The following is a symposium contribution from Derek Muller (Iowa):

I’ve been a strong proponent of the view—admittedly, not a view widely shared—that Congress, not courts, ought to be the final place to resolve presidential election disputes. The decision to set aside some disputed ballots in Pennsylvania and Minnesota may yield uncertainty in how Congress might handle disputes that arise.

Congress’s power to determine the elections, returns, and qualifications of its own members is an essential component of institutional control. Congress, and not a court, is the “sole” arbiter of who has won an election.

Courts often assist in litigation surrounding recount contests. In the Supreme Court’s 1972 decision in Roudebush v. Hartke, a closely-contested Senate election went to a recount. The Court held that state courts could facilitate a recount, as long as they did not prevent the Senate from “independently evaluating the election,” as the Senate “is free to accept or reject the apparent winner in either count, and, if it chooses, to conduct its own recount.”

Congress often defers to a state’s certified outcome of a contest, like deference to the result of the 2008 election between Norm Coleman and Al Franken that languished in state court for months. But Congress does engage in its own investigation in some elections, like its investigation, and ultimately its dismissal, of a challenge out of a Florida congressional election in 2006. Congress can look at the ballots, the voting equipment, and the evidence of who won=.

In a presidential election, Congress is vested with the power to count the electoral votes, and that power, I think, includes a robust power to decide whether to count votes and which votes to count. (Others admittedly might disagree about this scope.) It hasn’t rejected votes since 1872 in the height of Reconstruction. It hasn’t had to choose among electoral votes since 1960, when Hawaii sent multiple slates of electors to Congress. In recent years, members of Congress have raised objections about electoral votes in Florida in 2000, Ohio in 2004, and myriad states in 2016. No objection made it very far.

When a state sends Congress one set of electoral votes, Congress has the choice of accepting or rejecting those votes. Congress can’t replace those votes or substitute its own slate of electors.

Which brings us to Pennsylvania and Minnesota. Litigation has prompted those states to set aside ballots received after Election Day but before a later deadline prompted by litigation. These ballots will be ripe for challenges after Election Day in a closely-contested election. And two principles are at work here.

First, Congress must be able to discern which candidate received more votes. Consistent with Roudebush—admittedly, a congressional election case—decisions to separate disputed ballots from the rest allow Congress the independent opportunity to determine a winner. A court order commingling these ballots would make it more difficult, if not impossible, for Congress to assess the election results.

Second, in the event there is a non-frivolous case that the election outcome would change if the disputed batch of ballots was counted or excluded, a state may want to ensure it has two slates of electors cast votes so that Congress can choose the right one. It’s not an ideal solution, but it’s the consequence of extensive and late-breaking litigation yielding uncertainty, and a solution that may be necessary.

The state can offer one formal certified total of the popular vote and select the winning slate of electors based on that total. Those electors vote December 14 and send their results to Congress to count January 6. Congress has the power to count—and in counting, it can ignore what courts have done.

If there’s only one slate, and Congress think a court got it wrong, Congress’s only option is to reject that slate of electors. It can’t pick a different winner.

It isn’t terribly different from Bush v. Gore. Congress could reject Florida’s electors, but it had no power to choose a different slate. It’s a weakness in the Electoral Count Act. It incentivizes states in contested elections to submit multiple slates of electors so that Congress can pick among them. And if there is an election contest but only one set of electors, Congress’s only choice is to accept or reject—and in rejecting, effectively deny the state’s voters representation in the Electoral College.

I don’t have easy answers in these scenarios. It might be that the margins will be wide enough, the disputes over these late-arriving ballots won’t materialize, or the disputed ballots won’t change the result. But I’m watching the litigation after Election Day to see whether this particular procedural posture motivates some states to submit multiple slates of electors.