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.

369 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. https://heavy.com/news/ashli-babbit/

      “There was confusion about who shot Babbitt at first. NBC News reported that a member of law enforcement shot Babbitt, according to law enforcement officials. The New York Post reported that the officer was with the Capitol Police. DC police later said the officer, who has not been named, was a plainclothes Capitol police officer.”

      ‘A man from New Jersey spoke to a journalist and said he was an eyewitness. He had a bloody hand. “We had stormed into the chambers inside, and there was a young lady who rushed through the windows. A number of police and Secret Service were saying get back, get down and get out of the way,” he said.’

      ‘He continued, “She didn’t heed the call. As we kind of raced up to grab people and pull them back, they shot her in the neck. She fell back on me.’

    2. 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.

  4. The actual evidence, including video, forensic analysis of machines, live hacking of the machines, and sworn affidavits, is baseless? You are a brainwashed sheep.

    1. Just because you call it “actual evidence” doesn’t make it actual evidence of illegal acts. Maybe it is, maybe it isn’t.

      How about you present your video evidence. Let’s see what it shows. Focus on specifics, not your vague description.

  5. https://thescoop.us/flashback-leftists-praised-anti-kavanaugh-protestors-who-took-over-capitol-hill-building-in-2018/

    FLASHBACK: Leftists PRAISED Anti-Kavanaugh Protestors Who Took Over Capitol Hill Building In 2018

    When far-left radical communists protesting against the appointment of Justice Brett Kavanaugh to the US Supreme Court took over the Hart Senate Office Building atrium on Capitol Hill on October 4, 2018, leftists on Twitter PRAISED them.

    JUST IN: Anti-Kavanaugh protesters take over the Hart Senate Office Bldg. atrium on Capitol Hill.

    — MSNBC (@MSNBC) October 4, 2018

    Trending: Unarmed Female Trump Supporter Who Was Shot And Killed By Capitol Police Identified As 14-Year Air Force Veteran Ashli Babbitt

    “THIS is what democracy, patriotism, and heart looks like,” tweeted Twitter user @WendiUnraveled.

    Completing this poll entitles you to TheScoop.us updates free of charge. You may opt out at anytime with a single click. Here’s our Privacy Policy.
    “Thank you to everyone able and willing to stand up and speak out.”

    THIS is what democracy, patriotism, and heart looks like. Thank you to everyone able and willing to stand up and speak out.

    — wendi (@WendiUnraveled) October 4, 2018

    Twtter user @GMT_0923 tweeted, “So grateful for these protesters! I’m with them in solidarity and spirit!! #KavaNOPE”

    So grateful for these protesters! I’m with them in solidarity and spirit!! #KavaNOPE

    — GTrain (@GMT_0923) October 4, 2018

    Another Twitter user @barbn1943 said, “Thank you everyone single one of you! This brings a feeling of pride where I’ve only had disgust this week. Thank you.”

    Thank you everyone single one of you! This brings a feeling of pride where I’ve only had disgust this week. Thank you.

    — GoBluWave 🌟 (@barbn1943) October 5, 2018

    Twitter user @RosieE2017 tweeted, “Wish I were there!”

    Wish I were there!

    — Emily Rose (@RosieE2017) October 4, 2018

    1. It’s ludicrous to compare the two.

      The Kavanaugh protesters were peaceful. They did not break into people’s offices, they did not break windows, there were no arrests for carrying firearms, they went through the normal screening entry, …

    2. https://www.axios.com/riots-cost-property-damage-276c9bcc-a455-4067-b06a-66f9db4cea9c.html

      Exclusive: $1 billion-plus riot damage is most expensive in insurance history

      The vandalism and looting following the death of George Floyd at the hands of the Minneapolis police will cost the insurance industry more than any other violent demonstrations in recent history, Axios has learned.

      …..the arson, vandalism and looting that did occur will result in at least $1 billion to $2 billion of paid insurance claims — eclipsing the record set in Los Angeles in 1992 after the acquittal of the police officers who brutalized Rodney King.

  6. My Rioters Are Good, Yours Are Bad

    Democrat leaders and the MSM tacitly and openly supported BLM/Antifa rioters. The Capitol Building rioters got the message: When you feel aggrieved — riot.

    Goose meet gander.

    If it’s credibility you want, then try acting on principle, not expediency. Condemn violence, any violence — no matter who commits it, what their target is, or their motivation. Adopt the principle that reason is the only proper means of settling disputes.

    1. Good idea. THAT will put a lid on the tinder box, eh?

      Not even a little bit. The establishment is blaming Trump for EVERYTHING. Their approach to blaming Trump and smearing his supporters as domestic terrorists will backfire. It will not just make things calm down and go away.

      1. No one is saying that it will put a lid on the tinder box.

        It will only get Trump out of office, which is appropriate based on his actions.

        It didn’t smear average Trump supporters as domestic terrorists.

  7. Turley: you’re in the class of people who have attempted to soften the implications of what Trump has been doing since he enterred Washington. Sorry, a throwaway line about how you’re one of “many of us” who vaguely disagree is just a rationalization. Clearly your blog comments are full of the type of comments that get the type of white base off that invaded the Capitol yesterday…

    You’ve got some work to do, Jon. You need to backpeddle. You need to explain the implications of your actions, or ommissions of actions. You done f’d up. I actually believe that you never meant for this stuff to happen. But it did…, and you’re squarely in the middle of the class that have carried the water and done the work for Trumpism. You didn’t plan to be there and don’t have the power to channel the runaway train back yourself, I know. But this isn’t business as usual.

    Interested in seeing what you write about today. I’m going to be honest, my hopes aren’t high. But they are hopes.

