Uniform voting procedures needed: A Commentary
Published: November 21st, 2020
Editor’s Note: The author circulated this analysis six days ago. Although the outcome of the election seems clearer now, his analysis remains apt – and succinct. The votes for the three key states (Arizona, Georgia and Pennsylvania) have been updated through Friday, November 21).
How the president is elected in America is laid out in the U.S. Constitution.
Article II, Section 1, states that each shall appoint, in such manner as the legislature thereof may direct, a number of Electors, equal to the whole number of Senators and Representatives to which may be entitled in the Congress.
It also authorizes Congress to determine the day Electors vote, which in 2020 is December 14. Thirty states, including Oklahoma, ‘bind’ their Electors to the election results in the state and can replace an Elector if they attempt to be unfaithful. After the 538 Electors vote in each of the individual state, each state reports the results to Congress. Those results must be received by December 23.
On January 6, 2021, in front of a joint session of Congress, the Senate President (Vice President Mike Pence) will open alphabetically each state’s Elector vote submission and four tellers (two from each chamber) will confirm the votes. The Vice President will then announce the results.
Members of Congress may object to the returns from any individual state as they are announced.
Objections to individual state returns must be made in writing by at least one Member each of the Senate and House of Representatives. If an objection meets these requirements, the joint session recesses and the two houses separate and debate the question in their respective chambers for a maximum of two hours. The two chambers then vote separately to accept or reject the objection. They then reassemble in joint session, and announce the results of their respective votes.
An objection to a state’s electoral vote must be approved by both houses in order for any contested votes to be excluded. Objections to the Electoral College votes were recorded in 1969 and 2005. In both those cases, the House and Senate rejected the objections and the votes in question were counted.
In the case of an Electoral College deadlock between two candidates (269 to 269) or if no candidate receives the majority of votes, a “contingent election” is held. The election of the President then goes to the House of Representatives. Each state “delegation” casts one vote for one of the top three contenders to determine a winner. Two presidential elections in American history was decided by the House — in 1800 and 1824.
Three observations about the 2020 presidential election:
First, Congress declares the winner of the presidential election, not the media. The constitutional process is clear. Until the Electors vote December 14, there is no president-elect. For the media, or anyone else, to declare a winner before the 14 is pre-mature.
Second, the 2020 presidential race was very close. Vice President Biden’s lead in three states is razor thin. Arizona (11 electoral votes) was decided by 11,000 votes, Pennsylvania (20 electoral votes) by 81,000, and Georgia (16 electoral votes) by 13,000 votes. If those three states’ electoral votes reverted to President Trump, he would win re-election with 279 electoral votes. Biden’s margin of victory, if it does stand, is being taunted by the media as a landslide, but it was far from that.
Third, if the race is thrown into the House of Representatives, Trump will likely be re-elected. There are thirty (30) states whose delegation is majority Republican. Democrats know that and are fighting to avoid that. That is why the legal fight will be waged in the states.
Fourth, the courts will decide if election laws in the states were followed. If the laws were followed, then the results will likely stand. If the laws were not followed, then recounts will follow and possibly even a revote in a state. A re-vote has never happened and courts shy away from overturning elections, but it is a possibility.
Even if President Trump is not successful in challenging the results of the 2020 election, Americans are now aware of the differing voting rules across the states. When some states are counting ballots a week after the election, it’s clear standardized rules for electing the president are needed.
Congress should establish uniform, identical voting timelines for states to follow for electing the president in future elections.
NOTE: Steve Fair is Chairman for the Oklahoma Republican Party in the Fourth Congressional District. A widely-published commentaro, his essays appear frequently on the CapitolBeatOK.com website, and occasionally in the print edition of The City Sentinel newspaper. Steve can be reached by email at firstname.lastname@example.org. His blog is stevefair.blogspot.com.