More on this Jefferson nonsense
Wherein the president tweets that Pence has discretion over electoral ballots, and a distinguished constitutional law professor and a Democratic House whip inadvertently back him up.
Backbencher from time to time posts contributions from other writers. This essay is by Holly Brewer, Burke Professor of American History at the University of Maryland and author of By Birth or Consent: Children, Law, and the Anglo-American Revolution in Authority (2005).
President Donald Trump tweeted this morning, “The Vice President has the power to reject fraudulently chosen electors.” Last night Trump said at a political rally in Georgia, “I hope Mike Pence comes through for us.… If he doesn't come through, I won't like him quite as much.” This is what passes for legal reasoning in the Trump White House on the day before Pence presides over the electoral count in the Senate.
As I explained last week (“No, Jefferson didn’t rig the 1800 vote count”), the misguided notion that Pence enjoys any latitude to pick and choose electoral ballots derives in large part from a misreading of a 2004 law review article (“Thomas Jefferson Counts Himself into the Presidency”) by David Fontana of George Washington University and Bruce Ackerman of Yale. In their article, Fontana and Ackerman raise the possibility that in 1800 Jefferson, who was then both vice president and a candidate for president, tilted the electoral count in his own favor by not throwing out Georgia’s electoral ballot, even though three congressional “tellers” charged with reviewing the ballots (two from the House and one from the Senate) had noted an irregularity in the format of that ballot.
The law review article was published three years after Vice President Al Gore certified George W. Bush as the winner in the 2000 election, making it very exciting to consider what might have been had Gore followed Jefferson’s seemingly self-serving example. But was Jefferson’s inclusion of Georgia’s electoral ballot self-serving? After weighing that possibility at great length—much like a cat playing with a ball of yarn—the two scholars concluded (with undisguised disappointment) that the facts did not support that thrilling conclusion:
When we first discovered Georgia’s electoral ballot in the National Archives, we believed we had a first-rate scandal on our hands. The meaning of it all seemed painfully clear: Jefferson egregiously violated the express terms of the Constitution in the pursuit of overweening ambition. His presidency was born of constitutional original sin. In its own way, this was as bad as Sally Hemings.
The more we have pondered, however, the less we have been scandalized…. Jefferson had ample reason to believe that Georgia had in fact cast its votes for the Republican ticket. He was correct to use his power as Senate President to assure that the vote-counting ritual in Washington corresponded to the true electoral decisions made in the states [italics mine].
My earlier piece explained in some detail, and with reproductions of the documents in question, why the purported irregularity in the Georgia electoral ballot wasn’t really an irregularity at all. I won’t repeat my arguments now, except to note that they echoed Fontana and Ackerman’s own conclusion in 2004.
Unfortunately, somewhere between 2004 and 2020 Ackerman seems to have altered his conclusion—probably based on misremembering what he wrote back in 2004—and concluded that in 1800 Jefferson pulled a fast one after all. In a September op-ed for the Los Angeles Times (click here if you can’t get past the paywall), Ackerman and his co-author Rep. Ro Khanna (D.-Calif.) wrote the following:
Precedents established by Thomas Jefferson in 1800 would permit Pence to invalidate a particular state’s electoral returns on the grounds that the underlying vote-count was generated in an illegitimate fashion — that it was rigged.
This is unforgivably sloppy—and dangerously so, given Ackerman’s considerable reputation and Trump dead-enders’ quest to legitimize this counterfactual view of Pence’s power. One has to wonder how Ackerman’s revised interpretation of the past is influencing the present. Sen. Josh Hawley (R.-Mo.), a key leader of the Trump insurrection, attended Yale Law School, where Ackerman teaches. Nor is it particularly helpful that Khanna, an assistant House whip, attached his name to this statement.
Aside from everything else, Jefferson did not invalidate any votes in 1800! He presented what the tellers agreed were valid votes despite an insignificant "informality." Any congressman or senator who thought differently could have objected at the time, including those who would have been present when the electors initially voted in Georgia. None did.
With this misleading op-ed, Ackerman and Khanna may have helped to precipitate a constitutional crisis. All eyes are now on the opening, counting, and debating of tomorrow’s Electoral College vote.