With all the talk about the plans to challenge the Electoral College’s vote when it heads to Congress for approval, it’s worth taking a couple minutes to look at past challenges that have taken place under the current rules, which were created in 1877.
There aren’t many. The first was probably the most legitimate of the three (including this year’s challenge) that have taken place.
That was in 1969, when a Republican elector from North Carolina, a state pledged to incumbent Richard Nixon, cast his vote instead for George Wallace. The vote, combined with a handful from states Wallace won, brought his total to 46 electoral votes. Nixon won in a landslide.
That protest involved someone who had, arguably, attained his role as an elector under false pretenses. Electors are generally staunch members of their parties, and are appointed to the role in large part because of their perceived loyalty. So the challenge to those results involved a real question, though it couldn’t change anything in practical terms.
The challenge didn’t go anywhere.
That was the last time a third-party candidate has won states to date, but it was hardly the last time the question of “faithless electors” was raised. There were 10 members of the college in 2016 who either voted or attempted to vote against their pledges. In 2005 a Minnesota elector may have mistakenly cast a presidential ballot for John Edwards, and in 2001 an elector from Washington, D.C. cast no vote as a protest against the district’s federal status.
The last challenge prior to this year was in 2005. Sen. Barbara Boxer and Rep. Stephanie Tubbs Jones challenged the results of the 2004 election, which gave George W. Bush a second term in office. The challenge was purely a protest, an attempt to draw attention to what they said were civil rights violations in Ohio’s voting. Both chambers rejected the challenge, and it wasn’t close.
While the members of Congress who have announced plans to challenge the results this year are, as in prior instances, within their rights to do so, it’s hard to justify the damage this protest is doing. President Trump and his allies have had every opportunity to challenge the election’s results, and they’ve done so in dozens of cases. Courts have said, sometimes in stunningly blunt language, the evidence presented failed to make the case.
It’s not just judges appointed by prior administrations or by Democrats who have said the cases failed to meet the evidentiary bar. Several who did so were appointed by Trump himself, including three U.S. Supreme Court justices who rejected challenges.
A challenge when Congress counts the electoral votes, if made in both the House and Senate, requires debate. Given the fact Democrats control the House, and that Republican leaders in the Senate have shown no interest in trying to marshal support for the challenges there, it is highly probable both chambers will reject the challenges by wide margins. The challenges are, in other words, more tilting at windmills than genuine attempts to change the results.
The irony here is that, in undermining faith in how elections take place and how votes are counted, the members who have announced their challenges may well be risking control of the Senate. There is considerable speculation that it could result in a lower turnout among Republicans in Georgia’s special elections. If Democrats win both those seats, the Senate would split 50-50, with the new Vice-President Kamala Harris as the deciding vote.
Previous challenges have attempted to draw attention to issues. They didn’t seek to overturn results. This one does. And that’s a serious risk.
Sunday saw all 10 of the living former U.S. secretaries of defense sign on to a letter that rebuked the ongoing claims of a stolen election. It noted the challenges were addressed by the courts and that recounts and audits were all conducted without finding evidence of the kind of fraud needed to change the results. “The time for questioning the results has passed; the time for the formal counting of the electoral college votes, as prescribed in the Constitution and statute, has arrived,” they wrote.
The letter was, apparently, the initiative of Dick Cheney. Cheney, of course, served as vice president under George W. Bush, and he’s hardly a nonpartisan figure. Neither is Donald Rumsfeld, who also signed on.
Enough is enough. The members of Congress planning this challenge may be within their rights, but that doesn’t make this the right thing to do.