“The President of the Senate, the Original Public Meaning of the Twelfth Amendment, and the Electoral Count Reform Act”

The Case Western Reserve Law Review has just published my article, “The President of the Senate, the Original Public Meaning of the Twelfth Amendment, and the Electoral Count Reform Act.” Here is the abstract:

When Congress convenes under the Twelfth Amendment and the votes of presidential electors are counted, there are three different responsibilities to consider. First, who presides over the joint session where counting takes place, and what is the role of that presiding officer? Second, who counts the electoral votes? Third, who resolves disputes about those electoral votes?

This Essay answers those questions. First, the presiding officer in the joint session is the President of the Senate, and she acts as any other presiding officer of a legislature. She initiates actions pursuant to precedent, parliamentary procedures, and the wishes of the chamber. And that means the chamber—here, the joint session—can constrain the President of the Senate as presiding officer. Congress did exactly that when it chose to further constrain the discretion of the President of the Senate in the Electoral Count Reform Act of 2022. Second, Congress counts electoral votes. The evidence in the text and structure of the Constitution and congressional practice before the ratification of the Twelfth Amendment supports this interpretation. Third, the power to resolve disputes runs with the power to count. And that means Congress also has the power to resolve disputes about presidential electors.

Separating these responsibilities is crucial because it can be too easy to conflate some of these activities, which in turn elides over the distinctions in responsibilities. When the presiding officer acts, she does so not to count votes, but to preside over the joint session and help it proceed according to the rules and precedents set by Congress. The actions she takes may resemble the substantive act of counting. But close scrutiny of the record reflects that the President of the Senate does not count, and has never counted, votes. That is because the power to count resides in Congress, where the Twelfth Amendment lodges that power.

This Essay begins by examining the text of Article II, specifically its Counting Clause. It argues that a change in verb voice in the clause removes the President of the Senate from the role of counting electoral votes. Part II then moves to the original public meaning of the Twelfth Amendment through an interpretation of congressional practices. Majorities of both houses of Congress in 1800 believed Congress had the substantive power to resolve disputes over electoral votes. These details give an important gloss to the Twelfth Amendment, which was ratified in 1804. Part III examines the structure of the Constitution. Crucially, the President of the Senate, not the Vice President, bears the responsibilities in the Twelfth Amendment. While these two terms are often used interchangeably, they are not interchangeable for purposes of understanding the separation of powers and the role of Congress. Part IV concludes with an examination of the newly enacted Electoral Count Reform Act. It identifies the major elements of the Act and it focuses on the Act’s decision to expressly narrow the responsibilities of the President of the Senate in the joint session where Congress counts electoral votes. Congress’s decision to define the role of the presiding officer is squarely within its constitutional authority.

The piece responds to some arguments made by Professors John Yoo and Robert Delahunty in the Case Western Reserve Law Review; and concerns raised by Professors Gary Lawson and Jack Beerman. It engages with recent work by Professor Joel Goldstein, and others. Portions are drawn from blogging here and from my Senate testimony regarding the Electoral Count Reform Act. Professor Jonathan Adler weighs in over at Volokh here.

Share this:

Andrew Albright: “Opportunities for IE Reform in California Law in a Post-Citizens United World”

The following is a guest post from Andrew Albright:

In Citizens United, as we all know, the Supreme Court held that independent expenditures (IEs) cannot be a source of quid pro quo corruption so long as the persons or entities publishing the IEs spend their dollars independent of, or absent coordination with, the candidates the IEs support. This logic leaves one primary form of IE regulation largely untouched, and possibly available for strengthening: coordination laws.

Coordination laws govern the relationships between, and put limitations on, candidates and third-party entities that make IEs in support of those candidates. States across the country, as well as the Federal Elections Commission, have enacted coordination laws of varying strength.

In a new report I have authored for California Common Cause, “All Hope Is Not Lost: Effectively Regulating Independent Expenditures in a Post-Citizens United World,” I document the amount and nature of IEs in California politics, and examine the legal doctrine and public policy around coordination laws, in California, other states, and federally. The report seeks to understand best-in-field practices, identify where California falls short, and propose improvements to California’s coordination laws. The report publishes today.

“All Hope Is Not Lost” finds that, contrary to the cynicism and defeatism that has quite naturally become the norm around IEs, there may actually be some room for progress. I recommend that California take three steps to strengthen its coordination laws. First, the state can broaden its definition of “communication” under the Political Reform Act. Today, political committees can avoid direct contribution limits by airing unlimited advertisements that do not expressly call for the candidate’s election or defeat but nevertheless indirectly advocate for the candidate. Broadening the definition of “communication” would extend California’s coordination laws to cover any and all political advertisements – including so-called “issue advocacy” – that mention or depict a candidate within sixty days of an election. Maine and New York State already apply some version of this approach.

