Former federal judge J. Michael Luttig writes in a recent New York Times op-ed, “Nothing in the Constitution empowers Congress to decide the validity of the electoral slates submitted by the states.” Earlier, he’d written in a Wall Street Journal op-ed (with David Rivkin), “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.” In another letter to the Journal this week, they write, “Moreover, disputes over the selection of presidential electors involve a legal, not a political, discernment, that is appropriate for a judicial body. Congress is not a court.”
Is that right? Has Congress been wrong all these years? Was it wrong exercising this power in 1873 and 1877? Was it wrong considering exercises of it from 1800 to 2021?
Almost every scholar I’ve encountered–left, right, and center–has said just the contrary, that Congress does have a role to resolve the disputes over electoral votes. And many go further and argue courts lack any role once Congress steps up.
There are three layers of inquiry on the role of Congress. The first is whether Congress (not the court) has the power to make decisions as to counting. The second is the scope of Congress’s power. The third is whether Congress, if it has that power, can give that power to courts.
There are subtleties among some of the commentary I link to below. Some have argued that there is no role for the courts; others argue that the courts ought to largely defer (with perhaps some limitations) once Congress has indicated its willingness to decide; still others believe it is incumbent on Congress to decide in the end because the Constitution delegates that responsibility to them.
It’s possible that scholars have changed their views on these matters since the time they wrote the pieces below or have refined their views in light of new evidence or more persuasive counterarguments. And it’s possible they’re wrong and the more persuasive view is the one advanced by Luttig and Rivkin. But below the fold I include citations to some of the academic work that argues that Congress has the authority to adjudicate disputes about presidential elections.
(I’ll return in a later post to address the question of whether Congress, if it has that power, can give that power to courts, which raises a separate set of concerns depending on how it chooses to give that power.)
Rachel E. Barkow, More Supreme Than Court? The Fall of the Political Question Doctrine and the Rise of Judicial Supremacy, 102 Colum. L. Rev. 237, 278–79 (2002) (“That Congress has this authority is underscored by its counting power under Article II, which arguably includes determining whether a ballot is valid and can therefore be counted. In making the determination of whether the ballot is valid, Congress may be permitted to determine whether it was submitted by an elector chosen in the manner directed by the state legislature. Indeed, that appears to be Congress’s own reading of Article II, Section 1, because it enacted an elaborate statutory scheme that describes how it will select from among competing state ballots if they should be submitted. Thus, although far from decisive, the text of Article II, Section 1 itself appears to give Congress the ability to determine whether a state judiciary has overstepped its bounds and improperly interfered with the state legislature’s authority under Article II to determine the manner in which electors are chosen.”).
Peter Berkowitz & Benjamin Wittes, The Lawfulness of the Election Decision: A Reply to Professor Tribe, 49 Vill. L. Rev. 429, 442–43 (2004) (“The trouble for Tribe’s categorical claim is that the authority that the Constitution actually commits to Congress is that of counting electoral votes, not that of determining the legality of the procedures under which a state’s electors are selected. Certainly, the political question doctrine would have prevented the Court from intervening in a dispute concerning which slate of electors Congress should have recognized had, for example, the Florida judicial process and the state’s legislature each produced a competing slate and sent their slates to Congress. . . . In short, in addressing the questions put to it in Bush v. Gore, the Court in no way deprived Congress of its textually committed power to count electoral votes.”)
Erwin Chemerinsky, Bush v. Gore Was Not Justiciable, 76 Notre Dame L. Rev. 1093, 1107 (2001) (“There is a ‘textual commitment’ of determining the electoral votes in a slate to Congress.”)
Jesse H. Choper, Why the Supreme Court Should Not Have Decided the Presidential Election of 2000, 18 Const. Comment. 335, 341–42 (2001) (“[T]he Electoral Count Act, a set of federal statutes enacted after the Hayes-Tilden election to implement Congress’s task under the Twelfth Amendment to count the electoral vote, assigns to Congress the authority and responsibility to settle disputes remaining after a state has tried to resolve electoral contests through ‘judicial’ (which Florida expressly chose to do) or other means.”)
