The news keeps changing as the tallying of Electoral College votes in the Capitol on January 6 approaches. It is difficult at this point to project with any confidence how matters will turn out.
As explained in Part I and Part II of this series, the presidential election of 2020 boils down to what happens when the two Houses of Congress meet in an unusual (but four-year) prescribed joint session on this Wednesday, January 6. The first question that arises is: what law applies to that joint session?
The first answer is that it is the Twelfth Amendment to the Constitution, adopted in 1804, that requires the two Houses so to meet. The joint session is the necessary vehicle by which the outcome of the previous year’s presidential election is officially determined and announced to the world.
But the next thing it is necessary to note is that the Twelfth Amendment is silent as to a number of matters that could arise (and have indeed arisen) with regard to the tally of electoral votes in the presence of the two Houses of Congress.
For example, what happens in the event that there are two competing slates of electors from a given State? Who decides which slate’s votes are entitled to be included in the final tally?
And that is just the situation we have in January 2021: dual slates of electors have sent in their votes to the seat of the government from (at least) the States of Arizona, Georgia, Nevada, Pennsylvania, and Wisconsin. When the separate votes of those dual slates are opened by Vice President Pence and handed over for tallying, how will the two tellers from each House know how to proceed?
In the past, Congress drafted (and President Harrison signed into law) the Electoral Count Act of 1887, which purported (in the wake of the Tilden-Hayes electoral debacle of 1876-77) to specify how future joint sessions of Congress would resolve disputed and duplicate votes from a given State. But the reality is that the Electoral Count Act has never been deemed fully applicable to any election dispute from 1888 to the present.
Moreover, many constitutional scholars have doubted whether Congress possessed the authority to enact it under the Constitution — because it purports to bind future Houses of Congress separately as to how they must deal with future Electoral College votes, regardless of the Twelfth Amendment. The principle is simple: by what law (or Constitutional provision) may one Congress irrevocably bind a future Congress to act (or not to act)?
Under our federal system, it is only a provision in our Constitution that can so bind any current and future Congress. And the Electoral Count Act was not adopted as an amendment to our Constitution: therefore, it cannot be binding upon any Congress that does not voluntarily choose to adopt its provisions.
So it is instructive to learn that the 117th Congress, which was sworn in on January 3, has chosen to adopt, in the matter of counting the votes of the Electoral College, not the ECA holus bolus, but instead a joint resolution much reduced in scope:
Resolved by the Senate (the House of Representatives concurring), That the two Houses of Congress shall meet in the Hall of the House of Representatives on Wednesday, the 6th day of January 2021, at 1 o’clock post meridian, pursuant to the requirements of the Constitution and laws relating to the election of President and Vice President of the United States, and the President of the Senate shall be their Presiding Officer; that two tellers shall be previously appointed by the President of the Senate on the part of the Senate and two by the Speaker 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 c ertificates 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”; and said tellers, having then read the same in the presence and hearing of the two Houses, shall make a list of the votes as they shall appear from said certificates; and the votes having been ascertained and counted in the manner and according to the rules by law provided, the result of the same shall be delivered to the President of the Senate, who shall thereupon announce the state of the vote, which announcement shall be deemed a sufficient declaration of the persons, if any, elected President and Vice President of the United States, and together with a list of the votes, be entered on the Journals of the two Houses.
