Monday, December 14, 2020

Election Day

Today is the day - the day the Electoral College convenes in 51 locations to elect our next president.

The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;-The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;-The person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President-The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.

Thus, the 12th Amendment to the US Constitution, which superseded the original provisions in Article II, in order to prevent what had occurred after the election of 1800 in which Thomas Jefferson (whose electors had intended for him to become president) and Aaron Burr (whose electors had intended him to become vice president) had each received equal votes in the electoral college, thus throwing the election of the President to the House of Representatives, which took 36 ballots to elect Jefferson.

No one expects anything like that to happen today. Usually, we think of the Electoral College as a perfunctory formality and the required count in Congress (set for January 6) a comparably perfunctory, appropriately dignified, formality. Today's vote is, indeed, a formality in that it fulfills a formal legal requirement, the outcome of which is already known. But circumstances this year, the unprecedented assault by the Republican party on our electoral processes, constitutional governance, and democratic norms, have made it anything but perfunctory. For the first time in probably a very long, just by doing what they were elected to do the electors are effectively contemporary heroes of constitutionalism and democracy.

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