When Congress convenes to count electoral votes on January 6, 2025, it will face intense pressure. If the Supreme Court rejects Colorado’s effort to bar Donald Trump from the primary ballot, its path seems likely to leave the door open for Congress to act, in some fashion at some time. Rick H. has valiantly argued here and elsewhere that courts should foreclose the possibility of future meddling, however they choose to do so; and it’s the gist of the Foley-Ginsberg-Hasen brief in Trump v. Anderson, too.
But. Supposing the Court does not close the door.
1. On January 6, 2025, Congress will convene to count electoral votes under the Electoral Count Reform Act. Under the ECRA, “The President of the Senate [likely Vice President Kamala Harris] shall have no power to solely determine, accept, reject, or otherwise adjudicate or resolve disputes over the proper certificate of ascertainment of appointment of electors, the validity of electors, or the votes of electors.” Members of Congress may only object on two bases: “The electors of the State were not lawfully certified under a certificate of ascertainment of appointment of electors according to section 5(a)(1)” or “The vote of one or more electors has not been regularly given.” It requires 20% of each chamber to sign an objection before the objection may be considered. The rejection of electoral vote requires a majority of both houses of Congress to concur in the rejection.
The term “regularly given,” I have argued, embraces the concept that Congress may refuse to count votes cast in violation of law, including in violation of the enumerated qualifications in the Constitution. But this is also a power, I have cautioned, that should be exercised with care, given that the Twentieth Amendment now expressly has a provision that addresses situations where the president elect shall have died or failed to qualify. (A separate dispute is when a candidate becomes a “president elect”–perhaps only after Congress has counted the electoral votes, although the better reading may be that it happens earlier than that.)
My sense, and it is only my sense, is that if Trump happens to win a majority of electoral votes, then the Republican Party will also control at least one of the two chambers of Congress. If that happens, it is exceedingly unlikely that both houses would agree to reject any votes cast for Trump. (It could, of course, still put tremendous pressure on some Republicans who voted to impeach or convict Trump and who remain in Congress to “follow through” with their impeachment votes.) At one level of risk tolerance, then, I think the risks of disruption or surprise on January 6, 2025 are low.
2. Suppose, however, that is not the case, and that Democrats control not just both chambers, but both by wide enough margins that they can secure majorities in each chamber to seriously consider whether to refuse to count electoral votes cast for Trump.
In my judgment, a proper–and, candidly, prudential–approach is this. The Electoral Count Reform Act, consistent with the Electoral Count Act, is designed to constrain Congress in the counting of electoral votes. The fact that it offers just two hours’ debate for any state’s objections suggests that intensive fact-specific inquiries are off the table. The rejection of electoral votes should be for grave reasons, and for reasons obvious from the face of the record. The rejection of votes for a dead man in 1873, for instance, took no investigation into facts. The weeks-long slog of the investigation in 1877 was repudiated by the Electoral Count Act–votes should be presumed regular and counted, and only for the most obvious reasons (adequately explored in a two hour debate) should votes be rejected.
In deciding to count Arizona’s electoral votes in 2021 (under the guise of an objection that the votes were not “regularly given,” but really arguing that the electoral certificates were not lawfully certified), members of Congress had two hours to debate. It was absurd to believe that in those two hours, an adequate “investigation” could be had to resolve the questions that some Republicans raised to the (ordinary) results of that election (even supposing Congress had the power to do so under the Twelfth Amendment and the Electoral Count Act). The same could be said of Democratic members of Congress who’d hoped to reveal something about Ohio in 2005.