Elizabeth Garrett, Leaving the Decision to Congress 50, in The Vote: Bush, Gore, and the Supreme Court (Cass R. Sunstein & Richard A. Epstein eds. 2001) (“If [the Court exercised its discretion not to hear any aspect of Bush v. Gore], the appropriate forum for determining the outcome of this election was Congress, the politically accountable branch of government and the branch most likely to reflect the political judgment of America’s citizens.”)
Samuel Issacharoff, Political Judgments 71, in The Vote (“The Court presumed that once it found the federal interest, its remedial obligations followed. . . . A review of [the Electoral Count Act], however, reveals that it carefully reserved to the political branches the key role in resolving contested presidential elections.”)
Michael W. McConnell, Two-and-a-Half Cheers for Bush v. Gore 120, in The Vote (“A good case can be made, however, that the Constitution and laws have designated Congress–not the Court–as the arbiter of such a conflict.”)
Frank I. Michelman, Suspicion, or the New Prince 133, in The Vote (“The Constitution does not in so many words assign to Congress, any more than it does to the Supreme Court, a responsibility to resolve disputes over the presidential elector election outcomes. The Twelfth Amendment’s provision for electoral vote counting ‘in the presence’ of the House and Senate is somewhat suggestive, however, as is the choice of the House and Senate as the forums for resolving failures of any candidate to achieve electoral-vote majorities. Presumably it was, in part, on the basis of these textual intimations that various Congresses enacted, and various President signed, the bills now regulating the electoral process . . . .”)
Richard A. Posner, Breaking the Deadlock: The 2000 Election, the Constitution, and the Courts 184 (2001) (“Once a dispute over electors lands in Congress, it is arguable, by analogy to the Nixon case, that judicial jurisdiction ceases. The responsibility for counting electoral votes is lodged firmly in Congress by Article II and the Twelfth Amendment (which in this respect is identical to Article II), and there is no suggestion of a right or power of judicial review and no hint of a standard that a court reviewing Congress’s decision on which electoral votes to count might steer by.”)
Robert J. Pushaw, Jr., The Presidential Election Dispute, the Political Question Doctrine, and the Fourteenth Amendment: A Reply to Professors Krent and Shane, 29 Fla. St. U. L. Rev. 603, 618 & n.88 (2001) (“[T]he Twelfth Amendment gives Congress broad discretion in counting—and hence determining the validity of—electoral votes. The Court should always affirm Congress’s decisions, absent some plain and egregious violation of the Twelfth Amendment or some other constitutional provision. An example of such a palpable and extreme violation would be Congress’s refusal to count electoral votes because they were cast by women or Hispanics.”)
Albert J. Rosenthal, Constitution, Congress, and Presidential Elections, 67 Mich. L. Rev. 1, 27 (1968) (“This is not definitely a final commitment to Congress of the power to resolve disputed votes, but it has some of the hallmarks of one.”)
Peter M. Shane, Disappearing Democracy: How Bush v. Gore Undermined the Federal Right to Vote for Presidential Electors, 29 Fla. St. U. L. Rev. 535, 581–82 (2001) (“Article II and the Twelfth Amendment are readily interpretable as embodying a textually demonstrable commitment to Congress of the power to resolve all issues related to the proper tabulation of electoral votes.”)
Laurence H. Tribe, eroG v. hsuB and its Disguises: Freeing Bush v. Gore from Its Hall of Mirrors, 115 Harv. L. Rev. 170, 277–78 (2001) (“There is a powerful case indeed for the Court playing no role other than to protect Congress’s decisionmaking function—that is, for treating the matter as a political question textually committed to Congress under the Twelfth Amendment, rather than a legal question properly resolved by a court. The requisite textual commitment to a political branch could hardly be clearer.”)