5 Ohio Congressmen’s rejection of election results was unconstitutional

The 5 Ohio Congressmen who voted to reject 2020 Presidential election results from Pennsylvania and Arizona on January 6th were not Constitutionally authorized to do so. Even if they believed there was some voter fraud in the general election or did not agree with State court rulings, the Constitution does not give Congress power to reject those State certified results during the counting of Electoral College votes.

This is not a question of which party or candidate you support, nor whether you agree with a States’ election results, but a matter of adhering to the Constitution. Representatives Jim Jordan, Bill Johnson, Bob Gibbs, Warren Davidson and Steve Chabot, along with over 100 Republican House Members, unlawfully overstepped their Congressional authority that day and thus violated their oath of office.

States have the authority over the appointment of Electors

The Constitution says that States appoint their own presidential Electors and that their votes shall be counted before Congress. Nothing in the Constitution says Congress can reject their votes.

Article II of the Constitution, with updates from the 12th Amendment, says:

“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors … The Electors shall meet in their respective states and vote by ballot for President and Vice-President, … which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States.”

This makes it clear that the States have authority over the appointment of their Electors. The Supreme Court has ruled that “the appointment and mode of appointment of Electors belong exclusively to the states under the constitution of the United States.”

“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…” (emphasis added)

This describes the process for counting electoral votes for President: the Electors’ votes are counted and the majority winner is President. Notice that Congress must be present, but is not granted power to challenge the States’ appointment of Electors.

Can Congress ever reject electoral votes?

Clearly the Senate President is required to correctly count and add up the 538 Electors’ votes without lying or error, so Congress is present to ensure that the counting actually happened and was done correctly and honestly. That means observing that the votes of State certified Electors are counted as cast, but also that any explicitly prohibited or non-certified votes be excluded, such as a suitcase full of money with a handwritten note that says “Make me President and you can keep this cash”. The Constitution gives us a small number of specific reasons when Congress should not count electoral votes:

1. Electors who are federal office holders: “No Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.”
2. Electors appointed beyond the number allocated to the State: “A Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress”
3. Electors which are proven to be imposters, and not actually appointed by their State: “Each State shall appoint … a Number of Electors”
4. Votes for a non-citizen: “No Person except a natural born Citizen … shall be eligible to the Office of President”
5. Votes for a person younger than 35: “Neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years”
6. Votes for President and Vice President both from the Elector’s State: “Vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves”
7. Votes which are proven to be counterfeits, and not the real votes certified by the appointed Electors: “They shall make distinct lists of all persons voted for … which lists they shall sign and certify”

Electoral votes for President should only be excluded if they violate explicitly defined requirements such as these, otherwise the votes shall be counted. Members of Congress are not given discretion over what to count or exclude; they are told what they must count and must exclude. Congress’ duty to ensure the rejection of illegitimate results is very narrow, and should not be mistaken for a broad authority to challenge a State’s appointment of electors or who they vote for. In fact, they have a duty to ensure that no one unduly prevents the counting of certified results. Congress cannot usurp the power that the Constitution grants to the States and their appointed Electors to vote for President.

The process for objecting to election results

The reason we have a process for objecting to election results is because in 1876 some states sent 2 conflicting sets of certified Electors, which inevitably requires the rejection of one of them, since counting both would violate the “Number of Electors” clause. The federal law created to address that circumstance is the Electoral Count Act of 1887, which dictates the process for handling counting disputes. First, Section 5 says:

“If any State shall have provided … for its final determination of any controversy or contest concerning the appointment of all or any of the electors of such State … such determination … shall be conclusive, and shall govern in the counting of the electoral votes as provided in the Constitution” (emphasis added)

This specifies that if a State appoints their Electors by the “safe harbor” date (ex: 12/8/20), then that is the State’s official certification and those Electors’ votes are to be counted by Congress. This is consistent with the Constitution granting States authority to say when the Electors’ appointment is “final” and “conclusive”. Congress cannot generally contest that the State should have appointed some other Elector.

