[Note: This is the tenth and hopefully the last – at least for now; we won’t promise that we won’t ever write more on this topic! – in a series of essays responding to objections that have been made to enforcing Section Three of the Constitution. The first nine essays can be found here, here, here, here, here, here, here, here, and here.]
Since last fall, when our article The Sweep and Force of Section Three was accepted for publication by the University of Pennsylvania Law Review and first posted on SSRN, we have received further comments and suggestions about the draft and taken them into consideration as we have gone through the editing process. As noted at the outset of this series, none of these comments has led us to reconsider and change our core substantive propositions in a major way. As the article goes to press in the next few weeks, it remains very close in substance to the versions from last fall. (We are grateful for all the comments and suggestions, and especially thank all who identified errors in the manuscript.)
We have made just one more meaningful substantive change since September, which we wish to note publicly before the article is published. Though the article is set to appear in print sometime this month, it might not beat the Supreme Court’s decision in Trump v. Anderson to press. Indeed, it is a small irony that even though our article was written and posted before these lawsuits were filed (and with no contemplation of immediate litigation) the Supreme Court might nonetheless win the race to publication, leaving some aspects of our article potentially overtaken by events. (We would strongly resist, however, any notion that a law review article becomes “moot” in consequence of a Supreme Court decision! Our views remain our views, and remain correct, or not, whether the Supreme Court embraces them, or not.)
At all events, if we do not mention a substantive change in the content of the article now, nobody might ever notice it. (Or, equally troubling, people might notice and think we surreptitiously altered the manuscript, just before publication, to take account of the Court’s decision.)
The change occurs beginning in the place of the draft that occupies pages 32-33 of the version now posted on SSRN. We are discussing the various situations in which different governmental actors might possess duties or powers that provide occasion for application of Section Three as a legal rule. In the course of considering certain “Special Situations” (p. 29), we consider who all might have authority to enforce Section Three with respect to the constitutional ineligibility of an individual for the office of President of the United States. We argue that state election officials, courts, and presidential electors all have the responsibility to faithfully apply Section Three’s constitutional disqualification rule, each within the sphere of its respective powers and duties under state or federal law.
We then turn to this question: Does the Twelfth Amendment (and relevant federal law), by providing for a joint session of Congress in which the votes of electors for President and Vice President, transmitted sealed to the seat of government, are then opened and counted, implicitly confer upon Congress authority not to count votes cast for a candidate who is constitutionally ineligible by virtue of Section Three of the Fourteenth Amendment.
In the version of the article posted on SSRN, we stated categorically that the answer was No: Congress possesses no power to reject on substantive grounds votes actually cast by electors (as opposed to a power to determine the authenticity of the submitted votes; that is, whether the votes to be counted were actually the votes cast by the electors of the state).
While we have not changed our ultimate conclusion – we still believe that the better answer is that Congress currently lacks a substantive power to evaluate the propriety of votes cast by electors – we have changed the level of certainty with which we express this conclusion. And we have also set forth at greater length the competing arguments on both sides. We have become persuaded by many discussions that the argument for an implied power of the joint session of Congress to decline to count electoral votes cast for a constitutionally disqualified candidate is at least plausible, even though we ultimately disagree with it.
Here is how the text of our article now reads on this point, as scheduled for publication sometime very soon. (We have omitted the footnotes):
If the voters and presidential electors do select a constitutionally disqualified candidate for the Presidency, does Congress have the power –perhaps even the duty – to reject such a candidate when the votes of electors are counted in joint session called for by the Twelfth Amendment? This is an unsettled question and we are, candidly, not sure of the answer.
On the one hand, the text of the Twelfth Amendment does not in terms confer a power on the joint session of Congress to judge the propriety, legal or otherwise, of the votes cast by electors. The responsibility to count the votes cast is not cast in terms of a power to judge the validity of such votes. Indeed, even the role of counting is formulated in a (very) passive voice: “The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.” This is hardly the language of affirmative power to judge, evaluate, or decide. It contrasts rather sharply with the Article I power of each house of Congress to “Judge of the Elections, Returns, and Qualifications” of “its own Members.” Further, the Twelfth Amendment specifically limits Congress’s role in selection of the President to the power of the House of Representatives to “choose immediately, by ballot, the President,” from the three persons receiving the highest number of votes, only “if no person have such majority [of the votes of the whole number of Electors appointed].” To the extent a power to judge the constitutional validity of votes submitted by electors might verge on a practical power of the joint session to select the President be selective counting of votes, it subtly infringes on the Twelfth Amendment’s constitutional design.
