Is the Electoral Count Act Unconstitutional?

Abstract

This Article takes on one of the most unasked questions of Bush v. Gore - whether the Electoral Count Act, the federal statutory scheme at issue in that case, is constitutional. Enacted in 1887 and hardly discussed for the past 114 years, the Electoral Count Act sets forth complicated regulations for counting (and not counting) electoral votes. This Article argues that Section 15 of Title 3 of the United States Code, the heart of the Electoral Count Act, is unconstitutional.

Since 1800, Congress has attempted to enact legislation regulating the electoral count, finally succeeding in 1887. This Article traces these principal congressional efforts to regulate the electoral count and the surrounding constitutional text and structure to show why the Electoral Count Act is unconstitutional. The Electoral Count Act may seem like a good statutory scheme to deal with the problems of the electoral count, but not every good statutory scheme is a constitutional one. Some problems may only be remedied by constitutional amendment, not by statute. Anyone who wishes to argue that the Electoral Count Act is constitutional bears a very high burden of proof.