We Must Talk About Constitutional Issues In The Election Certification

Below is my column in the Hill on today’s challenge to the counting of electoral votes in Congress.  The challenge raises a long-standing debate over the authority of Congress in making such challenges.  What is clear in my view is that Vice President Michael Pence does not have the unilateral authority claimed by President Donald Trump to simply “send back” electoral votes for particular states. Nothing in the Constitution suggests such authority and the Electoral Count Act expressly contradicts such claimed authority. Indeed, such an act could bring an unprecedented challenge and judicial intervention in the certification of the presidential election.

What is odd is the President’s continued assurance to his supporters that this is a possible path to victory. Shortly after the election, I wrote that I thought the President was laying the foundations for a “Death Star” strategy but that it would not likely succeed. To make that Luke Skywalker shot, he needed a perfect alignment of elements. None of those elements are present today.  The over-hearted rhetoric from the President and his critics however are magnifying our divisions and anger.

Here is the column:

It is a touchstone of American constitutional law that nothing protects your right to shout “fire!” in a crowded theater. But what about yelling “fire!” in a crowded Congress? Democrats and the media have sounded the alarm that a planned challenge to electoral votes in Congress this week appears to be what Chuck Todd has called constitutional “arson” and Jake Tapper has called an attempted “bloodless coup.”

It is neither. Such rhetoric is disconnected from reality. Moreover, it also distracts us from critical constitutional issues. Ironically, the challenge is occurring rather close to the anniversary of the oral argument in Charles Schenck versus United States, the case in which Supreme Court Justice Oliver Wendell Holmes famously wrote that the First Amendment does not protect “falsely shouting ‘fire’ in a theatre and causing a panic.”

I have been an intense critic of that decision and of what Holmes wrote. However, the lines after that statement seem relevant today. They read, “The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about substantive evils that Congress has a right to prevent. It is a question of proximity and degree.”

The words of Todd, Tapper, and others seem designed to cause panic in an otherwise fireproof system. These individuals brush over the fact that Democrats have raised similar challenges against Republican presidents, with no cries about constitutional “arson” from members of Congress or the media. Indeed, some of those engaging in this rhetoric praised past challenges by Democrats in Congress.

When members like Senator Barbara Boxer challenged the certification in 2004, House Speaker Nancy Pelosi declared, “This is not as some of our Republican colleagues have referred to it sadly as frivolous. This debate is fundamental to our democracy.” Senator Dick Durbin said, “Some may criticize our colleague from California for bringing us here for this brief debate. I thank her for doing it because it gives members an opportunity once again on a bipartisan basis to look at a challenge that we face not just in the last election in one state but in many states.”

It was not constitutional arson then, and it is not that now. It is the use of a federal law to raise a challenge that has been raised in past elections over important issues of voter fraud or irregularity. As with past Democratic challenges, this one by Republicans will not succeed. However, the point of yelling “fire!” is to cause panic for political purposes.  The same is true for the rhetoric used by Trump and his supporters in claiming that this election was stolen and that opponents are traitors. Since the inauguration (when a mob burned cars and rioted), we have seen violence in Washington, including the violence in Lafayette Park outside of the White House.  Both sides have wiped their followers into a frenzy with such rhetoric. These are incidents of violence but not a coup from either the left or the right. Our constitutional system has survived far worse and will survive this period despite our best efforts.

In our current controversy, the more substantive issue is whether that law, the Electoral Count Act of 1887, is itself constitutional. The Wall Street Journal argued this week that the law is unconstitutional because there is no stated authority under the 12th Amendment for Congress to do anything other than count the votes certified by the states. If that is true, this challenge and prior challenges by Democrats are unconstitutional. The argument is not new. Academics have debated this poorly drafted law for decades.

There are reasons to question the Electoral Count Act. After all, the 12th Amendment states, in its relevant part, “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.” That suggests to some that the process is ceremonial and ministerial. It is also important to note that the electoral votes of a given state can be challenged in the courts, as they were after the 2020 election. So it is not true that such votes are being submitted without legal support of their validity.

