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Nobody for President

This is not an endorsement, but the title of an article written by a University of Virginia law professor in the immediate aftermath of the 2000 presidential election. See John Harrison, Nobody for President, 16 J. L. & Pol. 699 (2000). Professor Harrison rejects the claim that “Congress is the final judge of electoral votes,” contending that under the Constitution “Congress has no such authority, nor does anyone else.” Id. at 701. He acknowledges that Congress’s unique role in the counting of electoral votes may make it the de facto decisionmaker in some circumstances, but he argues that in those cases “Congress to a large extent would be acting, not as the legislature established by the Constitution, but as an extraordinary political body seeking to hammer out an extra-constitutional solution to a problem the Constitution cannot solve.” Id. at 707. This, he suggests, is basically what happened when Congress created a special Electoral Commission to resolve disputed electoral votes from the Hayes-Tilden election of 1876. Id.

I bring this up because I recently attended a program held by the American Constitution Society to commemorate the 15th anniversary of the Supreme Court’s decision in Bush v. Gore, 531 U.S. 98 (2000). (I guess the appropriate anniversary gift would be a crystal ball). The panel consisted of Judith Browne Dianis, Rick Hasen, Pam Karlan and Curt Levey, with Joan Biskupic moderating. You can watch the whole program here.

Contra Professor Harrison, a number of participants in the ACS program seemed to take it for granted that the Constitution assigns to Congress the role of resolving controversies such as that which arose over Florida’s electoral votes in 2000. Professors Hasen and Karlan, in particular, suggested that the Supreme Court should have deferred to Congress and declined to intervene in the Florida recount. Doing so, they said, would not have resulted in a “constitutional crisis,” but simply in the ultimate decision being made by a political body as the Framers intended.

Leaving aside for the moment what constitutes a “constitutional crisis,” it is apparent that the Constitution does not explicitly give Congress the power to resolve electoral vote controversies. In contrast, each house of Congress is explicitly made the “judge of the elections, returns and qualifications of its own members.” U.S. const., art. I, § 5; see Nobody for President, 16 J. L. & Pol. at 702. It should also be noted that the Supreme Court has been less than deferential to Congress even as to cases which seem to fall within the heart of this explicit congressional power. See Powell v. McCormack, 395 U.S. 486 (1969).

Perhaps the Constitution’s provisions on the electoral college point toward an implicit delegation of judging authority to Congress (or to someone else)? Consider these provisions. First, the Constitution provides that “[e]ach State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.” Second, it provides that “Congress may determine the Time of Chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.” Third, it provides that these “Electors shall meet in their respective states, and vote by ballot for President and 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 to the seat of the government of the United States, directed to the President of the Senate.” Finally, it provides that 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.”

Collectively, these provisions suggest that the election of the president is to be a decentralized process without any authority in ultimate control. Each state separately appoints its electors, in the manner determined by its legislature. Unlike with regard to congressional elections, Congress is given no power to override state determinations with respect to the manner in which this appointment occurs. Congress does have the power to determine the time of choosing the electors, which helps to ensure that the states will make their decisions independently.

Collusion among the electors is also discouraged by requiring them to meet separately in their home states, rather than as a national body. Because Congress is permitted only to establish a single uniform day of elector voting, the possibility of collusion or bargaining among the electors is further diminished.

Most telling of all is the sparse provision with regard to the counting of electoral votes: “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.” Nothing in this sentence suggests that the President of the Senate is given any authority other than to open the certificates. It is not stated that he shall preside over the joint assembly of the Senate and House, issue rulings on objections or motions from the floor, or exercise discretionary judgment of any kind. He is not even given the “power” to count the votes. Instead, the counting is described in the passive voice, thereby avoiding any implication that it involves discretion or judgment. See David P. Currie, The Constitution in Congress: The Federalist Period 1789-1801 290 n.447 (1997) (noting the Constitution “does not say who is to count the votes once the President of the Senate has opened them; the provision speaks irritatingly in the passive voice.”)

Nor is any authority bestowed on the assembled Senate and House. In contrast to their express power to judge the elections, returns and qualifications of their respective members, the Constitution says nothing about the two houses, individually or collectively, exercising such power with regard to the electoral vote process. Their sole function during the electoral vote counting appears to be to serve as witnesses, presumably for roughly the same reasons that casinos require witnesses while the money is being counted.

An argument could be made that the Constitution implicitly confers on each house of Congress one particular decision with respect to presidential elector voting. The 12th amendment provides: “The person having the greatest number of votes for President, shall be President, if such number be a majority of the whole number of Electors appointed; and if no person have such a majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House shall choose immediately, by ballot, the President.” (emphasis added) One might argue that this provision necessarily makes the House the decider of the question whether anyone has received a majority of the electoral votes for president because, if not, it must proceed immediately to conduct its own election (the Senate has the same power/obligation with respect to the vice-president).

There are two problems with this argument. The first is that although the argument has some logical force and historically has enjoyed some support in Congress, it has never represented the majority position and was rejected by the Congress by the late 19th century. See Stephen A. Siegel, The Conscientious Congressman’s Guide to the Electoral Count Act of 1887, 56 Fla. L. Rev. 541, 551-52 & n. 51 (2004). Any assertion by the House of unilateral authority to determine whether anyone received a majority of electoral votes for president would be controversial, to say the least, and would certainly be resisted by the Senate and other constitutional actors.

The second problem is that the argument only applies if the House believes that no one received a majority of the presidential electoral votes. It doesn’t help if the House and Senate agree that someone received a majority, but disagree on who that person is.

In short, it is not at all clear what authority, if any, the Constitution invests in Congress with respect to resolving controversies regarding presidential electors. To the extent the Constitution’s structure makes Congress the de facto decisionmaker on particular issues, these decisions are fraught with the same concerns about legitimacy as the Supreme Court’s Bush v. Gore decision itself.  Perhaps more importantly, the Constitution creates no mechanism for resolving disputes between the House and Senate with respect to the electoral vote, creating the potential for an extended period in which it is not clear who is president-elect, who is entitled to be president or exercise the power of the presidency, or even whether anyone is entitled to exercise that power. Such a period, it seems to me, would be a pretty good example of a “constitutional crisis.”

With this background, in my next post I will take a closer look at the 2000 election from the congressional perspective.

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