    Elvis Bug

  8. Now everyone wants to clean themselves of everything they have done they quickly forgot when the masses led by the Democrats wanted to destroy the Supreme Court, everyone is to blame when Schumer says we are going to change America who is he to impose on others what he wants we are here Because America is a capitalism, we pay taxes, we respect its laws, but don’t impose your shit on us.

  9. What did you think would happen when you impeached, under false pretenses, a President who was the choice of close to half of America?

    What did you think would happen when you spent each and every day denigrating 73 million Trump supporters, calling them “bitter clingers,” “deplorables,” who live in “flyover country,” who go to work, pay their taxes and just want to be left alone?

    What did you think would happen when you stole an election, right out in broad daylight…with the help of folks who are supposed to be on our side…I’m talking about the Georgia Secretary of State here. Then did it again two days ago, with the help of the very same SECSTATE.

    What did you think would happen when the Supreme Court of these United States refused to hear us on a case in which they have primary jurisdiction?

    What did you think would happen when 74 million Americans watched the folks supposedly on their own team, tell them to roll over and suck it up?

    Going forward…Knowing that 74 million Republican, Independent, along with a few million Democrat voters did NOT vote for stacking the Supreme Court, the admission of Puerto Rico & DC as states, the “Green New Deal,” massive wealth redistribution, gun confiscation or national lockdowns or mask mandates…What do you think will happen when a totally leftist controlled government tries to ram those policies down our collective throats?

    I am very afraid. And you should be too. Rather than decry the brave patriots in DC today (minus actual criminals) we should take today as a cautionary pause. But we won’t. Y’all better Buckle Up.

    Mike Ford
    Red State com

        1. I’ll do that right after the person who said he was “impeached, under false pretenses” and “you stole an election, right out in broad daylight” proves it.

          You do want everyone to have to prove their claims, right?

    1. Glad you focus on the 74 million people. It highlights the fact that Trump has *never* won a popular vote.

  10. https://jacobinmag.com/2020/05/george-floyd-minneapolis-uprising-police-brutality/

    No, We Should Not Condemn Uprisings Against Police Murders Like George Floyd’s

    05.28.2020

    In the aftermath of a Minneapolis police officer’s murder of George Floyd, some of our nation’s media have turned to some crucial questions which must be addressed:

    Should we condemn looting?

    Yes, we should condemn the looting of the Global South by Western militaries and multinational corporations. We should fear the terrifying possibility that the COVID-19 vaccine will be enclosed, privatized, and sold for profit; and the looting of underdeveloped nations and underinsured people that would ensue.

    We should fight back against the looting of underdeveloped nations’ coffers by odious debts and structural adjustment programs being drawn up and imposed by international institutions at this very minute.

    But should we care about the other kind of looting?

    It would take a heartless monster not to care about the looting of homes and buildings by vulture capitalists. We should organize against the impending wave of evictions that will crash into our communities as soon as courts reopen. And we should fight back against the theft of stable homes and schools; the unnecessary destruction of lives due to their prioritizing food over rent.

    We care that whole working-class communities will be gentrified, their buildings replaced with housing for wealthier, whiter families, who bring in a bigger haul of loot for the landlord. We should be outraged that police are looting homeless people’s encampments, and we must demand that safe vacant homes and rooms no longer be hoarded away from unhoused people.

  11. So what can Turley say today, oh, maybe it just doesn’t rise to the level, just as Turley sees nothing wrong with any phone call from the POTUS to Ukraine or the state of Georgia, nothing Trump does rise to the level. Of course, if Trump would have lied about a personal affair, then of course it’s impeachable.

  12. Senator Boxer’s challenge was preceded by clear evidence of potential voters having to wait in line for hours because there weren’t enough voting facilities in Democratic voting areas of Ohio. It had been reported on. There were videos and photographs. The result of the election was in no doubt, the loser having conceded early in November.

    There was no evidence behind these Republican challenges.
    The president is still claiming that he won in a landslide and the election has been stolen from him.
    The president roused a mob and sent it at the Capitol.

    1. You keep positing drivel and DNC Talking Points and tell patent lies about that which you disagree.

      There is ample evidence….just look at the PA Supreme Court Decision, or Stacey Adams sister’s decision down in Georgia…..and if you have any gray matter in that swelled head of yours….you would see why this Election is seen by half the People in the Nation as being corrupt.

      But your reputation here renders your comments worthless.

      Yourst is the life of a Troll on display.

  13. THURSDAY ON JOHNATHAN TURLEY’S BLOG

    Tonight the Professor is weighing these subjects as possible columns for Thursday:

    1) Leftist students at obscure, private college demand removal of faculty member for defending Trump election claims. Turley will portray the effort as an ‘ominous assault on free speech’ while noting that many members of Congress are also defending said claims.

    2) Twitter freezes Trump’s account in an ‘ominous assault on free speech’. Turley will link previous columns detailing ‘big tech’s hostility towards conservatives’.

    3) New York Mayor Bill de Blasio yells at Assistant for leaving backdoor open to freezing temperatures. Assistant was bringing in groceries for de Blasio’s family. Turley will paint the ‘incident’ as ‘liberal hypocrisy towards working people’.

    4) Black male teenager rips purse from arm of Jewish grandmother on Chicago’s Lake Shore Drive. Turley will wonder why mainstream media ‘overlooked’ this story.

    5) Illegal Aliens discovered working as dishwashers at prominent Los Angeles hotel. Said hotel is frequent host to ‘limousine liberals’.

    1. You forgot the potential blog post topic of how Bill Barr deserves high praise for not joining the crowd that assaulted the Capitol.

    2. Very funny! Like you, I can easily predicted what Professor Turkey will write about news items.
      Is this blog on Parler now? Haha

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