U.S. Vice President Kamala Harris holds the gavel next to Speaker of the House Mike Johnson during a joint session of Congress to certify Donald Trump's election, at the U.S. Capitol in Washington, on Jan. 6.Evelyn Hockstein/Reuters
And with two raps of a gavel, the ordeal was over.
Two months ago, Kamala Harris conceded the bitter 2024 presidential election to Donald Trump. A wrinkle in the Constitution placed her in the awkward, heartbreaking position Monday that only three other people in nearly two-and-a-half centuries have endured: certifying the election of her rival for the presidency.
Each previous time an unsuccessful vice-president confirmed their loss in a presidential race was a moment of great poignancy. None was more powerful than this one, four years after Mr. Trump fomented a riot at, and ultimately inside, the very Capitol building where Ms. Harris formalized his victory in an orderly, even monotonous 40 minutes.
Decade after decade, this process has unfolded with little ceremony and even less attention; a president is elected in November and the Jan. 6 procedure is a mere formality, witnessed by hardly anyone beyond the walls of the Capitol. But because those walls were breached four years ago, and because the very term “Jan. 6″ has become a symbolic date of democratic infamy, this year’s certification was freighted with impact and irony.
This time there was neither dissent nor disruption, neither vitriol nor violence. No one called for the hanging of the vice-president. No one called for the mobilization of the National Guard.
Ms. Harris began her duty by reciting words of democratic continuity at a near whisper. (“Pursuant to the Constitution and laws of the United States …”) She asked the four tellers – lawmakers chosen to tally the result – to ascertain that the votes that had travelled to the chamber in two mahogany boxes were “regular in form and authentic.”
Those were fighting words four years ago. They were mere ritual instructions this year.
“As we have seen, our democracy can be fragile,” Ms. Harris said in a video statement hours before travelling to Capitol Hill. “It is up to, then, each one of us to stand up for our most cherished principles.”
The duty Ms. Harris performed was set out in 1787, when the framers of the Constitution, in Article II, Section 1, Clause 3, specified the states should “transmit sealed” accounts of the vote to the capital, where the “President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted.” (In the U.S., the vice-president is the president of the Senate.)
A half-dozen vice-presidents have found themselves in the position of confirming the results of elections in which they lost re-election to the vice-presidency. “I thought about ‘what if?’ that day,” former vice-president Dan Quayle, who along with president George H.W. Bush was denied re-election in 1992, said in an interview. “But I had a duty – and what I did was pretty perfunctory. We didn’t have the commotion there was in 2021.”
The Constitution doesn’t specify that vice-presidents should count the votes, rather than simply open the envelopes. That question moved from the academic to the actual in 2021, when Mr. Trump, needing then-vice-president Mike Pence to nullify at least 36 electoral votes that had been cast for Joe Biden, prompted both a constitutional crisis and, when Mr. Trump’s supporters stormed the Capitol, a law-enforcement crisis.
Mr. Trump believed, as he said in a tweet the day before the riot, that the vice-president “has the power to reject fraudulently chosen electors.” In a subsequent tweet at 1 a.m., he argued that if Mr. Pence “comes through for us, then we will win the Presidency … Mike can send it back!”
“All Mike Pence has to do is send them back to the States, AND WE WIN,” he said in yet another tweet. “Do it Mike, this is a time for extreme courage!”
Mr. Pence asked aides to consult J. Michael Luttig, a former federal judge with gold-plated conservative credentials, who responded, ”You can tell the vice-president that I said that he has no such authority at all.”
The 2022 Electoral Count Reform and Presidential Transition Improvement Act, passed in the aftermath of the 2021 controversy, explicitly establishes that vice-presidents’ roles in this duty are simply clerical, and that they don’t have the power to overturn certified state results. Most constitutional experts believed that even under the previous law, passed in 1887, vice-presidents were powerless to alter election results.
“This is a ceremonial action and nothing more,” said Kyle Kopko, a political scientist at Pennsylvania’s Elizabethtown College. “Despite what the Trump people said, the vice-president cannot unilaterally exercise judgment over electoral-college returns.”
The first sitting vice-president who lost a White House race and certified his rival as president was John C. Breckinridge in 1861. The last one before Ms. Harris was Al Gore in 2001. The only vice-president faced with this task who eventually became president was Richard Nixon.
“I do not think we could have a more striking and eloquent example of the stability of our constitutional system and of the proud tradition of the American people of developing, respecting and honouring institutions of self-government,” Mr. Nixon said in confirming the election of John F. Kennedy, despite aides’ pleas for him to contest the 1960 results. “In our campaigns, no matter how hard-fought they may be, no matter how close the election may turn out to be, those who lose accept the verdict and support those who win.”
Vice-president Hubert Humphrey lost the 1968 election to Mr. Nixon, but was travelling on the appointed day of certification, so Democratic Senator Richard Russell of Georgia was pressed into service for the certification of Mr. Nixon’s victory.
“When a vice-president presides over the certification of someone he or she ran against it can be an awkward moment,” said Joel Goldstein, a Saint Louis University emeritus law professor regarded as the leading expert on the American vice-presidency. “But in a sense, it is a moment that reaffirms basic principles of American democracy, in belief in the rule of law, and in fair elections. It is what makes our country distinctive – the acceptance of democratic defeat. What better symbol of that could there be when a losing candidate recognizes the victory of a rival?”