Happy Safe Harbor Day!
2020, being the sort of year that it is, has thrown yet another hand grenade into our midst. Over the past 72 hours, I have seen far too many people claiming that “Safe Harbor Day” is not a thing, that its purpose is unconstitutional, that “nothing is final until January 20th.”
Granted, this is a bit more than you’ll get in a Civics 101 class, but all of those assertions are being made by people who (for the most part) are well aware they are flat-out lying to their readers and listeners. Hopefully, by the time I’m done here you’ll walk away a bit wiser and understand why today really is the end (finally!) of the Presidential Election of 2020.
To understand why this date is crucial and supported by the Constitution, you first need a little history. While everyone, not incorrectly, points to the election of 1876 as the flash point that led to the reforms that were first codified in 1887, and later as Title 3 of the US Code, the reality is that the first 80 years were filled with electoral headaches. There was the election of 1800, which resulted in the 12th Amendment being ratified. Nobody much recalls that the election of 1860 resulted in 4 candidates receiving electoral votes – only that the result was the Civil War. The election of 1824 could not be resolved in the Electoral College and wound up being decided in the House of Representatives, the last time an election has been decided in this way. The elections of 1868 and 1872 (as well as 1876) were marred by allegations of voter intimidation by the KKK. The election of 1872 featured one candidate, Horace Greeley (yes, the newspaper editor) dying before the Electoral College met. That all resulted in all sorts of recriminations, as Congress debated if electoral votes for a dead man should be counted and 14 electors were disqualified for that reason (hope you’re paying attention).
All of this set the stage for what is easily the most contentious election in our history*: the election of 1876.
President US Grant’s second term was marred by one political and financial scandal after another. Corruption was rampant. The Panic of 1873 was global financial collapse whose effects were still being felt at the outset of World War 1, some 40 years later. Add in the horrors of Reconstruction, which didn’t “reconstruct” much of anything except the same animus that had led the Confederacy to revolt in the first place, and the nation was a powder keg.
The Democrats nominated Samuel Tilden, a well-known prosecutor and governor, as someone who could reform the government, end Reconstruction, and erase the corruption. Tilden was best known as the man who successfully tried “Boss” Tweed, so his bona fides were well established. Initially, the Republicans tried to get Grant to run for a third term, but he was reluctant. A joint resolution of Congress asking him not not break with precedent seems to have been the final decider for him. Regardless, the GOP was without a candidate heading into their convention. After 7 ballots, they finally settled on Rutherford B. Hayes, who by all accounts was a nice guy but virtually unknown outside of his home state of Ohio.
The campaign itself was an occasionally bloody affair. The KKK engaged in a campaign of voter intimidation and ballot stuffing throughout the old Confederacy (in fact, they likely overplayed their hand, as South Carolina wound up with more votes cast than state residents). Shots were fired at Hayes while he was eating dinner once. Things became so heated that Grant called up the Army to encamp around the District of Columbia, as there was genuine fear that elements of the Confederacy might engage in a Second Civil War.
Yes, it was that tense.
When the votes were counted after the election on November 7th, Tilden had 184 electoral votes, Hayes 165. But 4 states, represented by 20 electors, sent two sets of electors to the College. Nothing like that had ever happened in the nation’s history and there was nothing in the Constitution to guide anyone as to which electors should be recognized. There were no laws, no statutes, no anything. But there was precedent for Congress challenging and disqualifying electors. Just four years prior, Congress had removed 14 electors for voting for a dead man (told you this would come up again).
So, Congress created a joint commission to determine which electors should be recognized. It was truly a bipartisan affair. The commission was made up of 5 elected Republicans, 5 elected Democrats, and 5 Supreme Court Justices, 2 appointed by Republicans, 2 by Democrats and the 5th to be determined by the other 4 justices. But even here, the times informed the choice: the original Justice selected was promptly selected to the Senate by the Democrats in Illinois, who thought he would serve out his time on the commission before taking office. He surprised everyone by immediately vacating his seat.
