Does Congress “Certify” the Next President?
The Constitution says “no”.
[Apologies for letting the Christmas-New Year season distract me. The Hesperian will now return to its irregularly scheduled programming.\
To minimal news coverage, the members of the Electoral College met in the state capitals on December 17th to elect the next President of the United States of America. Unlike in 2016, when five Democratic and two Republican electors didn’t vote for their party’s nominee, there were no “faithless electors” to muddy the result. Unlike in 2020, there were no competing slates of electors, each claiming that its candidate was the legitimate winner. Donald Trump received 312 votes to Kamala Harris’s 226. On January 6, 2025, those votes will be formally counted in the presence of both Houses of Congress, and Mr. Trump will become the official President-Elect.
That is naturally too dull a scenario for America’s “interesting times”. While no one is predicting that angry supporters of the defeated candidate will storm the Capitol Building, demanding that the officer presiding over the count (who will be the losing candidate herself) disregard votes cast for Donald Trump, possibilities for discord and mischief have been bruited.
On one side is worry that the new House of Representatives, which convenes on Friday, January 3rd, won’t elect a Speaker by Monday, January 6th. The rules of the House provide that it can do nothing without a Speaker except vote to fill the vacancy. Ergo, the worriers aver, Donald Trump’s official recognition as President-Elect will be delayed, at best complicating the Presidential transition and at worst preventing Mr. Trump’s inauguration on the scheduled date of January 20, 2025.
That would be a minor inconvenience compared to what Evan A. Davis and David M. Schulte, who describe themselves as having clerked for Justice Potter Stewart and been editors-in-chief of the Harvard Law Review and the Yale Law Journal, respectively, envision and, indeed, advocate.1 In an op-ed in The Hill, they declare, “Congress has the power to block Trump from taking office, but lawmakers must act now”. Their thesis is that Section 3 of the Fourteenth Amendment renders Mr. Trump ineligible for the Presidency, that Congress can refuse to recognize votes cast for him and that Kamala Harris, as the only candidate to receive valid electoral votes, should be sworn in as the 47th President. All that is needed to achieve this vision is for one-fifth of the members of each House of Congress to file written objections to the Trump electoral votes and for each House then to vote by a simple majority to uphold the objections.
The authors, aware of the composition of the incoming Congress, concede in their closing paragraph that “The unlikelihood of congressional Republicans doing anything that might elect Harris as president is obvious. But Democrats need to take a stand against Electoral College votes for a person disqualified by the Constitution from holding office unless and until this disability is removed.”2
Fine. Keep alive the notion that citizens who assemble to petition for the redress of grievances are in danger of being stigmatized as “insurrectionists” if their assembly turns into a riot. Modern progressives don’t think much of freedom of speech, press or religion, so they may as well euthanize the remnants of the First Amendment.
But there is no need to belabor Section Three of the Fourteenth Amendment, which I have done before. I would instead like to explore the threshold issue: Under what circumstances may Congress overturn the verdict of the Electoral College?
Turning now to the fears and hopes about January 6th with which this post began, whether the House elects a Speaker by next Monday ought to make no difference at all to the Presidential election. On a proper reading of the Constitution, there will be no pertinent business for Congress to conduct.
As for the Davis-Schulte fantasia, it assumes, without proffering a shred of analysis, that the Twelfth Amendment gives Congress the right to reject electoral votes. In reality, the Senate and the House are merely the audience for the announcement of the results, a formality that is hardly necessary today but served a genuine purpose in the early 19th Century.
The underpinning of Davis and Schulte’s argument is section 15 of the Electoral Count Act of 2022. The Act allows members of Congress to object to the validity of electoral votes on the ground that either (i) the electors “were not lawfully certified” by their State or (ii) the “vote of one or more electors has not been regularly given”. (3 U.S.C. §15(e)(1)(B)) They blithely assert, “A vote for a candidate disqualified by the Constitution is plainly in accordance with the normal use of words ‘not regularly given’”, a rather questionable position in itself but one that I will leave undisputed arguendo.
The Electoral Count Act does indeed provide for Congressional scrutiny of electors’ votes and gives the impression that action by the legislators is essential to determining the victor. When one turns to the Constitution, however, that impression becomes questionable.
