The Electoral Count Act Is Unconstitutional
By: Rob Natelson
A bipartisan group in Congress is dedicating time to reforming the Electoral Count Act. The Electoral Count Act is the statute purporting to govern how Congress counts electoral votes for president and vice president (pdf).
Like many other “bipartisan” activities, this is more show than substance. The Electoral Count Act has no constitutional force, nor would any law replacing it have constitutional force. The episode exemplifies how Congress wastes time on matters of relatively little significance, while failing to deal with much larger problems—such as inflation, our crumbling southern border, and America’s slide toward bankruptcy.
This essay explains why the Electoral Count Act has no constitutional effect. Before proceeding further, the reader should note two things:
First, this area of constitutional law is little known, even among constitutional lawyers. The subject is not taught in college or law school courses. (Professors and textbooks prefer to focus on hot-button issues such as race.) However, the rules mentioned here are supported by a long string of decided cases.
Second, this subject tells us something about the Jan. 6, 2021, controversy over the 2020 election. I do not agree with the Trump campaign’s claim that Vice President Mike Pence could halt the electoral vote unilaterally. But I must admit that the claim was not as outrageous as many people say: Because the Electoral Count Act is unconstitutional, the vice president and Congress were free to disregard it.
Congress’s Election Role as a ‘Federal Function’
As I explained in a previous essay, the Constitution consists largely of grants of enumerated (listed) powers. Those grants run from the American people to a variety of officials and entities. The most famous example is the list of powers granted to Congress in Article I, Section 8. The document includes many other enumerated powers, including powers granted to Congress.
Now, it’s common knowledge that the Constitution grants powers to branches of the federal government. Less known is that the Constitution also grants powers to persons and entities that are not part of the federal government. Or, if they are part of the federal government for some purposes, they are not when exercising those powers. The courts refer to these as “federal functions” (pdf). Here are some examples:
- The Constitution grants authority directly to state legislatures to govern the choice of presidential electors, force a convention for proposing constitutional amendments, ratify constitutional amendments, and require federal assistance in case of invasion or domestic unrest. These are not state powers reserved by the 10th Amendment. These are powers given to state legislatures by the federal Constitution.
- Similarly, the Constitution grants state governors the authority to issue writs of election to fill congressional vacancies. In some cases, the document also grants governors authority to fill Senate vacancies temporarily and to require federal assistance in cases of invasion or domestic unrest.
- The Constitution bestows important roles on non-governmental entities. These include the Electoral College, federal and state conventions, and federal juries.
- The Constitution gives the legislative authority (legislature, governor, voters) of each state considerable say over congressional elections.
- It entrusts the House of Representatives, acting alone and under specified rules, with a presidential run-off election when no presidential candidate wins a majority in the Electoral College.
- It entrusts the Senate, acting alone and under specified rules, with a vice presidential run-off when no vice presidential candidate wins a majority in the Electoral College.
In addition, the Constitution grants Congress—again, operating under special rules—responsibility for overseeing the electoral vote count. Some special rules for that occasion are that (1) Congress meets as a unilateral body, in joint session and (2) the president of the Senate (i.e., the vice president) presides. The 12th Amendment describes the procedure:
The Electors shall meet in their respective states … and they 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; – 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 apparent purpose in having all members of Congress in one place is to serve as witnesses, adjudicators of objections, and certifiers. Just as each state certifies its own results, Congress certifies the national results. Notice that when serving this function, Congress is not acting as a legislature. This is one of several occasions in which it acts as an executive—much like a state elections officer. Because Congress is not acting as a legislature, the president does not sign or veto Congress’s decision.
Statutes Usually Don’t Govern Federal Functions
The courts tell us that persons and entities perform federal functions in accordance with federal constitutional law. Except in rare cases, federal functions are not governed by statute. Thus, the Supreme Court has said that when a state legislature performs the federal function of deciding on how presidential electors are chosen, the legislature is not bound by the state constitution or by state law (pdf).
The same is true when state legislatures and Congress act in the amendment process. A very long line of cases—from courts at every level—says that neither federal nor state law dictates the conduct of that procedure. At most, a statute may serve as an optional guideline that those performing federal functions may choose to follow (pdf).
The Electoral Count Act is Unconstitutional
Now we arrive at the question of whether the Electoral Count Act binds Congress when it tallies electoral votes.
There are several problems with giving this statute binding effect. One is that it provides that objections to electoral votes are decided by each house of Congress separately. This violates the Constitution’s mandate that when overseeing the Electoral College tally Congress acts unicamerally—that is, in joint session. The difference is important: Acting unicamerally gives the Representatives, apportioned by population, more power than Senators, apportioned by states.
There’s also an old legal maxim that the acts of a former legislative session do not bind the acts of a later legislative session.
But by far the most important problem with the Electoral Count Act is that any law governing this “federal function” simply has no effect.
Implications for the Jan. 6, 2021, Election Controversy
During the controversy over the 2020 presidential election, the Trump campaign, and in particular its counsel, professor John Eastman, argued that the vice president could postpone the electoral vote count for a few days to allow investigations in disputed states to proceed. Eastman and other Trump advocates have been criticized widely for this. One reason is that their proposal meant skirting the terms of the Electoral Count Act. (Incidentally, you wouldn’t know this from how the media treat him, but Eastman—unlike nearly all his critics—is a respected constitutional scholar.)
As we have seen, however, the Trump people were on solid ground in assuming the Electoral Count Act did not bind Congress. Their error lay in assuming that the vice president could act alone: In fact, any ruling he made could, and would, be reversed by a simple congressional majority.
Implications for the Future
There’s no reason for members of Congress to write a new Electoral Count Act, or repeal the old one, at the expense of more pressing business. The current law is not binding anyway.
There may be value in suggesting to future Congresses an optional procedure for counting electoral votes. Congressional leadership might, therefore, direct staff members to write a new joint rule that each future session can accept or reject.