Later in the Act, Section 15 says:

“No electoral vote or votes from any State which shall have been regularly given by electors whose appointment has been lawfully certified to according to section 6 of this title from which but one return has been received shall be rejected” (emphasis added)

This law generally prohibits the rejection of certified electoral votes when there is only one return. The phrases “lawfully certified” and “regularly given” require that the Electors’ appointments and their votes must not violate any of the small number of explicit Constitutional requirements, and that their certification was sent on time with the proper seal by the executive of their State. It does not mean that Congress can dig in to a State’s laws and override their conclusive determination based on any alleged violation in order to reject their Electors’ votes. These phrases in federal law cannot be interpreted to grant a power to Congress which the Constitution did not impart, as required by the 10th Amendment:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

The appointment of Electors is done “in such Manner as the Legislature thereof may direct,” which gives States the authority, but it’s possible Congress could reject Electoral votes in a most extreme case of 100% disregard for State law, such as a State Governor certifying electors in complete opposition to the final tallies from the State run election. However, as long as the State runs its election largely in observance of its laws, then Congress must accept their certification of Electors’ as valid. Any minority amount of voter fraud or deviations from State law are to be addressed by State election officials and the courts prior to the State’s certification, but are not subject to rejection during the electoral count.

For all these reasons, if Congress had achieved enough votes to reject a State’s certified results based on dissenting opinions of State court rulings or suspicions of voter fraud in State run elections, the Supreme Court would be obliged to overturn that action as unconstitutional.

Some who disputed the election even knew that rejecting results was unconstitutional

Ohio Republicans Robert Latta and Brad Wenstrup were among the US Representatives who joined the Texas lawsuit in December contesting the 2020 election results in 4 states. Despite that, they both voted to accept the election results on January 6th, because they knew they had exhausted the lawful means to challenge the results and did not have authority to overturn them that day.

Representative Robert Latta (District 5) said:

“The Constitution does not grant Congress the authority to overturn elections and overrule state and federal courts. We must preserve the Electoral College as outlined in the Constitution because without it, the entire landscape of electing the president would be irreparably altered for the worse. It is for these reasons that I will cast my vote to uphold the Constitution, and I cannot support the objections.”

Representative Brad Wenstrup (District 2) issued this statement:

“As I understand it, neither Article II nor the 12th Amendment grants Congress the power to overrule the states’ certification of their own Electors. … Historically, a reason the Electoral Counting Act of 1887 included the ability to object to a slate of electors came from the need to resolve disputes arising from when a single state certified multiple slates of electors. That has not happened in this case.”

Most Congress Members accepted the election results

The majority of Ohio’s 18 Members of Congress obeyed the Constitution. In total, 8 Republicans and 5 Democrats accepted the election results, including both Senators.

Senator Rob Portman said:

“I stand with what the Constitution makes clear — the people and the states hold the power here, not us. My oath to the Constitution and my reverence for our democratic principles make it easy for me to confirm these state certifications.”

Representative Troy Balderson (District 12) said:

“It is my strong belief, and reading of the Constitution, that Congress does not have the authority to overturn elections, nor to overrule decisions made in state or federal courts. … Today, we are bound by the decisions made by state legislatures and courts regarding the states in question. … I will not challenge the certification of the election of Joe Biden as President of the United States. To do otherwise would imperil states’ rights and render the Electoral College meaningless.”

Representative David Joyce (District 14) supported President Trump’s re-election, but accepted the election results, saying:

“Should Congress override the Constitution and supersede the authority given to the states by our Founding Fathers? Absolutely not. … The states, not Congress, were entrusted with our elections. The people, not Congress, were entrusted with choosing our leaders. The courts, not Congress, were entrusted with resolving any election disputes. … To act outside of that authority would be to unconstitutionally insert Congress into the center of the presidential election process, which would not only delegitimize the Electoral College, but also steal power from the people and the states.”

Representative Steve Stivers (District 15) made this statement:

“I swore an oath to uphold that Constitution, not a President or a party, and that means I cannot support an effort to overstep the parameters set by the 12th Amendment.  I did not vote to object to the electoral college slate.  I do not believe that it is within Congress’s authority to overturn the results that have been independently certified by the states.”

