To understand the congressional battlefield with regard to the counting of the 2000 presidential vote, we will need a (mercifully) brief review of the law and procedure of electoral vote counting, such as it is. For more comprehensive but less merciful discussions, see Stephen A. Siegel, The Conscientious Congressman’s Guide to the Electoral Count Act of 1887, 56 Fla. L. Rev. 541 (2004) and Vasan Kesavan, Is the Electoral Count Act Constitutional?, 80 N.C. L. Rev. 1653 (2002).
The Basic Counting Procedure
As discussed in my original post, the Constitution does not say who, if anybody, has the “power” to count electoral votes. It says “the votes shall . . . be counted,” apparently referring to a mathematical task that could be performed by anyone who has mastered addition. In current congressional practice, this task is performed by four tellers, who consist of two members of each house appointed by the presiding officers thereof (with one teller from each party in each house).
To see how this works in an ordinary and uncontested situation, see this video of the counting of the electoral vote from the 2012 presidential election. After the members of the House and Senate file in to the chamber, Vice President Biden calls the four tellers (Senators Chuck Schumer and Lamar Alexander and Representatives Candace Miller and Robert Brady, respectively the chairs and ranking members of the Senate Committee on Rules and Administration and the Committee on House Administration) to come forward. The opening and reading of the certificates of the states (plus the District of Columbia) is done one at a time, proceeding in alphabetical order.
Thus, at around 3:30 in the video, Biden opens the certificate of the first state, Alabama, and hands it to Schumer, who declares before the assembled House and Senate: “Mr. President, the certificate of the electoral vote of the State of Alabama seems to be regular in form and authentic and it appears from that Mitt Romney of the Commonwealth of Massachusetts received nine votes for President and Paul Ryan of the State of Wisconsin received nine votes for Vice President.” Note that technically the teller is supposed to read the certificate itself, but this formality is often dispensed with when no controversy is anticipated. See Jack Maskell & Elizabeth Rybicki, CRS Rep. RL 32717, Counting Electoral Votes: An Overview of Procedures at the Joint Session, Including Objections by Members of Congress 4 (Nov. 30, 2012).
Biden then opens the next certificate, from Alaska, and hands it to Miller, who makes the same declaration with respect to Alaska’s electoral votes. (At this point you can hear some Republican wag saying “so far, we’re winning”). And so it goes, with the tellers alternating (Alexander gets Arizona, Brady gets Arkansas, etc.). As the results are read, it is responsibility of the tellers to record and count the votes. CRS Rep. at 4.
After the results are read from the last state (Wyoming), Biden announces (at about 21:40 in the video): “Members of Congress, the certificates having been read, the tellers will ascertain and deliver the results to the President of the Senate.” (Trigger warning: at this point the camera cuts to Senator Reid and Representative Pelosi, sitting together and smirking). Before delivering the results to Biden, Schumer recites: “The undersigned, Charles E. Schumer of New York, Lamar Alexander of Tennessee, tellers on the part of the Senate, Candace Miller of Michigan, Robert A. Brady of Pennsylvania, tellers on the part of the House of Representatives, report the following as the ascertainment and counting of the electoral vote for President and Vice President of the United States for the term beginning on the 20th day of January, 2013.”
Finally, Biden announces the results of the “state of the vote” as it was “delivered the President of the Senate,” reciting the vote for each individual who received electoral votes for president or vice president, and concluding that “this announcement of the state of the vote by the President of the Senate shall be deemed a sufficient declaration of the persons elected President and Vice President of the United States.”
The Electoral Count Act of 1887
Note that the exercise described above is a scripted affair, purely ministerial in nature. The tellers read the votes from each state, add them up and hand the results to the President of the Senate, who announces them. All well and good, but what happens if there is a controversy regarding the counting of a particular certificate? What happens if someone objects that a particular certificate is not “regular in form” or does not appear to be “authentic”? What if there is more than one certificate purporting to reflect the electoral votes of a particular state?
The answers to these questions, to a large extent, are contained in the Electoral Count Act of 1887, codified at 3 U.S.C. §§ 5-6, 15-18. The ECA is the source of the procedures described in the routine electoral vote count. It also provides rules and procedures to govern objections and disputes when they arise.
