Chris Land and David Schultz have written this article for the Rutgers Journal of Law and Public Policy. You can find an extended abstract of the article below the fold.

It goes without saying that the rules governing how our country elects a president each quadrennium should be as clear as possible and accepted as binding by all. From the United States’ first constitutional crisis in the 1800 election through the imminent 2016 contest, presidential contenders are highly motivated to seek every advantage imaginable, and in the event of a disputed election result, candidates would have irresistible motives to attempt to trade on ambiguities and flaws in the counting process.

A hidden imperfection for the first one hundred years of the Republic, the 1876 presidential election exposed our Constitution’s original failure to provide a framework for resolving electoral disputes—bringing about a constitutional crisis in a bitterly contested post-Civil War climate.

After employing a constitutionally unique Electoral Commission to award a disputed Electoral College majority to Rutherford Hayes in 1877, Congress agonized over the creation of a procedural framework for a decade—finally passing the Electoral Count Act in 1887. The Act prescribed a method of appointing state electors, the form in which votes were to be submitted to Congress, and most importantly for our purposes, a number of restrictive procedures that both Houses of Congress were ‘required’ to follow in counting the results.

The Electoral Count Act was consigned to the dustbin of history by everyone except the most astute election law scholars until our country again faced a razor-thin presidential contest in 2000. While scrutiny of the Act by the U.S. Supreme Court in Bush v. Gore largely centered on the timing of certification to receive ‘safe harbor’ deference, the numerous procedural objections raised by Members of Congress during the Electoral College count in January 2001 gave rise to a number of key constitutional questions that have somehow evaded study by the academy over the past fifteen years.

In a political era of robust partisanship, and with only a handful of states really contested in the 2016 election, a close and disputed contest in one or more states could expose flaws in the Act far more intense and consequential than those suggested in 2000–01.

Largely unique among the U.S. Code and Congressional rules, the Electoral Count Act purports to restrict the authority of both the House of Representatives and Senate to control their internal procedures during the quadrennial count. Conversely, the U.S. Supreme Court has a strong line of cases that have held that Article I, Section 5’s constitutional mandate that “[e]ach House may determine the Rules of its Proceedings . . .” (the Rules Clause) represents the non-delegable power of each House to govern its internal parliamentary activities—e.g., adjournment, amendment, debate, and an absolute control over the process. As a result, an untested conflict centered on the separation of powers lies in wait today between the Electoral Count Act, the Rules Clause, and the courts.

This Article first considers the important threshold question of whether the institution that actually counts Electoral College votes is a constitutionally unique entity or merely a simultaneous meeting of the House and Senate. Neither a plain-text reading of the Constitution, nor Congressional intent support the Joint Session reading. The Article then analyzes the Electoral Count Act’s history and relevance through the 1876 election, contending that the 1877 Electoral Commission was a permissible exercise of the Rules Clause at the outer limits of Congressional delegation.

The core of this Article then turns to whether the procedural provisions of the Electoral Count Act are enforceable in light of the Supreme Court’s Rules Clause and separation of powers doctrine. This Article asserts that the Act unconstitutionally impinges on Congress’ internal procedural authority under the Rules Clause of the U.S. Constitution and is likely unenforceable—a situation that could result in chaos and constitutional deadlock after a closely contested presidential election.