The Constitution and the Electoral Count Act of 1887 intended the Jan. 6 session to address a narrow question: Are the electoral votes received by Congress ones cast by electors the states appointed?
This limited inquiry requires Congress simply to authenticate the documents. Remember, these rules were formulated in the 19th century, when there was a realistic risk of counterfeit papers pretending to be official. Thus, the 1887 act requires a state’s governor to affix “the seal of the State” to the certificate confirming the appointment of electors.
Further, the 1887 act obligates Congress to consider “conclusive” a state’s own “final determination” of litigation over a state’s appointment of electors when two conditions are met. The “final determination” must occur by a certain date, Dec. 8 this year, and must be based on state laws existing before Election Day, Nov. 3. Congress instructs governors to provide verification of these two conditions in their certifications.
This is the opposite of Trump allies’ feverish imaginings about using the session as an opportunity for congressional fact-finding on whether fraud or error tainted the tally of the state’s popular vote.
The Constitution says only: “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.”
This provision, part of the 12th Amendment that reengineered the electoral college after the calamitous Jefferson-Burr tie in 1800, presumed that counting a state’s electoral votes would be straightforward: The joint session would merely identify the state’s electoral votes and add them up.
It would not be Congress’s job to second-guess the state’s appointment of its own electors. And it certainly would not be Congress’s job to let a sitting vice president — as Adams had been in 1796 or Jefferson in 1800 — determine the election’s outcome by deciding unilaterally whether or not to count a state’s electoral votes. Note that, Vice President Pence.
While the Constitution makes each house of Congress the “judge” of elections to its own body, there’s no comparable provision for presidential elections. In fact, it’s the reverse. To prevent the electoral college from being subservient to Congress, the Constitution requires Congress to accept whatever the state decides regarding the appointment of its electors.
The constitutionally appropriate venue for claiming fraud in the counting of a state’s popular vote, therefore, is the state’s own courts. Trump sued there but failed — because his claims lacked merit. Having lost, he can’t now relitigate his allegations in a congressional proceeding designed solely to receive what the state sent. As Justice Joseph Bradley explained during the disputed 1876 election, “It is the business and jurisdiction of the State to prevent frauds from being perpetrated in the appointment of its electors, and not the business or jurisdiction of the Congress.”
Imagine if Richard Nixon had tried Trump’s stunt. Nixon in 1960 had far better grounds for claiming fraud. But it would have been inappropriate for Nixon, who as vice president chaired the joint session, to insist that Congress adjudicate claims that John F. Kennedy’s allies in Illinois and Texas had stolen the election. Nixon knew Congress was bound by what the states themselves determined.
Even more preposterous is the idea that Nixon would have been entitled to unilaterally disqualify the electoral votes from these two states just because he personally distrusted them. Yet that is the desperate argument being made in a new lawsuit brought by Rep.Louie Gohmert (R-Tex.). According to Gohmert, a vice president can dictate the outcome of an election in which he is a candidate. Al Gore could have decided by himself the fate of Florida’s electoral votes in 2000. Giving any individual this kind of self-serving power is contrary to a Constitution that aims at checks and balances.
There are good reasons to modernize the procedures that Congress uses for counting electoral votes. This modernization could include new rules for verifying the integrity of a state’s popular vote — although these new rules would need to respect the state’s primary role, under the Constitution, in appointing its electors.
For the current election, however, Congress must use its existing procedures, and they contemplate no fact-finding of the type Trump is demanding. Trump might not care that the Jan. 6 joint session comply with the Constitution and existing law. Principled conservatives in Congress surely should.