Electoral College

Is the Electoral Vote Count Act Unconstitutional?

An argument that Congress lacks the authority to reject electoral votes.

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On January 6, a number of Republican Representatives and Senators sought to challenge the electoral votes submitted by several states, relying upon provisions of the Electoral Vote Count Act, which purports to give Congress the authority to reject electoral votes that were "irregularly given." The EVCA was adopted after the contested election of 1876, with the aim of creating a process to handle such contests in the future. But is the EVCA constitutional?

Writing in the Wall Street Journal, Judge Michael Luttig and conservative attorney David Rivkin argues that Congress had no authority to enact the EVCA, and there is no constitutional basis for Congress to reject a state's electoral votes. They write:

Congress gave itself more authority than the Constitution allows, by establishing a labyrinthine process to resolve state electoral-vote challenges. The most constitutionally offensive provision gave Congress the absolute power to invalidate electoral votes as "irregularly given," a process that a single representative and senator can trigger by filing an objection.

Fortunately, this provision has seldom been invoked—only twice before 2021—and no objection has ever been sustained. But this year Republican lawmakers vowed to contest the results in six swing states that Joe Biden carried. Although the objections had no prospect of success in a Democratic House and those that were filed (for Arizona and Pennsylvania) were voted down overwhelmingly in both chambers, the law put Congress smack in the middle, where it uncomfortably found itself in 1876.

That's not what the Framers intended. The Constitution's Electors Clause gives state legislatures plenary authority over the manner of choosing electors and relegates Congress to determining on what day the Electoral College would cast its votes. The 12th Amendment, ratified in 1804, reformed the Electoral College by providing for separate votes for president and vice president. It also reiterates the Article II, Section 1 language that the certified state electoral results are to be transmitted to Washington, opened by the president of the Senate, and counted in the presence of both congressional houses.

Luttig and Rivkin are not alone. Boston University law professors Gary Lawson and Jack Beermann have a draft paper, "The Electoral Count Mess: The Electoral Count Act of 1887 Is Unconstitutional, and Other Fun Facts (Plus a Few Random Academic Speculations) about Counting Electoral Votes," also arguing that the EVCA exceeds Congress's powers. Here is the abstract:

In this essay, and in light of the controversy that arose in the wake of the 2020 presidential election, we explain the constitutional process for counting electoral votes. In short, every four years, the Twelfth Amendment requires the President of the Senate (usually the Vice President of the United States) to open certificates provided by state presidential electors and count the votes contained therein. The Constitution allows no role for Congress in this process, and thus, the provisions of the Electoral Count Act purporting to grant Congress the power, by concurrent resolution, to reject a state's electoral votes, is unconstitutional. Further, the objections raised to two states' electoral votes on January 6, 2021, were not proper within the terms of the Act, and therefore, even if Congress has the power specified in the Act, congressional action rejecting states' electoral votes would have been contrary to law. While state executive or state judicially-ordered departures from the requirements of state election laws in presidential elections might violate the federal Constitution's requirement that electors be chosen as specified by state legislatures, determining whether this has taken place is much more complicated than simply examining the language of state election statutes. We suggest that making this determination requires a careful examination of state interpretation traditions that we decline to undertake in this brief essay on the constitutional process for counting electoral votes.

While Lawson and BEermann may not agree with Luttig and Rivkin on every particular, they agree on a central point: Congress does not have the authority to second-guess the electoral votes submitted by states, and those members of the House and Senate who sought to argue otherwise were endeavoring to violate the Constitution.

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  1. It’s not unconstitutional unless the supremes say it is.

    1. Yeah, and in this particular situation, it’s the ultimate political question. As between Congress interfering in an election result and the Supreme Court doing it, well, at least members of Congress can lose their seats if there is public outrage.

    2. The supremes have discredited themselves by refusing to hear the merits of any of the cheating charges. And I believe the report that CJ Roberts was heard to shout, in chambers, that he wouldn’t consider any such case because riots would follow.

      Meanwhile the media that half the country still trust (because it favors their side) smear the challengers and their makers as insane and no one who argues otherwise gets a hearing.

