Election Law

Law gives Congress more authority in vote count than Constitution allows, op-ed says

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Electoral College

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Rioters who stormed the U.S. Capitol on Jan. 6 were acting on the mistaken belief that Congress had the power to determine the winner of the presidential election, a belief that was rooted in a law passed in 1887, according to a March 18 op-ed.

The law, the Electoral Vote Count Act, should be repealed and replaced with a law giving the federal courts the authority to quickly resolve election disputes, according to the Wall Street Journal op-ed.

The Electoral Vote Count Act gave Congress “more authority than the Constitution allows, by establishing a labyrinthine process to resolve state electoral-vote challenges,” the op-ed said. “The most constitutionally offensive provision gave Congress the absolute power to invalidate electoral votes as ‘irregularly given,’ a process that a single representative and senator can trigger by filing an objection.”

One of the op-ed authors is J. Michael Luttig, a former judge on the 4th U.S. Circuit Court of Appeals at Richmond, Virginia, who advised then-Vice President Mike Pence on the 2020 vote certification. The other is David B. Rivkin Jr., a former Department of Justice and White House lawyer who practices appellate and constitutional law in Washington, D.C.

Their op-ed contended that the framers did not intend to put Congress in the middle of the electoral process.

“In fact, after much debate, the framers deliberately chose to deny Congress any substantive role in selecting the president and vice president, except in the rare case that no candidate has an electoral college majority,” the op-ed said.

Congress has a limited role under the 12th Amendment and Article II, the article said. The Senate president opens the state electoral results, which are counted before both congressional houses.

Who then has the power to settle disputes over electoral slates?

“Whether electors are validly chosen is a quintessentially legal determination, not a political one,” Luttig and Rivkin wrote.

“Congress should promptly repeal the Electoral Vote Counting Act,” their op-ed said. “Given the tight constitutional timeline for casting and counting votes and inaugurating a president, lawmakers should enact a statute providing for expeditious federal judicial resolution of all questions relating to compliance with state legislatively established procedures for selecting presidential electors, the validity of elector selection, and the casting of electoral votes—and requiring eventual mandatory Supreme Court review.”

Hat tip to How Appealing.

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