The investigation of the House select committee into the Jan. 6 insurrection continues. The U.S. House of Representatives has voted to recommend a criminal contempt charge against Steve Bannon, and tense negotiations are apparently ongoing with other former high-level officials.
But it is crucial, as the committee looks for ways to ensure that the events of Jan. 6 can never happen again, not to overlook the most important fix of all.
The Electoral Count Act, an 1887 statute that set the ground rules for the Jan. 6 proceedings by purporting to give Congress discretion to accept or reject a state's electoral votes, is unconstitutional. Neither the U.S. Constitution nor the 12th Amendment gives Congress or the vice president any substantive authority whatsoever in connection with counting electoral votes.
The act must be repealed or struck down.
Scholars have pointed out the constitutional flaws in the act since it was enacted.
When the first legislative proposals were floated in the aftermath of the disputed 1876 election, professor Samuel Spear published an article arguing that any statute assigning Congress any authority to reject electoral votes would be unconstitutional.1
In a 2002 North Carolina Law Review article, Vasan Kesavan comprehensively analyzed the constitutional flaws in the act.2
In 2016, professors Chris Land and David Schultz agreed that the act is unconstitutional,3 as did professors Jack Beermann and Gary Lawson,4 as well as former U.S. Circuit Judge J. Michael Luttig and attorney David Rivkin5 in separate articles earlier this year.
What is the Electoral Count Act?
The Electoral Count Act sets down detailed procedures to govern the counting of electoral votes.
The act provides that a final determination of any controversy concerning the appointment of electors made at least six days before the time fixed for the meeting of electors is conclusive.6
The governor of each state must communicate by registered mail to the U.S. archivist a certificate of ascertainment of the electors, stating the fact of each elector's election and certifying to the state's resolution of any "controversy or contest" concerning their appointment.7 The certificate also states the number of votes cast for each person by the electors.8
The president of the Senate opens the electoral vote certificates and hands them, one by one, to the tellers.9 The president of the Senate then calls for objections.
Every objection must be signed by one senator and one representative. If an objection is received, the House and Senate must withdraw and debate for no more than two hours.10
If only one return is received that records votes that are "regularly given" - a term the act does not define, but that seems to mean "selected in the manner prescribed by state law" - by the certified electors, it must be counted, unless both houses conclude the votes were not regularly given.
If more than one purported certificate is received, only those votes that are regularly given by the certified electors are counted.
If the two houses disagree with respect to competing certificates, the votes of the electors whose appointment is certified by the state executive under the seal of the state are counted.11
Where does Congress get the power?
The Constitution gives few details about the proceedings for determining the winner of the presidential election:
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.
The relevant language of the 12th Amendment is identical.
Given the near silence of the Constitution, where did Congress get the power to pass the act? The source most frequently cited is the necessary and proper clause, which authorizes Congress
[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
Foregoing powers is a reference to the powers enumerated in the remainder of Section 8 of the Constitution, none of which has anything to do with presidential elections.
Settled law holds that members of Congress are not officers of the U.S. Nothing in the Constitution vests other powers with respect to regulating electoral votes in the government of the U.S. Nor is the legislative branch of the federal government referred to as a "department" anywhere in the Constitution. The term is a reference to executive departments.12
If "regularly given" is construed as calling for each governor to make a judgment pursuant to state law, the power purportedly given to Congress by the act becomes even more constitutionally dubious - not even a federal court has the authority to overrule a state judgment that exclusively turns on state law.
Additional support for the conclusion that Congress had no power to pass the act comes by negative implication from the text of the Constitution.
Congress is given power in Article I, Section 4, to regulate the "times, places and manner of holding elections" for members of Congress. Each house is "the judge of the elections" of its members. But no parallel power is given to Congress in connection with presidential elections.
Sen. Abraham Baldwin, a delegate to the Constitutional Convention, rejected the notion that the necessary and proper clause gave Congress any authority to regulate presidential elections in an 1800 debate:
[T]hat speaks of the use of the powers vested by the Constitution - this resolution relates to the formation of a competent and essential part of the Government itself: that speaks of the movements of the Government after it is organized; this relates to the organization of the Executive branch, and is therefore clearly a Constitutional work, and to be done, if at all, in the manner pointed out by the Constitution, by proposing an article of amendment to the Constitution on that subject.13
Can the vice president preside over the counting session?
The sitting vice president has presided over nearly every electoral vote count in history. But is it constitutional for the vice president to preside?
Neither the text of the Constitution nor the 12th Amendment refers to the person presiding over the counting session as the "vice president." The text uses the term "The President of the Senate."
