republicans to agree on how to resolve these types of issues should they arise again. One hundred and thirty-three years later, there’s still obvious disagreement. Gohmert has made that clear.
What Gohmert gets right about the issues with the Act is that it gives the governor the final say on which is the proper and “regularly given” slate of electors. According to the Act and the U.S. Code 3 §15 on counting electoral votes in Congress, “[I]f the two Houses shall disagree in respect of the counting of such votes, then, and in that case, the votes of the electors whose appointment shall have been certified by the executive of the State, under the seal thereof, shall be counted.”
The real problem is not the role of the vice president but the role of the governor of a state, whose certification creates the finality, which is nowhere mentioned in the 12th Amendment, or even in the original Third Clause of Article II Section I of the Constitution (I add this merely to express the framers’ intent). The ECA, for all its intentions to correct a problem, unfortunately created another one.
This affects Americans dramatically in the current crisis, because the fate of the presidential election (and according to some, the fate of the republic) hinges on the certification from seven individuals. It may have been more prudent for Congress to be authorized to send the electoral votes back to the state legislatures with a deadline to make a concise decision. Or for the House and Senate to come to a final decision on their own, even if it meant tossing the votes out altogether. Tossing votes would at least make it easier to bring the vote to the House of Representatives as it did during the 1824 election. Or even maintaining the Election Commission as a final alternative.
What Gohmert gets wrong in his lawsuit is when he misinterprets the 12th Amendment that states: “The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.”
He follows this up by stating in his lawsuit that “Under the Twelfth Amendment, [Pence] alone has the exclusive authority and sole discretion to open and permit the counting of the electoral votes for a given state, and where there are competing slates of electors, or where there is objection to any single slate of electors, to determine which electors’ votes, or whether none, shall be counted.”
His interpretation, he informs the court, is based on the text within Nathan L. Colvin’s and Edward B. Foley’s book “The Twelfth Amendment: A Constitutional Ticking Time Bomb,” which discusses issues with the ECA that Congress should have already addressed.
The 49th Congress, who were the framers of the ECA, actually detailed what role the president of the Senate had, which was primarily ministerial, yet not devoid of authority over the process. What they made rather clear during their more than a decade’s worth of discussions was that the president of the Senate did not have sole authority over the electoral votes, nor did he have the power to toss votes or decide on their legitimacy carte blanche.
According to professor Stephen Siegel, in his exhaustively thorough article “The Conscientious Congressman’s Guide to the Electoral Count Act of 1887” (pdf), “If the Senate President’s role as presiding officer gives him power to influence the outcome of Congress’s electoral count, it flows from two sources: (1) his ability to announce, when the joint session reconvenes, the decision reached by the House of Representatives and the Senate in their separate sessions; and (2) his ability to declare substantive objections and procedural motions out of order.”
According to Siegel, in 1886, Rep. Andrew Caldwell, who was the chairman of the House committee managing the ECA, stated that the Act would decide “first, that the power to count the vote is not in the President of the Senate. Second, that it is in the two Houses of Congress, not ministerially merely, not as witnesses, … but with power to count, and the consequent power to decide upon the legality of the votes to be counted. Third, that the action of the two Houses shall be separate and concurrent upon all questions of contest arising under the count, but joint as to results, thus preserving the dignity and rights of the two bodies by conceding to each equal and concurrent powers in counting and judging of the validity of electoral votes without merger of the lesser body into the numerically greater.”
If the president of the Senate was in fact clothed in such immense power, then every re-election bid would be perilously open to the consent of one man: the current vice president. The conflict of interest on its face should be enough to recognize that the framers of the 12th Amendment did not intend such power to be vested in one person, nor would they have. The Founding Fathers worked tirelessly to ensure a king was never established through the executive, and that included the vice president.
Another thing Gohmert gets wrong, though not textually, is that his complaint is against state executives having a quasi-final say on their state’s electors, while at the same time advocating for the nation’s executive, and not even the top one, having the final say over any state’s slate of electors. I’m not certain if this is political gamesmanship or political nearsightedness.
All is not lost, however, for Gohmert’s contestation. The 2020 election in these seven states was fraught with irregularities and possible mass fraud. The governors certified their slate of Democrat electors, while lawsuits were being filed, state House and Senate hearings were being held, and investigations were ongoing. These certifications may have been conducted prematurely, and according to Sen. John Sherman in 1886, who helped pass the ECA, these certificates issued by the state’s executive are merely “prima facie evidence of the facts contained in it; it is not at all conclusive.”
Sadly, this action taken by Gohmert is indicative of Congress past and present. In 1865, Congress passed the 22d Joint Rule, which allowed either house to reject a slate of electors without the other house’s agreement. This lasted until 1876, the year of the Hayes–Tilden election and the year Democrats retook control of the House.
This time Congress had plenty of time (133 years to be precise) to correct a glaring issue, but decided to wait until past the last second. It’s proof positive that Congress remains too busy creating laws instead of repealing or restructuring bad ones. And whenever they happen to notice a bad law, they seem to have little issue requesting the court legislate from the bench while at the same time condemning that very act.
There’s a lot to be learned from Gohmert’s lawsuit. Unfortunately, we have a Congress that’s too busy to do such a thing.
This article was originally published on December 30, 2020 in The Epoch Times.