5 Days in January
Yesterday, while I was trying to sort out the schedule of the Select Committee on January 6, I had one of those printer snafus that spit out a whole bunch of pages when I thought I had sent one page to print. Instead of my printer printing only the official calendar of the U.S. House for July 2021, my printer spit out the entire year of 2021. One month per page.
Starting with January 2021.
Which caused me to actually look at it.
And that’s when I saw it. Right there in front of me on the official calendar of the U.S. House. On Wednesday, January 6, 2021 the words “Electoral College.” On Friday, January 8, the words “Last Votes 3:00 PM.” On the days Monday, January 11 through Friday, January 15, the words “District Work Period.” (f/k/a “recess”)
As of January 6, 2021, Congress wasn’t scheduled to be in session for the full five days allowed, as a matter of law, for the counting of the certified votes from the states.
Five Days in January
3 U.S.C. §§15-18 are the drill-down of the Twelfth Amendment. The statutes where you find the mechanicals on how the electoral votes are counted. The Vice President as the presiding officer in his role as the President of the Senate. The appointed “tellers” from among the Members to whom the certificates are handed after being opened by the President of the Senate. That the states are accounted for in alphabetical order. How to make an objection, and that the objection must be resolved through a specific procedure, before moving on to the next state.
And the deadline for the completion of the process. The 5-day deadline. The law, since 1948, has provided up to five consecutive calendar days, minus the Sunday, for the counting of the electoral votes and the resolution of any challenges.
Except that in January 2021, Congress was never scheduled to be in session for the five days designated by statute for the completion of the counting of the electoral votes. Not even given the weeks of advance notice, signaled most prominently by more than twenty lawsuits, that challenges would be made to the electoral votes of several states, in accordance with the process set forth by statute.
An Alternative Scenario
I got into these statute sections because they are the foundation of the DOJ plea deals recently struck with defendants Caleb Berry (age 20, FL), Mark Grods (age 54, AL), and Graydon Young (age 54, FL, *note that his paperwork was removed when his plea deal was announced). Contained within their plea deal paperwork is the language drafted by the Attorneys of the U.S. Department of Justice, as follows:
“⁋16. At the time Mr. Berry unlawfully entered the building, Mr. Berry believed that he and the co-conspirators were trying to obstruct, influence, and impede an official proceeding, that is, a proceeding before Congress, specifically, Congress’s certification of the Electoral College vote as set out in the Twelfth Amendment of the Constitution of the United States and the statutes listed in sections 15 through 18 of title 3 of the U.S. Code.”
Find that language here (Berry), here (Grods, ⁋17), and here (Young, ⁋16 , *on document cloud).
An Alternative Scenario
What if we considered an alternative scenario? What if, the first people who reached the Capitol on January 5 weren’t turned away? What if the grounds had been open and those folks had been permitted to walk up to the Capitol and go through security and enter the U.S. Senate Chamber Gallery, as Americans have been permitted to do so since January 4, 1859? After all, any session of the Senate with closed doors must be made on motion under Senate Rule XXI, “Session with Closed Doors,” “on the discussion of any business which may, in the opinion of a Senator, require secrecy,” at which point the galleries are cleared. Otherwise, “[t]he Senate gallery is open to visitors whenever the Senate is in session.”
Surely, the United States Senate wasn’t meaning to conduct the 2020 electoral vote count under 3 U.S.C. §15 in secret?
And what if – just hear me out – people in the gallery were permitted to make all manner of expression: boos, clapping, jeering, heckling, taunting, teasing. While the legislators went on about their jobs? You know, that First Amendment thing.
What if, at the same time, Senators and House Members had been allowed – as called for under the law – to make objections to the receipt of individual state electoral votes - thus propelling various conferences to be conducted – again, under the law. [Flash back: only Arizona and Pennsylvania objections were completed. Georgia? No Senator paired with Representative Hice, as required under 3 U.S.C. §15 to force a conference and a vote. No Senator paired with Representative Greene over Michigan. Neither Nevada, nor Wisconsin objections were completed without Senators to back Representative Brooks or Grohmer.]
And what if that had taken five days to complete? Truly: so what, if it had taken five days to complete? What if Congress had actually been properly scheduled for five straight days, excepting Sunday, per the law, and the media and the public hadn’t been so pushy about getting it done so we could get back to our regularly-scheduled programming, including commercials.
What if, instead of watching it on TV, we, too, had gone to Washington, D.C., in person, to bear witness to the 2020 electoral vote. Not to rally, protest, or counter-protest, but, instead, to look our legislators in the eyes. To do – not what NYC Attorney Urooj Rahman did in 2020 by throwing a Molotov cocktail into a police vehicle and attempting to distribute the explosives to others – but the way City Councilman Kshama Sawant did it in 2020 in Seattle by using her keys to open the doors of City Hall to allow entry to several hundred protestors, who had their say at an open mic and then walked themselves out of the building.
Our Job in 2021 is to Look for Executable Strategies
There are five days designed at law for the opening, examination, objection, and completion of the state electoral votes.
What if Congress had used those five days, instead of using less than nine hours? And what if we had been there, too?