This resolution is more noteworthy for what it doesn’t say than for what it says. Its opening provisions track exactly the first three sentences of the ECA, as codified in 3 USC § 15 — but the resolution leaves off entirely the remainder of Section 15, which admittedly is a notorious conundrum (I quote it here just for the sake of completeness; don’t expect to understand what it says):
Upon such reading of any such certificate or paper, the President of the Senate shall call for objections, if any. Every objection shall be made in writing, and shall state clearly and concisely, and without argument, the ground thereof, and shall be signed by at least one Senator and one Member of the House of Representatives before the same shall be received. When all objections so made to any vote or paper from a State shall have been received and read, the Senate shall thereupon withdraw, and such objections shall be submitted to the Senate for its decision; and the Speaker of the House of Representatives shall, in like manner, submit such objections to the House of Representatives for its decision; and no electoral vote or votes from any State which shall have been regularly given by electors whose appointment has been lawfully certified to according to section 6 of this title from which but one return has been received shall be rejected, but the two Houses concurrently may reject the vote or votes when they agree that such vote or votes have not been so regularly given by electors whose appointment has been so certified. If more than one return or paper purporting to be a return from a State shall have been received by the President of the Senate, those votes, and those only, shall be counted which shall have been regularly given by the electors who are shown by the determination mentioned in section 5 of this title to have been appointed, if the determination in said section provided for shall have been made, or by such successors or substitutes, in case of a vacancy in the board of electors so ascertained, as have been appointed to fill such vacancy in the mode provided by the laws of the State; but in case there shall arise the question which of two or more of such State authorities determining what electors have been appointed, as mentioned in section 5 of this title, is the lawful tribunal of such State, the votes regularly given of those electors, and those only, of such State shall be counted whose title as electors the two Houses, acting separately, shall concurrently decide is supported by the decision of such State so authorized by its law; and in such case of more than one return or paper purporting to be a return from a State, if there shall have been no such determination of the question in the State aforesaid, then those votes, and those only, shall be counted which the two Houses shall concurrently decide were cast by lawful electors appointed in accordance with the laws of the State, unless the two Houses, acting separately, shall concurrently decide such votes not to be the lawful votes of the legally appointed electors of such State. But if the two Houses shall disagree in respect of the counting of such votes, then, and in that case, the votes of the electors whose appointment shall have been certified by the executive of the State, under the seal thereof, shall be counted. When the two Houses have voted, they shall immediately again meet, and the presiding officer shall then announce the decision of the questions submitted. No votes or papers from any other State shall be acted upon until the objections previously made to the votes or papers from any State shall have been finally disposed of.
Did you follow that? At the very least, you can see that the joint resolution adopted by the 117th Congress did not include the requirement of the statute that objections to any given slate of electors be made in writing, nor did it include the time limitations on debate over any given objection. And if you understood the remainder of the statute, you qualify for an advanced degree in statutory construction. But if you didn’t, join the innumerable ranks of legal scholars who have disagreed over the meaning and application of these provisions. Take, for example, this convoluted language:
. . . and in such case of more than one return or paper purporting to be a return from a State, if there shall have been no such determination of the question in the State aforesaid, then those votes, and those only, shall be counted which the two Houses shall concurrently decide were cast by lawful electors appointed in accordance with the laws of the State, unless the two Houses, acting separately, shall concurrently decide such votes not to be the lawful votes of the legally appointed electors of such State.
The phrase “if there shall have been no such determination of the question in the State aforesaid” refers to the language of 3 USC §§ 5 and 6, as quoted in my previous post. And as I demonstrated there, no such “final determination” will have occurred in any disputed swing State by January 6 — so that there could not have been submitted to the national Archives the required “certificate of final ascertainment” as called for by 3 USC § 6, in order for a slate of electors to be regarded as having been duly “certified by the [State’s] executive” for purposes of the ECA.
Even under the (non-binding) provisions of the ECA, therefore, there is no means by which the two Houses of Congress may separately decide which of the competing electoral returns from any given State is to be counted in the final tally, unless they both agree that a given slate’s votes from that State should be counted in preference to any votes from any other slate from that State. And to emphasize my conclusion: the ECA provides no rule of resolution when there are competing electoral slates from a State, none of which has been duly certified by the State’s executive because there has not yet been any “final ascertainment” of any such slate as of the date that the two Houses of Congress meet on January 6 in Washington.
Thus even if the 117th Congress had elected to follow all the provisions of the ECA, there would be no mechanism in place beforehand by which its two Houses may resolve the issue of which of two competing slates of (uncertified) electors should be counted — unless and only if both Houses agree upon the same slate of electors from a given State.
And will that happen? The question may be simple in the House of Representatives, which has no equivalent to the Senate’s filibuster. Its representatives, by a simple majority vote (with the Democrats in the majority for now), may determine that it will count the votes of the Democrat electors from a swing State, and not those of the Republican electors.
But the Senate is a different matter, because it still is governed by the filibuster rule, which requires the vote of 60 Senators to cut off debate on any given question. Thus if enough Senators (41 or more) decline to approve any given slate of electors from a swing State, there will not be two concurring votes for that slate in the two Houses of Congress.
There has been some reporting that the debate following objections to a given slate shall last in each House for a maximum of two hours — but that assertion relies upon the language (see above) in 3 USC § 15 that was expressly not incorporated into the joint resolution which the 117th Congress passed, as also quoted above. Thus there will be no time limit on the debate about any particular electoral slate unless the particular House approves such a time limit, which approval would require (again) sixty votes in the Senate to cut off debate.
