“The Unenforceability of the Electoral Count Act’s Procedural Provisions”

Chris Land has posted this draft on SSRN.  Here is the abstract:

The Electoral Count Act governs the procedures used by Congress to tabulate Presidential election results every four years. The Act contains a number of provisions that purport to restrict debate, points of order, and other parliamentary motions that can be offered while certificates of vote are counted by the President of the Senate. These restrictions likely are unenforceable based on the Rules Clause of the Constitution and Supreme Court precedent interpreting this provision. Part II of this Article seeks to answer the threshold question of what institution counts our electoral votes — a constitutionally unique ‘Joint Session’ or merely a simultaneous meeting of the House and Senate. Part III analyzes the 1877 Electoral Commission and argues that this entity was a permissible delegation of Congressional authority. Part IV discusses the 2000 electoral count and contends that the provisions of the Electoral Count Act cited by Vice President Al Gore are unenforceable. Finally, Part V asserts that the enforceability of the Electoral Count Act is justiciable and federal court resolution would likely be a necessary last resort in the midst of a contested election.

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