Representative Anthony Gonzalez (District 16) issued a 2 page statement with these excerpts:

“The question before the Congress… is not whether the election was run flawlessly. The question before us on January 6th is who has the authority to determine the President of the United States? Does the power rest with Congress, or does it reset with the people and the states? … Article II and the 12th Amendment of the Constitution make it abundantly clear that the Congress plays a limited role in the certification of the Electoral College vote – only to intercede should there not be a majority winner of electoral votes. Furthermore, the Electoral Count Act of 1887, while subject to many questions of its own, declares that certified results received from the State shall be regarded as ‘conclusive’. … There is simply no legal basis for Congress to throw out the certified electoral vote and overturn the results of this election.”

Afterward, Representative Mike Turner (District 10) said:

“Last week’s assault on the Capitol, the Constitution, and our democracy was reprehensible. A violent mob rioted and stormed the Capitol in a futile attempt to overturn the results of a free and fair election. They failed. In less than a week, President Trump is leaving office disgraced and discredited for his efforts to overturn the 2020 election.”

Senator Sherrod Brown and Representatives Joyce Beatty (District 3), Marcy Kaptur (District 9), Marcia Fudge (District 11) and Tim Ryan (District 13) all voted to accept the results.

Ohio’s 5 who voted unconstitutionally

Representatives Jim Jordan, Bill Johnson and Bob Gibbs most aggressively overstepped their authority to overturn the election results. A month earlier they had joined the Texas lawsuit designed to discard all 20 million votes from 4 states, which was denied by the Supreme Court. In January, all 3 voted to reject both Pennsylvania’s and Arizona’s results, representing 6.9 million voters and 3.4 million voters respectively, further defying the Constitutional limitations on their power. Since Arizona was not part of the Texas lawsuit, that’s a total 5 States and more than 23 million votes these 3 Congressmen sought to throw out.

Congressmen Steve Chabot and Warren Davidson did not participate in the Texas lawsuit, but did vote to reject State certified election results.

Jim Jordan (District 4)

Representative Jim Jordan spoke during the debate over objection to Arizona votes, saying:

“They changed the election law, and they did it in an unconstitutional fashion… The constitution is clear… State Legislatures set election law.”

He’s right that State Legislatures set election law, but his claim that election changes resulted in an unconstitutional appointment of Electors is false. He complains of Arizona’s voter registration deadline extension, which was approved by a federal court since pandemic restrictions had impacted people’s ability to register. The extension was appealed in court prior to the election, which is the proper method of addressing such disputes. Although Arizona officials might have had authority to argue against the Courts’ decisions for its conclusive determination of Electors, Congressman Jordan does not have such authority to reject their final certification based on his own disagreement with the Courts.

He also argued against Pennsylvania’s 3-day mail-in ballot extension and signature comparison guidelines, which were both approved by their State Supreme Court. He complained about Pennsylvania’s ballot curing too, which was also addressed in court. Certifying election results in accordance with court decisions is the lawful way to do it, and Jordan’s disagreement with the courts does not overcome his lack of authority to reject the State’s certification.

Just because the Constitution says Elector appointment is determined by State Legislature, does not mean that court decisions affecting the election are unconstitutional. Legislatures make the law, but the Judiciary evaluates the law. Disagreements with court decisions can be challenged in higher courts, and were in many cases. In the end, following court decisions is lawful, and lawfully certified appointments may not be rejected.

He concluded saying, “We are the final check and balance. The authority rests with us, the United States Congress… We should do our duty. We should object.” He is wrong, because the duty or authority to reject certified electoral votes is not in the Constitution.

Bill Johnson (District 6)

Representative Bill Johnson said:

“I will support objections to the certification of the Electoral College vote of Pennsylvania, and possibly other states on grounds that they: potentially violated the U.S. Constitution; disregarded their own state election laws; and/or failed to count all legal ballots.”

He mentions “potential” illegality 4 times in his statement, as well as “allegations” and “belief” that the election wasn’t fair, an admission of speculation rather than verifiable and quantifiable evidence of wrongdoing. He cites Pennsylvania’s Constitution without explaining how he has the authority to interpret a State’s laws over its own Supreme Court ruling and its own independent certification.