Prior to the passage of the ECA, Congress had debated for nearly a century about who, if anyone, could decide questions regarding the validity or legality of particular electoral votes. Eventually a majority settled on the proposition that both houses, acting concurrently, had the power to decide whether electoral votes should be counted. In other words, if there were dispute over whether particular electoral votes should be counted, they would not be counted unless both houses agreed to count them. This default rule created the potential for deadlock, particularly when the House and Senate were controlled by different parties.
After the Hayes-Tilden election of 1876 resulted in exactly such a deadlock, Congress wanted to establish rules that would avoid, or at least minimize, the circumstances in which a disagreement between the two houses would result in disenfranchising a state or in uncertainty over which, if any, candidate had received the majority of electoral votes needed to win the presidency. The ECA attempts to do this by pre-committing Congress to (a) follow specified procedures in counting the electoral vote (eg, the carefully circumscribed roles of the tellers and the President of the Senate); (b) defer to state ascertainments of the lawful electors provided certain conditions and formalities are met; (c) accept certain electoral votes unless both houses agree to reject them; and (d) use specified tie-breaking mechanisms when there are multiple returns from a single state or disagreements between the two houses as to counting votes.
The question is how effective the ECA would be in resolving a dispute over electoral votes when the outcome of a presidential election turns on it. Given that the ECA has never been deployed in such circumstances, it is difficult to say for sure. However, for the reasons discussed below, there seems to be a high likelihood that the ECA would produce a deadlock, rather than identify an undisputed winner, in cases where the two houses are controlled by different political parties. This was the case following the election of 2000, where the House was controlled by Republicans, while the incoming Senate was split 50-50 between the parties (with Vice President Gore still available to provide the tie-breaking vote in favor of the Democrats).
The problems with the ECA to some extent relate to its wording, which has been described as “turgid and repetitious,” “invit[ing] misinterpretation,” and “very confused, almost unintelligible.” See Siegel, 56 Fla. L. Rev. at 543, 614 (discussing the complexity of the ECA’s wording and describing it as a “nightmare for interpretation”); John W. Burgess, The Law of the Electoral Count, 3 Pol. Sci. Q. 633, 643 (1888).
These same commentators, it should be noted, believe that a close study of the ECA produces a relatively clear picture of how it is supposed to work in most circumstances. Professor Siegel, for example, concludes that the ECA provides a set of “bright-line rules” for resolving most controversies without the need for much interpretative judgment by anyone in Congress. Siegel, 56 Fla. L. Rev. at 633; see also Burgess, 3 Pol. Sci. Q. at 653 (ECA’s “regulations are apparently exhaustive” and “[s]o far as human wit can divine, they will probably prevent any failure of the Congress to reach its decision in regard to the counting of the electoral votes before the expiration of the existing presidential term”).
Nevertheless, the complexity of the ECA’s wording can be a problem because there is no neutral decision-maker to render judgment on its meaning. In a close election, “partisans on every side will usually be able to game the system to figure out grounds to reach the result they want.” Siegel, 56 Fla. L. Rev. at 656. Because the court of public opinion may be the only constraint on the creativity of these partisans, the inability of the public to understand the ECA’s “bright-line rules” may expand the scope of claims that can be made.
In understanding how the ECA works, a distinction must be made between its substantive and procedural provisions. This distinction can be illustrated by its “single return” rule: “no electoral vote or votes from any State which shall have been regularly given by electors whose appointment has been lawfully certified to according to section 6 of this title but from which but one return has been received shall be rejected, but the two Houses concurrently may reject the vote or votes when they agree that such vote or votes have not been so regularly given by electors whose appointment has been so certified.” 3 U.S.C. § 15.
The somewhat circular phrasing may make it less than obvious, but this provision embodies both a substantive and procedural standard. Substantively, the provision states that if a state submits only a single return, its vote(s) cannot be rejected unless not “regularly given” or the electors not “lawfully certified.” Procedurally, it states that the vote(s) cannot be rejected unless both houses agree they were not regularly given or the electors not lawfully certified.
The substantive standard was undoubtedly intended to constitute a significant constraint on Congress’s authority to reject a state’s single return, but it cannot be said to establish a bright-line rule that clearly demarks those returns which Congress must accept. There remains plenty of room for debate over what votes were “regularly given” and what electors were “lawfully certified.” The bright-line rule, if any, must lie instead in the procedural requirement that both houses must concur before a single return may be rejected.
