The Electoral Count Act Must Be Repealed

• Published date: 15 November 2021
• Subject Matter: Government, Public Sector, Constitutional & Administrative Law
• Law Firm: Arnold & Porter
• Author: Mr Kirk Jenkins

The investigation of the House select committee into the Jan. 6 insurrection continues. The U.S. House of Representatives has voted to recommend a criminal contempt charge against Steve Bannon, and tense negotiations are apparently ongoing with other former high-level officials.

But it is crucial, as the committee looks for ways to ensure that the events of Jan. 6 can never happen again, not to overlook the most important fix of all.

The Electoral Count Act, an 1887 statute that set the ground rules for the Jan. 6 proceedings by purporting to give Congress discretion to accept or reject a state's electoral votes, is unconstitutional. Neither the U.S. Constitution nor the 12th Amendment gives Congress or the vice president any substantive authority whatsoever in connection with counting electoral votes.

The act must be repealed or struck down.

Scholars have pointed out the constitutional flaws in the act since it was enacted.

When the first legislative proposals were floated in the aftermath of the disputed 1876 election, professor Samuel Spear published an article arguing that any statute assigning Congress any authority to reject electoral votes would be unconstitutional.¹

In a 2002 North Carolina Law Review article, Vasan Kesavan comprehensively analyzed the constitutional flaws in the act.²

In 2016, professors Chris Land and David Schultz agreed that the act is unconstitutional,³ as did professors Jack Beermann and Gary Lawson,⁴ as well as former U.S. Circuit Judge J. Michael Luttig and attorney David Rivkin⁵ in separate articles earlier this year.

What is the Electoral Count Act?

The Electoral Count Act sets down detailed procedures to govern the counting of electoral votes.

The act provides that a final determination of any controversy concerning the appointment of electors made at least six days before the time fixed for the meeting of electors is conclusive.⁶

The governor of each state must communicate by registered mail to the U.S. archivist a certificate of ascertainment of the electors, stating the fact of each elector's election and certifying to the state's resolution of any "controversy or contest" concerning their appointment.⁷ The certificate also states the number of votes cast for each person by the electors.⁸

The president of the Senate opens the electoral vote certificates and hands them, one by one, to the tellers.⁹ The president of the Senate then calls for objections.

Every objection must be signed by one senator and one representative. If an objection is received, the House and Senate must withdraw and debate for no more than two hours.¹⁰

If only one return is received that records votes that are "regularly given" - a term the act does not define, but that seems to mean "selected in the manner prescribed by state law" - by the certified electors, it must be counted, unless both houses conclude the votes were not regularly given.

If more than one purported certificate is received, only those votes that are regularly given by the certified electors are counted.

If the two houses disagree with respect to competing certificates, the votes of the electors whose appointment is certified by the state executive under the seal of the state are counted.¹¹

Where does Congress get the power?

The Constitution gives few details about the proceedings for determining the winner of the presidential election:

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.

The relevant language of the 12th Amendment is identical.

Given the near silence of the Constitution, where did Congress get the power to pass the act? The source most frequently cited is the necessary and proper clause, which authorizes Congress

[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer...