Below is my column in Hill on today’s vote counting challenge in Congress. The challenge raises a longstanding debate about the authority of Congress in such challenges. From my point of view, it is clear that Vice President Michael Pence does not have the unilateral power of President Donald Trump to simply “send back” votes for certain states. Nothing in the constitution suggests such authority, and the electoral census law expressly contradicts any such alleged authority. Indeed, such an act could introduce unprecedented challenge and judicial intervention in the confirmation of the presidential election.
What is strange is the president’s continued assurances to his supporters that this is a possible path to victory. Shortly after the election, I wrote that I thought the President was laying the groundwork for a “Death Star” strategy, but that it was unlikely to succeed. To get this Luke Skywalker shot he needed perfect alignment of the elements. None of these elements are present today.
Here is the column:
It is a touchstone of American constitutional law that nothing protects your right to shout “fire”! in a crowded theater. But what about “fire!” in a crowded congress? Democrats and the media have sounded the alarm that a planned challenge to the vote in Congress this week appears to be what Chuck Todd has termed constitutional “arson” and Jake Tapper an attempted “bloodless coup”.
It is neither. Such rhetoric is separate from reality. It also distracts us from critical constitutional issues. Ironically, the challenge arises fairly close to the anniversary of the Charles Schenck v. United States hearing, when Supreme Court Justice Oliver Wendell Holmes famously wrote that the first change was not “the falsely screaming” fire in one Theater protects and causes panic. “
I was an intense critic of this decision and of what Holmes wrote. However, the lines following that statement seem relevant today. They read: “The question, in any event, is whether the words used are used in such circumstances and are of such a nature that there is a clear and present danger of causing substantial evils which Congress must prevent. It’s a matter of closeness and degree. “
The words of Todd, Tapper and others seem to panic in an otherwise fireproof system. These individuals cross out the fact that Democrats have raised similar challenges against Republican presidents without members of Congress or the media shouting about constitutional “arson”. Indeed, some of those who have explored this rhetoric praised the past challenges facing Democrats in Congress.
When members like Senator Barbara Boxer challenged the certification in 2004, House Speaker Nancy Pelosi stated, “This is not what some of our Republican colleagues have sadly called lightly. This debate is fundamental to our democracy. “Senator Dick Durbin said,” Some may criticize our colleague from California for bringing us here for this brief debate. I thank her for this because it again gives members the opportunity to be non-partisan about a challenge that we are facing not just in the most recent elections in one state, but in many states. “
It wasn’t constitutional arson then, and it isn’t today. It is the use of federal law to address a challenge raised in previous elections on key issues of electoral fraud or irregularity. As with previous democratic challenges, this one of the Republicans will not succeed. The point where “Fire!” is to cause panic for political ends.
The more fundamental question is whether this law, the Electoral Count Act of 1887, is itself constitutional. The Wall Street Journal argued this week that the law was unconstitutional as, under the 12th Amendment, there was no stated power for Congress to do anything other than count state-certified votes. If so, this challenge and previous Democratic challenges are unconstitutional. The argument is not new. Scientists have debated this poorly worded law for decades.
There are reasons to question the Electoral Census Act. Finally, the 12th amendment in its relevant part states: “The President of the Senate, in the presence of the Senate and the House of Representatives, opens all certificates and the votes are then counted.” This suggests to some that the process is ceremonial and ministerial. It is also important to note that the electoral votes of a given state can be challenged in court, like after the 2020 elections. So it is not true that such votes are cast without legal support for their validity.
However, there is a strong argument that the interpretation makes the special session largely superficial and substantive. When a body is given a constitutional task, it usually has to do a minimum of assessment of the validity or basis of the action. Even proponents of a narrow reading of the 12th amendment often admit that there is no answer to this question. There is no indication when certifications are challenged.
The problem with a narrow interpretation is that it creates a serious blind spot that led to the law in the first place. The 1876 presidential election between Rutherford Hayes and Samuel Tilden threw the country into crisis when votes from South Carolina, Louisiana and Florida were challenged. There was rampant fraud as South Carolina reported a turnout of over 100 percent and rival votes were cast. If you follow the narrow interpretation, you can only count the voices, although different sets of voices are to be counted.
It is believed that Congress was given this task with the implicit right to confirm the validity of the votes before they are counted. This is not comparable to the pardon that was given to the President without any set limitation other than that it applies only to federal crimes. This is an action that is left to Congress, with no details on how to carry it out in the face of controversy. For nearly 150 years, Congress has exercised the power to review and even reject votes in certifications.
If a challenge could be posed in the judiciary, the Supreme Court would likely take note of the ability of Congress to consider such challenges. But most of us would probably view this authority as very narrow. Otherwise, a partisan congress could ultimately reverse an election. For this reason, Congress should also reconsider and replace the Election Counting Act. It’s worth debating after Joe Biden is sworn in.
Jonathan Turley is Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online at JonathanTurley.