Here is all that the Constitution says about the role of Congress in the proceedings of the Electoral College:
The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;–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. [12th Amendment to the Constitution]
Congress is conspicuously passive. The President of the Senate, that is, the incumbent Vice President of the United States, unless that office is vacant, opens the electors’ certificates in the presence of the Senators and Representatives, “and the votes shall then be counted” . Counted by whom? The passive voice is a sign that the draftsmen regarded counting as a purely ministerial task that involves no decision making on anyone’s part.
The argument put forward by Donald Trump’s counsel prior to January 6, 2021, was that the President of the Senate’s duty to “open all the certificates” includes an implied power to determine which certificates to open. That is highly unlikely to have been the understanding of the men who drafted the Twelfth Amendment. In three of the four elections held before it was ratified, the President of the Senate had also been a candidate for President or Vice President. Granting him unreviewable authority to resolve disputes between slates of electors would have been obvious folly.
The Electoral Count Act tries to foreclose disputes about the identity of electors by providing that a “certificate of ascertainment” issued by a State’s governor or mandated by a court order (3 U.S.C. §5(c)) “shall be treated as conclusive in Congress with respect to the determination of electors appointed by the State”, unless both Houses of Congress sustain an objection on the ground that either “the electors of the State were not lawfully certified under a certificate of ascertainment of appointment of electors” or “the vote of one or more electors has not been regularly given”. (3 U.S.C. §15(e)(1))
If the President of the Senate receives certified lists from two or more bodies that claim to be electors for the same State, only the “certificates of the votes of electors appointed pursuant to a certificate of ascertainment of appointment of electors issued pursuant to section 5” may be opened. (3 U.S.C. §15(d)(1)(A)) Section 5 leaves room for only one certificate of ascertainment for each State. It is possible that ongoing, unresolved litigation will place a State in the position of having certified no electors, but it isn’t possible to have two simultaneously valid certificates of ascertainment.
The Constitution is silent about conflicting Electoral College claimants. The natural inference is that the question, if it arises, falls within the purview of State law, as interpreted by the State courts, because the Constitution gives the States the right to decide how electors are chosen. (Art. II, §1, cl. 2) When it did arise in Hawaii in 1960,3 the decision of the State courts was accepted without demur. Richard Nixon led in the initial vote count. The acting governor transmitted a certificate of ascertainment certifying the victory of the Republican electors. A State court then ordered a recount, which was still in progress on the date of the meeting of the Electoral College. Both parties’ electors met, cast ballots and submitted them to the President of the Senate. The final count showed that John F. Kennedy had won by 115 votes. Vice President Nixon’s proposal to count the votes of the Democratic electors received unanimous consent. There was, of course, no reason to delve into the Constitution, as Hawaii’s three electoral votes didn’t affect the outcome of the race.
A crucial step in the resolution of the 1960 dispute was the submission of votes by both would-be sets of electors. If Hawaii’s Democratic electors had not done that, their votes would not have been eligible to be counted, regardless of whether the Democratic candidate ultimately carried the State. The converse would have been true if the Republicans had refrained from submitting votes and Nixon had emerged as the winner of the recount.
Unlike the Constitution, the Electoral Count Act authorizes Congress to determine that a State’s electors “were not lawfully certified under a certificate of ascertainment of appointment of electors”. A State whose electors are found not to have been lawfully certified forfeits its electoral votes, and the number of votes needed for a majority is reduced accordingly. (3 U.S.C. §15(e)(2)) There is no provision for accepting votes presented by different electors. In the Hawaiian case, the Republican electoral votes would have been rejected as “not lawfully certified”, but the votes of the Democratic electors, lacking a certificate of ascertainment, would not have been counted either.4
The Constitutional procedure preserves the right of each State to determine how its electors will be chosen. The Electoral Count Act purports to make Congress the ultimate arbiter. Congress may, according to the statute, overturn the decisions of a State’s executive and courts, imposing its own interpretation of State election law. One would need great ingenuity to reconcile that grant of authority with the text of the Constitution. In fact, the feat seems to me impossible.
It would in any event be bad policy to make Congress, acting ad hoc, the Supreme Court of Presidential Elections. The reasons ought to be obvious. If they aren’t, imagine a scenario like the election of 2000, which turned on an extremely close contest in a single state. The brouhaha was bad enough when the Supreme Court decided (7-2) that the Florida Supreme Court’s order for a selective recount was unconstitutional and (5-4) that Florida’s choice of electors couldn’t be delayed beyond the date set by Congress for the meeting of the Electoral College, “which Day shall be the same throughout the United States”. (Art. II, §1, cl. 4) Contemplate the eruption of outrage if those decisions had been made by Congress or, alternatively, the paralysis that would have ensued if Congress had been unable to reach a decision (a real possibility; the incoming Senate was divided 50-50 between the parties).
