Today’s entry: Brian: I have heard analysis that that act (Electoral Count Act) is unconstitutional because it is an act of the legislature which altered the constitutionally assigned powers of the Vice President, and changing the Constitution can be done only via amendment. Any insight on this aspect?
Bottom Line: This note was in response to my Monday Q&A story What happens when Congress contests electoral college results. In that story, I shared with you the process which will play out in today’s Congressional certification of state electoral college results. To summarize, the structure was set by the 12th Amendment to the Constitution, however, the specifics of the process were refined by the 1887 Electoral Count Act which limited the role of the Vice-President and Congress in contesting results certified in the electoral college.
After the passage of the Act, Congress was only allowed to certify or reject the results of a state’s electors in the Electoral College and the Vice-President's role was turned into a mostly passive role. As I mentioned on Monday, every theory I’ve heard advanced by those who believe President Trump will prevail through a contested process today revert to the process used prior to the passage of the 1887 Electoral Count Act. But to your question is it Constitutional? In a word. Yes. Why? If for no other reason than the federal court system having not ruled it to be unconstitutional.
While we all may have our opinions about what laws may be constitutional or unconstitutional, in a legal context, the only opinion that matters is that of the judicial branch. The Electoral Count Act has been used to certify every Presidential election since its passage 133 years ago. That’s a lot of legal precedents. The Constitutional argument for the Act, which was the justification at the time of its passage, is that it works in conjunction with the 12th Amendment by providing additional structure and clarity for Congressional challenges, rather than contradicting it. It’s worth noting the Act was bipartisan at the time of its passage.
Some additional food for thought independent of the emotions of the current election disputes. The Constitution empowered states to run their own elections. The Act adds weight to that premise. In general, independent of this cycle, the idea of the Vice President of the United States having broad authority to overturn a state’s certified election results in the electoral college is problematic. Additionally, it flies in the face of limited government principals in which the government closest to you is the one most accountable to you. To that end, we need other states to clean up their election processes just as we did in Florida. submitted by one of these methods.
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