Today, several congressional Republicans will object to the Electoral College votes of some states, pursuant to the Electoral Count Act, requiring limited debate and a vote by each house on every objection. The act allows various grounds for objections: were the electoral votes regularly given; were the elector appointments lawfully certified; and which certified vote to count in case of multiple state-authorized submissions. The act, however, violates the Constitution.
In 1999, a Yale law student drafted a paper about it. Then the Florida 2000 election dispute happened, which I remember well. Having worked for Walter Mondale’s 1984 presidential campaign, I went to South Florida the day after the election. I interviewed Holocaust survivors who mistakenly voted for Pat Buchanan, an unlikely choice for them. I was a Democratic recount watcher in Palm Beach County (think hanging chads). Summoned to perform a similar function in Miami, the local board canceled the recount under pressure from thugs beating down the doors. The Supreme Court ultimately decided the Florida outcome and the presidency in favor of George Bush, by 537 votes.
Vasan Kesavan’s law review article (published 2002) concluded that the Electoral Count Act violates the Constitution. No one had argued that in 2000. My focus had been on Palm Beach County having a rerun of its presidential vote. Florida law provided liberal remedies to correct election mistakes. The butterfly ballot in Palm Beach qualified. Most voters folded over the large pages of their voter pamphlet. Gore’s name was second on the left page but third when the booklet was unfolded. Many Gore supporters pulled the second lever on the voting machine, voting for Buchanan, whose over-vote was more than 2,000 votes. A revote in Palm Beach would likely have resulted in a Gore presidency but Gore was not willing to pursue this route.
Kesavan’s treatise runs 163 pages. The Constitution is much shorter and makes the same point. The president is elected by the Electoral College, which is composed by the states: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors.” (Art. II.) The “manner” of choosing electors (popular vote, vote by mail etc.) is up to the states. Back when I worked in local politics (managing Lou Papan’s 1986 state Senate campaign, and as phone bank director for Nancy Pelosi’s first congressional campaign), mail-in votes (then called “absentee votes”) favored Republicans. Now that the tables are turned, Republicans are doing what they can to invalidate them.
The Constitution excludes senators and representatives from the Electoral College. (Art. II.) The framers did not want a parliamentary system, wherein the legislature chooses the executive, rendering the latter beholden to parliament. Only the House gets involved under one circumstance: If no candidate has a majority in the Electoral College, then the House of Representatives decides. (Twelfth Amendment.) The objectors have one purpose: to deprive Joe Biden of a majority in the Electoral College so that the House ends up picking a winner. In that case, each state House delegation is entitled to only one vote, giving Trump the advantage. It will not get that far and it should not have gotten as far as it has.
Congress has little input in the Electoral College vote. All Congress may do is pick the date electors are chosen and the day they vote. (Art. II.) The electors meet in their states and vote. Their vote lists are signed and certified by the electors and transmitted, sealed, to the president of the Senate. As vice president, Mike Pence serves in that capacity. But he only gets to open the envelopes: “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.” (Twelfth Amendment.)
Only the question of whether a state’s certificate is authentic could arise before the vote count. It isn’t an issue now, as no state has sent in more than one certified list. Sure, some Republican partisans may send in alternate lists but those are not state-certified. That’s like me sending in a list. That leaves the vote count. We know the outcome. No state reported an excess of votes. The process should quickly lead to a tally of 306 to 232 for Biden. The objectors’ assault on our democracy may find sanction under the Electoral Count Act but it runs afoul of the Constitution. Our Houses on Capitol Hill are not Houses of Parliament. Wednesday’s objectors are subverting our constitutional form of government. What’s next, anointing Trump as our monarch?
Paul F. DeMeester has been a criminal defense attorney in the Bay Area for the past 30 years, after having worked in national, state and San Francisco politics during the 1980s.