What Bennie Thompson did on Jan. 6, 2005

Early exit polls showed Kerry with a solid lead in Ohio. Many Democrats, and some in the press, too, simply assumed that would be the final result. In the early evening, Robert Shrum, Kerry’s top adviser, famously said to the candidate, “May I be the first to say ‘Mr. President?’” But Kerry’s lead, if it ever existed, did not last. As the count continued, Bush took the lead and won Ohio by roughly 51% to 49%. In the end, Bush prevailed by more than 100,000 votes in the state.

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Then something odd happened. Democratic activists claimed that Bush had cheated. First, they accused Republicans of suppressing the vote, but of course, that wasn’t really new — they always accuse Republicans of suppressing the vote. Then they blamed the GOP for long lines at some polling places. Then came what today would be called the crazies: Some Democrats began to embrace theories that electronic voting machines had secretly switched votes from Kerry to Bush. There was much discussion, amplified on the internet in those pre-social media days, about the machine-maker Diebold and the alleged security flaws in its machines that made them susceptible to hacking.

Some Democrats in Congress joined the speculation. The leader among them was the late Rep. John Conyers (D-MI), who started an investigation of the allegations less than one month after the election. (Democrats were in the minority in the House at the time, so Conyers, the ranking member of the House Judiciary Committee, had limited investigative authority.)

On Dec. 8, 2004, Conyers held a forum on the Ohio situation. It was filled with suspicion and speculation about the election. Maybe the CEO of Diebold, a Bush supporter, manipulated his machines to throw the election for the president. Maybe Ohio Republican Secretary of State Kenneth Blackwell, a major villain in Democratic circles, rigged the process in Bush’s favor. Maybe it was both.

“There were two categories of fraud in the Ohio election,” Cliff Arnebeck, a top official of Common Cause Ohio, told Conyers. “The first was the open and conspicuous fraud. … The second was the hidden fraud that can only be disclosed by careful investigation. And it is this fraud, when you look at the statistical analysis of the vote in Ohio, you see these anomalies, these statistical anomalies, that can only be explained by forms of computer manipulation that would not be conspicuous to election officials, that are a direct attack on the integrity of our election process. And we have considerable evidence that that’s what took place.”

There was nothing to it, but some Democrats adopted arguments like that. They thought “statistical anomalies” explained the Ohio results. They began to call their cause “election integrity.” And those Democrats became more, not less, suspicious as time passed and Jan. 6, 2005, the date that Congress would count the electoral votes, approached. A group of Democrats decided to challenge the certification of Ohio’s 20 electoral votes — a move that, if successful, could switch the election from Bush to Kerry.

They objected using the Electoral Count Act, the now-familiar 19th century law that requires a member of the House to rise in objection to the vote of a particular state and then to enlist the support of at least one senator for the objection to go forward. In 2001, when the Congressional Black Caucus protested Bush’s victory in Florida, they had no senator to go along with them. But this time, in 2005, doubting Democrats did.

“I seek to object to the electoral votes of the state of Ohio on the ground that they were not, under all the known circumstances, regularly given, and I do have a senator,” the late Rep. Stephanie Tubbs Jones (D-OH) said on the House floor. The senator Tubbs Jones had enlisted was Sen. Barbara Boxer (D-CA). Under the Electoral Count Act, both houses of Congress then retreated to their separate places to debate the objections to Ohio’s count.

In the Senate, there was no member willing to join Boxer. The final vote was 74 to 1 against the Ohio challenge. (That meant 25 senators did not vote. Many were not in town for what was assumed to be a ceremonial session.) In his remarks, Sen. Carl Levin (D-MI) explained that going along with Jones and Boxer would set a “dangerous” precedent. “I will vote against objecting to counting Ohio’s electoral votes,” Levin said. “Of course, I am concerned by reports of irregularities across the country during the 2004 presidential election. … But voting to throw out the electoral votes of a state in the absence of clear evidence that voting fraud in that state changed the outcome would set a dangerous precedent for future elections in which the majority party of Congress could overturn the outcome of a presidential election.”

The House was a different story. Tubbs Jones had allies. Not enough to win, but enough to mount a serious protest. Jones made her intentions clear at the beginning of the House debate. “This objection does not have at its root the hope or even the hint of overturning the victory of the president,” she said. “But it is a necessary, timely, and appropriate opportunity to review and remedy the most precious process in our democracy. I raise this objection neither to put the nation in the turmoil of a proposed overturned election nor to provide cannon fodder or partisan demagoguery for my fellow members of Congress. I raise this objection because I am convinced that we as a body must conduct a formal and legitimate debate about election irregularities. I raise this objection to debate the process and protect the integrity of the true will of the people.”

