Mike Stern: Electoral Vote Counting in Congress

Below is an important guest post from Mike Stern, who served as senior counsel to the U.S. House of Representatives, deputy staff director for the Senate Homeland Security and Governmental Affairs committee, and special counsel to the House Intelligence committee, blogs about congressional legal issues at Point of Order.

I have devoted my Point of Order blogging in January to the subject of electoral vote counting in Congress, with specific attention to what would have happened had the Supreme Court deferred to Congress for a resolution of the controversy over Florida’s electoral votes following the 2000 presidential election. The inspiration for this topic came from a recent program hosted by the American Constitution Society to mark the 15th anniversary of Bush v. Gore, 531 U.S. 98 (2000). Several of the participants suggested that Congress is the constitutionally appropriate forum for resolving disputes over electoral votes and that Congress could have decided the 2000 election outcome without engendering a “constitutional crisis.” I have a different perspective, which stems in part from my involvement, as senior counsel to the House of Representatives at the time, in preparations for a possible congressional contest over Florida’s electoral votes. Many thanks to Rick Hasen for the opportunity to share that perspective at ELB.

It should be noted first that the Constitution does not make Congress the judge of presidential elections. If anything, as I discuss here, the text of the Constitution seems to go to some length to avoid any implication that the counting of electoral votes involves any discretion or judgment. At the least, it would be odd for the Supreme Court to give more deference to Congress’s role in counting electoral votes than it does to Congress’s express judicial authority with regard to congressional elections.

Could Congress, though, have rendered a politically more legitimate verdict on the 2000 election than did the Supreme Court? Perhaps, but the better question might be whether Congress could have delivered any verdict at all. Had the Supreme Court allowed the Florida election contest to continue, and the Florida courts had ultimately found in favor of Al Gore, the most likely outcome (see here and here) was a deadlock in which the Republican-controlled House voted to recognize the Bush slate of electors and the Senate (probably divided 50-50 between the parties with Vice President Gore breaking the tie) voted to recognize the Gore slate. This is true in part because the Electoral Count Act, the obscure statue enacted in 1887 to break such deadlocks between the houses, would likely have been ineffective in the circumstances presented. And even if the statute had worked as intended, it had no mechanism to deal with wild cards such as an intervention by the Florida legislature or a struggle for control of the Senate.

Perhaps most importantly, the Electoral Count Act is (deliberately) silent on a critical constitutional issue: what would happen if Congress did not count Florida’s electoral votes at all? Under one theory, Florida’s electors should then not be counted as part of the “whole number of Electors appointed,” reducing that number to 513 and therefore giving Gore, who had 267 electoral votes, the majority needed to win the presidency. Under another theory, the “whole number” would remain at 538, meaning that no one would have a majority and throwing the election into the House of Representatives under the 12th amendment (where Bush undoubtedly would have won). This open question could well have meant that on January 20, 2001, there would have been four plausible positions as to who was entitled to exercise the powers of the presidency: (1) Bush; (2) Gore; (3) Dennis Hastert (who, as Speaker of the House, was next in the line of presidential succession); and (4) no one.

Perhaps the Supreme Court should have rolled the dice and hoped that Congress would work out a solution to the election controversy. But no one should underestimate the chaos that it would have risked unleashing by doing so.

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