Relatedly, for Congress–which emphatically has the power to enforce Section 3 by other means–to have done nothing on this front for the last four years (Ned Foley has pressed for congressional action long ago), and then, only after all votes were cast, arrive in a joint session and opt to throw out electoral votes is irresponsible. Here for a moment we can separate the “ought” from the “is.” Congress, I think, does have the power to refuse to count electoral votes if they were not cast pursuant to law. But to sit idly by for years, failing to provide mechanisms to enforce Section 3, and then throw votes out at the last minute is something else. To quote Ned here on ELB back in 2021:
Consider the basic point here the electoral equivalent of the familiar wedding refrain: “Speak now or forever hold your peace.” Simply put, the time for disqualifying Trump from being on the ballot in 2024 is before those ballots are cast, not after he’s won the election.
3. Practically, however, the objection process on January 6, 2025, could take days, literally. Up to two hours’ debate is permitted in each chamber, per state. A chamber need not take that long, of course, but it seems likely that at least one would maximize the time spent, on each state, and prolong the process. Even if one chamber finishes early (as the Senate did in 2021 with Pennsylvania), it would need to wait for the other chamber. The streaming in and out of members, the actual act of voting, add to that two hour time. Suppose Trump carries 28 states, and each objection takes two and a half hours. That’s nearly three days, assuming it’s uninterrupted time. Recesses are limited under the Electoral Count Act. But this would be a prolonged and laborious process to reject votes from each state, state by state.
A proper objection, however, that the votes are not “regularly given” (see 3 U.S.C. § 15(d)(2)(B)(ii)(II)) does not mean that Joe Biden (assuming he received the second-most votes) becomes the President Elect. Instead, no candidate would have a majority (see 3 U.S.C. § 15(e)(2)). A contingent election would go to the House, where each state receives one vote, a tie from a state’s delegation does not count as a vote for any candidate, and it would require 26 state delegations to choose the next president. (The Vice President in this scenario would presumably have received a majority of electoral votes.)
The House would choose among the top three vote-getters. This possibility creates a separate, and intensely risky, strategy for Republicans seeking to seize a contingent election in this scenario, if they hold at least 26 delegations (a possibility even if they do not carry the House–they currently control 26 delegations, and two others, Minnesota and North Carolina, are currently evenly divided). And this involves faithless electors.
Suppose the apparent Electoral College vote is Trump 277, Biden 261. If Congress rejects all Trump votes, the vote would be Biden 261, among 538 validly-appointed electors, with no candidate receiving a majority. The top three vote-getters are only one, Biden. And the House has only one choice, Biden.
So suppose one elector in Wyoming casts a vote for, say, Elise Stefanik for President instead of Trump. The apparent Electoral College vote is now Trump 276, Biden 261, Stefanik 1. That Stefanik vote, one assumes, would not be rejected by Congress. After Congress rejects the electoral votes for Trump, the vote is now Biden 261, Stefanik 1. The House can choose among the to three vote-getters (here, just two candidates). And, if Republicans controlled at least 26 delegations, they could then choose Stefanik.
This seems to be an effective if suboptimal strategy to prevent a contingent election where Biden is the only candidate. But it would seem quite strange for the House to choose a candidate who appeared on no ballots for president or vice president nationwide. That said, it is entirely within the letter of the Twelfth Amendment and the practice of presidential electors. And, it is possible that if Democrats recognize this possibility, they will be less inclined to attempt to disqualify Trump on January 6, 2025, unless they simultaneously control 26 House delegations (or, unless they are happy to have a Republican other than Trump occupy the White House, in which case they may pursue the disqualification anyway).
There are alternative contingencies that may involve the Twentieth Amendment, with separate and disputed questions of how it would apply. There are further complexities if it appears no state will control 26 delegations when the electors meet December 17, 2024; further disputes if it is impossible to identify the “top three” vote getters because of ties (a concerned raised during debate over the Twelfth Amendment and never actually address); further issues about how the House handles a contingent election if it disputes what the joint session has done (if the House deems itself constituted as delegations from each state rather than individual members); and further debacles if the House attempts to refuse to seat some of its members on January 3, 2025. These are the things of true disaster scenarios left for another day. But to return to this exercise, the point is simply to note that the refusal to count votes cast for Trump does not necessarily mean Biden wins the presidency (although, if Democrats controlled at least 26 state delegations, it might be); it means a contingent election, and it means some possible subterfuge to ensure a preferred party’s candidate can win the presidency.