The Count of 2001
Now lets consider how the ECA functioned in the context of the actual electoral vote counting following the 2000 election. Because the Supreme Court’s decision in Bush v. Gore effectively halted the Florida election contest, only the Bush slate of electors voted on December 18, 2000, which was elector balloting day. These electors had been issued a certificate of ascertainment by the Florida governor on November 26, 2000. Accordingly, only a single return from Florida was received by the President of the Senate.
On January 6, 2001, the House and Senate gathered for the counting of the electoral vote. With Vice President Gore presiding, the certificates were opened in alphabetical order and read by the tellers. Representative Chaka Fattah (D-Pa) was the lucky teller assigned to read the certificate from Florida. After he finished, Gore asked whether there were any objections. See 3 U.S.C. § 15 (“Upon such reading of any such certificate or paper, the President of the Senate shall call for objections, if any.”). A number of House Democrats filed written objections to Florida’s return, stating in part: “Notwithstanding the certification by the Governor of the State of Florida, it is the opinion of the undersigned that these 25 votes regularly given in that the plurality of votes in the State of Florida were in fact cast for Albert Gore, Jr. for President and Joseph I. Lieberman for Vice President.” 147 Cong. Rec. H 52-53 (daily ed. Jan. 6, 2001).
Substantively, this was a weak objection because the legislative history of the ECA seems to show clearly that the phrase “regularly given” refers to the conduct of the electors (such as voting for ineligible candidates), not to how the electors were chosen. See Siegel, 56 Fla. L. Rev. at 617 n. 462. A more plausible objection would have been to contend that the Florida electors had not been “lawfully certified.” Id. Exactly how plausible such an objection would have been might depend both on Florida law (whether there was a plausible argument that the governor should not have certified the electors while legal proceedings were ongoing) and on the extent to which the ECA allows Congress to go behind the governor’s ministerial act of certification to question aspects of the election itself. It cannot be said, however, that the ECA clearly prohibited on objection that Florida’s electors were not “lawfully certified.” See Siegel, 56 Fla. L. Rev. at 623 (noting concerns at the time the ECA was adopted regarding the potential scope of challenges to “lawful” certification).
The bigger problem for the House Democrats was not the ECA’s substantive provisions, but its procedural ones. The most fundamental was the requirement that both houses agree before a single return may be rejected. Because Republicans controlled the House, this condition could not be satisfied.
Was there a way around this? Conceivably, the Democrats could have argued that the ECA’s “single return” rule does not automatically apply, but requires some sort of prima facie showing that a state has indeed submitted a single return that was lawfully certified. Thus, Professor Siegel believes that a single return that was not certified at all could be rejected by the vote of one house alone. See Siegel, 56 Fla. L. Rev. at 624 n. 509. If this is so, arguably one house could find that the governor simply lacked authority to certify a return because, under state law, no “final ascertainment” had yet taken place, see 3 U.S.C. § 6, thereby depriving it of the presumption of validity afforded by the ECA to a single return.
Democrats might have bolstered this argument by questioning the constitutionality of the ECA, particularly with respect to its requirement that both houses agree before certain electoral votes may be rejected. The constitutionality of the ECA has been debated from its inception. See Kesavan, 80 N.C. L. Rev. at 1695. Legal scholars today continue to question whether the ECA can constitutionally impose binding obligations on Congress with respect to the counting of the electoral vote. See id. at 1784 (discussing the views of Professors Nelson Lund and Larry Tribe). Arguably, the ECA functions not as a binding statute but as a joint rule that could be modified, rescinded or waived by concurrent resolution or by the action of a single house. Or arguably it might be technically effective only if it were adopted by the joint assembly of the House and Senate at the start of the electoral vote counting. See id. at 1787 n. 525. Or possibly its effect is merely precatory.
To be sure, I do not recall anyone in Congress raising questions about the constitutionality of the ECA in late 2000. It would have been difficult, as a practical and political matter, to argue for completely disavowing or ignoring a duly enacted statute that had governed electoral vote counts for more than a century. See Nelson Lund, The Unbearable Rightness of Bush v. Gore, 23 Card. L. Rev. 1219, 1275 n. 176 (2002). But it is not difficult to imagine Democrats arguing that the ECA’s tie-breaking provisions should be strictly construed to avoid doubt about the constitutionality of “disenfranchising” one house of Congress.