When the vote was taken, 31 House Democrats voted against recognizing Ohio’s electoral votes. Whatever they said about protest, the fact was, they voted against certifying the electoral votes that made the difference in the 2004 presidential election. If they had somehow succeeded, they would have, as Levin said, overturned the outcome of a presidential election. They did it on the basis of internet rumors, wild theorizing, and Democratic policy grievances about the conduct of elections.

And that is where Rep. Bennie Thompson (D-MS) comes in. At the time, Thompson was beginning his seventh term in the House and had become the ranking member of the Homeland Security Committee. He was becoming an influential member of the House, although not as influential as his colleague Rep. James Clyburn (D-SC), now the third-ranking Democrat in the House, who also voted against certifying Ohio’s votes. Thompson could have joined the 88 Democrats who voted to recognize the vote in Ohio or even the 80 Democrats who did not vote — again, this was thought to be a ceremonial occasion, and they weren’t there. Instead, Thompson joined the protest that would have overturned a presidential election had it succeeded.

The reason for telling this story, of course, is that Thompson is now chairman of the House Jan. 6 committee. He is now investigating Trump supporters who, in the aftermath of the 2020 election, acted on the basis of internet rumors, wild theorizing, and Republican policy grievances about the conduct of elections.

On Jan. 6, 2021, Republican representatives and senators built on what Thompson and his colleagues did. In the House vote on the objection to the certification of Arizona’s electoral votes, 121 Republicans voted against recognizing the Arizona vote. That was nearly four times the number of Democrats who voted against Ohio’s certification 16 years earlier. Eighty-three Republicans voted to confirm Arizona’s vote — pretty close to the number of Democrats who voted to uphold Ohio’s vote in 2005. In the Senate, six Republicans voted against certifying the Arizona vote, while 44 GOP senators voted to recognize President Joe Biden’s win in Arizona.

In 2021, Thompson, of course, voted against the protesters — that is, in favor of recognizing Biden’s win in Arizona. With a Democrat as the winner of the presidential election, Thompson was not into protests. But 16 years earlier, with the parties in a different position, he was.

And now Thompson’s investigation covers the actions of Republicans who in 2021 did what he did in 2005. How to avoid the obvious charge of hypocrisy? By not paying a lot of attention to it. Thompson and his Democratic-chosen committee colleagues have focused on every aspect of former President Donald Trump’s actions in the lead-up to and during the Capitol riot. But they have had less to say about the central act of Jan. 6 — the votes in Congress. After all, the reason Congress had gathered was to certify the Electoral College results. Still, members of the Jan. 6 committee have not made the votes in Congress a central part of their public hearings.

Perhaps they will do so later this year. If they do, they can also deal with the record of another committee member, Rep. Jamie Raskin (D-MD), who objected to the electoral votes from Florida on Jan. 6, 2017, when Congress certified Trump’s electoral victory. At that time, there was no senator to go along with Raskin and other Democrats, so there was no formal vote on it as there had been in 2005. So it was Thompson’s vote from 2005 that was a concrete precedent for 2021, when some Republicans voted in protest but others hoped to move beyond protest and actually overturn the results of an election.

What Thompson and his Democratic colleagues did in 2005 was new at the time. They were exploring uncharted territory in resistance to election results. “It is only the second such challenge since the current rules for counting electoral votes were established in 1877,” CNN reported on Jan. 6, 2005. “The last was in 1969 and it concerned a so-called ‘faithless elector,’ according to congressional researchers.”

Thompson’s action has also had a lasting legacy. On Dec. 20, 2020, before Jan. 6 but after many Republicans had questioned the results of the presidential election, Politico published an update on the resisters from 2005. The short version was: Many still believe they were right. “The loosely defined movement that launched back then has lived on,” Politico reported. “Most of its members are left-wing, though not all of them identify as Democrats. They’ve come to define their cause not around John Kerry’s rightful presidency, but around the idea of election integrity. Some are fixated on voter suppression; some subscribe to deep-state conspiracies about the manipulation of voting machines. What they share is a conviction that the 2004 election was a sham, and that it exposed a sweeping, anti-democratic cabal.”

Some of that sounds painfully familiar today. And it remains simply astonishing that Thompson, the man in charge of investigating the 2021 election challenge, actually did the same thing himself 16 years ago.

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