2020 was not like 1876

In a letter to the editor of the Wall Street Journal (June 22, 2022), John Eastman cites, among other scholarly works, two that I have written (including one coauthored piece) as support for his theory that Vice President Pence was entitled to repudiate the result of Joe Biden’s 2020 Electoral College victory.  Here’s why he is incorrect in this regard.

The “most important point”, as I said to a Washington Post reporter recently, is that Eastman (and Trump) lacked any basis for challenging any of the electoral votes cast for Biden—and so there was no predicate for invoking any theory with respect to the role of the Senate President under the Twelfth Amendment. “The whole predicate was nonsense,” as former Attorney General Bill Barr among many others told Trump, Giuliani, Eastman, and the rest of the group who kept pressing their outlandish arguments even after the courts had rejected all their claims. As I also said to the reporter, this group became “increasingly unhinged and untethered to reality as the process unfolded.”

It is true that in the nineteenth century the argument was made that the Senate President had the authority to resolve disputes concerning the counting of electoral votes that might arise in the joint session of Congress under the Twelfth Amendment.  In fact, lawyers for Republican candidate Rutherford Hayes made this argument during the fight over the 1876 election.  One of those lawyers was former Attorney General (and future Secretary of State and Senator) William Maxwell Evarts. In Ballot Battles: The History of Disputed Elections in the United States, I quote a prominent early text on presidential elections, J. Hampden Dougherty, The Electoral System of the United States (1906), for the proposition that Evarts “was one of a number that believed in the right of the president of the Senate to count” the electoral votes from the states and thus also implicitly to decide which among disputed submissions from a state should be counted. Paul Leland Haworth in his book on the Hayes-Tilden election (also 1906) made the same point: “If, as some of the Republicans contended, the clause meant ‘counted by the president of the Senate,’ then there was little doubt that Mr. Ferry, who was a partisan, would decide that the returns sent in by the Republican claimants constituted the true vote and would declare a majority of one for Hayes.”

But the 1876 election was different from 2020. In 1876 there was a genuine dispute in four states over which of the competing submissions of electoral votes was entitled to be counted in the joint session of Congress under the Twelfth Amendment. Hayes needed all the disputed states to prevail; Tilden needed just one. In Florida, for example, the canvassing board awarded the state’s electoral votes to Hayes, but even a Republican attorney sent by President Grant to observe the counting process believed that Republican members of the canvassing board had improperly manipulated the count to put Hayes ahead. Here’s how I describe it in Ballot Battles: “A series of 2-1 partisan rulings produces the result that Hayes won all four of the state’s electoral votes by a margin of 924.”  I go on to explain in detail the double-standard methods that the partisan majority of canvassing board used to distort the result. Grant’s hand-picked observer—Francis Barlow, the former attorney general of New York—testified: “I did not see how, fairly, the state could be given to the Hayes electors.”  Indeed, one of the Republican canvassers (the Florida secretary of state) later admitted the same: “the Florida canvass was not [an] honest, unbiased decision.”  

Because of the impropriety of the count in Florida, local Democrats did whatever they could to have Tilden’s electors recognized as the valid ones from the state, based on an honest tally of the ballots cast. First, the Florida Attorney General (a Democrat) purported to certify the Tilden electors as the true winners of the state’s popular vote (although the state AG lacked this certification authority under state law). Later, Democrats in Florida secured an order from a state court that Tilden, not Hayes, won the state. Democrats also got the Florida legislature to order a new canvass of the election, which also resulted in a declaration that Tilden won the popular vote. All of this official paperwork from the state was sent to Congress to be considered in the joint session under the Twelfth Amendment. 

2020 looked nothing like 1876. Trump and his allies tried to manufacture a dispute comparable to what had occurred in 1876. But there is no basis for comparison.  In 2020 Barr threw cold water on their claims—the opposite of Barlow in 1876, finding wrongdoing sufficient to alter the outcome.  Team Trump couldn’t get any official agency of any state government to support their frivolous allegations, whereas Tilden had backing from all three branches of Florida’s government. To be sure, there were strong arguments against Tilden’s claims, including the disenfranchisement of enough eligible African-American voters to make the difference. In 1876, Hayes ultimately prevailed because Justice Joseph Bradley, who cast the deciding vote the special Electoral Commission appointed to adjudicate the dispute, viewed Florida’s correction of the canvass in favor of Tilden as having occurred too late (because it occurred after the day Congress had set for the casting of the electoral votes that year). Yet there is no doubt that there were two plausible positions before Congress with respect to the 1876 election, whereas there was only one plausible position with respect to the 2020 election—and it was Biden’s, not Trump’s. 

To be clear, I do not agree with the Evarts view that the Senate President can decide between disputed sets of electoral votes from the same state even when, as in 1876, there are genuinely plausible claims on behalf of the dueling submissions. Instead, I agree with the dominant view on this issue, that Congress has the power under the Necessary and Proper Clause to clarify the ambiguity of the Twelfth Amendment itself on this point and to have its clarification put the power to resolve this kind of dispute within the procedures of the joint session, rather than in the single officer of the Senate president. Thus, after the adoption of the Electoral Count Act in 1887, which was predicated on a congressional view that the Senate President should not exercise any such sole authority, the Evarts view of the Senate president’s power is even weaker than when Evarts argued the position on behalf of Hayes in the 1876 dispute. 

Still, whatever one thinks about the constitutional merits (or lack thereof) of the Evarts position argued for Hayes, the overriding consideration is that Eastman had no grounds whatsoever to make the same kind of argument on behalf of Trump. Combining a debatable theory with zero factual foundation for applying it to one’s own case leaves one with a claim that still has zero merit. 

For what it’s worth, I articulated this view in a series of Washington Post columns in the period leading up to January 6, 2021. For example, on December 29, 2020—under the headline “Sorry, President Trump. January 6 is not an election do-over.”—I argued that the only question for the joint session of Congress, and thus for a Senate president who chairs this meeting, is whether “the electoral votes received by Congress [are] ones cast by electors the states appointed.” When there is no debate on this point, as in 2020 and unlike 1876, then there is nothing for Congress or the Senate president to do except accept the electoral votes that the state sent.  As I wrote then, it’s “not … Congress’s job to second-guess the state’s appointment of its own electors”—and thus it’s certainly not a Vice President’s job either.

The error of Eastman’s constitutional argument becomes even clearer when one recognizes that the Senate president’s role under the Twelfth Amendment could be no greater than the role of Congress itself. Whether the federal authority to count the electoral votes from the states lies in Congress collectively, or the Senate president individually, the federal authority is to receive and accept what each state sends, not to relitigate the tally of the popular vote in each state. For the 1876 election, it was genuinely unclear what Florida (among other states) had sent, because the rival submissions each had plausible claims, and thus the relevant federal authority under the Twelfth Amendment—Congress or the Senate president—inevitably had a decision to make. 

But there was no such decision to make for the 2020 election.  Neither for Congress nor for the Senate president. It was wrong for members of Congress, including Mo Brooks in the House and Josh Hawley in the Senate (as I said to Isaac Chotiner of The New Yorker), to object to any of the electoral votes cast for Biden. And it was at least equally wrong for John Eastman to claim that Vice President Pence was entitled to reject those electoral votes or send them back to the states for further review.  Eastman’s view was an abuse of the Constitution for the simple reason that no federal authority, neither Congress nor the Vice President, was entitled to undo the electoral votes that the states had sent. 

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