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Trump’s Last Stand

No, Congress doesn’t have the final say in the election.
December 18, 2020
Trump’s Last Stand
(Photo by JIM WATSON/AFP via Getty Images)

Now that the Electoral College has voted, President Donald Trump’s last stand is anticipated to take place on January 6, 2021, when Congress convenes to officially count the votes of the electors.

This final step in the election process is given apparent gravity by a provision of an ancient statute called the Electoral Count Act of 1887 (the “ECA”). The ECA authorizes members of Congress to object to a state’s results and creates a process for resolving any such objections by votes in both the House and the Senate. If majorities of both houses affirm the objection, the ECA provides that the state’s electoral votes will be rejected. If enough electoral votes are rejected to prevent any candidate from getting to 270 votes, the Twelfth Amendment throws the election to the House for a state-by-state vote. Since the Republican party controls more state delegations than Democrats do, Trump presumably would be the winner.

For a host of reasons, it is almost unthinkable that Trump’s supporters will be able to get an objection through Congress on January 6.

But does Congress, as opposed to the electors, really have the last word in deciding who won this presidential election?

The answer is no, at least not in any meaningful way.

Most observers of the 2020 election, citing the ECA, take it for granted that Congress gets the last word.

In the narrowest, most literal sense, one might concede that Congress has a final say, of sorts. The Twelfth Amendment says:

The president of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates [recording the votes of the electors of each state], and the votes shall then be counted. The person having the greatest number of votes shall be the President, if such number be a majority of the whole number of electors appointed . . .

The emphasis there is mine. Because if the process of the electoral votes being “counted” is the final pre-inauguration act in selecting a president, then you might say that Congress has the final say—because the Constitution makes Congress the final “vote counter.”

Yet being the “counter” isn’t much of a final say. That’s like saying that PriceWaterhouseCoopers—not the voting members of the Academy of Motion Picture Arts and Sciences—decides who wins the Oscar for Best Picture.

But the accountants don’t choose the winners. They merely certify and count the votes of the academy’s members. And the Oscar accountants have even more of a say than Congress does in the Twelfth Amendment, because PwC actually certifies the ballots, in addition to counting them. Congress only counts. The states and the electors have already certified the electoral votes.

Some may contend that the ECA gives Congress more than the ministerial authority to “count” the certified electoral votes. By granting members of Congress a right to object to the already-certified votes, the argument goes, the ECA implicitly gives Congress a subjective role in the decision-making process.

But that interpretation runs afoul of the Constitution. Although the scope of the authority granted to Congress by the ECA has never been addressed by the courts, it seems clear that the ECA would be held to be unconstitutional as applied to the kind of objections the Trump’s dead-enders plan to make, because it reads into the Constitution ideas that are plainly not in the text.

The Constitution says only that the president of the Senate (Vice President Mike Pence in this case) shall “open all the certificates” and that “the votes shall then be counted.” There is no provision for objections, or for any congressional role in the process other than “opening” and “counting” the certified electoral votes.

As written, that constitutional provision leaves little room for congressional input.

It is perhaps conceivable that there could be some irregularity in the mundane processes of opening or counting the votes of the electors.

I suppose Pence could open the wrong envelope, triggering howls of objection from both houses of Congress. Or he could refuse to count some of the certified votes. Or there could be a genuine dispute over which votes have been certified.

In those circumstances, the ECA might be understood to be nothing more than an exercise of congressional authority designed to ensure that Congress has properly discharged its constitutional mandate to count the votes.

But that’s not what’s going on here.

In this case, Trump and his allies are not claiming that the certified electoral votes have been miscounted.

Rather, Trump’s argument is that certain state election results should not have been certified, and that the electors should not have voted in accordance with the certified results in their respective states. (Because of alleged irregularities in the voting process.)

But these objections do not concern errors in the counting of votes of the electors. They are, instead, a sweeping, substantive objection to the electoral process itself. For which the Twelfth Amendment provides no remedy.

So, unless you interpret “counting” to mean something far different from merely counting, then recognizing the kind of objections that Trump’s supporters are threatening would exceed the Constitution’s narrow grant of authority to Congress to “count” the votes.

Meaning: It would be unconstitutional.

Because I haven’t found any scholarly or judicial writing on this specific issue, I checked in with Laurence Tribe, the Carl M. Loeb University Professor and Professor of Constitutional Law at Harvard. Professor Tribe was kind enough to offer this unqualified, definitive response:

[T]he 1887 Electoral Count Act cannot be regarded as an even arguably constitutional path along which the special Joint Session of Congress called for in the Twelfth Amendment might opt to engage in substantive second-guessing of how any given State chose to conduct its Article II function of appointing Electors.

This sounds like case closed.

Still, believe it or not, there is some academic debate over the meaning of the word “count” in the Twelfth Amendment. So, if you’re looking for proof that not a single word of the U.S. Constitution is immune from legal pettifogging, I offer the following as Exhibit A.

One commentator writing in the North Carolina Law Review frames the debate this way: Does the ECA’s requirement that the electoral votes be “counted” give Congress “substantive decision-making authority over which votes should be counted” [emphasis mine] or only ministerial authority to count the votes as certified? If the former, then the ECA’s grant of the power to object would arguably be constitutional in this situation. If, however, “counted” simply means “counted,” then a statute allowing Congress to object to anything other than the count itself would be unconstitutional.

That said, the idea that the word “count” could imply some kind of verification or certification process beyond, simply . . . you know . . . counting might pass the giggle test if the Constitution didn’t already place the certification process somewhere else.

But it did.

The Constitution placed the final certification process squarely on the electors, not on Congress.

The constitutional language on this job is clear: The “electors” shall “sign and certify” the results to Congress. If the Framers had intended to add yet another layer of certification and to grant that authority to Congress, they were more than capable of doing so in plain English. After all, they were up to the task of stating explicitly that the “electors” shall “certify” the votes. If they had intended to grant Congress a similar right, they would have said so. But they didn’t.

So count means count. The Constitution doesn’t say “verify” or “certify.” Those processes have already been done elsewhere, initially by the states and finally by the electors.

What all of this means is not only that the objections threatened by Trump’s supporters would have no chance of getting through Congress, but also that they would be constitutionally invalid even if they did.

In the final analysis, the last word in this election doesn’t go to Congress in any meaningful way. The last word goes, instead, to the Constitution.

The ECA may seem to give Trump’s supporters the right to object to alleged irregularities in the voting process on January 6, but the Constitution doesn’t.

Earth to Congress: Shut up and count.

Philip Rotner

Philip Rotner is a columnist whose articles appear in national publications and on his website, Philip is an attorney who has practiced for over 40 years, both in private practice and as the general counsel of a global professional services firm.  Philip’s views are his own, and do not reflect the views of any organization with which he has been associated.