Keith E. Whittington is the William Nelson Cromwell Professor of Politics at Princeton University. He writes about American constitutional law, politics and history and American political thought.
On the afternoon of January 6 (and perhaps for some time after), we will observe yet another unusual feature of the American constitutional system. The vice president will, in the presence of both houses of Congress, open the certificates containing the votes of the presidential electors, and the votes will then be counted and the identity of the president-elect announced. All this is in accord with the requirements of the Twelfth Amendment to the Constitution, though the text is spare on the details. Normally far more people watch the envelopes be opened and the winners announced at the Academy Award ceremony than at the electoral count ceremony, but then there is usually some suspense surrounding the Oscars. There might be a bit more suspense in the capitol this year and a somewhat larger audience intermittently watching.
But why are the electoral votes being counted in Congress at all? This certainly is not how we normally determine the winner of our elections. Some supporters of President Donald Trump have spun this idiosyncratic feature of our constitutional system as indicating that Congress – or perhaps even the vice president acting alone – has some substantial authority to refuse to count electoral votes submitted by the states. But counting votes is still a mundane, administrative task, even when it is occurring in Congress. There are no grand political decisions to be made here.
It would seem very odd to us to entrust a mundane, administrative task to an exalted representative assembly like Congress. That’s what mundane administrators are for. But that is in fact what the founders did, and there was a method to their madness.
If the president were simply elected by the Congress, as the founders briefly considered, then not only would votes be counted in Congress but they would be cast in Congress. The founders did not take that path, however, because they wanted the president to be more independent of the legislature. And thus, eventually, the Electoral College was born. The Electoral College is ultimately a temporary, single-purpose, dispersed mirror of Congress. Among the potential virtues of such a body is that it might cut down on corruption. A sitting president or aspiring demagogue could not easily tempt, bribe or cajole electors who met only once and simultaneously in state capitals spread all across the country.
But that leaves the problems of votes scattered all across the country. The founders needed some way to gather them together and tally them. That could not be done in an instant using eighteenth century technology. The record of the electoral votes would have to be physically transported on horse to the nation’s capital. They would then have to be counted by someone a significant amount of time after they were actually cast.
There were not a lot of options in 1787. No preexisting state official could be entrusted with the task of counting the votes for the chief executive of the federal government. The Constitution created very few federal institutions for the new government – a president, a vice president, a Congress, a chief justice. Everything else was left up to Congress to create or revise later. Even after Congress began to create additional federal institutions, it would not have been obvious that any of those could have been entrusted with counting the votes for president. The Secretary of State – one of the first and most important federal officers created and the one entrusted with a great deal of record keeping responsibility in the early republic – could not easily be given such a job. He would have political ambitions of his own and would be a creature of the president who appointed him.
It is easy to imagine, in such circumstances, why the best option might seem to be to have all the elected federal representatives gather together along with the sitting vice president and collectively watch the envelopes be opened, the votes counted, and the winner of the presidential election announced. This mostly ceremonial and mundane, but critically important, function could be performed with all the elected federal officials in attendance, and the presence of all the elected federal officials would help insure that nothing untoward happened with the tallying of the votes. Just as modern partisan election observers do, the members of Congress insure maximum transparency as ballots are opened and counted and by their very presence discourage any attempts at tampering with the results of the election.
Though antiquated, that system has worked reasonably well for over two centuries. Unfortunately, it is now the sitting president who is actively encouraging those federal officials to tamper with the results of the election, and a disturbingly large number of the members of Congress seem willing to play along. The framers did not have an institutional solution for the possibility of a majority of the members of Congress simply colluding to tamper with the count of the votes of the presidential electors. A republic, if you can keep it.