National overview
GOP Senators’ Electoral College Stunt is a Dead End
On Saturday, eleven Republican senators led by Ted Cruz (R., Texas) announced a plan to vote “to reject the voters from controversial states” as Congress convened to count the votes and nominate a winner of the presidential election declared, unless and until a ‘ten-day emergency test is completed’. These senators want Congress to “immediately appoint an electoral commission with full investigative and factual authority” according to the model of the electoral commission created to resolve the controversial 1876 election. To better understand why this plan is illegal and a terrible idea, some background history is needed. The twelfth amendment of the Constitution stipulates that the voters of each state must gather, vote and record their votes in two separate lists, one for president and one for vice-president. They must then ‘sign and certify’ these lists and send them ‘sealed to the seat of the United States Government, addressed to the President of the Senate’. As soon as the lists are on their way to Congress, the ‘President of the Senate in the presence of the Senate and the House of Representatives opens all the certificates and the votes are then counted.’ This passive voice phrase extremely omits who does the counting. And the twelfth amendment is also silent on the extent to which the power to count contains the power to judge whether certain votes should count. As Judge Joseph Story remarked on the constitution in 1833, ‘no provision is made for the discussion or decision of questions which may arise as to the regularity and authenticity of the return of the electoral votes’, and it’ seems self-evident to be accepted, that there can never be a question on the subject. “Unfortunately, this assumption seems too optimistic. There were, however, controversies that culminated in the disputed Hayes – Tilden election of 1876, which legislators resolved by passing an emergency law after voters cast their ballots, but before Congress counted them. The bill established a commission to determine the winner of each disputed state, but it did not seek to set a long-term precedent. After decades of uncertainty and ad hoc responses that were good for only one election, Congress decided to finally resolve the ambiguities of the Twelfth Amendment in 1887 with the adoption of the Electoral Code (ECA). Avoiding the chaos and uncertainty of the 1876 election was a major goal of the bill; Representative Charles Baker expressed the general desire to “deliver against the recurrence of the concerns that once threatened the well-being and peace of our country” and to elect a president in such a way ‘so as to avoid the possibility of disagreement and strife can be. Representative John Eden notes that the full history of electoral procedures has been decided ‘at the urging of the moment and amid the excitement of party contests’. Representative Hilary Herbert made it even stronger, recalling that eleven years earlier ‘the country was on the eve of civil war because we had a controversial presidential election’ and because there was no law ‘under which the score could be made. “Congress was of the opinion that filling the gaps in the text of the Twelfth Amendment was the way to prevent such chaos in the future. Representative Samuel Dibble noted with dismay during the ECA congressional debate that it had ‘been a question ever since [the Twelfth Amendment] was adopted, by whom the votes will be counted. There was also a significant difference of opinion and uncertainty about how much judicial authority the power to count entails. For some members of Congress, the count was purely a formality. Representative Dibble described it as’ the kind of determination that the clerk of a court or a registration officer exercises when he reads the court’s decision to record it ‘, that is to say’ a ministerial act, not a judicial case not act. “But others had a different view. Representative William Cooper argued that the power to count contains the power to determine whether each list ‘was in fact the lawful vote of a state’. Representative George Adams also believed that jurisprudence implies the duty to count and that Congress’ “determination that [an] alleged return is the statement of law is counting the vote of the state within the meaning of the Constitution. Representative Andrew Caldwell, one of the primary compilers of the ECA, announced that this debate would be ended and “resolved all the questions” that arose from time to time regarding the election score. The act would, he said, confirm “that the power to count the votes is not in the president of the Senate”, but “in the two houses of Congress”, and secondly that the “power of the two houses” to counting the vote is something more than just ministerial and perfect. “Congress has the power” to determine what legitimate votes are and who has the majority of legitimate votes “because the” power to judge the legality of the votes is a necessary consequence of the power to count. ” ECA has given Congress the power to reject an illegal electoral vote with a majority vote of both houses. But the drafters of the ECA knew how explosive and consequently the power could be if ever exercised, and therefore they now set out grounds for rejecting an election vote as illegal: only the votes not “regularly given by voters” The ECA therefore creates two specific categories of illegality: in order to be illegal, an electoral vote must either not be ‘regularly given’ or not ‘legally certified’. the approval of the bill could not cover any category the belief that the election of a voter was defective.The investigation into the question of whether an election vote is ‘given regularly’ involves questions not about how the voter was elected, but rather about the voters’ actions to vote for president themselves – or whether they meet the basic, apparent requirements of the procedure. Those who drafted and passed the ECA have a useful list of examples of money reasons given to Congress to reject an election because it was not “regularly given”, including: if the vote was not “as required by law”, if the vote is not “on the day the law was appointed “brought out, if a voter did not ‘sign and ratify’ the vote, if a voter did not have a citizen of another state ‘, and if the vote for someone who is not constitutional’ is not eligible for the office of President (as someone who is not a native citizen, or over thirty-five years old). In addition to these possible procedural shortcomings, the category of votes that are not “legally certified” includes attempts to obtain certificates from persons who are not eligible to be elected, probably by some structural constitutional provision. Examples of this were: if a voter ‘does not qualify for that office’ (such as someone who already holds another office) cast his vote, if a state tries to cast a total number of election votes that are not ‘equal to her number of senators and representatives, ”If a state has attempted to cast ballots after relinquishing a republican form of government, or as an area that has not yet been admitted as a state (or not yet as a state was not allowed) attempted to cast ballots (a much more plausible problem for those who had already undergone the gradual readmission of the secluded states to the Civil War.) Although Congress considered the unlikely event of someone claiming to be a constituency, despite the legitimate mandate election for voters, was conspicuously absent in the debate over the ECA. discussion of objections based on a major act in the election for the election. Both the structure and the history of the ECA support the view that general concern about the administration of an election would not fall under one of the two categories of valid objections during the adoption of the law. The ECA was explicitly written to prevent a repeat of the endless 1876. dispute. Instead of allowing Congress to kick the look of accountability to a commission, it requires a decision on each objection to an election vote to be reached after a debate limited to two hours. This structure only makes sense if objections are of a kind that can be sensibly considered and decided within two hours, that is, if they involve legal issues in the face with the voters, rather than complicated factual allegations of problems with their election. us about the eleven Republican senators trying to ‘reject the voters from disputed states’ when Congress convenes to count the electoral votes and declare a winner on Wednesday? Well, in the first place, none of their disputes with the 2020 election qualify as a challenge for an election vote as if they were not ‘regularly’ given or ‘legally certified’. Indeed, the senators ‘stated plan to object to the votes as’ not ‘regularly given’ and ‘legally certified’ (the legal requirement) “without distinction between the two” shows that they are not even trying to get the text of the bill as understood at the time.The ECA can always be changed by the adoption of a new bill, which is likely to be the vehicle with which these senators will demand a new election commission.But unless and until such If an amendment to the ECA succeeds, the ECA is still binding, and the fact that these senators acknowledge that they need a commission to meaningfully investigate their election issues shows that their challenge is not true as an ECA challenge. The ECA codified an important lesson from 1876 and earlier elections: Congress as an institution is not suited to the type of rapid, fact-intensive and impartial investigation needed to answer questions about the administration of an election b equable to solve. These questions are better left to the courts, and the ECA has, among other things, shifted the count of election votes back to ‘more than twice the time the states had to determine the outcome of their elections’. This is what happened successfully, in the 2020 election. Although the letter from the eleven Republican senators insignificantly notes that the Supreme Court has twice rejected the review of cases arising from the 2020 election, this does not mean, as the letter implies, that courts have not heard evidence and have not resolved these allegations of serious election. fraud. The state and federal courts contain much more than the Supreme Court, and cases have been heard and decided in dozens of courts across the country, as the ECA believes. In support of the passage of the ECA in December 1886, Representative Herbert had previously remarked that the “The country will in no political case be satisfied with a temporary instrument or consent under a law currently approved, after parties talked about the issue. ” The commission of 1876 could not achieve legitimacy, he argued, because the people ‘want to take laws before matters arise, and not with reference to a special case that may arise’. The senators who invite a repeat of the chaos of 1876 today will do well to take into account the wisdom of Herbert and other men who lived it.