Johnson characterizes his objection as an “effort to scrutinize the parts of our election system that have the greatest potential for fraud” and to “ensure the integrity of future presidential elections”. However, “scrutiny” of potential issues does not justify an unconstitutional rejection of electoral votes.

He says, “The Constitution gives Congress a role to play in this regard and I intend to do my constitutional duty,” but doesn’t mention the limits on that very narrow role, and does not cite any part of the US Constitution which would authorize him to reject these results.

Bob Gibbs (District 7)

Representative Bob Gibbs provide his justification for objecting to the results:

“I do not believe the allegations of fraud and improprieties have gotten their day in court, as many cases were dismissed on procedural grounds, often times citing lack of standing. If the American people could not hear the evidence in court, it is incumbent upon Congress to provide that venue. The Constitution gives state legislatures the authority and power to set elections, and I believe state judiciaries and state executive offices overstepped their authority in a handful of states. Based on my reading of federal code, Congress has the authority to deem whether electors were appointed in accordance with state election law.”

Gibbs vaguely references “fraudulent actions” without providing specific facts to support the allegation. He complains about “lack of standing” in court rulings, but the Texas lawsuit he joined was denied for that reason because Texas did not have standing to challenge Pennsylvania or any other States’ own process of appointing Electors, and thus neither did an Ohioan. It would have been incumbent upon someone with standing, such as a Pennsylvania citizen or lawmaker, to challenge Pennsylvania’s judiciary or executives prior to the Safe Harbor date. It is not the duty of other States to challenge Pennsylvania’s appointment of Electors, nor is Congress given discretion to do so during the electoral count. Although he interprets his authority from federal code, I have detailed above how “lawfully certified” cannot grant broad rejection power to Congress which the Constitution did not impart.

Warren Davidson (District 8)

Representative Warren Davidson voted to reject both Arizona and Pennsylvania, but had intended to reject even more states, including Georgia, Michigan, Nevada and Wisconsin. Ahead of the count he explained his rationale in an op-ed for the Cincinnati Enquirer. He does not allege that fraud occurred, but rather that State elections were not sufficiently secured. However, the Constitution gives the States the authority to determine the manner of appointing their Presidential Electors, and that includes their own implementation of election security.

He explains his concerns across a number of States, but no sweeping narrative of a “strategic attack” can substitute for an adequate explanation for why each individual State-run election would merit rejection. He offers no explanation for why he rejected Arizona, even though federal law requires that no single-return State certified results be rejected except for a narrow set of reasons. He briefly mentions his reason for rejecting Pennsylvania:

Pennsylvania’s Supreme Court ruled – counter to state law – that ballots without postmarks could be counted even if they arrived days after Election Day.

Biden won Pennsylvania’s election by over 81,000 votes, and that did not include any of the roughly 10,000 ballots received after election day which were set aside while they remained contested in court, which means they could not have affected the outcome of the election! And surely only a fraction of those were missing postmarks. Because those votes were not even included in the tally during Pennsylvania’s final determination of votes, there is simply no reason to reject Pennsylvania’s certified results based on the contested mail-in ballots. Davidson claimed to be defending “one person, one vote” as he tried to reject the votes of nearly 7 million Pennsylvanians and the only reason he gave for doing so was because of objectively inconsequential ballots.

Furthermore, Pennsylvania’s Supreme Court had allowed the extension in consideration of the COVID-19 pandemic as a natural disaster, and the US Supreme Court had not ruled against it. Although he may disagree with the courts’ decisions, conducting an election under rules allowed by the courts means it was done lawfully, so their results shall not be rejected.

Davidson says, “The remedy here is outlined by the 12th Amendment of the Constitution, which puts this issue squarely within Congress’ jurisdiction,” but the 12th Amendment outlines no such remedy, saying merely that “in the presence of the Senate and House of Representatives … the votes shall then be counted”.

