JANUARY 6, 2021: THE SANCTIFICATION

(written only days before the event itself)

This election year there’s been a lot of attention paid to some presidential electoral processes that in earlier election years many of us ignored or viewed as formalities. That’s because the Republican Party has been using each step in the process to cast fake doubt on the validity of its loss of the presidency to both a popular and an Electoral College majority. The effort began with President Trump’s tweeting “STOP THE COUNT!” and has continued as he and his people denied the result, Republican leadership refused to acknowledge Joe Biden’s victory, and phony elector meetings in some states cast meaningless votes for Trump.

Even now, as we approach the final moment, on January 6, when the overwhelming Electoral College results favoring Biden will be certified by Congress, there’s a move on among Republican members of the House—at least 140 of them, reportedly—and at first one senator, Josh Hawley of Missouri, now followed by many others even as I type, to object formally to the electoral majority that has made Biden the president-elect. These Republicans’ goal seems to be to pitch themselves as future leaders of what they believe to be a large number of Americans, only barely a minority, who feel that any system that removes Trump from office must be crushed, including an election reflecting the will of the majority of the electorate, unlike the election that brought Trump in.

It remains to be seen whether this big, anti-democratic, bare minority that Republicans aspire to lead really exists. Or if it does exist, whether it will hold up. But they seem to really want to lead it.

The Republican crusade against democracy—against republicanism, for that matter, and against federalism—is aided, unfortunately, by the electoral system itself. Thanks to the GOP’s reckless shenanigans, ordinary citizens have been forced to get nervously up to speed on the workings of each obscure step in the process. Some people were of course already up on these matters—scholars, politics junkies, other edge cases—but most weren’t, and now that more of us are, we’re having to face the fact that certain elements of our system seem a bit weird at best.

The upcoming final step is a nice example. In earlier steps, we saw that certain elements of the system make the various states’ electoral-vote and certification processes subject to potential abuse by partisan politics. In the final step—the January 6 event, in the Capitol, in Washington—we’ll see that certain elements of the system are reminiscent of a ceremony at a Medieval court, as parodied by Monty Python. In truth, I don’t know exactly how the noble Electors of the Holy Roman Empire completed their selection of the next Holy Roman Emperor, but let’s consider how, if all goes normally, we’ll put the seal on the U.S. presidential election on January 6, 2021.

According to the U.S. Constitution, the final presidential certification process must occur in a joint session of Congress. That means the House and the Senate have to get together in one room, and because there’s no space for that in the Senate, the House hosts the event. Getting together like this is such a big deal to the two houses, supposedly, that while both the Constitution and U.S. Code, Title 3, Chapter 1, require them to do it, the houses have decided that before they can meet they must sign off on a formal agreement to meet. To that end, they typically release a joint document that does nothing but reiterate everything already stated in the Constitution and the Code pertaining to the process. This motion to do what they have to do anyway is normally passed without debate; this year, we’ll see about that (I’m typing on 1/2/21). [UPDATE: It went as normal.]

With the unnecessary agreement agreed to, on the day-of, the House at first convenes alone. The event must take place at 1:00 P.M., and the members—newly elected, sworn in only days before—can’t necessarily sit in their usual places; they have to leave enough room for the senators to sit together, as required by the Code, to the right of the seat on the rostrum normally occupied by the Speaker of the House but reserved, during this event, and also per the Code, for the President of the Senate, who is also the Vice President of the United States. So with the Senate not yet arrived, House members—however many show up: this isn't always well attended—get themselves arranged, with the Speaker sitting not in the usual place on the rostrum, but to the left of that spot, also per the Code. And they wait.

Now the big moment. The senators who choose to attend, having shown up outside the House chamber, are cooling their heels in the hall. As the upper house, the Senate may feel a bit dissed by this subservient position, but it’s a House perk, as host, to admit the Senate, based on the House’s having the bigger room, which really means having the bigger representation. The Senate thus gets to play the role of visiting dignitary—something like the role of the president when entering the House chamber to give the State of the Union address. In real life, of course, if the House didn’t let the Senate in, or the Senate didn’t show up, they’d be in violation not only of the Code but also of the Constitution.

The Speaker bangs a gavel. With a shout, the House Sergeant-at-Arms addresses the Speaker of the House to announce the presence of the Vice President of the United States and the Senate. The doors have been thrown wide.

And yet the doors don’t admit the people named by the Sergeant-at-Arms. Not at first.

They admit the Senate’s pages.

Ah, yes. Those pages.

Few modern organizations still have attendant kids, training to be knights at the court of Henry VIII or whatever, but NBC and the U.S. Senate do have them, and so it’s some high-school juniors who first enter the House at 1:00 P.M. on January 6 and precede the Senate down the aisle, like little ringbearers at a wedding. And these pages really are bearing something.

Boxes. Made of mahogany. Two pages to a box, others carrying related paperwork. The boxes contain the fifty states' certifications of the electoral college votes. The House members are now standing to applaud the boxes as they go by. The pages place the boxes on the rostrum’s middle tier and step away, as down the aisle behind them come the Vice President of the United States and the Secretary of the Senate, followed by the rest of the Senate, all to the welcoming applause of the House. A few minutes of excited gabbing now ensues among the houses.

