Introduction

Due to an obscure provision in an archaic law and the unbridled ferocity of MAGA rioters, we faced an unprecedented Constitutional Crisis on January 6, 2021

The Events

On January 6, 2021, rioters attacked and injured 150 police officers before breaking into the U.S. Capitol during the ceremonial counting of the electoral votes. Some rioters wanted to execute Vice President Mike Pence. (Former President Trump defended those who built gallows to hang his Vice President.) Others intended to murder or kidnap Speaker Nancy Pelosi at gunpoint. 

As rioters spread terror through the Capitol, they desperately tried to prevent Joe Biden from formally being elected President. It was only through the quick thinking of the Senate parliamentarian that the rioters did not throw our democracy into an even more profound crisis. Working under her direction, unnamed staff members physically saved the electoral votes before the insurrectionists could destroy them. Due to potential death threats, their identities are secret.

Constitutional Crisis On January 6, 2021

Why was saving the actual electoral votes so important? Had the pro-Trump mob succeeded in destroying the signed, certified physical ballots, Congress would have faced an unprecedented crisis. Legally, they’d have no clear direction for what to do next!

In 1877, following America’s most hotly disputed presidential election, Congress passed a law attempting to clarify the process for collecting, certifying, and counting electoral votes.

The Confusing Law That Helped Spark Constitutional Crisis On January 6, 2021

The Electoral Count Act of 1877 offers clarity on three significant issues. First, The Act mandates that the Vice President’s role is ceremonial. Vice President Pence was correct in believing he had no authority to send properly certified electoral votes back to the states.

Second, the Act establishes the limited circumstances under which Congress can reject
electoral votes. The events of the Election of 2020 do not meet the Act’s definition of contested electoral votes. Professor John Eastman wrote a memo that influenced President Trump’s thinking. He claimed that the Vice President had the power to disallow electoral votes. Later, Eastman unambiguously stated his theory was not consistent with the law! Eastman says of his own memo: having Pence reject electoral votes — was not “viable” and would have been “crazy” to pursue!

Third, the Act mandates the exact dates on which electoral votes must be cast in the states, sent to, and received by Congress. Crucially, it establishes January 6 as the precise date when Congress must open and count the ballots. As a result, it makes no provision for what would happen if the physical Electoral Votes could not be opened.

That’s the problem!

If The Rioters Had Destroyed the Physical Electoral Ballots, No Law Would Control What Would Happen Next!

Since each state publicly announced its electoral count, you may think that would be enough to declare a winner. Or that Congress could ask the states to resubmit the ballots. Congress has that power. However, the Electoral Count Act of 1877 makes no provision for any legal counting after January 6. Theoretically, a member of Congress who disagreed with the election outcome could file a lawsuit invalidating any electoral votes received after January 6!

Why couldn’t Congress reach out to every state governor and ask them to validate their electoral votes electronically? Under the law, that would not be legal. Only the physical ballots, properly signed and certified by state Governors, can be counted.

THE UNPRECEDENTED QUESTION

Here’s the question I researched: what would have happened if the mob had destroyed the physical ballots trying to stop the count?

There’s just no provision in the law that addresses that possibility. As a result, the quick thinking by the Senate Parliamentarian and the unnamed aides who carried the ballots to safety prevented a massive constitutional crisis!

Here’s my best guess. Without the physical ballots, there would be no president-elect unless both sides of Congress met and quickly voted to amend the Electoral Count Act of 1877. Would they have done that? With Democrats controlling the House of Representatives, they’d probably agree promptly to extend the deadline for counting the electoral votes. Would a 50-50 Senate agree? There are probably enough responsible, Constitution-loving Republican senators to pass such a law rapidly.

Would That Solve The Problem of The Constitutional Crisis On January 6, 2021?

However, even if Congress did act immediately, no state legislatures were in session. All 50 states would have to immediately call their state legislatures back into session to re-certify the electoral votes by January 20. There’s little chance that they could all get it done.

If Congress passed a law to amend the Electoral Count Act of 1877,  lawsuits challenging the change would be filed immediately. Could the courts act quickly enough to get a resolution by January 20? As a result, the Supreme Court, invoking original jurisdiction, could rule rapidly. But no guarantee would happen.

More Complications!

If I’ve not made you too dizzy yet, here’s another possibility! The Constitution mandates that the new President takes office on January 20. If the Electoral College votes were unavailable, Congress might need to elect the President! Most Americans would likely favor honoring the voters’ choices. That sentiment would not bind a partisan Congress. I can create a scenario where one House of Representatives member might decide the entire election!

The Likely Resolution Of The Constitutional Crisis On January 6, 2021

After studying this question intensely, I came across the most likely resolution. It’s straightforward. I didn’t realize it when I began looking into the matter. It is always fun for me to learn something new!

My research uncovered an important fact. The states do not send just ONE set of certified and signed electoral votes to Washington! They send another copy for preservation in the National Archives. The location of those physical ballots is a mystery. If they were not in the Capitol for the ceremony, authorities might have easily transported them to the Capitol for counting once the National Guard restored order. However, it’s also possible that they might have been in the Capitol and thus been destroyed as well.

However, it is not completely certain that Congress would have to accept these votes! It seems a safe assumption that they would, but a senator like Josh Hawley or Ted Cruz, determined to stop the count, could argue that since the ballots were not sent directly to Congress, a court should rule as to their admissibility as replacements. I assume that the majority of the Senate would reject such an argument and vote to count them, but that alone might not stop a court from issuing a temporary injunction while considering the matter. That would accomplish the aim of the insurrectionists and their allies in the Senate, slowing down the count of the electoral votes.

Final Question: What if The Rioters Had Burned Down The Capitol?

And what if the rioters destroyed the United States Capitol itself?

Fort McNair in Washington, D.C., would host the Congress! Because of previous terrorist threats, the fort built a unique secure amphitheater where Congress would meet. In 2004, the Senate held a mock session there to test its capabilities! As the rioters’ rampage wreaked havoc, Congressional leaders, including GOP House Minority Leader Kevin McCarthy, were evacuated to Fort McNair!