In a recent Wall Street Journal op-ed, two well-respected conservative legal scholars, J. Michael Luttig and David B. Rivkin, outlined a radical argument about Electoral Count Act reform: that the entire premise of having such a law is unconstitutional. Instead, they contend, Congress should have no discretionary role at all in certifying the results of a presidential election. The Journal’s editorial board made a similar argument. This prompted a reply letter to the editor from my Cato colleague Thomas Berry, building on his Briefing Paper explaining why there is indeed a proper, constitutional role for Congress to play here.
The legal case by both sides has been well-covered, but I’d like to further elaborate on how the very existence of the legal dispute raises some important policy risks in the position advocated by Luttig and Rivkin.
The desire to constrain Congress and push election disputes into the judiciary to the greatest degree possible is an understandable and largely correct impulse. There are good reasons to trust courts more than Congress in these matters. As I’ve previously discussed, an ideal ECA reform should be based on disentangling two distinct constitutional roles. The first, which is by far where most disputes actually arise, is over the state law question of who a state has rightfully appointed as its members of the Electoral College. Or to put it simply, who really won the state’s popular vote. This question starts with the state legislature prescribing a manner of choosing electors (in all states, popular election), then the state government’s executive administration of that prescribed manner (actually conducting the election), then any appeals to the state courts as provided by state law, and ultimately to the federal courts for any federal claims raised. It is right and proper that Congress should simply commit itself to accepting the outcome of this process, not second-guessing it.
However, that still leaves a second category of possible constitutional defects in how the electors voted and who they voted for. These questions fall within Congress’s responsibility to “count” the electoral votes, which inherently includes deciding if something is a valid vote at all. The relevant constitutional rules include, among other things, requirements that the electors must vote on a certain day, that they may not vote for presidential and vice-presidential candidates who both live in the elector’s state, and any disputes about the constitutional eligibility of candidates. It is these sorts of rules which are the sticking point for any notion of cutting Congress out of the process altogether.
If we were starting from scratch in drafting the Constitution, this second category may well be questions we’d also want the courts to handle. But that is not the Constitution’s design, just like the Constitution gives to each house of Congress the power to judge disputed congressional elections. More importantly, setting up the courts to resolve this question in the heat of a disputed election would severely undermine the entire purpose of ECA reform: to provide certainty and avoid a constitutional crisis. In this case, the mere existence of serious constitutional uncertainty weighs heavily as a policy concern, regardless of who has the stronger and ultimately correct legal argument.
There is a substantial risk that when faced with such a case, the Supreme Court would decline to rule on it, citing the political question doctrine. This principle prevents courts from interfering when the Constitution creates “a textually demonstrable constitutional commitment of the issue” to other branches of government, such as Congress. While there is some ambiguity in the passive-voice phrasing of the Twelfth Amendment, both the most natural reading and the unbroken historical practice have been that counting the electoral votes “in the presence of the Senate and House of Representatives” conveys to Congress power over the process. There is no suggestion that the courts are to be involved at all.
In light of that, it is plausible that the Supreme Court would reach a ruling akin to Marbury v. Madison: deciding that Congress has attempted to extend the Court’s jurisdiction beyond what the Constitution permits and so striking down that statute rather than resolving the case brought under it. Beyond the political question doctrine, there are also possible problems with Article III standing and the Case or Controversy Clause, depending on the details of how the bill is drafted.
That is not to say it is certain the Supreme Court would punt in this manner. Far from it. There are reasonable points to be made on both sides. The immediate facts of the case at hand would surely influence the Court, too. But a law like the Luttig-Rivkin proposal would introduce an unnecessary element of high-stakes uncertainty on top of the already high-stakes uncertainty inherent to the underlying dispute. Between the Supreme Court and Congress, it’s less important to make the perfect choice between the two and more important that it’s clearly established and constitutionally unambiguous which body is supposed to do what.
Setting up a scenario where Congress and the Supreme Court are at odds over a disputed election, possibly with both insisting it’s up to the other to decide, would take a bad situation and make it even worse. And it is much likelier that the justices would balk at a statute investing them with a novel power over what happens in a joint session of Congress, as opposed to a statute simply reforming and clarifying the well-settled, centuries-old practice of congressional primacy over canvassing the Electoral College.
There are also reasons to be wary regarding the politics of passing a bill to simply have the Supreme Court decide any and all future presidential election disputes. At risk of oversimplifying, there are essentially three groups at play here in Congress: the more-or-less united Democrats on the one hand, and on the other what we might think of as the Mitch McConnell Republicans and the Donald Trump Republicans. Two of those three groups–Democrats and the most avid Trump supporters–both have their own reasons to be unhappy with the current composition of the Court and its recent rulings on election questions in particular. Most Democrats still have a deep-seated disdain for Bush v. Gore, in addition to their general complaints about the Court’s current conservative majority. Trump has made clear he is decidedly against any version of ECA reform at all, and he is particularly angry at the Court’s refusal to intervene on his behalf in 2020. Neither has much love for the Roberts Court as it currently exists, in other words.
That leaves just the McConnell Republicans, so to speak, as the only bloc with little political objection to the Court totally taking over Congress’s current role. But such Republicans on their own do not have enough votes to pass anything. A version of ECA reform that can’t get buy-in from Democrats and/or get the near-unanimous support of all Republicans is simply not passable any time soon. Leaving some role for Congress, even if it’s been properly constrained and heavily narrowed, is going to be less politically problematic for those trying to count to 218 votes in the House and 51 (or more likely, 60) votes in the Senate.
As tempting as it is to get Congress out of it altogether, there is a much firmer constitutional basis for restricting Congress to a only narrow set of possible objections regarding how the electors voted. The courts can and should be clearly empowered to decide who are the state’s properly appointed electors, a power they mostly already have and exercise. This would accomplish the goal in the vast majority of scenarios: keep Congress out of attempting to overturn the results of an election on spurious partisan grounds, while also constraining possible bad actors at other stages of the process. Going further than that is of dubious political feasibility and it would increase, rather than decrease, the risks of a serious constitutional crisis.