The Vice President takes the Speaker’s regular seat on the rostrum, per the Code. The rest of the Senate take their seats, as do the members of the House, and everybody falls to their knees and sings “America the Beautiful” in an accent characteristic of the state they represent.

That last part isn’t true.

I’m not trying to say that de-mystifying and de-fetishizing such processes—de-sacralizing them, really—would necessarily make our national politics more widely credible. I know that some people appreciate ceremony in politics; I do, sometimes. And there probably has to be some public moment when a presidential vote count is certified, under reliable rules.

But as you watch this sort of thing, it can get hard to draw clear distinctions between fantasies of government illegitimacy and fantasies of government norms. Nothing in the Constitution tells us we have to treat the states’ electoral certifications like the Arc of the Covenant meeting the Sunday collection plate. Senate pages, mahogany boxes—none of that’s in the Constitution, and it's not even in the Code. I wonder if one reason we can’t give up the Electoral College is we’d then also have to give up certain oddball pageants, certain creaky, totally extraconstitutional hymns in praise of federalism itself.

The process goes on, of course, and what happens next, while not specified in detail in the Constitution, is specified by the Code. The Vice President opens each certified state result, Alabama through Wyoming, and hands it to one of four “tellers,” two from each house. Beginning with the first teller, going through all four, starting over with the first, and cycling in that order until it’s done, the tellers state that each certificate appears to be legit, read its result into the record, and keep a running tally. When the count is complete, the tellers hand the tally to the Vice President, who reads the final result into the record.

That makes the victor officially victorious. The gabbing resumes.

Objecting to the electoral-vote count, as many Republicans say they intend to do this year, is by no means unprecedented. There’s a mechanism for objecting, as well as a mechanism for keeping objections under control. As a state’s result is read aloud, any House member who rises with a written objection in hand will be called on by the Vice President. The objection may be made to a state elector or to the state’s whole electoral-vote process. For an objection to trigger a debate and a vote, though, it has to be co-signed by a senator. In that case, the Senate goes back to its chamber and the House stays put, each house debates and votes, the Senate comes back, and the result of the vote on the given state's electoral vote is announced. What happens if the vote is invalidates the certification? We don't know, because the only example of the process getting that far came (I think!) in 2005, and the vote was in favor of upholding the certification.

In 2016, with Joe Biden presiding as Vice President, a number of Democratic members of the House raised objections to Trump’s electoral victory in some states. But no senators joined them, so Biden had to keep shooting the objectors down, in the end with some impatience. “It is over,” Biden said at one point, to applause from the GOP. There was no debate. A few protestors in the gallery were removed by the Sergeant-at-Arms.

That’s why Senator Hawley’s announcing, this year, that he’ll co-sign objections from House members, with a bunch of other senators reportedly “led by” Ted Cruz now joining Hawley, may be meaningful. Not meaningful for the final result. Biden’s electoral victories will hold up, if the law is followed, because if any of the objections do trigger debate and a vote—per the Code, debate is strictly limited—those objections will be voted down in the House, thanks to the Democratic majority: even if the Republican Senate majority were unanimous for invalidating a state certification, the total majority would still favor upholding.

Still, by pretending to think the election has been fraudulent, and that the majority is suppressing legitimate objections, Hawley and others in the GOP can bog down and confuse an already somewhat silly-looking process, even while using that process to compete with one another, pseudo-heroically, in wooing the Trump base for the role of next great leader. These GOP plans thus raise new questions. If, for example, the Republicans had flipped the House in the recent election, even while losing the presidency— a weird hypothetical, but these are weird times—might they have been in position to win House votes on January 6 and actually legally overturn certain states’ perfectly valid certifications of a majority vote for Biden? Also: what would happen if a Republican “teller” asserted that a state certification does not appear to be legit? And under what conditions might Democrats too pursue such a strategy?

It would be nice to imagine avoiding nerve-wracking projections of the collapse of legitimacy by returning to old modes of party politics in which a Joe Biden carried out his duty, in 2016, by denying debate to his fellow Democrats. On January 6, 2000, Vice President Al Gore actually had to preside over and make official his own defeat for the presidency. In 1960, even Vice President Richard Nixon did that. (In 1968, Vice President Hubert Humphrey, defeated by Nixon, was overseas on official business; somebody stood in.) For both John Adams and Thomas Jefferson, the shoe was on the other foot: each man presided over the final certification of his own victory, in Jefferson's case against Adams!

But the zero-sum nature of the game that congressional Republicans have been playing since at least the mid-1980’s is now exposing problems for democracy, and for rationality, built into our norms and systems. So many moving parts are involved in carrying out the one and only countrywide election that avenues exist for achieving anti-democratic results. We saw the effect most recently in 2000 and 2016, but while the popular vote usually has to be close for the majority to lose via the Electoral College, this year we’ve become unhappily acquainted with other ways of making the system deny the majority will, or even of making the system fall apart completely.

It hasn’t fallen apart this year so far. In 1800 it almost did. in 1861, it did. In the worst election in the history of the United States, which I wrote about last week, it did again, with especially horrible results.

Like I said: weird.