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Senators Hawley and Cruz (public domain)

The Fairweather Federalists

At the core of the Constitution’s democracy clauses is a fundamental distinction: While Congress is the “Judge” of its own “Elections,” it is the States that determine the election of the President.

This difference was the product of self-conscious design. The framers feared a President selected by Congress. They crafted a system to protect his selection from congressional interference as much as possible. Obviously, at some point, the vote of electors has to be counted. But never in American history has Congress purported to pierce the determination of the states in the casting of the electoral votes. No doubt the question has been raised. Every time it was raised, the idea was rejected.

The election of 1876 was the closest. Three states — Florida, Louisiana, and South Carolina — had genuine conflicts in the process to determine the slate of electors that should count. (Oregon was also in doubt, but because of an elector constitutionally not qualified to serve.) Each state, therefore, sent dueling slates to Congress. Congress appointed a commission to review the contested slates. In the end, for reasons articulated by Justice Joseph Bradley, Congress refused to look beyond the certifications of the state’s highest officials. In all three cases, there were real charges of fraud on both sides. In all three cases, Congress resolved to accept the slates as certified without looking behind those certifications.

No doubt the question was close. The commission resolved in favor of the states with just a single vote. But that single vote decided the election, and it began Congress on a long process of institutional self-evaluation.

Because after it was over, practically everyone glimpsed the disaster that had barely been avoided. As one representative would put it eight years later,

It has been demonstrated time and again that the political conscience is a flexible and elastic rule of action that readily yields to the slightest pressure of party exigencies … When the great office of President is at stake … it would be expecting too much of human nature, under the tyranny of party, to omit any opportunity to accomplish its ends, more especially under that loose code of morals which teaches that all is fair in politics, as in war or in love.

Congress knew it couldn’t trust itself. And so in 1887, it enacted an extraordinary law that has governed every presidential election since: the Electoral Count Act (“ECA”).

Under the ECA, Congress commits to leaving the determination of the electoral votes to the states. It promises to count the votes that have been certified in the states — if the states have a process for contesting an election and if that contest is completed six days before the College votes. In any genuine conflict between multiple slates, Congress promises to count the slate certified by the governor. And in no case can Congress reject the votes of a state unless both Houses agree that the votes of the electors were not “regularly given.”

As applied to the 2020 election, these rules are absolutely clear. Every state had a process for contesting election results. Despite scores of allegations and lawsuits, not a single contest has prevailed in those processes to affect the results in the slightest. The votes as counted determined the certified results. Those results determined the slate of electors that would cast their ballots on December 14. Those electors voted without incident. Those votes entitle Joe Biden to a victory.

Now, a cabal of Republican Senators have determined to break Congress’s promise, and violate the federalist design of our Constitution. Triggered by Missouri Senator Josh Hawley, twelve Senators, including Texas’ Ted Cruz, now demand a commission with the power to do what no Congress has ever done. These Senators claim the right to investigate the action of the states because they say the ECA gives Congress the power to determine whether the “votes” were “regularly given.”

But the ECA is not speaking of the votes of voters. It is speaking of the votes of presidential electors. No one could credibly claim that the Democratic electors who voted for Biden did so under duress, or by fraud. Their votes were plainly “regularly given.” And moreover, the ECA expressly gives Congress no power to look beyond the state results, when those results have been certified by the governors, and all contests were exhausted six days before the College votes, and no other slate is presented by any other state authority.¹ There is no plausible basis in law for the actions of this cabal.

These legal points may be obscure to some in Congress. (If you don’t know the three branches of our government, you’re not likely to know the intricacies of the ECA.) But Senators Hawley and Cruz know these facts perfectly well. Both are well-trained lawyers. Hawley was a law professor who wrote a brilliant article about the process for selecting the President. Yet now these Senators knowingly betray the truth and their oath for partisan gain. To anyone who knows the law, the brazenness is astonishing.

That brazenness may reveal the wisdom in the framers’ federalist design. What has saved this process this cycle against this extraordinary level of dissembling by interested partisans has been the integrity of state officials. Congress must affirm that integrity on January 6, by rejecting overwhelmingly the actions of those who would trade integrity for political gain.

[1] The provision for governing disputes about which votes by electors to cast is governed by 3 USC §15. The full provision is apparently crafted to be unintelligible by humans. But here’s the relevant section about “votes” “regularly given”:

and no electoral vote or votes from any State which shall have been regularly given by electors whose appointment has been lawfully certified to according to section 6 of this title from which but one return has been received shall be rejected, but the two Houses concurrently may reject the vote or votes when they agree that such vote or votes have not been so regularly given by electors whose appointment has been so certified. If more than one return or paper purporting to be a return from a State shall have been received by the President of the Senate, those votes, and those only, shall be counted which shall have been regularly given by the electors who are shown by the determination mentioned in section 5 of this title to have been appointed, if the determination in said section provided for shall have been made [note: this is the case we’re dealing with — each state has two returns, but one return has been certified under the safe harbor provision of section 5], or by such successors or substitutes, in case of a vacancy in the board of electors so ascertained, as have been appointed to fill such vacancy in the mode provided by the laws of the State; but in case there shall arise the question which of two or more of such State authorities determining what electors have been appointed, as mentioned in section 5 of this title, is the lawful tribunal of such State, the votes regularly given of those electors, and those only, of such State shall be counted whose title as electors the two Houses, acting separately, shall concurrently decide is supported by the decision of such State so authorized by its law

law professor, activist.

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