      So long as these facts stand, our system of elections is as broken as that in any banana republic, and the forcible methods sometimes used in banana republics may be the only cure.

      I do not expect that the Democrats will ever again leave office peacefully.

  2. If state legislators have plenary power then why are various Secretaries of State allowed to change the rules on the fly? Both pre and post election?

    1. Because, as every court that has considered this has found, the manner of appointing the state’s electors is distinct from the administration of the election. The legislature determines, for example, that the winner of the state’s popular vote gets all the electors. That satisfies Article II, Section 1, Clause 2. The Constitution does NOT say that the legislature must control every minute detail of election administration.

      1. Just to be clear, as a matter of state law, a state Secretary of State might not be allowed to ‘change rules.’ But that does not mean that every rule is therefore a federal case. Article II, Section 1 does not constitutionalize administrative details.

    2. Delegation, same as almost everything else legislatures do, and have been doing since day one. Were you under the impression that the framers’ legislatures never delegated anything, and it is some new-fangled invention of the dastardly politicians?

  3. So what is Congress supposed to do if they receive two conflicting electoral ballots from one state?

    It should be noted that exactly that has happened in the past and it was part of the driver behind the Electoral Vote Count Act.

    1. While I suspect that the Act may not be constitutional; I am concerned that whores in the Republican party (on a state level) tried to take an election loss in their state and steal those electoral votes. If a state *were* to successfully do this, does that indeed mean that Congress has it’s hands tied and must count the stolen electoral votes? (Obviously; before the insanity of Trump, this was merely a fun hypo that law students could play with each other. Now, it seems all-too-real . . . no reason to assume that 2020-whores will not be similarly unethical in 2022, 2024 (et al).

      1. its, not it’s. no edit button *sniff*

        1. I think we should all boycott partisan strife, wild-eyed liberals & zombie undead conservatives alike, until management caves to our demands and gives us an edit function. A few days of tumbleweeds rolling thru empty comments sections & the Man will see he can no longer oppress the downtrodden commenter.

  4. Professor Adler’s argument ignores the fact that for example there have been times in our history when two distinct groups of people both claimed to be the legitimate government of a state.

    The Constituition empowers Congress to resolve Presidential electoral disputes.

    When the law is crystal clear, the duties of the courts are ministerial. You just read the law and then you do what it says. But to think the law will always be crystal clear, and the powers of the courts always ministerial, is to misunderstand what one is dealing with.

    Same here.

    1. An example is the Dorr rebellion in Rhode Island, where for a period there were two constotutions, two legislatures, two governors, etc., both claiming to be the legotimate government of Rhode Island. The Supreme Court held in Luther v. Borden — the case that established the political question doctrine – that the question of which government was the legitimate government of Rhode Island was a political question beyond the scope of the courts.

      If each government certified a different set of electors, only Congress could determine which slate was the legitimate one.

      I agree that members of Congress who purport to invalidate slates of electors based on minutiae of state electors violate their oath of office. I agree Congress has no authority to supervise every detail of state electoral administration, nor to come up with objections baded on minute procedural deviationsbthat are little more than excuses to throw out electors supporting a candidate the objectiors disfavor.

      But to swing the pendulum completely in the other direction and claim Congress never has any power to address a dispute is also going too far.

  5. It doesn’t appear to fail either prong of the N&PC. It’s been long decided that ‘necessary’ means convient to Congress, and ‘proper’ has more or less been cabined to mean: not in conflict with express constitutional prohibitions or clearly violative of other principles such as separation of powers and federalism.

    As the votes are counted and totalled before Congress, and as each chamber constitutionally gets to set its own rules, Congress by greater reason can pass such an act binding the states and the VP. What they can’t do is make it law such that it binds future Congresses.

  6. Congress gave itself more authority than the Constitution allows, by establishing a labyrinthine process to resolve state electoral-vote challenges. The most constitutionally offensive provision gave Congress the absolute power to invalidate electoral votes as “irregularly given,” a process that a single representative and senator can trigger by filing an objection.

