Suppose that on Nov. 3, and for weeks thereafter, no one knows whether Donald Trump or Joe Biden has won the presidential election.
To be more specific, suppose that as of Nov. 4, Trump is unquestionably ahead in the key states — say, Michigan, Wisconsin and Pennsylvania. But suppose, too, that as those states count absentee and mail-in ballots, it becomes clear that Biden has won.
Predictably, Trump alleges fraud — and tweets that his supporters, and the country as a whole, should not allow “THE GREATEST FRAUD IN HISTORY.”
Everything will ultimately turn on the vote of the Electoral College, scheduled for Dec. 14, and on what happens on Jan. 6, when Congress meets to declare the winner. But if we have a fierce dispute in late November and early December, how on earth do we get to a final decision in early January?
The Electoral Count Act of 1887 was designed to answer that question. In my first column on this issue, I described what the ECA requires in the event of contested elections, and explained what the law is clear about. By giving the major authority to the states, and by outlining, step by step, what is supposed to happen, it sharply limits room for political maneuvering in Washington.
Unfortunately, the act also leaves some important questions unresolved. A leading political scientist of the late 19th century even described it as “very confused, almost unintelligible.”
That’s too harsh. But exactly how would the law handle an objection, by Trump and his campaign, that the election was “rigged” and that mail-in voting resulted in rampant fraud?
The first question, and the most fundamental, is whether the act is constitutional. Many people think that it isn’t, and the Supreme Court has never ruled one way or another.(1)
If the critics are right in saying that it isn’t constitutional, one reason is that a current Congress lacks the authority to bind a future Congress.
Indeed, some members of Congress who voted for the act in 1887 acknowledged that point. They said that it should not be seen as binding but as imposing a “moral obligation,” meant to eliminate chaos and to reduce the role of rank partisanship.
Fair enough. But let’s assume (and, if you’re so disposed, pray) that Senate Majority Leader Mitch McConnell and House Speaker Nancy Pelosi agree to follow the rules laid out in the act.
Even if they do, those rules leave serious gaps.
Suppose that the governors in Michigan, Pennsylvania and Wisconsin have made a final determination that Biden won the popular vote. As a result, the states’ electors plan to vote for him.
But what if Trump’s supporters in Congress argue that it’s all a fraud — and that the president actually won the three states? The text of the Electoral Count Act is frustratingly silent on what would happen in that case. The Senate debates about the issue at the time seemed to suggest that Congress could ignore a final determination by the states, if fraud was indeed involved. If so, Republicans could try to find a way to swing the election to Trump. And if that is right, then we could easily imagine real chaos in Washington.
There is another ambiguity in the act, which says:
No electoral vote or votes from any State which shall have been regularly given by electors whose appointment has been lawfully certified . . . shall be rejected, but the two Houses concurrently may reject the vote or votes when they agree that such vote or votes have not been so regularly given by electors whose appointment has been so certified.
If Trump claims fraud, can members of Congress disregard pro-Biden votes of the electors, on the ground that they were not “regularly given”?
Probably not. As the legislative history suggests, the words “regularly given” were not understood to grant Congress much authority to reject the votes of electors.
If an elector voted for a presidential candidate who was not born in the U.S. (and hence was ineligible for office), his vote would not be “regularly given.” So too if an elector accepted a bribe in return for his vote. But this provision of the law was not meant to allow members of Congress to reject an elector’s vote on the ground that the popular vote was fraudulent. Still, the law is not exactly free of ambiguity when it comes to an allegation of fraud.
There’s also an elephant in the room: the role of the vice president, who, in this scenario, is Mike Pence.
Under the Constitution, he’s the president of the Senate. For a presidential election, what does that mean?
Suppose that after a contested vote in Pennsylvania, Congress receives two reports of who won there — one from the state legislature that favors Trump, and one from the governor that favors Biden. Which prevails?
The Electoral Count Act tries to sort that out — and seems to favor the governor. It aims to limit the role of the vice president, making his role merely ceremonial.
But we should also look at the 12th Amendment to the U.S. Constitution, which says this:
[T]he 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;—The person having the greatest number of votes for President, shall be the President . . .
OK. But note that the key words — “the votes shall then be counted” — are in the passive voice. Who counts them? Pence himself? Because of his obvious rooting interest, that seems crazy — and it is inconsistent with the Electoral Count Act — but under the 12th Amendment, which supersedes any statute, it is not clearly wrong.
Let’s step back a bit. If you’re frustrated by the existence of unresolved questions, join the club. (It’s a good club.)
My first column was meant to show that for what might be coming after Election Day, the Electoral Count Act provides a lot of guidance — much more than most people think. But crucial questions remain open, partly because of regrettable ambiguity in the law, and partly because the drafters in 1887 couldn’t anticipate everything.
A constitutional crisis is unlikely, but under current circumstances, it isn’t out of the question. Let’s hope that we don’t get there, because if we do, we won’t have an easy time finding our way out.
(1) In Bush v. Gore, the principal question was whether Florida —the state on whose electoral votes the election would turn —had adopted an unconstitutional method for a manual recount. The court ruled that it did, on the ground that Florida had no standards for deciding whether to count ballots, and thus violated the due process and equal protection clauses. The Electoral Count Act did not play a significant role in the case. Note well: The specific problem in Bush v. Gore could arise during recounts in 2020.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Cass R. Sunstein is a Bloomberg Opinion columnist. He is the author of “The Cost-Benefit Revolution” and a co-author of “Nudge: Improving Decisions About Health, Wealth and Happiness.”
