Situating the governor’s duties under the Electoral Count Act

One question that’s arisen in Electoral Count Act reform concerns the role of the governor certifying the state’s election results. I posted earlier about state mandamus and what the King discussion draft offers on the topic. But it prompted me to look to another existing regulation of federal elections (admittedly, in legislative elections under the Elections Clause, not presidential elections).

In 1866, Congress enacted a statute regulating Senate elections. As a provision of it, Congress required, “That it shall be the duty of the governor of the State from which any senator shall have been chosen as aforesaid to certify his election, under the seal of the State, to file President of the senate of the United States, which certificate shall be countersigned by the secretary of state of the State.”

That’s been amended slightly but is now codified at 2 U.S.C. § 1a: “It shall be the duty of the executive of the State from which any Senator has been chosen to certify his election, under the seal of the State, to the President of the Senate of the United States.”

Of note. First, this is a federal duty. Here’s how a federal court addressed the question in 1970 when confronted with litigation on a governor’s signature:

Assuming the certification of James L. Buckley, it is difficult to see how such certification can lay the groundwork for a charge that defendants are enforcing section 296 so as to deprive plaintiffs of their constitutional rights. Section 296 does not require certification of the winner of the election; section 296 only requires that an election be held. The election is now an accomplished fact. It is federal law, namely the provisions of 2 U.S.C. §§ 1a and 1b (1964), that impose upon the defendants the duty of certifying to the President of the Senate the winner of New York’s election. Thus, in making this certification the defendants will not be acting pursuant to state law but in response to duties imposed by federal statute. Hence, even if it be granted that certification of Mr. Buckley will deprive plaintiffs of their constitutional rights, such deprivation will be accomplished in obedience to federal, not state law. This does not suffice to maintain an action pursuant to 42 U.S.C. § 1983 (1964). It is not defendants’ status as state officials that is determinative, it is the nature of the acts performed by them.

Phillips v. Rockefeller, 321 F.Supp. 516, 521 (S.D.N.Y. 1970)

Second, there is no stand-alone federal cause of action for Section 1a. But it’s been raised in state proceedings. In Franken v. Pawlenty in 2009, for instance, the Minnesota Supreme Court accepted a petition from Al Franken alleging that Governor Tim Pawlenty was obligated under Section 1a (among other provisions) to issue him a certificate of election. And in Burris v. White that same year, the Illinois Supreme Court rejected a mandamus action invoking Section 1a, concluding that it was inapplicable in an instance where a Senate vacancy was filled by appointment rather than election.

I admit, I haven’t found much case law on the topic–likely because the matter doesn’t come up very often. But I found it a useful analog to consider when it come to the scope of congressional power (under, admittedly, a different kind of federal election, but I think the requirement of a certificate in a presidential election can be made) and the legal consequences of imposing a duty on the governor.

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