Q&A of the Day – Has A Presidential Certification Ever Been Pushed Back?
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Today’s Entry: Brian- your story about Trump not being able to be certified as president if there isn’t a House speaker is eye opening. Has presidential certification ever been delayed due to this before? Do we know what will happen on the 6th when the certification is scheduled if there still isn’t a House speaker?
Bottom Line: Today’s note comes on the heels of Monday’s story – Is it Really Possible for Chuck Grassley to Become President? In that story I mentioned this: According to the Constitution, a joint session of congress is to convene on January 6th, to certify the presidential election results. If, however, by next Monday the House doesn’t have a speaker, it’s not possible to convene a joint session of congress, and thus the certification of the presidential election wouldn’t take place. If that were to happen there would be a cascading set of circumstances and consequences. There must be a new president sworn in on January 20th. Without a vice president in place, the next in line in succession is the House speaker. Of course, if we don’t have a House speaker, bringing about this potential crisis, we’d then have to go to the next in line behind the House speaker which is the Senate president pro tempore which will be 91-year-old Iowa Republican Chuck Grassley. That takes up to today’s questions.
In answer to the question as to if presidential certification has ever been held up due to the inability of the House of Representatives to approve a speaker – the answer is no. If we do reach Monday without a House speaker in place, we would be in unchartered territory. Now, with that said, there have been times when certification hasn’t taken place on January 6th, including two in which an elected president wasn’t sworn in on January 20th. Historically, when January 6th fell on a Sunday during a certification year, Congress convened on the Friday before (January 4th) to certify the presidential election results. As for the two times we haven’t had an elected president sworn in as scheduled...
The contested presidential elections of 1824 and 1876 led to protracted congressional certifications. In the case of 1824 no candidate won a majority of the electoral college votes (votes were split between four candidates). That led to the House of Representatives holding what’s known as a contingent election which took place on February 9th of 1825, leading to the election of John Quincy Adams. The most contested and protracted election in US history took place in 1876 between eventual president Rutherford B. Hayes and Samuel Tilden. In that super tight election, eventually decided by only one electoral college vote separating Hayes and Tilden, four states – Florida, Louisiana, South Carolina and Oregon had their election results disputed, rejected by Congress and ultimately overturned due to evidenced voter fraud, voter intimidation – including Democrats in South Carolina lynching 150 Black Republican voters and disenfranchisement of Black voters within these states (it’s worth remembering that this election took place only a decade after the Civil War and almost all Blacks were Lincoln Republican voters). The election wasn’t certified by congress until March 2nd of 1877.
Obviously, the dynamics of the two contested elections that drew out congressional certification of the presidential election results aren’t in play. Donald Trump comfortably won the election by the widest margin of any Republican since George H.W. Bush in 1988 and what’s more is that Republicans hold majorities in both bodies of Congress. The drama doesn’t surround the presidency but rather the speakership. It’s hard to imagine that a Republican controlled House could hold up the certification for a Republican elected president, but that’s the concern if House Republicans aren’t able to reach a consensus speaker before Monday.
As for what exactly would happen if we arrive at 1pm Monday (when the joint session of Congress is scheduled to convene to certify the results) without a speaker? It’s unclear. If you’re a political wonk every so often you might hear about congressional parliamentarians. Parliamentary law stems from article 1 section 5 of the constitution. The Parliamentarians provide congress with nonpartisan guidance on parliamentary rules and procedures. Basically, they’re constitutional experts that advise on potential grey areas in governance as they may come up. Missouri Republican Jason Smith is currently the House parliamentarian. How grey is Monday’s scheduled joint session of congress to certify the presidential election results without a House speaker in place? Not very. The only guidance from the Parliamentarian has been to elect a House speaker before Monday. This effectively confirms what I mentioned on Monday, which is that there’s no constitutional path for the House to convene without first having elected a speaker. If Monday comes and there’s no speaker, that’s the voting that would be taking place as opposed to a presidential certification.
The good news as it pertains for President-elect Trump is that the most likely outcome is that there will be a House speaker before Monday. Despite the drama that’s played out in the news media with a handful of House Republicans who’ve suggested they may not support Mike Johnson (which seemingly has added credibility due to the protracted process two years ago in electing Kevin McCarthy speaker, who was also ousted as speaker in the previous congress), Trump’s full endorsement of Johnson this week will likely result in Johnson winning all Republicans not named Thomas Massie. Either way we’ll soon know with congress set to be sworn in this morning.