Taken as a whole, the argument sketched out above may not be particularly persuasive, but bear in mind that congressional Democrats would not necessarily have needed to persuade anyone but themselves. Suppose, for example, they had filed the following objection: “We object to the certificate from Florida on the ground that it was not ‘lawfully certified’ and therefore is not entitled to a presumption of validity under the ECA. Accordingly, based on the ECA and pre-ECA precedent, these votes may not be counted without the concurrence of the houses.”
It would presumably be up to the President of the Senate, as presiding officer, to decide whether to recognize this objection and present it for decision. Assume it was so presented and the houses were split, with the Senate sustaining the objection and the House rejecting it. What would be the legal effect of that vote? Because the question presented is whether the ECA’s “single return” tie-breaking mechanism is applicable in the first place, it is not at all obvious that this tie-breaking mechanism would apply to the decision of the question.
Furthermore, the ECA provides that “[w]hen the two Houses have voted, they shall immediately again meet, and the presiding officer shall then announce the decision of the questions presented.” 3 U.S.C. § 15. Does the presiding officer’s power to “announce” the decision include the power to determine the legal effect of a split decision by the two houses?
According to Professor Siegel, the answer is yes, but he argues that the ECA’s bright-line rules mean that “interpreting the legal import of the Senate and House of Representatives’s decisions in rather straightforward.” Siegel, 56 Fla. L. Rev. at 644. But this assumption would seem to fail in the case where the question presented relates to whether (or how) the bright-line rules apply in the first place.
Had Vice President Gore been faced with an objection such as I suggest, it might not have mattered much whether he claimed the power to interpret the result of the decisions by the two houses. Unless both houses/parties were willing to accept his ruling, the corresponding tellers could have refused to record the votes in accordance with Gore’s pronouncement. Certainly the House Republicans, who worried in November and December of 2000 about the possibility Gore would use the power of the chair to influence the outcome of the count, would have argued (with justification) that Gore lacked the constitutional or statutory authority to reject the Florida electors when the houses were split. There would seem to be no obvious resolution to this standoff.
As it happened, the House Democrats never got that far because they foundered on a different procedural issue. The ECA provides that “[e]very objection [to a certificate] shall be made in writing, and shall state clearly and concisely, and without argument, the ground thereof, and shall be signed by at least one Senator and one Member of the House of Representatives before the same shall be received.” 3 U.S.C. § 15. Because no senator had signed an objection, Gore ruled none could be received.
Circumventing this bright-line procedural rule was tricky, but House Democrats gave it a shot. Representative McKinney moved “that the House withdraw from the joint session in order to allow consideration of the facts surrounding the slate of electors from Florida,” and she argued that because her motion “involves the prerogatives of the House, therefore, Senate assent is not required.” Similarly, Representative Waters offered a “motion to withdraw from the joint session,” and she noted that section 15 of Title 3, which contains the requirement of a signature from a member of each house, deals with objections but makes no reference to motions to withdraw. Gore, however, responded that sections 15-18 of Title 3 must be read “as a coherent whole” and he ruled “in the opinion of the chair and the parliamentarians that no procedural question is to be recognized by the presiding officer in the joint session, even if it applies to only one house, unless presented in writing and signed by both a representative and a senator.”
Gore’s ruling seems consistent with the spirit of the ECA, which was intended to place limits on the ability of members to seek lengthy or indefinite delays in the electoral count. Yet the House Democrats had a strong argument based on the statute’s text. Section 18 of Title 3 refers specifically to motions to withdraw, which the presiding officer may present to either house. It is not all obvious, as a textual matter, that section 15’s requirements for objecting to electoral votes, which must be voted on by both houses, should apply to a motion for a single house to withdraw under section 18.
In short, the ECA worked smoothly enough in the 2001 counting, but only because Gore and most congressional Democrats had already decided not to contest the counting. If they had wished to, the ECA would have given them sufficient tools to delay or block entirely the Florida electors, even though there was only a single return.
Such a course of action was not pursued in 2001 because of the widespread acceptance that the Supreme Court’s decision in Bush v. Gore had effectively settled the legitimacy of Florida’s Bush electors. If the Court had not ruled, of course, this factor would not have been in play. Moreover, the scenario from Florida would likely have been more complex than a single return, making deadlock a much greater possibility. I will turn to that hypothetical in my next post.