Second, California can strengthen its definition of “coordination” and afford those accused of coordination fewer opportunities to make bad faith but ultimately successful rebuttals of clear evidence of coordination. Today, California uses a series of “rebuttable presumptions” that allow the Fair Political Practices Commission (FPPC) to presume that an IE was actually a coordinated expenditure. For example, where a candidate’s spouse works for a supporting political committee, the FPPC presumes coordination. But these presumptions allow a candidate to rebut the allegation; such rebuttals often go uninvestigated and have become a weakness that has undermined effective enforcement of California’s coordination laws. In states like New York, policymakers have taken rebuttable presumptions and turned them into per se coordination scenarios, thus barring candidates from rebutting the presumption of coordination. This approach would streamline California’s laws and make FPPC regulations significantly easier to enforce.

The final opportunity for reform lies slightly outside of coordination laws. California should consider barring “general purpose” and “primarily formed” committees from making IEs. The distinction between general purpose and primarily formed committees arguably serves an important purpose. Many general purpose committees are not focused on specific elections, and instead focus on issues. Thus, applying the more onerous filing and naming requirements of primarily formed committees to general purpose committees could deter some non-election speech.

At the same time, the distinction between general purpose and primarily formed committees creates loopholes that may undermine the State’s campaign finance regulations, which the report highlights in detail. For example, in 2020, a local Santa Rosa political committee raised $500,000 from a single donor and used it in opposition to a local ballot measure. But because it was registered as “general purpose,” despite operating as “primarily formed,” the committee did not have to disclose their funders in a timely manner. Indeed, the committee only disclosed its donors and refiled as a “primarily formed” committee after a concerned citizen filed a complaint with the FPPC.

Other problems exist with allowing the same committees to make both direct contributions and IEs. Under current California law, a political committee staffer could engage a campaign in detailed conversations regarding content and strategy around a specific communication, as long as the cost of that communication is below the limit for direct contributions. Then, a different staffer of the same committee could go on to make unlimited, “uncoordinated” independent expenditures on that campaign’s behalf. This is one of many opportunities for wink-and-nod coordination that California law currently permits.

In line with states like New York and Connecticut, California can prohibit general purpose and primarily formed committees from making IEs and instead create an “independent expenditure only” committee that can make IEs on behalf of candidates, but not direct contributions to them. The upshot of this approach is that, by treating all IEs the same, it removes incentives for political spenders to exploit arcane committee classification rules to engage in coordination and evade regulations. And it eliminates some of the most obvious opportunities for wink-and-nod coordination.

Though Citizens United took many excellent policies and reform off the table, from the perspective of good government reformers, states like California can still strengthen their coordination laws to ensure that politicians cannot use third-party organizations to artfully skirt direct contribution limits. Building a stronger wall between direct contributions and IEs will help California close loopholes and strengthen enforcement of its direct contribution limits. All hope is not lost.

Andrew Albright is a joint J.D. and Master of Public Policy Candidate at the University of California, Berkeley. After graduating in May of 2024, he will spend a year working as a law clerk at the United States District Court for the Northern District of California, followed by a year working as a law clerk at the United States Court of Appeals for the Ninth Circuit. Andrew completed this report on behalf of Common Cause as his Master’s capstone at the Goldman School of Public Policy.

Share this:

“US appeals court to decide if Pennsylvania mail-in ballots with wrong date still count”

AP:

A federal appeals court must decide if Pennsylvania voters need to put accurate handwritten dates on the outside envelopes of their mail-in ballots for the votes to count, a dispute with implications for this year’s presidential contest.

The 3rd U.S. Circuit Court of Appeals held oral arguments in Philadelphia Tuesday over a district judge’s ruling in November that even without the proper dates, mail-in ballots should be counted if they are received in time.

Ari Savitzky, a lawyer with the American Civil Liberties Union representing several voter groups, told the court that more than 10,000 ballots in Pennsylvania were disqualified in 2022 based on what he called “a meaningless paperwork error.” He argued that the “materiality provision” of the 1964 Civil Rights Act was designed to prevent that.

You can access the oral argument audio via How Appealing.

Share this:

“At worst [Douglas Mackey’s tweets containing false information about how to vote] were calculated to cause voters to send futile text messages and then stay home on election day.”

Pretty remarkable statement in Douglas Mackey’s reply brief in his criminal appeal before the Second Circuit. To me, the “at worst” it seems pretty bad!

As a reminder, Protect Democracy and the Yale Media Freedom and Information Access Clinic filed this Second Circuit amicus brief (with me as client and co-counsel) in United States v. Mackey.

Mackey was convicted “under 18 U.S.C. § 241 for conspiring “to use Twitter to trick American citizens into thinking they could vote by text and stay at home on Election Day—thereby suppressing and injuring those citizens’ right to vote.” Gov’t Br. 2. Mackey has argued that section 241 does not cover such a scheme and that the law is facially unconstitutional under the First Amendment because it punishes too much protected speech.

In our brief, we explain that the statute, properly construed, both bars lies about when, where or how people vote intended to deprive people of their right to vote and that limiting section 241 to such empirically verifiable false speech assures that the law does not violate the First Amendment.

Share this: