past is prologue

The Flimsy Nixon Precedent Trump Is Seizing On to Contest Biden’s Win

Dick Nixon in Hawaii in 1960, before the state’s very close and disputed vote. Photo: Hank Walker/The LIFE Picture Collection via

You may have heard that the very last bitter-end gambit for Donald Trump in challenging his loss to Joe Biden is a vote his troops are trying to arrange at the beginning of the next Congress on January 6, when lawmakers gather to ratify the election of the president. Under the combined provisions of the U.S. Constitution and the Electoral Count Act of 1887, the electoral votes are counted at a joint session of Congress with the vice-president in the chair and announcing each state’s vote. If one House member and one senator object to any particular state’s announced electoral votes, the two chambers go back into separate sessions for a two-hour debate on the dispute or disputes, after which each chamber votes on the presumed challenge. Only if both chambers vote down the announced result are the challenged electoral votes changed or discarded.

Trump is actively encouraging a January 6 challenge, holding at least one White House meeting on the subject involving Mike Pence and assorted House Freedom Caucus types. One of the latter, Representative Mo Brooks of Alabama, has already pledged to initiate the gambit in the House. He and other Trump allies are eyeing and presumably talking to at least five senators (Brooks’s Alabama colleague Tommy Tuberville, plus Josh Hawley, Ted Cruz, Rand Paul and Kelly Loeffler, assuming she keeps her seat on January 5) in search of the one they need to get the ball rolling.

A bogus little exercise conducted by Republicans in mid-December provides a blueprint for their doomed plan. In seven states carried by Biden in the general election (Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin), groups of Republicans named “alternative” electors who cast non-binding ballots for Trump after Biden’s slates were officially certified. Hard-core Trump allies want these electors to supplant the legitimate ones in January.

The immediate objection to any effort demanding that Congress substitute Trump electors for Biden electors is that the latter have been certified by top state-election officials (more often than not governors) prior to the Safe Harbor Deadline (December 8 this year) set out in the Electoral Count Act, which is intended to cut off all later challenges. But in a press release, the fake Trump electors in Pennsylvania rightly pointed to one exception to the universal rule of Congress leaving certified electors in place: Hawaii in 1960.

The 50th state was voting in its first presidential election that year, and it was a closely contested battleground very much unlike the Democratic bastion it ultimately became. The final results gave Republican Richard Nixon a 151-vote victory in Hawaii, leading Republican Acting Governor James Kealoha (Republican Governor William Quinn was out of state at the time) to certify Nixon’s electors and send their names to Congress. But a subsequent judicially ordered recount eventually showed Kennedy actually carrying the Aloha State by 115 votes, and Quinn dutifully certified that result in early January, just before Congress met to count electors.

As fate would have it, Nixon, as the outgoing vice-president, was thus presiding over the session to finalize the election he had lost and had to deal with competing certifications from Hawaii (and from the same governor, moreover) knowing that Democratic members of the state’s congressional delegation were prepared to challenge the results if he awarded the state to himself and also knowing his decision would not affect the overall outcome. In a gesture generally regarded as “gracious,” Nixon announced Hawaii’s electoral votes as going to JFK.

So, one vice-president has indeed brushed aside a “certified” electoral slate in favor of an “unofficial” competing slate touting subsequently discovered errors in the initial results. Or so those promoting Trump’s own unofficial electors will likely claim, perhaps in an effort to pressure Mike Pence into emulating Nixon’s decision — not in spirit, obviously, since there would be nothing gracious about Pence trying to give himself a second term as veep.

In reality, 1960 offers an extremely poor precedent for any late Trump election coup. For one thing, Nixon only offered his endorsement of the JFK slate as definitive if no member of Congress objected (none did). For another, the recount that produced a reversal of Hawaii’s decision was judicially ordered and supervised, and thus didn’t resemble the unsupported and self-proclaimed “reconsiderations” of Biden wins Team Trump is asserting. Finally and most importantly, a Republican governor certified the Kennedy slate as his state’s actual choice. There is nothing like that in the case for abandoning certified Biden electors this year.

These facts will not, of course, sway Trump hard-liners from moving ahead with their challenge. House conservative wild man Louie Gohmert and fake Trump electors from Arizona have filed suit in a federal district court to give Mike Pence total discretion to recognize “alternative” electors, as Politico explains:

Gohmert and a handful of the would-be electors sued Pence in federal court on Monday in a long-shot bid to throw out the rules that govern Congress’ counting of electoral votes next week …

The lawsuit asserts that the 1887 law known as the Electoral Count Act, the vague statute that has long governed the electoral vote counting process with minimal drama, unconstitutionally binds Pence from exercising total authority to choose which votes to count.

“Under the Twelfth Amendment, Defendant Pence alone has the exclusive authority and sole discretion to open and permit the counting of the electoral votes for a given state, and where there are competing slates of electors, or where there is objection to any single slate of electors, to determine which electors’ votes, or whether none, shall be counted,” the suit contends.

It’s unlikely the suit will be heard, much less ruled upon, before January 6, but since Pence will have to respond to it as defendant, it puts him in the position of either agreeing with or repudiating the maximum Trump claim. It’s a lose-lose proposition for Pence, who is not going to be able to get away with overturning the election results as an exercise of the “exclusive authority and sole discretion” the Gohmert suit claims for him. But he also will not be given leeway by Trump and MAGA nation to make the kind of gracious gesture even Richard Nixon made in recognizing an obvious election defeat.

Correction: a previous version of this post incorrectly stated that it was the same governor who first certified Nixon and Kennedy electors.

The Nixon Precedent Trump Is Using to Contest His Loss