The same reporting has declared, without any authority, that in a case of an impasse between the two Houses over two competing slates, the slate which has been “certified” by that State’s governor must take precedence. But again, that position relies upon the following language of the ECA (3 USC § 15), which (I repeat) has not been adopted by joint resolution of the 117th Congress:
. . . But if the two Houses shall disagree in respect of the counting of such votes, then, and in that case, the votes of the electors whose appointment shall have been certified by the executive of the State, under the seal thereof, shall be counted.
Moreover, as analyzed above, this provision of the ECA, even if the current Congress had adopted it, could not possibly resolve the dispute between competing slates when the authenticity of neither slate has been “finally ascertained” under the procedures of that State by the time (January 6) that both Houses of Congress meet to count the electoral votes from each State.
Accordingly, we are left with this essential question: how will the joint session of both Houses of Congress decide which of the votes from the two competing slates of electors shall be counted in the final tally on January 6? The first State to present that question (in the required alphabetical order) will be Arizona, which will come up quite early in the count. And according to news reports, we may expect Republicans in both the House and Senate to object to the counting of the slate of Democratic electors from Arizona, on the ground that they were not “regularly chosen”, but were chosen by fraudulent manipulation of the ballot results.
If the respective Houses then withdraw to consider the objections to each slate separately, we may expect (if there are enough Democrats physically present to vote) that the House of Representatives will vote to reject the slate of Republican electors, and to accept the votes of the Democrat slate. But what about the Senate, which is ostensibly controlled by Republicans?
As I noted, individual Republican Senators could draw out the decision upon any slate by maintaining the floor with a filibuster, which would require sixty votes to terminate. The Senate will lack a full complement on January 6: the results of the election in Georgia will not yet be final, but Kelly Loeffler of Georgia will be entitled to take her seat as the current incumbent, pending the final results of the election.
The Republicans in the Senate will therefore be down by one member, to 51. The Democrats will have 48 seats, because Kamala Harris will not have to vacate her seat until she assumes the Vice Presidency on January 20 (if she and Biden are confirmed as winners of the votes of the Electoral College by then). It will therefore take 40 of the 51 Republican Senators — providing more than 40% of the total of 99 votes — to uphold any filibuster against the approval of any of the Democrat slates from swing States.
But if the Republicans can pull off a filibuster of the electoral count for any one State, the Senate could nevertheless agree to take up in joint session the next State in alphabetical order, and so proceed through the votes of the entire Electoral College. Let us assume that by the time the entire canvass of agreed electoral votes is complete between the two Houses of Congress, there remain uncounted the votes of the five swing States mentioned above (Arizona, Georgia, Nevada, Pennsylvania, and Wisconsin), plus Michigan, another contested State.
Those six States have a total of 79 electoral votes among them. Their failure to have countable votes (under the scenario assumed) would mean that the total number of electors recognized by Congress as duly appointed and voting would be (538 – 79 =) 459, so the required majority to be elected would be 230. But if Biden lost the votes from those States, his current total of 306 would be reduced by 79, to 227 — three votes short of the required majority. We would then have a Twelfth Amendment situation, in which no candidate for President (or Vice President) received the requisite majority of electoral votes.
That amendment provides that in such a situation, the election of the President proceed “immediately” to the House of Representatives, and the election of the Vice President be decided by the Senate:
. . . if no person have such majority [of the Electoral College], then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. . . .
The person having the greatest numb er of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice.
The vote in the House, however, is specified in the Twelfth Amendment to be taken by counting each State’s delegation in the House as a unit:
But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice.
Since the composition of the House of Representatives as of January 3, 2021 has twenty-six (or possibly twenty-seven) State delegations with a majority of Republicans, and only twenty or so delegations in which the Democrats enjoy a majority (with the remaining delegations equally divided), any such election will favor the incumbent, President Trump. Likewise, the Republican majority in the Senate would be sufficient to re-elect Pence as his Vice President.
If the Republicans cannot muster at least 40 votes in the Senate to stave off the Senate’s concurrence with the House on the electoral count, then the tally will proceed inexorably to the point where Vice President Pence will have to announce Joseph Biden as the winning candidate. The voting on Wednesday, accordingly, will tell you all you need to know about the course of the country over the next four to eight years.
