Congress plans to set up a commission to investigate the January 6th Capitol storms. We already know a reason for this terrible event. Members of the mob acted in the mistaken belief, encouraged by President Trump, that lawmakers had the power to determine the election winner. Congress itself laid the foundation for this belief when it passed the Electoral Vote Act of 1887, and repealing that act was able to destroy its roots and branches.
The EVCA emerged from another highly competitive presidential election. In 1876 officials in Florida, Louisiana, and South Carolina confirmed competing electoral rolls, one for Republican Rutherford B. Hayes and one for Democrat Samuel J. Tilden; A single vote from Oregon was also challenged. The 20 controversial votes were enough to decide the election. A congressional commission eventually elected Hayes in a political deal. In exchange for the presidency, Republicans agreed to stop reconstruction and withdraw federal troops from the south.
The EVCA was passed 10 years later to largely limit the role of Congress in determining the votes to be accepted. However, Congress gave itself more authority than the Constitution allows by setting up a labyrinthine process to solve the challenges of choosing a state. The most constitutionally offensive provision gave Congress absolute power to invalidate votes as “cast irregularly,” a process that an individual representative and senator can initiate by filing an objection.
Fortunately, this provision was rarely invoked – only twice before 2021 – and there were never any objections. But this year Republican lawmakers vowed to contest the results in six swing states
carried. Although the objections had no prospect of success in a Democratic house, and those that were tabled (for Arizona and Pennsylvania) were overwhelmingly rejected in both houses, the bill put Congress in the middle, where it found itself uncomfortable in 1876.
That was not what the framers intended. The constitution’s electoral clause gives state lawmakers the power to vote and lets Congress decide on which day the electoral college would cast its votes. The 12th Amendment, ratified in 1804, reformed the electoral college by providing separate votes for the president and vice-president. It also affirms the language of Article II, Section 1, according to which the certified state election results should be transmitted to Washington, opened by the President of the Senate, and counted in the presence of both Congress Houses.
No constitutional provision empowers Congress to resolve disputes over the validity of a state’s election schedule – or to speak about who should resolve those disputes. Significantly, the 12th amendment does not give Congress the power to legislate to enforce its provisions, unlike later amendments that expand the franchise. The necessary and proper clause also does not support such laws. There are further indications in the constitutional text that the authors decided to exclude Congress from voting in presidential elections. While Article I, Section 5 gives Congress the power to judge the elections of its own members, no such power is given in presidential elections. And Article II.1 prohibits members of Congress from being elected.
Indeed, after long debates, the authors made a conscious decision to deny Congress any essential role in the selection of the President and Vice-President, except in the rare event that no candidate has a majority on the electoral college. This was done for imperative reasons of the separation of powers. Governor Morris stated at the time, “If the executive is dismissed from the [National] Legislation he will not be independent [of] it; and if not independent, it will result in usurpation and tyranny on the part of the legislature. “
Therefore, the role as an audience prescribed by Congress during the process of opening and counting votes is ministerial. Since the electoral college’s votes came from all federal states, the census had to be carried out by a federal government agency, and both the executive and judiciary had potential conflicts of interest. Since Congress has no constitutional “skin in the game” of the presidential election, it is perfectly positioned for this role of official observer.
Then who has the power to resolve disputes over election plans like those of 1876 and 2020? Whether voters are properly elected is a fundamental legal, not a political, decision. When state lawmakers vote for presidential elections, they are exercising the power that the US Constitution gives them, not state law. Since the power to say what federal law is rests with the federal judiciary, the federal courts have the power and responsibility to resolve these disputes.
Congress should repeal the vote counting law immediately. Given the tight constitutional timeline for the casting and counting of votes and the inauguration of a president, lawmakers should enact law that allows for a speedy judicial resolution of all issues related to compliance with governmental procedures for the selection of presidential voters, the validity of voter selections and the casting of votes – and any mandatory review by the Supreme Court required.
By exempting the country from this unconstitutional and anachronistic law, lawmakers would remove themselves from the presidential election process and return to federal justice the role that Congress unconstitutionally claimed almost a century and a half ago. This would go a long way towards ensuring that America never faces a siege of the National Capitol on a future January 6th.
Mr. Luttig served as a judge on the US Fourth Court of Appeals from 1991 to 2006. He advised the Vice President
on the 2020 vote certification. Mr. Rivkin practices appeals and constitutional law in Washington. He served in the White House Office and Justice Department under Presidents Reagan and George HW Bush.
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