When the members of the Constitutional Convention in 1787 debated how to pick the executive, several options were considered. Some wanted the people to directly elect the president, while others distrusted the people to know enough about the candidates to make that important decision on their own. After all, the election would be held across the entire nation, and with the problems of communication in 18th century America it would be difficult for individual citizens to know enough to make an informed decision about candidates who lived nowhere near them.
But the Framers wanted the voters to play a role, and they compromised by giving the decision to electors equaling the number of representatives and senators for each state and empowering the legislatures of the states, whose members were and are popularly elected, to select the manner of appointing those electors. So you and I don’t vote for the president directly. Our state’s electors do. While early on several state legislatures opted to pick the electors themselves, in modern times all state legislatures have voted to have their electors chosen by popular vote.
This week those electors met in their respective states and cast their votes. The press reports Vice President Joe Biden received 306 votes and President Donald Trump, my candidate, received 232 votes. Press reports also indicate that in several states where the electors chose Biden, separate groups claimed to be the actual electors and voted for President Trump.
There has been a lot of discussion and dozens of audits, recounts, and lawsuits as to who were the legally chosen electors in those states. Despite the hype in the media that these efforts challenging the initial election calls in several states undermine our system, the Electoral Count Act of 1887 actually provides for a time period for such actions. Former Vice President Al Gore took advantage of this time period in 2000, challenging the election until mid-December. Democrats challenged the Ohio electors pledged to President George Bush in 2004, and many Democrats fought through the counting of the vote before a joint session of Congress in 2017, when President Donald Trump was elected. They even challenged the votes from Alabama. Democrats have normalized post general election fights over presidential results.
I supported the Trump team’s efforts to get a fair and accurate count of all legal votes. I joined in a “friend of the court” brief, along with 125 members of Congress, supporting the last-ditch effort by Texas and other states, including Alabama, to get the Supreme Court to look into the fact that in several states a person or group other than the state legislature modified election laws ostensibly to accommodate voters in the middle of a pandemic. Whatever the motivation for those modifications, they couldn’t be made by anyone other than the state legislatures; secretaries of state, state supreme courts, election commissions, and even governors cannot do that under the Constitution. Rather than rule on the merits, the Court dismissed the case because, it said, the states didn’t have standing to bring the suit. None of President Trump’s Supreme Court appointees dissented.
The last step in the process, as spelled out by the Twelfth Amendment, is for the electors’ votes to be counted formally in a joint session of the new Congress on January 6, presided over by Vice President Mike Pence. The Electoral Count Act allows one or more members of the House or Senate to object to a given state’s electors, but only if at least one member of the other house joins in the objection in writing. Then each house votes on the objection. Democrats tried that in 2000, 2004, and 2016 but failed.
My friend and colleague Mo Brooks from Huntsville has said he intends to object to the electoral votes of five states that voted for Biden, but he will have to convince a senator to join with him. So far, with only three weeks left, no senator or senator-elect has agreed to do so. The other hurdle he faces is a Democrat majority in the House that will not vote to take away Biden votes and at least ten Republican senators who have said Biden is the winner.
As I will no longer be a member of the House on January 6, I won’t be voting on any objection. But I will be a citizen, and I believe it’s important for all of us to respect the system we follow in selecting a president, set in our Constitution and the Electoral Count Act. That system has served us well for over 200 years and will continue to do so. I will honor our system and our laws by accepting the election results as counted by Congress. I hope we all will.
Congressman Bradley Byrne currently represents Alabama’s 1st congressional district. His service in the House of Representatives will end at the conclusion of the 117th Congress on January 3, 2021.