Complicating the commission’s work was that in three of the states (Florida, South Carolina and Louisiana), voting irregularities simply could not be sorted through (remember South Carolina, with more votes than residents?). Oregon’s competing slates featured a split ticket and full ticket for Hayes. After more than a month of testimony and haggling, the commission came to an agreement. The Democrats would get an end to Reconstruction and a promise from Hayes not to run for re-election. The Republicans would get all 20 outstanding electoral votes certified for Hayes. It is the only time in our history that someone achieved a majority of the popular vote but failed to secure the Presidency.
It was against this backdrop that Congress passed the Electoral Act of 1887. Prior to then, the date the Electoral College met was generally agreed on in a joint resolution of Congress, in accordance with Article II, Section 1, Clause 3 of the Constitution. This was Congress’ way of setting a timeline for when electors needed to be submitted to Congress for certification and when electors would meet to cast their votes – and avoiding the fiasco that had occurred just ten years earlier. What Congress did was take the electoral powers granted it under the Constitution and codified them, so that everyone would know the rules. Further, they stipulated that any state that could not certify their electors prior to the Electoral College meeting, would risk not having those electors recognized.
In 1948, Congress went a step further and codified the entire election process under Title 3, Chapter 1 of the US Code. There are 21 sections in this chapter, covering everything from election day (Sect. 1, “The electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November, in every fourth year succeeding every election of a President and Vice President.”) through the Presidential Succession Act (Sect. 19) and the steps a President needs to legally accomplish to either resign or refuse his office (sect. 20).
The point is, these laws are based on the Constitutional authority granted Congress, either under the 12th Amendment or Article II. Their constitutionality was upheld in Bush v Gore, when the Supreme Court ruled that if a state is ready to certify their electors, then all other proceedings are moot:
Because the Florida Supreme Court has said that the Florida Legislature intended to obtain the safe-harbor benefits of 3 U. S. C. §5, Justice Breyer’s proposed remedy—remanding to the Florida Supreme Court for its ordering of a constitutionally proper contest until December 18-contemplates action in violation of the Florida election code, and hence could not be part of an “appropriate” order. (emphasis mine)Per Curiam opinion, Bush v Gore
You’ll note that while most of the opinion recognizes the Florida Supreme Court’s creation of due process conflicts that require a remedy, because the state legislature was prepared to certify their electors under 3 USC Chapter 1, Section 5, they could not stand in the way. Whatever the remedy was, it could not violate the “safe-harbor” provisions of electoral law.
So what does this section of the US Code say about “safe-harbor”? It says:
If any State shall have provided, by laws enacted prior to the day fixed for the appointment of the electors, for its final determination of any controversy or contest concerning the appointment of all or any of the electors of such State, by judicial or other methods or procedures, and such determination shall have been made at least six days before the time fixed for the meeting of the electors, such determination made pursuant to such law so existing on said day, and made at least six days prior to said time of meeting of the electors, shall be conclusive, and shall govern in the counting of the electoral votes as provided in the Constitution, and as hereinafter regulated, so far as the ascertainment of the electors appointed by such State is concerned.https://uscode.house.gov/view.xhtml?path=/prelim@title3&edition=prelim
In layman’s terms, if a state has certified their electors 6 days before the Electoral College meets, then those electors are the ones who cast their votes. This is crucial. It was Congress determination not to relive the nightmare of the election of 1876 by ensuring that each state certified their electors before the voting began. Also, as recognized by the Supreme Court some 20 years ago, legal challenges to a state’s electors must be decided no later than 6 days before the Electoral College meets. Any legal challenges to certified electors (how an elector is certified is covered under Section 6) after that date is moot.
Does this mean all of the lawsuits currently in state court are now worthless? Yes. Absolutely. Does it mean pending actions in federal court are now over? For the most part, yes. While a court might find some abrogation of due process or equal protection, they will be required to follow Bush v Gore and Justice Alito’s decision; the remedy cannot be to invalidate the state’s electors.
*I know in our desire for relevancy, we want to think of either the election of 2000 or 2020 as the Most Contentious Election In American History, but they probably don’t even make the top 5. 1800, 1824, 1860, 1872, 1876, 1920, 1940 and 1960 all featured results that were at least as, if not more disputed.
