The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.