Granted, Article I, Section 3 states that the vice president is the president of the Senate. But the title is not exclusive; the Senate has always had a president pro tempore, and a host of senators preside over Senate sessions. The question remains - can the vice president preside?
The best answer is no. The vice president has a serious conflict of interest. A sitting vice president has been a candidate for president or vice president in many presidential elections.14
In the debates for the Electoral Count Act, Sen. George Hoar of Massachusetts highlighted the problem:
Can the vice president resolve questions about the validity of electoral votes?
May the vice president decide whether the electoral vote certificate of a particular state should be counted?
No. Nothing in the constitutional text purports to confer such a power upon the vice president. Nor does the Electoral Count Act purport to give the vice president the authority to unilaterally rule on objections.
The president of the Senate - who is never expressly identified as the vice president - has the power to preserve order in the joint meeting of the two houses; that's all.
If the vice president is given anything more than a ceremonial role, the conflict-of-interest problem becomes acute.
That issue first came to the fore in the 1800 presidential election. At the time, Thomas Jefferson was the sitting vice president as well as one of the principal candidates for president.
Georgia submitted an electoral vote certificate for Jefferson and Aaron Burr, which plainly did not satisfy the constitutional requirements in technical form.
Jefferson counted the Georgia votes without giving anyone in Congress an opportunity to object. As a result, Jefferson finished in a tie with Burr, as opposed to the five-way tie that would have resulted if Georgia's votes had been disqualified.
Can the House and Senate separate to debate and vote on objections?
The Electoral Count Act provides that the houses of Congress must separate to debate and vote on objections to any electoral votes.
Is this constitutional? No.
The language of the Constitution is clear:
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.
There is nothing that purports to allow the joint meeting of the Senate and House to separate, debate and vote for any reason. If no one has won the majority of electoral votes, the 12th Amendment requires that the House immediately vote to choose a President.
Sen. James George attacked the notion of the houses separating to decide in the debate on the Electoral Count Act:
[I]t would be an anomaly in jurisprudence, that ... the rendering of an operative judgment upon the ascertainment of a fact should be committed to two separate tribunals, each sitting independently of the other, and each having a veto upon the other. By that sort of a tribunal no judicial function has ever been performed. We require unanimity in juries, that twelve men shall agree to a verdict, but they are one body; they consult and confer with each other, and they arrive at a conclusion as the result of that conference; but nobody ever proposed to have two juries try a case.16
Can Congress overrule state authorities on the validity of electoral votes?
We come now to the biggest danger lurking in the Act - the notion that Congress can look behind the electoral vote certificates and refuse to count any state's votes.
The events of Jan. 6 need not detain us long here. The objections filed on Jan. 6 were all improper under the act, since all electoral votes had been regularly given under the certificate of the appropriate state authorities. There were no competing certificates or slates.
Even under the Electoral Count Act, the objections should have been summarily ruled out of order by then-Vice President Mike Pence.
But the fact remains that, notwithstanding the patent flaws in the objections, Pence did not dismiss the objections, and well over 100 representatives, and several senators, voted to disenfranchise the electoral majority of two states.
This raises the possibility that someday, a partisan majority may refuse to count the electoral votes of enough states to throw the election into the House and elect whoever they please, regardless of the election results.
Given that a proposal permitting Congress to elect the president was rejected by the Constitutional Convention nine states to one, such a result can only be described as flagrantly unconstitutional.
In May 1874, the House Committee on Privileges and Elections attacked the notion that Congress could independently judge the validity of the states' electoral votes:
Although the election of the electors in a given State may have been a monstrous fraud, patent to the whole world, and known to each member of the houses of Congress, yet clearly they have no power, time, or opportunity to investigate the fact, and must then count the fraudulent votes if it shall appear in due form upon the papers.17
Sen. Charles Pinckney argued in a Senate debate on one of Congress' first attempts to regulate the count:
Knowing that it was the intention of the Constitution to make the President completely independent of the Federal Legislature, I well remember, it was the object ... to give to Congress no interference in, or control over the election of a President. ... It never was intended, nor could it have been safe, in the Constitution, to have given to Congress thus assembled in convention, the right to object to any vote, or even to question whether they were constitutionally or properly given. This right of determining on the manner in which the Electors shall vote; the inquiry into the qualifications, and the guards necessary to prevent disqualified or improper men voting, and to ensure the votes being legally given, rests and is exclusively vested in the State Legislatures ... To give to Congress, even when assembled in convention, a right to reject or admit the votes of States, would have been so gross and dangerous an absurdity, as the framers of the Constitution never could have been guilty of. How could they expect that in deciding on the election of a President, particularly where such election was strongly contested, that party spirit would not prevail, and govern every decision?18
Does the act violate the presentment clause?