2016 Proves the Electoral College Works
Clinton supporters are claiming that since Hllary won the popular vote, it proves the Electoral College is a dysfunctional anachronism that impedes modern democracy. They don’t seem to understand, or care, that statements like those only prove the reasons for the Electoral College in the 1780’s remain with us today.
First and foremost, the Founding Fathers had deep, abiding distrust of unfettered democracy. James Madison wrote in Federalist 10:
A common passion or interest will, in almost every case, be felt by a majority of the whole; a communication and concert result from the form of government itself; and there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual. Hence it is that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths.
This understanding that direct democracy is an unwieldy form of government, certain to end in direct violence of neighbor versus neighbor, is what drove the Founders to establish the United States as a representative republic. They strove, at every level of the federal government they were creating, to isolate the democratic forum to the smallest, most localized unit possible. Indeed, one of the striking aspects of American governance is the interplay between the states and the federal government they devised.
A large part of the reason for establishing that interplay between state and federal government was the Founder’s understanding that, even in the earliest days of the nation, there were stark differences between the various states and regions, and competing interests between heavily populated areas and sparsely populated ones. In establishing a federal government that was an equal partner of the states as regards most matters, they allowed local control over local issues, while allowing for an overarching national policy that might be in direct contravention to what a state preferred. Factionalism, which they understood was an unremarkable and inevitable feature of human society, could thus be controlled. No single faction could become so omnipresent as to impose its will on the rest of the nation.
This theory of government extends through to the idea of the Electoral College. Most of us are familiar with the idea of the Electoral College as stated by Alexander Hamilton in Federalist 68:
It was equally desirable, that the immediate election should be made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice. A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations.
But very few of us have given much thought to this part of the same essay:
The choice of SEVERAL, to form an intermediate body of electors, will be much less apt to convulse the community with any extraordinary or violent movements, than the choice of ONE who was himself to be the final object of the public wishes. And as the electors, chosen in each State, are to assemble and vote in the State in which they are chosen, this detached and divided situation will expose them much less to heats and ferments, which might be communicated from them to the people, than if they were all to be convened at one time, in one place.
Here we see expressed the idea, once again, of deference to state preference, even when contemplating a federal election. Yes, the election of a President would occur in all the states simultaneously, but it was not a singular electoral event. Rather, it was to be the continuation of state elections. To ensure that each state was not pressured by outside influences, each states electors are to meet in that state and vote. They are not to travel to the seat of national government. The method of their meeting and deliberation is left to the states to decide.
So how does the 2016 general election demonstrate that these ideas are still needed today? Consider this: Mrs. Clinton will assuredly wind up with more raw votes, if tabulated nationally, than Mr. Trump. But, that is due to her extreme support on the Pacific Coast. Her share of the popular vote in California, Oregon and Washington is around 65%. Of the roughly 61 million votes she received, nearly 9.5 million of them came from those three states versus only 4.3 million for Mr. Trump. To look at in reverse, in every other region of the nation, Mr. Trump outpolled Mrs Clinton by some 5 million votes and had the far higher share of the total, with nearly 53% of the votes cast.
If we were to do as Mrs. Clinton’s supporters ask, and amend the Constitution to abolish the Electoral College, we would be saying that only 3 of our states were electing the President. The other 47, despite a preference for the opposing candidate, would be shunned.
But the hidden beauty of the Electoral College is in ensuring that every state and every region receives import upon the selection of the President in proportion to its size and influence in the federal government. So yes, Mrs. Clinton is assured the 74 electoral votes from those states. All she needed was another 196 (or 38% of the remaining) electoral votes to win the Presidency. But Mr. Trump, by virtue of his running a broader campaign that appealed to more voters across a wider swath of the nation, gained more electors in the other states. He outpolled Mrs. Clinton in the deep south, the midwest, the plains states, the mountain west and battled her to a near draw in the northeast.
I understand its a bitter pill for her supporters to admit that Mrs. Clinton’s message did not have the type of broad appeal that resonated across the nation. But one again, the Electoral College is ensuring the candidate with the broadest support will assume the Presidency on January 20.
