The Constitution ultimately vests in Congress the authority to resolve challenges regarding the counting of electoral votes by the individual states in presidential elections. Yet if the 2016 presidential election melts down or if there are major challenges to the electoral votes in any state, don’t necessarily count on Congress to be able to resolve the problem. The reason is that the law that empowers Congress to resolve electoral vote disputes may be unconstitutional.
Given the recent comments that Donald Trump has made about not necessarily accepting the results of the election, or that a disagreement about the election in some state emerges again as it did in Florida in 2000, it is possible that Congress may be called on to resolve any electoral vote disputes. This would not be the first time Congress had to do that.
Congress did it the first time in 1800 when Thomas Jefferson and Aaron Burr supposedly ran as a president-vice-president ticket, but a flaw in the Constitution led them to receive an equal number of electoral votes, thereby forcing the House of Representatives to select the president and to eventually amend the Constitution.
Then there was the election of 1876 between Samuel Tilden and Rutherford B. Hayes. Tilden received the most popular votes, but the House of Representatives eventually picked Hayes as the president after disputed elections occurred in Florida, South Carolina, and Oregon.
With no other method to turn to, Congress established a partisan Electoral Commission to award an Electoral College majority to Hayes, and agonized over the creation of a procedural framework for resolving disputed elections for a decade — finally passing the Electoral Count Act in 1887.
The Act prescribed a method of appointing state electors, the form in which votes were to be submitted to Congress, and most importantly, a number of restrictive procedures that both Houses of Congress were required to follow in counting the results.
Among these procedures, one provision requires the House and Senate to meet together to resolve disputes, but fails to specify whether this requirement creates a unique and distinct body or if the two bodies are acting separately.
The Electoral Count Act was consigned to the dustbin of history by everyone except the most astute election law scholars until our country again faced a razor-thin presidential contest in 2000. While scrutiny of the Act by the U.S. Supreme Court in Bush v. Gore largely centered on the timing of certification of state election procedures for it to receive safe harbor deference for its election results, the numerous procedural objections raised by members of Congress during the Electoral College count in Congress in January 2001 gave rise to a number of serious constitutional questions that have somehow evaded lawyers over the past fifteen years.
Among these issues are whether the actual rules that dictate how the votes will be counted by the House and Senate together are themselves constitutional. It may well be that these rules violate other constitutional provisions that make the House of Representatives and Senate the ultimate judge of their own internal procedural rules.
It is possible that the Electoral Count Act of 1887 violates this constitutional provision by forcing the two bodies to act as one and give up their own power to control these rules.
And even if not unconstitutional, deep partisan disputes and jealousy between the House and Senate could lead to a stalemate during the counting of the votes. Assume for the sake of argument that the Republicans keep the House and the Democrats take the Senate — objections raised by Republican Members of the House might be perfunctorily overruled by Democratic President of the Senate (Vice President) Joe Biden, leading to the Republican House asserting that Vice President Biden’s power to rule on their objections is unconstitutional.
At that point, in a political era of intense partisanship, a mess greater than that experienced in 2000 would be faced by our federal courts. If the Electoral Count Act were constitutionally challenged it could potentially leave Congress without a viable means of resolving a heavily partisan and disputed controversy.
This would send resolution of the 2016 race into uncharted political and constitutional waters that could well take months if not longer to address, much like it did in 1876.
In an era of division and discord, we can all agree that the rules of the game for presidential elections must be fair, agreed to by all, and most importantly, constitutional.
Quick action should be taken to ensure that our history of disputed results, hanging chads, and uncertain procedures does not continue to linger over this country in future presidential elections.
Schultz and Land are the authors of a recent journal article on this topic entitled “On the Unenforceability of the Electoral Count Act” published in the Rutgers Journal of Law & Public Policy. Schultz is a Professor of Political Science at Hamline University and Land is Deputy Legislative Counsel of the Nevada Legislature.
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