4. Given the high stakes of January 6, 2025, one might expect newspapers to track, in excruciating detail, where various members of Congress stand on this front. It is not hard to look back around 2020 to find news sites tracking how Republicans behaved, who was branded an “election denier,” and so on.
But as far as I can tell, only Zoe Tillman at Bloomberg, all the way back in 2022, has been the only journalist to get someone on record, and even then it was only one member of Congress in opaque terms:
Asked if Congress could refuse to certify a Trump electoral win on Section 3 grounds, Wasserman Schultz said she didn’t know if lawmakers “would be in a position to do that but it certainly wouldn’t be something that should be ruled out.”
As far as I can tell, there’s been no effort to get anyone else in Congress on the record. It’s a shocking lack of insight into what members of Congress are open to considering, and whether some members of Congress have simply closed the door on this possibility.
5. One last thought. Much commentary is putting tremendous pressure on the United States Supreme Court to resolve this, and ascribing to it some blame (explicitly or implicitly) if it fails to offer some solution. These pieces are being published with increasing intensity and rage at the Supreme Court.
But I think this focuses the “blame” too narrowly and too easily at one (myopic) target.
If one is worried about Congress on January 6, 2025, one should begin with blame toward Congress. The Senate failed to convict Trump in 2021 (and subsequently bar him from office) on a weak legal theory advocated by some (and that apparently held sway) that a federal officer cannot be convicted if he was no longer in office. Congress failed to perform its responsibility then, if, indeed, Trump ran afoul of Section 3. And since then, it has failed to enact legislation to address these issues, legislation that could have empowered courts to consider disqualification and that would have resolved, in one way or another, these matters.
Relatedly, the Department of Justice moved slowly in a criminal investigation (taking nearly two years to appoint a special counsel), and when it did, it chose not to indict Trump on charges of insurrection under federal law. An earlier criminal prosecution, and a successful one, under a criminal statute that has broad consensus (I think) of meeting the strictures of Section 3’s definition of “insurrection” would have worked, too.
Furthermore, the Colorado Supreme Court took a fairly tortured construction of state law to assert jurisdiction in this case, construing the sentence, “Except as provided for in subsection (5) of this section, each political party that has a qualified candidate entitled to participate in the presidential primary election pursuant to this section is entitled to participate in the Colorado presidential primary election,” to arrogate to the state courts the power to judge the qualifications of candidates under the federal Constitution. A more natural reading of state law would have prevented this case from reaching the United States Supreme Court in the first place (and a similar argument would be raised in Maine). Indeed, the United States Supreme Court is only in this position because of the fortuitous state statutory interpretation of four state court judges.
Finally, academics who have been pressing the Section 3 issue have spent little time on the consequences of their argument as it might play out, particularly as it might play out on January 6, 2025.
One more note to those pressing the Court to act now and critiquing it (and seemingly it alone) for failing to act now. If one cares about the historical context, at the time of the ratification of Section 3, and stipulating that it applies to the office of president, it never would have been principally applied (or applied at all) before a presidential election in the United States Supreme Court, precisely because states did not administer the ballot in that era–much less hold a presidential primary. The ability to “forestall a crisis” today is a historical accident, as far as Section 3 was understood. I’m not saying that we are interpreting or applying Section 3 (or Article II) incorrectly. But it is to say, the notion that we would have the United States Supreme Court “resolve” this issue, as a matter of ballot access, a year before a presidential election, is an anachronism.
In short, there are many other ways that the door could be shut by other actors in other places at other times, and other contingencies that could have (indeed, should have) been considered long ago. If the Supreme Court rejects the claim here, it will hardly be its “fault” if Congress, which has thus far abdicated its role, chooses to take control at the eleventh hour.