But there is a strong argument that the interpretation makes the special session largely perfunctory and without substance. Usually when a body is given a constitutional task, it must exercise a modicum of judgment on the validity or basis of the action. Even advocates of a narrow reading of the 12th Amendment often admit that it does not answer this question either way. It is silent on when certifications are challenged.

The problem with a narrow interpretation is that it creates a serious blind spot that led to the law in the first place. The 1876 presidential election between Rutherford Hayes and Samuel Tilden threw the country into a crisis when electoral votes from South Carolina, Louisiana, and Florida, were challenged. There was rampant fraud, as South Carolina reported over 100 percent turnout, and rival sets of electoral votes were submitted. Following the narrow interpretation means you can only count the votes, despite there being different sets of votes to count.

The assumption is that Congress was given this task with an implicit right to confirm the validity of votes before counting them. This is not like the pardon power given to the president without any stated limitation other than applying solely to federal crimes. This is an action left to Congress without any specifics of how to carry it out in the face of controversies. For almost 150 years, Congress has exercised the authority to scrutinize and even decline to count votes in certifications.

If a challenge could be made in the judiciary, it seems likely the Supreme Court would note the ability of Congress to consider such challenges. But most of us would likely view that authority to be very narrow. Otherwise, a partisan Congress could ultimately reverse an election. That is also why Congress should reconsider and replace the Electoral Count Act. It is a debate worth having after Joe Biden is sworn in.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online @JonathanTurley.


This column was updated.

328 thoughts on “We Must Talk About Constitutional Issues In The Election Certification”

    1. Statement from US Capitol Police: “Media reports regarding the death of a United States Capitol Police (USCP) officer are not accurate. Although some officers were injured and hospitalized yesterday, no USCP officers have passed away.”

  1. Gee, Turley, you changed the title of this piece from yesterday, in which you claimed that media rhetoric outstripped reality. Why did you do that? The answer is obvious, and what is also obvious is how wrong you are. You, sir, are a coward, and by trying to provide cover for that mental patient occupying our White House, who stirred up yesterday’s insurrection, and by attacking media who report his mental infirmities and by providing support to the passionate gullibles who are his disciples, you are no patriot, either. Did you see what they did to our Capitol? Four (4) people are dead. Who knows what classified documents were gotten into. Who knows how many Russian spies were with the Trumpster Invasion Force. And, the Capitol Police were initially in charge and failed to stop them from breaching the Capitol. Guess who controls them?

    IMHO, George Washington needs to fire you. Not for exercising your First Amendment right of free speech, but because you make the University look bad. Very bad. You have shown the depth and extent of your incredibly poor judgment. I really don’t see how anyone can believe you are qualified to teach law. You use your George Washington credentials to provide credibility for the work you do for Fox and Trump.

    1. Hypocrite much there you silly leftist. The devil – your party , your senile candidate is a puppet of communist china. You willingly go with that team …you are the modern benedict Arnold. You apparently idolize lifelong apparatchiks selling their souls and their country to communist vampires. China joe…watch what he does…. know what he has done. But you won’t…ignorance is bliss for you.

    2. I disagree with the Professor on this too.
      But calling for him to be fired is a knee jerk response more worthy of Joe McCarthy than anyone with a smattering of respect for individual liberty and the right of free speech,
      You ought to rethink that…

  2. Who shot and killed the unarmed woman at the Capitol yesterday? Why don’t we have “confirmation” of who fired the shot into the neck of an unarmed Air Force veteran?

    1. Rioters must assume the risk of something terrible happening to them.
      Either that or don’t riot.

  3. By censoring Trump and doing the same to Trump supporters, they are NOT defusing the situation, they are sending them underground where the rage will continue to simmer and build. The Establishment and the Media are portraying Trump supporters as domestic terrorists which is so wrong on so many levels that they are only inflaming tensions, not defusing anything. The rage of being smeared and censored will NOT simply “go away” because Trump is leaving office.

    1. No one is being sent underground. Don’t like Twitter’s rules? Use Parler. That’s not underground. It’s the free market.

      1. Hurrah for capitalism!
        Respect Private Property rights!
        Not so long ago pretty much every Republican would have endorsed those principles, but the GOP has been so debauched by the demented, depraved Orange Turd that both would probably fail in a platform fight today.

Comments are closed.