The 1857 Precedent: How a Snowstorm in Wisconsin Led to Electoral Count Provisions in the 12th Amendment

Strategic Insights -

In a joint session of Congress this Wednesday, Vice President Mike Pence will announce the final electoral vote count, certifying Joe Biden as the President-elect and Kamala Harris as the Vice President-elect. However, this ceremonial event is shrouded in controversy, with President Donald Trump refusing to concede the election and some Republican lawmakers seeking to disrupt the proceedings. This situation is not unprecedented, as a similar dispute in 1857 over Wisconsin's electoral votes led to procedures that are still in place today.

Key Takeaways:

  • The 12th Amendment of the U.S. Constitution requires the president of the Senate (the vice president) to "open all the certificates and the votes shall then be counted" during a joint session of Congress.
  • In 1857, a dispute over Wisconsin's electoral votes, which had been delivered a day after the deadline due to a blizzard, led to a compromise in the Senate, where it was agreed that an "Act of God" had prevented the electors from reaching the state capital of Madison on time.
  • The discussions and eventual compromise in 1857 created an unwritten precedent that would influence procedures in the future, including the creation of the Electoral Count Act of 1887.
  • The 1887 act bars the vice president from arbitrarily deciding to reject state votes and requires any valid objections to be stated in writing in advance and signed by at least one member of both the House and Senate.
  • The requirements of the Electoral Count Act of 1887 have hardly ever come up, with the last instance being in 2005 when several Democrats unsuccessfully challenged Ohio's electoral votes for George W. Bush.
  • Some pro-Trump lawmakers have vowed to seek to block the certification of Biden's victory, but this effort is all but certain to meet the same fate as the one in 2005: failure.
  • The procedures that were established in 1857 and codified in the Electoral Count Act of 1887 have been crucial in preventing disputes over electoral votes in future presidential elections.

Statistics:

  • 5: the number of electoral votes at stake in the disputed Wisconsin election in 1857.
  • 174: the number of electoral votes for James Buchanan in the 1856 presidential election.
  • 114: the number of electoral votes for John Fremont in the 1856 presidential election.
  • 8: the number of electoral votes for Millard Fillmore in the 1856 presidential election.
  • 2005: the year when several Democrats unsuccessfully challenged Ohio's electoral votes for George W. Bush.
  • 1877: the year when Congress created an Electoral Commission that gave the presidency to Rutherford Hayes over Samuel Tilden, who had 200,000 more votes.
  • 1887: the year when Congress passed the Electoral Count Act of 1887.
  • 809: the number of words in the Electoral Count Act of 1887.
  • 1: the number of time the requirements of the Electoral Count Act of 1887 have come up since its passage.

Sources:

  • The Washington Intelligencer (1857)
  • The New York Times (1857)
  • Congressional Globe (1857)
  • Richmond newspaper (1887)
  • The Electoral Count Act of 1887
  • Shafer, Ronald G. "The Carnival Campaign: How The Rollicking 1840 Campaign of Tippecanoe and Tyler Too Changed Presidential Elections Forever."