Steve Chabot (District 1)

Representative Steve Chabot wrote a blog post about the objections to election results, saying:

“I do believe that there was fraud and irregularities in a number of states. Whether it was enough to make the difference in the election, I don’t know. … I am reserving my judgment on how I’ll ultimately vote until I’ve studied all the available evidence, heard from my constituents on both sides of the issue, and listened closely to the debate on the floor today. Then I’ll decide.”

Chabot accept Arizona’s results, but voted to reject Pennsylvania’s. After admitting that he doesn’t know if the unspecified “fraud and irregularities” actually resulted in unlawfully certified electors, he has given no further reasoning for why he ultimately decided to reject the votes, even though the law requires that votes shall not be rejected except for a narrow set of reasons.

Back in 2005, during objections to Ohio’s presidential results, Chabot had said, “This is nothing more or less than an attempt to sow doubt on the legitimacy of this President. …rather than certifying the 2004 election in accordance with the Constitution and Federal law and starting the work that we were elected to do, we are forced today to engage in essentially partisan debate by our colleagues across the aisle.” He was right to criticize objections then, and we should consider how his criticism relates to his own objection in 2021.

In 2022, Chabot discussed his objection with Spectrum News.

History of electoral objections

Since the Electoral Count Act went into effect, no presidential results have ever received enough Congressional support to be rejected. 2021 was the first time in history that multiple States had proper objections considered under the Act’s rules. However, Congressional Democrats have objected to State results in previous elections, so those Congress Members share the blame for setting this unconstitutional precedent.

The first objection to North Carolina in 1969

In 1969, Democrats Rep. James O’Hara and Senator Edmund Muskie signed an objection to a single electoral vote from North Carolina. In that case, they actually sought to strengthen the other party’s clear victory by objecting to the faithless elector who voted contrary to Republican Richard Nixon’s win in North Carolina. Their goal was not to overturn the election, but to reform the Electoral College itself. However, no matter how well intentioned their goal was or how outdated the Electoral College may be, their effort to reject the Elector’s vote was still unconstitutional, and as such Congress correctly accepted the Elector’s vote as cast.

It’s worth mentioning that North Carolina now has a law against faithless electors which cancels faithless votes and replaces them with a faithful Elector, but many States still do not have such laws. Ohio law says, “A presidential elector … shall … cast his electoral vote for the nominees for president and vice-president of the political party which certified him,” but does not specify any consequence if they vote otherwise.

Objections to Ohio’s election results in 2005

2005 was the only other time that an officially recognized objection was raised, this time to Ohio’s electoral votes to reelect President George W. Bush over John Kerry. Flipping Ohio would have given Kerry victory, but Bush had 118,601 more votes in our state. The objection was signed by Democrats Rep. Stephanie Tubbs Jones from Cleveland, Ohio and Senator Barbara Boxer from California. They cited voting irregularities, such as long lines at the polls and issues with voting machines. Although I share these concerns as an Ohioan, Congress just doesn’t have authority to exclude our State certified results from the count. Boxer was the only Senator who supported that objection. 31 House Democrats voted to reject our Electors. Nancy Pelosi called it a “fundamental debate”, but voted to accept Ohio’s results. In contrast to Trump’s campaign to overturn the 2020 election, John Kerry had already conceded the election and did not support the objections in 2005.

The only Ohio Congress Members who voted to reject Ohio’s results in 2005 were Democratic Representatives Tubbs Jones, now deceased, and Dennis Kucinich, who lost his primary to reprise his role as mayor of Cleveland in 2021. Notably, of the 6 Ohio Members who were in Congress both in 2005 and in 2021, Republican Steve Chabot is the only one who voted to reject any State. Our current Senators Sherrod Brown and Rob Portman, who were Representatives in 2005, both accepted all State results. Republican Mike Turner accepted Biden’s win in Pennsylvania and Arizona, and Democrats Tim Ryan and Marcy Kaptur both accepted Bush’s victory in Ohio. Kaptur did raise complaints about Ohio’s 2004 election during the objection debate and commended Jones for bringing attention to these issues, but concluded that “no one can change the outcome of this election” before she voted against the objection.

