The Electoral Count Mess: The Electoral Count Act of 1887 Is Unconstitutional, and Other Fun Facts (Plus a Few Random Academic Speculations) about Counting Electoral Votes

41 Pages Posted: 2 Mar 2021 Last revised: 11 Mar 2021

See all articles by Jack Michael Beermann

Jack Michael Beermann

Boston University School of Law

Gary Lawson

Boston University School of Law

Date Written: March 1, 2021

Abstract

In this essay, and in light of the controversy that arose in the wake of the 2020 presidential election, we explain the constitutional process for counting electoral votes. In short, every four years, the Twelfth Amendment requires the President of the Senate (usually the Vice President of the United States) to open certificates provided by state presidential electors and count the votes contained therein. The Constitution allows no role for Congress in this process, and thus, the provisions of the Electoral Count Act purporting to grant Congress the power, by concurrent resolution, to reject a state’s electoral votes, is unconstitutional. Further, the objections raised to two states’ electoral votes on January 6, 2021, were not proper within the terms of the Act, and therefore, even if Congress has the power specified in the Act, congressional action rejecting states’ electoral votes would have been contrary to law. While state executive or state judicially-ordered departures from the requirements of state election laws in presidential elections might violate the federal Constitution’s requirement that electors be chosen as specified by state legislatures, determining whether this has taken place is much more complicated than simply examining the language of state election statutes. We suggest that making this determination requires a careful examination of state interpretation traditions that we decline to undertake in this brief essay on the constitutional process for counting electoral votes.

Keywords: presidential elections, electoral college, electoral votes, separation of powers

JEL Classification: K19

Suggested Citation

Beermann, Jack Michael and Lawson, Gary, The Electoral Count Mess: The Electoral Count Act of 1887 Is Unconstitutional, and Other Fun Facts (Plus a Few Random Academic Speculations) about Counting Electoral Votes (March 1, 2021). Boston Univ. School of Law, Public Law Research Paper No. 21-07, Available at SSRN: https://ssrn.com/abstract=3795421 or http://dx.doi.org/10.2139/ssrn.3795421

Jack Michael Beermann (Contact Author)

Boston University School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States
617-353-2577 (Phone)
617-353-3110 (Fax)

Gary Lawson

Boston University School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States
617-353-3812 (Phone)

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
247
Abstract Views
1,049
rank
156,056
PlumX Metrics