There is growing angst (see, for example, here and here) that a Republican House and Senate would refuse to certify the results of the 2024 presidential election if they are dissatisfied with the outcome. The concern, which has ample basis in the Trump tautology that any election he loses was rigged because he lost it, presents some interesting constitutional questions. The Constitution itself assigns Congress no role in counting electoral ballots other than witnessing the procedure. The procedure for objecting to electoral votes is entirely statutory.
The 12th Amendment is clear on the passivity of Congress’ role:
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 person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed ….
Nothing in this procedure requires Congress to certify a winner. The only active role the 12th Amendment, like Article II, assigns Congress is when there is no Electoral College majority. If there is, the winner “shall be” the President.
The historical basis for Congressional objections dates to the disputed slates of electors presented in 1876. But nothing in this history or the subsequent statutes—in 1887 and 1948—empowers Congress to police allegations of electoral fraud. The 1948 statute does refer to electoral votes not “regularly given.” But a case could be made that, if it is deployed as an instrument object to a presidential election, the statute violates both the text of the 12th Amendment (the winner “shall be” the President) and the principle of separation of powers. The Virginia Plan from which the Philadelphia Convention worked had Congress choose the president, an approach explicitly rejected on separation of powers grounds. Hamilton took up the theme in Federalist 68:
Another and no less important desideratum [in devising the Electoral College] was, that the Executive should be independent for his continuance in office on all but the people themselves. He might otherwise be tempted to sacrifice his duty to his complaisance for those whose favor was necessary to the duration of his official consequence. This advantage will also be secured, by making his re-election to depend on a special body of representatives, deputed by the society for the single purpose of making the important choice.
Madison made a similar point in commenting on Jefferson’s draft of a constitution for Virginia: “An election [of the executive] by the Legislature is liable to insuperable objections. It not only tends to faction intrigue and corruption, but leaves the Executive under the influence of an improper obligation to that department.”
In an 1800 Senate debate, Charles Pinckney
remembered very well that in the Federal Convention great care was used to provide for the election of the President of the United States, independently of Congress; to take the business as far as possible out of their hands. The votes are to be given by Electors appointed for that express purpose, the Electors are to be appointed by each State, and the whole direction as to the manner of their appointment is given to the State Legislatures. Nothing was more clear to him than that Congress had no right to meddle with it at all; as the whole was entrusted to the State Legislatures, they must make provision for all questions arising on the occasion.
Should Congress co-opt its statutory authority—which arose from a need to resolve disputed slates of electors—to give itself de facto authority to choose the president, it would present a clear case of a statute contravening the Constitution in both text and structure. The Constitution makes members of Congress spectators to the process to keep the Vice President, who opens the ballots, honest. That’s it. Unless no candidate receives a majority, Congress has no other role. The courts should be reluctant to step into electoral disputes. In this case, they may have no choice.
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