Turning now to the fears and hopes about January 6th with which this post began, whether the House elects a Speaker by next Monday ought to make no difference at all to the Presidential election. On a proper reading of the Constitution, there will be no pertinent business for Congress to conduct.
As for the Davis-Schulte fantasia, it assumes, without proffering a shred of analysis, that the Twelfth Amendment gives Congress the right to reject electoral votes. In reality, the Senate and the House are merely the audience for the announcement of the results, a formality that is hardly necessary today but served a genuine purpose in the early 19th Century.
Finally, even if one sets the Constitution aside, the disqualification of Donald Trump’s electors would not lead to the result that Davis and Schulte desire. This year the President of the Senate has received certificates from only one set of electors in each State. All were “lawfully certified under a certificate of ascertainment of appointment of electors”, so that ground for objection under the Electoral Count Act is unavailable. The Davis-Schulte theory is that votes for Donald Trump were not “regularly given”, because he allegedly is incapable of holding the office of President. Hence, according to the former editors-in-chief of eminent law reviews –
If the objection is sustained by majority vote in each house, the vote is not counted and the number of votes required to be elected is reduced by the number of disqualified votes. If all votes for Trump were not counted, Kamala Harris would be elected president.
But she wouldn’t be. The Electoral Count Act reduces the number of votes needed for a majority if, but only if, the rejected electors were not properly certified. (3 U.S.C. §15(e)(2)) Votes that are not “regularly given” are not treated the same way. They are subtracted from the candidate’s total but do not reduce the number of votes needed to win election. Hence, throwing out all of the Trump votes would leave Kamala with 226 out of 538 votes. Since no candidate would have 270 votes, “a majority of the whole number of Electors appointed”, the election would go to the House of Representatives. Meanwhile, J.D. Vance, about whose eligibility for the Presidency there is no shadow of a dispute, would be elected Vice President.
If no candidate for President receives a majority of electoral votes, the House of Representatives is charged with choosing the President from among the three highest vote getters. On the Davis-Schulte theory, there would be only one candidate with any votes. Does that mean that Kamala Harris would become President by default?
The House is supposed to take up the post-election election immediately after the electoral votes are counted, but it has no deadline for reaching a decision. Voting is by State, and “a majority of all the states shall be necessary for a choice”. In the 119th Congress, Republicans will control 29 delegations. It’s a safe bet that, come January 20th, no President will be chosen by the House, if it has only the Hobson’s choice of Kamala Harris.
Section 3 of the Twentieth Amendment covers that contingency: “If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified.” Therefore, Vice President J.D. Vance would become acting President unless and until the House chose someone else. The most that Kamala could hope for is that Democrats would win majorities of 26 House delegations in 2026 and enable her to take office on or about January 3, 2027. That is an interesting scenario for a novel. As even Davis and Schulte reluctantly agree, it will never enter a history book.
Justice Stewart retired in 1981, so the authors’ credentials are over forty years old. I’m surprised that they didn’t also tell us their LSAT scores.
In words made immortal by National Lampoon’s Animal House, Davis and Schulte “think that this situation absolutely requires a really futile and stupid gesture be done on somebody’s part!” and that Democrats in the 119th Congress are “just the guys to do it”.
I omit discussion of the so-called “fake electors” of 2020, who assembled, voted and transmitted their votes to the President of the Senate in the hope that litigation would reverse the State election results. It didn’t, but their actions, which Congress ignored, were indistinguishable in principle from those of the Hawaiian electors in 1960.
On January 4, 1961, long after the Electoral Count Act’s deadline for submitting certificates of ascertainment, the Republican governor of Hawaii sent the Vice President a certificate stating that the Democratic candidate had carried the State and attaching a copy of the court decision. That untimely document did not meet the Electoral Count Act’s requirements for a certificate of ascertainment and therefore did not make the Democratic electors eligible to vote. The recognition of their votes was, however, in accord with the Twelfth Amendment, as construed here, since it was based on a final decision of the State courts.