AS Haley on the coming showdown on January 6, part 2

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In my first post in this series, I laid out an overview of presidential elections as governed by Article II, Section 1 of the Constitution, as subsequently amended by the Twelfth, Twentieth and Twenty-fifth Amendments. With that as background, it is time to turn to the specifics that will happen next Wednesday, January 6, in our Capitol.

Section 1 of Article II grants Congress the power to set the day for the election/appointment of electors in each State who will cast their votes for President and Vice President, and also the day on which they gather in their respective State capitals to cast and record their votes. The Twentieth Amendment fixes the day when the new Congress meets in Washington to start business, which is January 3 of each year. And as noted in the last post, that Amendment also specifies that the terms of the current President and Vice President end at noon on January 20 following each presidential election.

These constitutionally specified dates establish the framework of the following discussion. Pursuant to its authority under Section 1 of Article II, Congress has provided in 3 USC § 1 that electors shall be chosen on the first Tuesday after the first Monday in November of every fourth year, and 3 USC § 7 sets the first Monday after the second Wednesday in December as the date on which all the electors chosen are to vote. (You can reference any of these sections in this link to Title 3 of the United States Code.)

Thus far we are on solid constitutional ground. Next we move to the date on which the electoral votes from each State are opened and tallied. In my previous post, I quoted the controlling language from the Twelfth Amendment about how the President of the Senate is designated to open all the certificates from the various States in the presence of the assembled two Houses of Congress, after which the votes “shall be counted” — but no date for this is specified.

Fortunately, the Constitution gives Congress the necessary power to fill in gaps like this, through what is called the Necessary and Proper Clause (Article I, Sec. 8, cl. 18). And Congress in this case has established January 6 of the year following a presidential election as the date when the two Houses shall assemble — not as a single deliberative body, but maintaining their own separate identities, rules and powers. It has done so via the opening sentences of 3 USC § 15:

Congress shall be in session on the sixth day of January succeeding every meeting of the electors. The Senate and House of Representatives shall meet in the Hall of the House of Representatives at the hour of 1 o’clock in the afternoon on that day, and the President of the Senate shall be their presiding officer. Two tellers shall be previously appointed on the part of the Senate and two on the part of the House of Representatives, to whom shall be handed, as they are opened by the President of the Senate, all the certificates and papers purporting to be certificates of the electoral votes, which certificates and papers shall be opened, presented, and acted upon in the alphabetical order of the States, beginning with the letter A . . . 

Section 15 of Title 3 was first enacted in 1887, as part of the Electoral Count Act (“ECA”) designed to resolve questions that arose during the much-disputed 1876 presidential election (see my previous post for links). No scholar has any problems with these opening phrases of Section 15, and Congress has duly followed them in each year subsequent to a presidential election since 1889. So once again, we would appear to be on firm statutory ground in predicting that the above is just what will take place in the chambers of the House of Representatives starting at 1 p.m. Eastern Time on January 6, 2021.

But this time, there will be fresh problems under this statute, hinted at by its language “all the certificates and papers purporting to be certificates  of the electoral votes . . .” (my emphasis added). For next January 6, Vice President Pence (acting as President of the Senate) will open the envelopes to find that there were two sets of votes cast in December in certain crucial (“swing”) States by two sets of people claiming to be the authorized electors from those States — one set Republican, and the other Democrat, and both of those sets were duly signed and forwarded to him, pursuant to the following language of the Twelfth Amendment:

[The electors] shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate . . .

Notice that under the Constitution, the electors self-certify their own lists of votes; there is no provision for any involvement in the voting process by either the executive or the judicial branch of any State.

But many commentators and legal scholars are drawing a distinction between those certifications attested to by the States’ respective governors (in all cases under discussion here, the certificates of the Democrat electors) and those which have no such attestation (or if they do have one, it is signed by a lesser State official). On just what law are they basing such a distinction?

They cite to this language, from Section 6 of Title 3 of the United States Code:

It shall be the duty of the executive of each State, as soon as practicable after the conclusion of the appointment of the electors in such State by the final ascertainment, under and in pursuance of the laws of such State providing for such ascertainment, to communicate by registered mail under the seal of the State to the Archivist of the United States a certificate of such ascertainment of the electors appointed, setting forth the names of such electors and the canvass or other ascertainment under the laws of such State of the number of votes given or cast for each person for whose appointment any and all votes have been given or cast; and it shall also thereupon be the duty of the executive of each State to deliver to the electors of such State, on or before the day on which they are required by section 7 of this title to meet, six duplicate-originals of the same certificate under the seal of the State . . . 

That may well be, but the question has to be put: under what authority granted to it by the Constitution did Congress claim to be able to impose duties such as these upon the “executive” of each sovereign State?

It turns out that Congress passed the first law requiring such authentication by a State’s executive in 1792, after the first, but before the second, presidential election. (Act of March 1, 1792, ch. 8, § 3, 1 Stat. 239, 239-40 — see the discussion in this article, starting on page 608.) There were members of Congress who questioned Congress’ ability to impose such a requirement at the time; apparently the majority felt they were empowered to do so by this language in Article IV, Section 1 of the Constitution:

Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings [of a State] shall be proved, and the Effect thereof.

