In reference to Trump's speech today: No, Thomas Jefferson Didn't Rig the 1800 Vote Count
Sorry, Trump dead-enders. You should have read that law review article to the end.
by Holly Brewer
January 5, 2021
You may have heard that Rep. Louie Gohmert (R.-Tex.) filed suit against Vice President Mike Pence demanding that, when Pence counts electoral ballots on January 6, he toss out electoral ballots from Arizona, Georgia, Michigan, Pennsylvania, and Wisconsin and substitute ballots cast by Republican “shadow electors” from these states. Pence declined to sign on to Gohmert’s scheme, but in a Dec. 27 tweet (“See you in Washington, DC, on January 6th. Don’t miss it. Information to follow!”) Trump appeared to endorse it.
Let’s don’t waste our time over whether Pence, even if he wanted to alter the election’s outcome, would have legal and constitutional authority to do so. By broad agreement, he would not. What interests me is an historical argument that’s been forwarded on Gohmert’s behalf based on the notion that Vice President Thomas Jefferson rigged the 1800 election for himself by including in his vote count (pictured above) a defective electoral ballot from Georgia. And guess what? That’s wrong, too.
The claim is based on a 2004 article (“Thomas Jefferson Counts Himself into the Presidency”) by two constitutional law scholars, David Fontana of George Washington University and Bruce Ackerman of Yale Law School. Writing in the aftermath of the 2000 presidential election, Fontana and Ackerman noted that just as Al Gore was tasked by the Constitution with counting electoral ballots in his contested race against George W. Bush, so too was Jefferson tasked with counting electoral ballots in his contested race against John Adams. But in Jefferson’s case, Fontana and Ackerman argued, there was a technical problem in the format of Georgia’s four electoral votes—votes that were crucial to Jefferson’s victory over Adams. The House and Senate “tellers” who were appointed to open and record the electoral ballots noted the irregularity. Jefferson did not. He merely entered the votes into the record.
Fontana and Ackerman were surprised that historians had failed to take note of Jefferson’s apparent power grab, and wondered what kind of precedent it set. Might Gore have called the 2000 election for himself by tossing out inconvenient electoral ballots, following Jefferson’s thrilling example? In exploring at length evidence of Jefferson’s seeming misbehavior, Fontana and Ackerman left behind a trail of quotable and condemnatory speculations for future MAGA partisans to resurrect.
But before you get too excited, rest assured that Jefferson did not establish any precedent to support Gohmert’s preposterously expansive view of vice-presidential power. To whatever extent the constitutional question rests on the historical one—and we could argue about that one all day—there is no need to reconsider it, because there was no substantive problem, technical or otherwise, with Georgia’s electoral ballot in 1800. Fontana and Ackerman themselves conceded this at the end of their inquiry (well past whatever point the Trump dead-enders now eagerly citing the article stopped reading).
More: https://washingtonmonthly.com/2021/01/05/no-thomas-jefferson-didnt-rig-the-1800-vote-count/
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