Rebutting some of the claims in the Eastman memo about Congress’s role in counting electoral votes

On November 29, 2000, the Select Joint Committee on the Manner of Appointment of Presidential Electors, a group convened by the Florida legislature, gathered. It was the second day of hearings about how to handle the presidential election dispute unfolding in the state. And it considered what role, if any, the state legislature might play in resolving the dispute.

John Eastman testified before that committee. He made a number of important (and, I think, largely correct–at least, for purposes of what I’ll discuss in this post) assessments about how the Electoral Count Act works and Congress’s role in counting electoral votes. The ECA, Eastman explained, was “technical,” not “ambiguous,” but included “complicated” statutory provisions.

This Act, Eastman explained, is “how Congress is going to vote or count the votes that it receives.” Among other things, returns from a state “must be counted by Congress unless both the House and the Senate meeting separately concurrently reject that return.” Who acts? “It is Congress, both houses, operating separately.” “That gives to Congress the power to be the ultimate judge,” Eastman expounded. Problems of how to count multiple returns submitted to Congress arise “only if the two houses in Congress do not agree.” The ECA, Eastman noted, is “the mechanism by which Congress has set out for itself how it will govern its counting obligations.”

One might read the memorandum obtained by CNN, attributed to Eastman and drafted ahead of January 6, 2021 and the counting of electoral votes, and wonder whether these statements (“Eastman 2000”) were made by the same person.

There’s plenty to pick apart in the memo, but I’ll only focus on a few points.

First, from the memo:

There is very solid legal authority, and historical precedent, for the view that the President of the Senate does the counting, including the resolution of disputed electoral votes (as Adams and Jefferson did while Vice President, regarding their own election as President), and all the Members of Congress can do is watch.

And from later in the memo, “The fact is that the Constitution assigns this power to the Vice President as the ultimate arbiter.”

To begin, Eastman 2000 would disagree with this statement. But admittedly, this has become a trendy interpretation in a handful of circles, from a law review article (which, I think, is overstated, as Ned Foley has argued elsewhere) to a series of Spring 2021 pieces on the subject calling into question Congress’s role.

Beginning in 1793, and in every presidential election ever since, the Senate and the House have appointed “tellers” to count the electoral votes. These tellers actually tally the votes and deliver the totals to the President of the Senate, who reads the totals aloud before the two houses after the tellers, acting on behalf of Congress, have “ascertained” the vote totals.

It is strange to say that Adams and Jefferson “resolved” disputed votes, as unanimous consent of Congress (or the failure to object) is a weak basis to say that these Presidents of the Senate resolved any controversies. Indeed, the record, if anything, demonstrates the opposite. Tellers “ascertained the number of votes” in 1797 and 1801, to use the language in the Annals of Congress. That is, Congress understood that it was doing the counting. If its tellers wanted to refuse to count votes, they freely could. And many members of Congress in 1800 had an open and aggressive debate about how far it could go in counting of electoral votes and resolving disputes, with myriad views on the subject voiced in Congress. It’s strange that they’d all sit on their hands if they disputed what Jefferson would do months later.

Importantly, the Twelfth Amendment was enacted after these practices of Congress in 1793, 1797, and 1801. It is the rare amendment where the contemporaneous practice of Congress can be traced to re-enacted language that, I think, best reflects the original public meaning of the provision. That is, Congress was counting electoral votes when it enacted a provision that said, in part, “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.” Yes, identical to language that already existed in the Constitution–supplanting it. But it seems natural for Congress to enact a provision that would be best understood as ratifying its existing practices. (And the fact that the clause turns from the President of the Senate doing something in the active voice, “open,” into the passive voice, “shall then be counted,” if anything, counsels most against the President of the Senate responsible for the second act, as a deliberate change from active to passive in a single sentence would seem to counsel against the same subject responsible for both acts.)

Second, the memo states, “The Electoral Count Act, which is likely unconstitutional . . . .” Eastman 2000, of course, made no such suggestion and spent time walking through the “technical” provision that would guide Congress in the counting of votes. (Some of that relates to the role of Congress in counting votes, described above; and some of that relates to how Congress can bind itself, described below.)

Third, the memo provides that the two houses “acting separately” decide questions, “whereas the 12th Amendment provides only for a joint session.” Eastman 2000, again, repeatedly rejects this concept. But importantly, this line adds a gloss that is not present in the text of the Twelfth Amendment. That Amendment provides, in part, that “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.” It is not necessarily a “joint session,” in the sense that the chambers are required to act as one. And it has never been understood to be a “joint session” in the sense that Congress acts as one body instead of separate chambers.