    1. Someone has to resolve disputes. What if there are two pieces of paper sitting on the desk in front of the vice president, both purporting to be the electoral votes from Ohio?

      Or what if there is no record of what Ohio’s electors did, but then someone picks a crumpled piece of paper off the floor and says, “Hey, this says that so-and-so gets Ohio’s electoral votes”? Someone has to decide whether that’s the actual slate of Ohio electors, or whether Josh Hawley just scribbled it on a napkin.

      1. Those sound like reasonable questions.
        But the answer should be that the vote count is halted and the Ohio legislature (or at least the Ohio SOS is consulted) to ask for transmitting the official tally from the state.
        In that case the Senate does not make a decision, it just notes that it does not have a facially valid tally from the State. The rubrics of conducting the tally must be within the proper rules of the Senate

        1. In that case the Senate does not make a decision, it just notes that it does not have a facially valid tally from the State.

          Deciding whether the thing in front of it is a “facially valid tally” is making a decision.

          And while they certainly could ask the Ohio legislature (but why the Ohio SOS?), the constitution could not have contemplated that as the answer to the question, given the communications realities of the time.

  7. I would argue (by analogy to the famous English case of Anisminic) that votes that are “irregularly given” beyond some threshold are not votes at all, and therefore Congress is surely empowered to decide whether they should be counted or not.

    Some examples have already been given upthread. If five guys get together and decide that they are the legitimate government of Illinois, and submit that state’s electoral votes to Congress on that basis, surely there must be a way for Congress to tell them to take a hike.

  8. It’s issues like this where the prohibition on “advisory” opinions makes for unfortunate results. The only way this will ever get resolved by the courts is if there is some actual dispute over who gets to be president, and at that point the politics of the situation overwhelms whatever legal, logical arguments might be made.

    Were this to be resolved in the abstract, without the heavy hands of politics pressing down on the scales, it would probably make for better law. At the very least most people would accept it. As is, if it ever gets adjudicated, half of the population will go away angry that it was a “political” as opposed to a “legal” decision.

    1. I see one reliable way to do it that no honest person would call politicized: follow every election, at least if someone files a challenge, with a full forensic audit by CPAs with experience at rooting out fraud. Of course this might mean 3 or 6 months’ delay between election day and inauguration, but we used to wait that long anyway.

  9. According to press coverage around December the rules of counting are adopted by Congress as its internal procedural rules. The rules happen to incorporate the act. A legislative body has very broad power to determine procedural rules and separation of powers limits judicial inquiry into those rules. I see nothing wrong with having internal rules to handle disputes over electoral votes. History tells us it is possible for counting to involve more than simple arithmetic.

    Under the regular rules of legislation it is permissible for a member to advocate for a bill that might violate the constitution if enacted. Under the special rules of electoral vote counting it is permissible for a member to advocate for a count that might violate the constitution if adopted.

  10. It depends on if you win or lose the election.

  11. I am also going to give a more provicative reply.

    If the Supreme Court, when fulfilling its role, is entitled to routinely override the wishes of the democratically elected majority by finding penumbras and emanations in the written constitution that always seem to align with the the Justices’ preferred policy views and outcomes, why isn’t the Comgress a constitutionally sufficient medium entitled to hold its own constitutional seance, manifest its own constitutional ectoplasm, and do the same?

    What Congress did with its election review is no different from what the Supreme Court does practically every day reviewing laws, at the great urgjng of lawyers. If the legal profession thinks that people will take these “do as I say, not as I do” sorts of blatantly hypocritical admonitions seriously, they’ve never had children.

    If the Court wants Congress to stick to its role, it can start by setting an example, not regularly making policy under the guise of interpretation, and stick to its. If it really thinks that believing one holds higher and superior values provides an insufficient basis to overturn the will of a democratic majority that believes otherwise, it can act on that belief and stop overturning the political branches’ laws based on appeals to the supposedly higher and superior values it keeps finding manifest in the constitutional ectoplasm.

    1. Your argument rests on a counterfactual and thereby fails.

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