On the other hand, perhaps such a power to enforce Section Three’s disqualification can be inferred from constitutional structure and history. The argument would go like this. Because Section Three is binding on all officials exercising powers or duties that involve questions of election to, appointment to, or continuance in office of persons who are constitutionally disqualified by Section Three from holding such positions. A case can be made that the logic of this principle—buttressed by the obligation of the oath to the Constitution sworn by the persons exercising duties affected by Section Three—implies that Congress, sitting in joint session pursuant to the Twelfth Amendment, has a constitutional responsibility to refuse to accede to the election of a person for president who is constitutionally disqualified from holding that office. Moreover, another provision of the Constitution, the Twentieth Amendment, is explicit that a disqualified candidate does not become president, even if he has the most votes. It states that at “the time fixed for the beginning of [the President’s] term,” “if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified.” The language thus specifically confirms the possibility of a failure to qualify and specifies the consequences of that failure. If the President-elect is covered by Section Three, he cannot become President–unless Congress chooses (by supermajority votes) to remove Section Three’s disability. If this prohibition is not enforced during the counting of the electoral votes in joint session, then when would it be enforced, and by whom?
Moreover, imagine the situation where a presidential candidate receiving a clear majority of votes cast of electors engaged in plainly constitutionally disqualifying acts of insurrection or rebellion between the time when electors cast their votes and the time for beginning his or her term. Again, and even more emphatically, if Congress cannot determine that such a person cannot constitutionally become President, who can? Must Congress nonetheless pliantly accede to the election of such person as President? (Or, as actually happened in 1872, what if a presidential candidate has died between election day and the day prescribed by law for votes of electors to be counted? Must votes for a dead man to be president be counted? In 1872, Congress said no, refusing to count cast votes for Democratic presidential candidate Horace Greeley because he had died between election day and the meeting of the electors.)
Finally, Congress has enacted two statutes, the Electoral Count Act and the Electoral Count Reform Act. These statutes have been on the books for 137 years and assume that Congress has some role, albeit limited, in judging the validity of electoral votes. They would potentially implicate Congress’s powers under the “necessary and proper” clause as well. Even if these statutes are constitutional—that is, even if Congress does have a substantive power to reject votes for a disqualified candidate—there is an additional question whether the current statutes allow it to do so. (This turns on the meaning of the phrase “regularly given,” and we take no position on it here.)
On balance, we are inclined to think the stronger argument is that neither Congress nor the Vice President (acting as President of the Senate) has the authority to evaluate the decisions or actions of the electors themselves (as opposed to perhaps determining the authenticity of submitted votes).
But we confess to some uncertainty here. If the Constitution does not supply a clear, determinate answer, the various branches of government are constitutionally entitled each to exercise their own independent constitutional judgments on the question. Thus, even if state election officials, voters, electors, and the judiciary all support (or acquiesce to) the election of a president barred from holding office by Section Three, there is a serious argument that Congress might act as a last constitutional backstop against the installation of such a constitutionally disqualified person in the presidency.
We think the main effect of this revision is simply not to overstate the certainty of our assertion that the Twelfth Amendment does not give Congress power to judge the substantive propriety of votes cast by electors. The issue is more difficult than we initially thought, and there may be separation-of-powers implications that need to be more fully explored.
* * *
With that, we conclude this series of essays responding to objections made against our interpretation of Section Three, whether on policy or legal grounds. A brief recap (with links to each prior essay):
Our first essay introduced the series, and the reasons for it.
Our second essay responded to the objection that enforcing Section Three would interfere with “democracy.”
Our third essay responded to the objection that enforcing Section Three would be too “dangerous.”
Our fourth essay responded to the argument that federal criminal prosecution and conviction for insurrection under 18 U.S.C. §2383, is somehow a prerequisite to Section Three’s constitutional rule of disqualification.
Our fifth and sixth essays addressed the misuses of legislative history employed by some critics and advocates to suggest that Section Three might not be self-executing, might not apply to the office of President of the United States, or might not apply to insurrections after the Civil War.
Our seventh essay discussed why Section Three issues are not nonjusticiable “political questions.”
Our eighth essay addressed the “off ramp” argument that a legally disqualified candidate must nonetheless be placed on the ballot, state law notwithstanding, because Congress theoretically might one day relieve the disability.
Our ninth essay discussed why, in the Trump v. Anderson case, it is significant that there has been a full trial of disputed issues of fact, resulting in findings of fact by a trier of fact.
And in this, our final essay in this series, we explained our current thinking about Congress’s powers under the Twelfth Amendment and federal law, acknowledging a greater degree of uncertainty than our posted draft had previously expressed.