The act provides that an electoral vote certificate is rejected if both houses of Congress concur in sustaining an objection.
Article I, Section 7 of the Constitution provides that "Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary ... shall be presented to the President of the United States" for his or her approval or veto.
Obviously, presenting the president with a vote that rejects an electoral vote certificate creates an unworkable conflict of interest. But a vote of the two houses that is not presented to the president can have no legal effect.19
Congress often passes ceremonial resolutions without presentment, such as declarations of a national day for one thing or another. But there is nothing merely ceremonial about invalidating the electoral votes of a state and disenfranchising its electoral majority.
Can Congress promulgate rules of procedure that bind future Congresses?
The act sets forth procedural rules for the joint meeting of the two houses of Congress. One of the oldest principles of legislative law holds that one legislature cannot prescribe procedural rules that purport to bind a future legislature.
Article I, Section 5, Clause 2 of the Constitution adopts this principle: "[E]ach House" - every House, every two years - "may determine the Rules of its Proceedings."20 The House of Representatives has recognized this principle by readopting its procedural rules every two years.
The procedural rules of the Electoral Count Act violate this long-settled principle.
Should Congress just follow the 12th Amendment?
Some have suggested that those challenging the election might have prevailed if the act had been struck down and Congress was forced to follow the 12th Amendment.
They are mistaken. Without the act, there is no basis for anyone in the federal government to raise objections against electoral count certificates from the states.
Nor does the Constitution, nor the 12th Amendment, give the vice president or anyone else authority to decline to count any certificate for any reason, or to adjourn Congress and postpone the count.
If the 12th Amendment had governed the proceedings, the proceedings on Jan. 6 would have lasted 20 minutes - open the certificates, count the votes and declare the winner.
What's the answer?
So if the act is repealed or struck down, where does that leave us?
A strong argument can be made that the act has always been a solution in search of a problem; the nation has seen a good faith dispute over any state's winning candidate in only two of 56 contested presidential elections, in 1876 and 2000.21
We could imagine a constitutional amendment either adding to or modifying the 12th Amendment, but ratification by the required 38 states is likely impossible in the current political environment.
Our "necessary and proper" argument above would preclude any new congressional attempt to impose a fix at the federal level; Congress has no authority to legislate on this subject.
So in the end, Pinckney was right. Any new solution must come from the authorities that the Constitution has always made the final judges of the validity of any state's vote - the states themselves.
If a state legislature were to disregard its state's vote total and award its electoral votes to the losing candidate, this could arguably create profound constitutional issues and trigger a severe constitutional crisis.
But aside from that, the only restraint on the states is that any electoral disputes must be resolved quickly enough to forward the state's electoral certificate to Washington before the outgoing president's term expires on Jan. 20.
Footnotes
1. Samuel T. Spear, "Counting the Electoral Votes," 15 Alb. L. J. 153 (1877).
2. Vasan Kesavan, "Is the Electoral Count Act Unconstitutional?", 80 N.C. L. Rev. 1653 (2002).
3. Chris Land & David Schultz, "On the Unenforceability of the Electoral Count Act," Rutgers J. of Law & Pub. Pol., vol. 13:4, p. 340 (2016).
4. Jack M. Beerman & Gary Lawson, "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," Boston Univ. Public School of Law, Public Law Research Paper 21-07 available at https://bit.ly/3klV2xs.
5. J. Michael Luttig and David B. Rivkin Jr., "Congress Sowed the Seeds of Jan. 6 in 1887," The Wall Street Journal, March 18, 2021.
6. 3 U.S.C. § 5.
7. 3 U.S.C. § 6.
8. U.S.C. § 6.
9. 3 U.S.C § 15.
10. 3 U.S.C. § 17.
11. 3 U.S.C. § 15.
12. See Const., Art. II, Sec. 2.
13. 10 Annals of Cong. 32 (1800).
14. Wikipedia, "List of United States Major Party Presidential Tickets," https://bit.ly/3C06GEg.
15. 17 Cong. Rec. 1019 (1886).
16. 17 Cong. Rec. 2429 (1886).
17. "Counting Electoral Votes: Proceedings and Debates of Congress Relating to Counting the Electoral Votes for President and Vice-President of the United States," Washington, D.C. (Government Printing Office), 1877, p. 418.
18. 10 Annals of Cong. 130 (1800).
19. Imm. & Nat. Serv. v. Chadha, 462 U.S. 919 (1983).
20. Const., Art. I, Sec. 5, Cl. 2.
21. Wikipedia, "List of United States Major Party Presidential Tickets," Wikipedia, "List of United States Major Party Presidential Tickets," https://bit.ly/3C06GEg.
Originally published by Law360.
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