That power to legislate is granted pursuant to the Full Faith and Credit Clause (Art. IV, Sec. 1), which is necessary in a federal republic to ensure that lawful acts done in one State may receive binding effect and recognition in every other State. Every student of constitutional law, however, learns that “full faith and credit” does not extend to every act of a sister State (for example, a law authorizing bigamy in that State), and that the devil is in the details. Which is why, no doubt, the Framers specified that Congress was to streamline interstate recognition of State acts and proceedings by enacting “general laws”, i.e., laws of general application to all States alike.

Is 3 USC § 6, which replaced the 1792 Act in 1887, such a “general law”? Since it applies only to an event that happens every four years, and which event was already self-authenticating under the original Constitution (as well as under its successor Twelfth Amendment, which was adopted twelve years after the 1792 Act, yet which left the provision for elector self-authentication unchanged), it could be argued that the statutory authentication requirement is not a proper exercise of Congress’ powers under the Full Faith and Credit Clause, because it is not a “general” law, but a highly special one. 

If that were so, then the certification by a State’s executive carries no special constitutional significance, and is instead like a paraph following a signature: it adds nothing to the authority of the document that carries it, but it does help prevent forgeries.

Let us, however, give 3 USC § 6 the benefit of the doubt, assume it is valid, and proceed with the analysis. In that case, we have to take account of what it next says:

. . . and if there shall have been any final determination in a State in the manner provided for by law of a controversy or contest concerning the appointment of all or any of the electors of such State, it shall be the duty of the executive of such State, as soon as practicable after such determination, to communicate under the seal of the State to the Archivist of the United States a certificate of such determination in form and manner as the same shall have been made;. . .

What is this reference to a “final determination” in that State “of a controversy or contest concerning the appointment of all or any of [its] electors”? To understand the reference, we need to consult Section 5 of Title 3, which explains it in detail, and whose title is “Determination of controversy in the appointment of electors”:

If any State shall have provided, by laws enacted prior to the day fixed for the appointment of the electors, for its final determination of any controversy or contest concerning the appointment of all or any of the electors of such State, by judicial or other methods or procedures, and such determination shall have been made at least six days before the time fixed for the meeting of the electors, such determination made pursuant to such law so existing on said day, and made at least six days prior to said time of meeting of the electors, shall be conclusive, and shall govern in the counting of the electoral votes as provided in the Constitution, and as hereinafter regulated, so far as the ascertainment of the electors appointed by such State is concerned.

Is this 1887 statute (known as the “Safe Harbor” law, due to the deadline it establishes for a “final determination” to be deemed “conclusive”) starting to have any repercussions with you today? What has been going on since November 3 (and even before that date) in the states of Arizona, Georgia, Nevada, Pennsylvania and Wisconsin (as well as others), if not multiple “controversies and contests” of the election results in those States? And is it the case, even as of this date (January 1), that there has been in each such State a “final determination” of those contests or controversies?

As best as I can tell from searching the Web, the answer is “No.” The Trump campaign, for example, still has a petition to review the discrepancies in Pennsylvania pending before the U.S. Supreme Court. And he just filed a petition there involving the election in Wisconsin. There are contest cases and election audits still pending in Arizona and Georgia, as well; the status of cases originating in Nevada is unclear.

One thing, however, is certain from a review of all of those links: not a single one of those five States had “finally determined”, by December 8, 2020 (the “Safe Harbor” deadline for the 2020 election), all of the pending controversies in that State. (Nevada is a possible exception, but the information there is incomplete.) 

There are two consequences of this fact: (1) there were no results in any of those States which may be deemed “conclusive” for purposes of the ECA; and (2) it is still not possible, as of this writing, for any governor of any of those States (except possibly the governor of Nevada) to have sent in his statutorily required authentication of his State’s electors following the “final determination” of all election controversies in that State.  

Have you followed that? It turns out that, under a combined reading of 3 USC §§ 5 and 6,  the governor of a State is supposed to wait to send in his certification of electors to the President of the Senate until after any and all election controversies in that State have been finally determined. Any certifications sent in before that time are premature, and should not receive any recognition as such. (See the further discussion of this point in the article by Stephen Siegel linked above, in note 420 on p. 610. He points out that in the contest between Bush and Gore in Florida in 2000, Governor Jeb Bush had to send in a second certification after the contest terminated in December 2020, since the first had been ineffective.)

I have yet to see a single commentator or law professor in any article on this complicated subject make the points above. Most are quick to dismiss the protest procedure with words such as “Oh, the statute gives the final authority to the governor, so these protests can go nowhere, because the governors all certified the Democratic party’s electors. Biden has to win on the January 6 count.”

As we will see in my next post, the ECA provides different rules when the elector slates have not been certified under 3 USC §§ 5 and 6. And those rules could make the proceedings very interesting.