INTRODUCTION :: Electoral vote counting is the oldest activity of the national government and among the oldest questions of constitutional law. It was Congress’s first task when a quorum appeared in the nation’s new legislature on April 6, 1789. It has happened every four years since then. Yet, electoral vote counting remains one of the least understood aspects of our constitutional order.
The Electoral Count Act of 1887 (ECA) lies at the heart of this confusion. In enacting the ECA, Congress drew on lessons learned from its twenty-five previous electoral counts; it sorted through innumerable proposals floated before and after the disastrous presidential election of 1876; and it thrashed out the ECA’s specific provisions over fourteen years of sustained debate. Still, the law invites misinterpretation. The ECA is turgid and repetitious. Its central provisions seem contradictory. Many of its substantive rules are set out in a single sentence that is 275 words long. Proponents of the law admitted it was “not perfect.” Contemporary commentators were less charitable. John Burgess, a leading political scientist in the late nineteenth century, pronounced the law unwise, incomplete, premised on contradictory principles, and expressed in language that was “very confused, almost unintelligible.” At least he thought the law was constitutional; others did not.
Over the nearly 120 years since the ECA’s adoption, the criticisms faded, only to be renewed whenever there was a close presidential election. Our ability to misunderstand the ECA has grown over time. During the 2000 presidential election dispute, politicians, lawyers, commentators, and Supreme Court justices seemed prone to misstate or misinterpret the provisions of the law, even those provisions which were clear to the generation that wrote them. The Supreme Court, for example, mistakenly believed that the Supreme Court of Florida’s erroneous construction of its election code would deny Florida’s electors the ECA’s “safe harbor” protection; Florida Governor Jeb Bush’s hasty submission of his state’s Certificate of Ascertainment was untimely under the Act; and Democratic members of Congress framed their objections to accepting Florida’s electoral vote on the wrong grounds. Even Al Gore, the presidential candidate contesting the election’s outcome, misread the federal deadline for seating Florida’s electors.
The purpose of this Article is to explain the provisions of the Electoral Count Act of 1887 as it was understood by the Congresses that debated and enacted it. Although the ECA has been the subject of scholarly interpretation, no prior work has studied the Act by embedding it in a comprehensive exploration of its legislative history, the history and theory of electoral vote counting, and the legal and political assumptions of the Congresses that framed it. No prior study has focused on the interplay between the ECA’s various sections and its substantive and procedural provisions. Indeed, the ECA’s procedural provisions have never before been subject to sustained analysis.
As a foundation for interpreting the ECA, Part II of this Article sets forth the background assumptions and experiences of the Congresses that struggled, for fourteen years, with electoral count reform. Part III then, explicates the ECA in light of its legislative history, its underlying assumptions, and the history of Congress’s previous electoral counts.
In undertaking this analysis, the Article does not discuss whether the ECA is constitutional or whether congressional action under it is subject to judicial review. Neither does it discuss the related question of whether the ECA is a statute that binds Congress or simply a joint rule adopted in statutory form to give it greater prominence and political, but not legal, permanence. This Article does discuss the complex views the framers of the ECA had on these subjects to the extent they impact the Act’s interpretation.
The focus of this Article is on what the ECA’s framers meant by its various provisions. This issue is preliminary to assessing many questions concerning the ECA’s constitutionality and whether there is judicial review. Determining whether the ECA is unconstitutional because it purports to bind Congress, for example, turns on whether the Act does in fact bind Congress on any issue. How the ECA’s framers understood the Act is also preliminary to any instance of judicial review because it helps determine whether Congress’s application of the ECA complies with its mandates.
The issue of whether the Act is a binding statute or only a joint rule enacted in statutory form matters, of course, if Congress or either House wishes to alter or rescind it. If the ECA is a binding statute, altering or rescinding it requires a majority vote in both houses of Congress and the President’s approval, or passage over his veto. If the ECA is a joint rule, it can be altered by congressional action without presidential presentment, or it can be rescinded by unilateral action of one house. But whether Congress, or one of its houses, should amend or rescind the ECA turns, in part, on what it provides.
Moreover, to members of Congress, until a majority of at least one house wishes to amend or rescind the ECA, the issue of whether it is a statute or a joint rule does not matter. Whether the ECA is a statute or a joint rule, it provides the regulations that currently govern Congress when it is called upon to count electoral votes. Until a majority of at least one house votes to rescind it, members of Congress are bound by it as they are bound by any other rule of congressional practice.
Consequently, this Article is written for the conscientious congressman who wishes to know what the ECA provides for purposes of applying it, should the occasion arise. Members of Congress can implement the ECA only if they understand its provisions. The interested public, as well as the judiciary, can assess Congress’s compliance only if they too understand its terms. Assuming the ECA is constitutional, this Article provides a guide to the current rules that govern Congress when, every four years, it is called upon to count electoral votes in a presidential election.
November 2015, Vol. 67, No. 6
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