On Luttig on Eastman and the Electoral Count Act

Michael Luttig, a former federal judge, offers this thread that Rick helpfully links to. Luttig claims he advised that “the VP himself could [not] decide that the Electoral Count Act of 1887 is unconstitutional and accordingly submit the 2020 Presidential Election for decision only to the House of Representatives, instead of to both Houses of Congress, as provided in the Electoral Count Act”; and, furthermore, “I believe(d) the Supreme Court would have decided each of these issues had they been presented to the Court, which they undoubtedly would have been had the VP proceeded as outlined in the January 2 memorandum.”

There’s a legal gap in here that’s not obvious from the thread: does Luttig believe that the Electoral Count Act is constitutional? That is, does Congress have the power to count electoral votes?

In the Wall Street Journal in March, Luttig rejects the constitutionality of the Electoral Count Act. “No constitutional provision empowers Congress to resolve disputes over the validity of a state’s electoral slate—or for that matter addresses who is to resolve these disputes,” he writes. “Whether electors are validly chosen is a quintessentially legal determination, not a political one. When state legislatures select presidential electors, they exercise power vested in them by the U.S. Constitution, not by state law. As the power to say what federal law is rests with the federal judiciary, it is the federal courts that have the authority and the responsibility to resolve these disputes.” (I think that’s inaccurate as a matter of the original public understanding of the Twelfth Amendment, as I briefly lay out in my rebuttal to Eastman’s memo.)

In other words, Luttig and Eastman agree that the ECA is unconstitutional. But Luttig rejects the notion that the President of the Senate can “himself” reject its constitutionality. Instead, the matter should be sent to a federal court (including to determine the constitutionality of the ECA). Where Eastman sees Congress lacking authority and power residing in the President of the Senate, Luttig sees Congress lacking authority and power residing in the federal courts. (And had the question been kicked to the federal courts, presumably Luttig believes that the Supreme Court should have concluded that the ECA was unconstitutional.)

For my part, I think they’re both wrong, and the ECA is constitutional. And I do hope Congress will shore it up ahead of the 2024 election.

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