Why the Electoral College Matters
One of those arcane topics that makes its way into political conversation is the Electoral College. Despite the fact that it should be treated as a pretty technical subject, it is usually given the same bumper-sticker treatment that serves as political discussion these days. Popular sentiment boils down to, the will of the people is ignored by the Electoral College and it should be reformed or replaced to more directly represent the popular vote.
Hey, great idea, right? Who could possibly be against the will of the people and the popular vote? And besides, isn’t the Electoral College some arcane leftover from the 18th century? Wasn’t it devised by a bunch of fuddy-duddies who were after maintaining power for the privileged few? Like most bumper sticker ideas, these are all exploded rather easily once you actually examine things.
First of all, the founders created the Electoral College expressly to prevent the type of insane power brokering that happens when somebody is incapable of winning the popular vote. Having experienced the shortcomings of parliamentary elections first-hand as British subjects, they were determined that Presidential elections should have a clear winner. Further, they were determined that each state would have a fair say in determining the winner. As odd as it may seem to people without a solid grounding in American history, our nation has always had regional differences in culture, along with the attendant political differences that arise from them. Although we love to dismiss many of their ideas as outdated and irrelevant in modern society, the Founders understood that direct elections bring with them tremendous peril for functioning government.
Were they right in their assumptions and fears? That anyone of voting age could think otherwise demonstrates either the inability to comprehend civics – or do some basic math. Currently, there is a proposal going around calling for each state to amend their constitutions to allow for direct apportionment of their Electors. The Republican Party is similarly apportioning their votes in the 2012 primary process. The result, based on the fact no candidate can seem to muster more than 40% of the vote and the front runners routinely poll in the mid-20’s, is likely to be a brokered convention. For those of you wondering what one of those looks like, I refer you to the 1968 Democratic Convention. Most people only know it for the chaos in the streets of Chicago – forgetting the chaos inside the convention itself. Before finally settling on Eugene McCarthy as the party’s candidate, the convention floor was raucous while party leaders haggled behind closed doors for days.
But could such an outcome be the result of states directly apportioning Electors? Consider three elections in our recent history:
2000: This is the election most cite in wanting to do away with the Electoral College. Neither major party candidate achieved 50% of the popular vote, but thanks to the Constitution George W. Bush garnered 279 electoral votes, 9 more than needed for victory, despite trailing Al Gore 48.4% to 47.9% in the popular vote. But had the electors been decided by the direct apportionment method, the electoral votes would have tallied as Bush 259, Gore 258, Ralph Nader 17, Pat Buchanan 4. Nader would have been a kingmaker in that scenario, as he could have pledged his votes to either major party candidate. The result would be what we witness in countries with otherwise weak minor parties – a leader forced to try and hold a coalition together, held at whim by the minor party’s demands.
1996: Bill Clinton swept to re-election with 379 electoral votes (despite only garnering 49.2% of the popular vote), but direct apportionment would have yielded a much different outcome. The tally would have been Clinton 263, Bob Dole 222, Ross Perot 53. Perot’s nascent Reform Party would have had the power to change history, but that possibility is dwarfed by the results from…
1992: This is the granddaddy of all examples as to why the Electoral College works. Perot garnered nearly 20 million votes nationwide, finishing second in Utah and Vermont (and falling short of winning Utah by less than 12,000 votes). It was the most successful third party candidacy in history, with Perot capturing 18.9% of the total popular vote. Yet, he won no electoral votes since he didn’t carry a single state. Bill Clinton won the electoral vote, 379-159 over George H.W. Bush, despite only capturing 43% of the popular vote. Under direct apportionment, the result would have been grim, indeed. Clinton would have managed only 229 electoral votes, Bush 201 – and Perot 108. Try to imagine the type of havoc Perot could – and would – have created had electors been directly apportioned. Constitutional crisis only begins to describe it.
That’s three elections within the past 20 years that would have been turned upside down, without a clear winner or any semblance of legitimacy for the eventual President. Except that the Electoral College was there to sort through the debris and declare a new President. So, before signing on to do away with the Electoral College or make dramatic changes to its structure, remember that those aging fuddy-duddies who wrote the Constitution knew a thing or two. As usual, we would be well advised to stop and think about the how and why they created the structures of our government before casting them aside.