This week, Montana Representative Matt Rosendale became the third Congressman in Montana’s history to officially object to another states’ electoral results.
YPR News’ Rachel Cramer has been tracking this final step in certifying Pres.-elect Joe Biden’s win over Donald Trump. She shares her reporting with Nicky Ouellet.
Nicky Ouellet: Rachel, newly sworn-in Republican Rep. Rosendale, and Sen. Steve Daines, earlier this week both indicated they planned to object to certain states’ electoral votes due to alleged fraud and what they called irregularities in how elections in other states were conducted during the novel pandemic. Election officials and judges have found insufficient evidence that happened. Did Daines or Rosendale follow through?
Rachel Cramer: Wednesday night, U.S. Representative Matt Rosendale joined with other House Republicans in voting to object to electoral votes from Arizona and Pennsylvania, which were ultimately certified by the House and Senate.
In a statement sent as lawmakers reconvened after a pro-Trump mob overtook the U.S. Capitol, Rosendale said, “These votes today were always about preserving and protecting the integrity of our election process.”
Nicky Ouellet: And what about Sen. Daines?
Rachel Cramer: Daines, along with 10 GOP senators, had been planning to object to votes from certain states unless Congress formed a committee to do an emergency audit, but he reversed course after insurgents mobbed the Capitol Wednesday afternoon.
In a statement from Daines’s office Wednesday evening, Daines said, “We must restore confidence in our electoral process. We must, and we will, have a peaceful and orderly transition of power.”
Montana’s Democratic Senator Jon Tester certified all of the state’s electoral results.
Earlier in the day during a Tele-townhall, Tester condemned lawmakers who said they would make objections.
“This is one of the worst days that I’ve spent in Washington, D.C. in the last 14 years,” he said. “Why? Because what’s going on right now is going directly against our Constitution. The votes have been counted; they’ve been tallied and confirmed in each state. They’ve all been done in a non partisan, bipartisan way. And what is going on right now is dangerous to our democracy; it’s dangerous to our nation, and I think it will hurt this nation, including Montana, for years to come.”
Nicky Ouellet: Update Jan. 11, 2021: YPR interviewed Sen. Daines Friday about his vote after this story's broadcast. Rep. Rosendale has not yet been made available for an interview with YPR.
Rachel Cramer: 1969. That’s according to records dug up by University of Montana Law Professor Anthony Johnstone. Montana Democratic Congressmen Mike Mansfield and Lee Metcalf voted in favor over an objection to a faithless elector, that’s someone who disregards a pledge to vote for a particular presidential candidate based on their state’s popular vote. The majorities in both chambers rejected the objection.
Rosendale wasn't objecting to a faithless elector. He, along with other Republicans, called for Congress to form a commission to do an emergency audit of election results. Johnstone says that’s not allowed under the federal law that outlines procedures for the counting of electoral votes by Congress.
"There is no option under the Electoral Count Act, under the law as it stands, or under the Constitution to create this kind of commission that the objectors were seeking,” says Johnstone. “That would have had to take an affirmative act of Congress to pass a new law.”
Nicky Ouellet: Some of the lawmakers who objected to certain electoral votes made claims of widespread voter fraud, which has been debunked by election officials, state audits and the courts. Others argued that it was unlawful for state officials to change how elections were run in 2020 because it’s the state legislature’s right to do that. What did Professor Johnstone have to say about that?
Rachel Cramer: He said we can look at Montana as an example.
Last year, then-Governor Steve Bullock used emergency powers to allow counties to conduct the election entirely by mail due to health concerns from the coronavirus pandemic. The Trump campaign sued, saying that option circumvented the legislature’s authority, but the court flatly rejected that claim because the legislature had given the governor special authority to modify laws under a declared state of emergency.
Johnstone says, “The practice under the Constitution, until these objections arose, was to leave these questions about the fairness or defects in state elections to the states themselves or the courts of law, and that process has played out over and over and over again, finding no evidence of fraud sufficient to make a difference in the results in any one state or the presidential election overall.”
Nicky Ouellet: Rosendale and Daines both said Democrats set the precedent by raising objections in the last three presidential elections won by Republican candidates.
Rachel Cramer: The last time one of those objections from Democrats went to a vote was in 2005 and Congress rejected it.
Democrats also objected to results in 2001 and 2017 but the objections didn’t have support in both chambers and never went to a vote.
Jeremy Johnson, an associate professor of political science at Carroll College, says what happened Wednesday, with a large number of lawmakers objecting to electoral results when a president has not conceded, was unprecedented.
“This is very different,” says Johnson. “It’s not just about one state; it’s about a whole bunch of different states without even very specific objections.”
Johnson says the role of the Electoral College is to decide the presidential election, not Congress. Congress’s duty is to count and certify the votes, which have already been certified by the states.
He says finding a handful of cases of voter fraud is not enough to change election results.
“You have to find enough cases that would overturn the amount that you win the election by, and of course in states like Pennsylvania, Biden won by over 80,000, more in Michigan and even Georgia was close to 12,000,” says Johnson.
Election officials and former Attorney General William Barr have confirmed no widespread election fraud. Neither Trump nor any of the lawmakers promising to object to the count have presented credible evidence that would change the outcome.
Nearly all of the legal challenges put forth by Trump and his allies have been dismissed by judges. The Supreme Court, which includes three Trump-nominated justices, has also denied requests to hear a pair of cases aimed at invalidating the outcome of the election in key battleground states.
Nicky Ouellet: In a statement Daines’s spokesperson Katie Schoettler said Daines’ intended objection to Arizona’s results was to raise concerns for Americans who lack confidence in elections and to drive reforms to restore integrity, confidence and trust in the process.
Rachel Cramer: Right, UM Professor Anthony Johnstone says questions about the fairness or defects in state elections should be hashed out by the states themselves or the courts of law, not during this process of certifying electoral votes.
He says the silver lining from the debates in Congress is that there could be some meaningful reform moving forward to increase the people’s confidence in elections.
“By, for example, ensuring that cities, counties have enough resources to count the votes on election night that were cast on election day or before election day, instead of ... allowing people to create the misleading impression that there were somehow dumps of votes coming in after election day. The only reason that's happening is because we've starved these election administrators of the funds necessary to count the votes on time,” Johnstone says.
Or, Johnstone says states could allow counties to begin counting votes earlier. He says it’s worth paying attention to these issues and trying to get them right.
“We will see which of the objectors are serious about improving our democracy and which were playing a dangerous game of undermining confidence in our form of government.”
Nicky Ouellet: Rachel, thanks for sharing your reporting.
Rachel Cramer: Thanks, Nicky.