Other recently attempted objections

Some Democratic Representatives have also suggested objections in 2001 to George W. Bush’s first win over Al Gore and in 2017 to Trump’s win over Hillary Clinton, but neither was supported by a Senator to make them officially recognized. I have not found any Ohio Representatives who participated in those attempts. In 2001, several Representatives attempted objections to Florida’s certified results, such as Florida Rep. Hastings who alleged “official misconduct, deliberate fraud, and an attempt to suppress voter turnout” and others who alleged that voters were disenfranchised. In 2017, the attempted objections were about Russian interference and voter suppression. But again, Congress did not have Constitutional authority to overturn Bush’s nor Trump’s victories which the States had certified.

Notably, it was Vice President Al Gore who silenced objections to his own election defeat in 2001, and then-Vice President Joe Biden who denied objections to Trump’s victory in 2017, both for lack of support from a Senator as required by the Electoral Count Act. Contrast that to this year when outgoing President Donald Trump asked Vice President Mike Pence to overstep his authority and overturn his election defeat, which Pence laudably rejected and instead obeyed his oath of office and followed the law like those before him. Trump told the crowd in Washington that day that he would be disappointed in Pence if he didn’t do his bidding, and later tweeted that “Mike Pence didn’t have the courage,” as rioters chanted “Hang Mike Pence” inside the Capitol.

Looking to the future: 2022 Congressional candidates

We need to discontinue this unconstitutional precedent and respect State-run election results. In the elections coming next year, we must not allow candidates to win seats in Congress who support the unconstitutional rejection of single-return State certified election results, such as Senate candidates Josh Mandel and Jane Timken. Mandel has said, “If I was a United States senator, I would have been standing with Sen. Ted Cruz and Sen. Rick Scott in holding up the certification of the election”, referring to 2 of the Republican Senators who voted to reject State certifications. Timken told Politico, “If I was in the Senate, I would not have voted to certify because I don’t think we had the opportunity to actually investigate any of those reports of widespread fraud.” Rep. Bill Johnson, who voted to reject 2 states’ results, is also considering a Senate run. None of these candidates should be allowed to hold a Senate seat and overstep their Congressional authority.

There are plenty of Senate candidates who would uphold the Constitution. Representatives Tim Ryan and Mike Turner both voted to count the election results according to Constitutional requirements and are considering running for Senate. Candidate and Cleveland businessman Bernie Moreno also accepted the election results on 11/7/20 in a now-deleted tweet.

Conclusion

There’s been a lot of media coverage focused on the falsity of the voter fraud allegations, but I was surprised by the lack of coverage regarding the constitutionality of Congress rejecting votes even if there was some voter fraud. I’m not arguing in favor of keeping the Electoral College as-is, but changing it requires a Constitutional amendment, and until then we are required to uphold it.

On 1/6, Congress’ job was to ensure Electors were actually appointed by their States and to oversee the proper counting of their votes. Even if you believe their job should be to challenge the integrity of the State-run elections at that point, that’s simply not what the Constitution allows. The Congressmen who voted to reject the election results were not only wrong about the myth of widespread election fraud, they also voted unconstitutionally in violation of their oath of office. For that reason, they should not retain the honor of serving in the House of Representatives. Likewise, candidates for upcoming Congressional seats who have supported the rejection of election results should not be given the chance to take office since they’ve signaled that they would disobey the Constitution as well.

11/8/22: Chabot lost re-election to Greg Landsman. Gibbs is retiring as Max Miller takes his place. Unfortunately, Jordan, Johnson and Davidson held on to their seats.

References

Dozens of GOP lawmakers to reject certifying Biden as president

Ohio’s Stephanie Tubbs Jones lodged the nation’s last electoral vote protest in Congress

A look at past efforts by Congress to object to Electoral College votes

Congressional Research Service: Counting Electoral Votes: An Overview of Procedures at the Joint Session, Including Objections by Members of Congress

Is the Electoral Count Act Unconstitutional? by Vasan Kesavan

Constitution Center: Article II, Section 1 Interpretations

Ballotpedia: Counting of electoral votes (January 6-7, 2021)

Ballotpedia: Can members of Congress object to Electoral College results? (2020)