Gary Schmitt is a senior fellow in the Social, Cultural and Constitutional Studies Program at the American Enterprise Institute.
The headline finding of the January 6th committee’s report is the criminal referral of former President Donald Trump to the Justice Department for his role in instigating the riot on Capitol Hill. Understandable as that might be, we shouldn’t forget that the central, constitutional issue at stake that day—and the reason the mob was directed to the Capitol—was whether Vice President Mike Pence would assert an authority that Trump’s lawyers were saying he had to reject Electoral College votes or send the results back to the states to settle supposedly disputed election results. Facing the very real possibility of physical harm—with the rioters shouting “Hang Mike Pence”—the Vice President rejected the idea that he had such power and, in the early hours of January 7th, the Electoral College count was completed with Joe Biden winning the presidency.
To head off a repeat of the uncertainty and chaos that occurred that day, buried in the thousands of pages of the now-passed omnibus spending bill, Congress has incorporated needed revisions to the 1887 Electoral Count Act. For example, no longer can a single senator and single representative challenge an electoral vote, halting the count until both chambers have considered and voted on the challenge. Under the revised law, a challenge must have the support of one-fifth of the members of both houses to force consideration. Certainly, a counting process less open to divisiveness and obstruction and, in turn, more decisive in finalizing the Electoral College’s count is a positive good for the nation’s civic health.
But given the actual constitutional issue at play on January 6, the most notable revision of the Electoral Count Act in the spending bill is the blunt statement that, when it comes to the Electoral College counting process, the Vice President’s role, as President of the Senate, is “solely ministerial”: “The President of the Senate shall have no power to solely determine, accept, reject, or otherwise adjudicate or resolve disputes over the proper certificate of ascertainment of appointment of electors, the validity of 15 electors, or the votes of electors.”
Even today, that Congress has the power to define the Vice President’s role and so arrange the counting process has not gone uncontested. And most prominent counter argument still asserts that the Vice President has the unilateral authority under the Constitution to settle contested Electoral College votes. Accordingly, proponents of this view see both the Electoral Count Act of 1887 and the new revisions as unconstitutional.
However, as Joseph M. Bessette and I have written elsewhere, the text, structure, and underlying principles of the Constitution, the original rationale for the Vice Presidency, and the actual records of the early counting process provide significant and substantial evidence for Congress’ authority.
And while the 1887 act may have been the first successful effort by Congress to stipulate the resolution of electoral vote disputes, it was not the first attempt to do so.
In January 1800, that question came foursquare before Congress. Pennsylvania’s government was divided between a Republican governor and assembly and a Federalist-controlled upper house. The resulting stalemate meant that Pennsylvania had no law on the books for choosing its presidential electors later in the year. In a period of deep partisanship, not unlike today, Federalists in the U.S. Senate were concerned that the Republican governor would, by some irregular means, contrive to have all the states electors be firm supporters of Jefferson’s candidacy.
The Senate acted first, passing a draft bill that would have created a “grand committee” of thirteen members (six from the House and six from the Senate, with the Chief Justice presiding) with plenary power to challenge, investigate, and determine the legitimacy of votes. The House proposed a similar committee, but its draft bill left the ultimate resolution of disputes to a majority vote in both houses. In the end, the two chambers could not agree over whether it would take only one house or both houses to negate an electoral vote, and the measure died in May.
Nevertheless, this episode shows that both majorities in the House and Senate believed that, under the Necessary and Proper clause (Art 1, sec 8) of the Constitution, Congress had the authority to resolve Electoral College disputes. Included in the House majority was Rep. John Marshall—soon to be Chief Justice John Marshall—who, it appears, took a lead in developing the House version of the bill.
There were, of course, members who objected to that reading of the Constitution, arguing that either the matter had to be left to the states or required, in the absence of a clear provision for handling in the Constitution, a constitutional amendment to regulate.
For current purposes, what is most notable is that not a single critic of the proposed legislation argued that resolving such disputes was the Vice President’s prerogative. If even remotely plausible constitutionally, it surely would have been tempting for one of Jefferson’s supporters to say as much. All knew that Jefferson, the sitting Vice President, would be Republicans’ candidate for President in 1800. Given how close the vote was expected to be—and was—the silence here is especially telling.