The two houses are simultaneously present, but all interpretations from Congress have consistently pointed toward the two houses operating separately. Note, for instance, that the Senate and the House have each appointed tellers to count votes. Note, too, they would each approve a concurrent resolution, separately, before they met, about the procedures to follow. And in 1821, when there was the first instance of an objection to be considered by Congress, the chambers separated for deliberation. It has worked that way ever since. (One could also look to 1809, when a member of the House sought to amend the House’s journal to explain why an electoral vote of Kentucky was not counted, but the House opted not to include the details of the matter, a decision it made on its own as the House.)

Fourth, the memo contends that the President of the Senate might choose to skip over Arizona as he proceeded to read votes alphabetically, as he “is going to defer decision on that until finishing the other States.” This move later purports to help “stall” the question and potentially declare Donald Trump as the winner of a majority of the electoral vote.

This move is consistent with the view that the President of the Senate has exclusive legal authority to handle disputed votes, and consistent with the view that the ECA is unconstitutional–both of which I’ve already rejected. But one further point, which comes later in the memo:

Assuming the Electoral Count Act process is followed and, upon getting the objections to the Arizona slates, the two houses break into their separate chambers, we should not allow the Electoral Count Act constraint on debate to control. That would mean that a prior legislature was determining the rules of the present one — a constitutional no-no (as [Laurence] Tribe has forcefully argued). So someone – Ted Cruz, Rand Paul, etc. – should demand normal rules (which includes the filibuster). That creates a stalemate that would give the state legislatures more time to weigh in to formally support the alternate slate of electors, if they had not already done so.

One of the very first things that the 117th Congress did was to establish the rules for the counting of electoral votes. Consider Senate Concurrent Resolution 1 (it’s literally #1), as agreed to by the House, on January 3, 2021:

Resolved by the Senate (the House of Representatives concurring), That the two Houses of Congress shall meet in the Hall of the House of Representatives on Wednesday, the 6th day of January 2021, at 1 0’clock post meridian, pursuant to the requirements of the Constitution and laws relating to the election of President and Vice President of the United States, and the President of the Senate shall be their Presiding Officer; that two tellers shall be previously appointed by the President of the Senate on the part of the Senate and two by the Speaker on the part of the House of Representatives, to whom shall be handed, as they are opened by the President of the Senate, all the certificates and papers purporting to be certificates of the electoral votes, which certificates and papers shall be opened, presented, and acted upon in the alphabetical order of the States, beginning with the letter “A”; and said tellers, having then read the same in the presence and hearing of the two Houses, shall make a list of the votes as they shall appear from said certificates; and the votes having been ascertained and counted in the manner and according to the rules by law provided, the result of the same shall be delivered to the President of the Senate, who shall thereupon announce the state of the vote, which announcement shall be deemed a sufficient declaration of the persons, if any, elected President and Vice President of the United States, and together with a list of the votes, be entered on the Journals of the two Houses.

The first thing Congress–this new Congress–did was to repeat and adopt the rules from the ECA. Not all of them, of course, but it also agreed that “the votes having been ascertained and counted in the manner and according to the rules by law.” Both houses agreed to the rules entering the debate. And the President of the Senate doesn’t get to skip over Arizona because he doesn’t want to count their votes.

There’s more I’d dispute in this memo: whether states actually submitted multiple slates of electors as no authority of the state ever signed any of them; whether any entity can declare that there are “no electors that can be deemed validly appointed in those States” due to “ongoing disputes” as opposed to ECA’s mechanisms or whether that’s a valid reason to refuse to count votes; and so on. (And I don’t have the luxury of including pin cites to everything in the record at the moment, but you’re free to consult the congressional record for each episode and let me know if I’ve gotten any details wrong. For a few details on Congress’s role in counting, check out my article Electoral Votes Regularly Given.)

Now, of course, it is entirely possible that Eastman “evolved” in his views on the ECA and Congress’s power under the Twelfth Amendment between 2000 and 2021, now more in alignment with what Professor Laurence Tribe (apparently) has argued in other contexts. It’s right, I think, that Eastman 2000 was not arguing that Vice President Al Gore, as President of the Senate, had unilateral authority to toss Florida’s electoral votes in 2001, just as it was right for Vice President Mike Pence not to so do with Arizona in 2021. But I think there are sufficient reasons (as I set out here as briefly as possible–there is always more to write!) to think that this memorandum misses the mark on a number of fronts when it comes to the ECA and Congress’s role in counting electoral votes.

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