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.
Bahahahahahaha!! Your panties are in a twist and watching it is beyond fun.
Elvis Bug
“The words of Todd, Tapper, and others seem designed to cause panic in an otherwise fireproof system.”
Mr. Turley, your carrying of water for Trump is as curious as Lindsey Graham’s switch from incisive critic to Trump’s “pool boy.” The question isn’t, does it occur to you that the media’s panic inducing words are literally nothing compared to four years of Trump’s lies, insults, threats and deceits? The question is why are employing the dumbest analytic method there is… “look over there!”
Jason, very funny, you complain that Turley’s comment says “look over there” but you say “look over there at Trump” to deflect from the comments by Todd and Tapper. You condemn a tactic in the process of using the same tactic. A finer peace of logic we have never read. Can’t wait for your next comedic post.
Allan TIT: your spelling mistakes are always such freudian slips. They’re awesome in a completely unintended way on your end.
Elvis Bug
Anon Elvis Bug, you say that I have misspelled a word and I make a Freudian slip. You must be an English teacher with a degree in psychology. By, the way, the Freudian in “Freudian slip” is capitalized in the dictionary. Let me spell it out for you. G-O-O-G-L-E I-T.
For those of you that are screaming about Trump and his shenanigans, feel free. I will not disagree that it both shameful, wrongheaded, and hurts the GOP. Yet, there have been other challenges in recent elections that the Democrats defended for the very same reasons. The shoe is on the other foot and the sides have switched; the big difference between the two is the histrionics. Neither side is doing themselves any favors with the lack of decorum. Calling one side seditious for doing the very same thing that your side did may be great optics in the short run, but it will harm them when the temperatures cool.
The press has done no job in presenting any kind of balance or even putting a veneer of unbiased reporting. They have shot themselves in the foot and do not realize the harm they self-inflicted. At some point, they will realize when nobody is listening. At that point, there will be a new generation to fill the void.
We are a divided nation and that in my opinion is good. Not much can get done to harm the population unless both sides agree. However, turning politics into cartoons is not good and the fact that the politicians seem to be OK with it says all you need to know about them. It is when they turn the cartoons into reality for the rest of us is where the real harm begins.
The big difference in the two is that there have already been more than 60 court cases, and Trump has lost all but 1 small one, and the huge numbers of Republican members of Congress who are challenging the EC count in spite of that.
I am one of those who has supported Trump from the first day and I do not regret it, but now everyone is crying like whores without a room to have sex and that fault is only the Republicans who from the first day were doing everything they could against Trump and that is the truth. The only culprits here are the Republicans. It is time for another party to emerge with real ideas……..
Start a Trump party. Let it split the GOP in two. Fine by me.
In a former life Americans had marriages, children, in-laws, relatives, neighbors, intimate friends, careers, church and community activities to fulfill their goals and existence.
Today it is called trolling.
Troll, acquiesce and bending a knee to the party are the new normal.
Thank you America for a good run.
+100000000
Why would anyone be shocked when Commie/Fascist types behave as the Foreign/Domestic Enemies they’ve always been?
As one Nam vet commented recently , at least this time we don’t have to send our young men half way around the world to fight the Commie aholes as they are right here.
Hopefully all sides stay non violent until issues are settled.
infowars will be live today covering the Pro America Rally where Alex Jones, Trump & others will speak.
The loser rally. Awesome.
Turley laughably now finds it odd that Trump keeps telling his supporters election results can be overturned. 2 months ago, Turley blamed Biden for sowing divisiveness by not endorsing Trump & his attorneys never ending quest for judicial reviews of election results. Now JT defends Trump & 40% of his supporters for refusing to accept the rulings by federal judges & the Supreme Court in 60 separate judicial reviews that allegations about wide scale voter fraud are utterly baseless & without merit.
2 months ago, Turley said Pelosi was delusional to claim election results gave Democrats a tremendous mandate. Yesterday, Turley defended Trump’s right to keep declaring himself the winner of the election in a landslide. Using Turley’s signature twisted logic, he then said the very fact that 40% of Trump supporters believe every single word he says is proof we need an election commission to study Trump’s conspiracy theories about wide scale voter fraud even though they have all been thoroughly debunked by Republican governors & state officials, Homeland Security cybersecurity officials, Bill Barr & the Trump Justice Department.
JT deliberately ignores that after every single ballot in Georgia was hand counted & double checked in 2 recounts, Republican state officials verified that Biden won Georgia. That never stopped Trump from continually proclaiming he won Georgia by hundreds of thousands of votes. Ask yourself this: How did Warnock & Ossoff just beat Loeffler & Perdue after Trump supposedly won Georgia by hundreds of thousands of votes? JT will undoubtedly be soon asking for an election commission to look into how Warnock & Ossoff won if it turns out 40% of Trump supporters refuse to accept those results, too.
Of course you support a wife beater, Marxist loving, defund the police inexperienced “minister” who does not have a single successful career accomplishment or successful intimate relationship to his name…because you think all Blacks should pledge fealty to their Plantation Masters
You can trust a Democrat to always be a Democrat. Jefferson Davis and Robert E. Lee send their regards
Jefferson Davis. Robert E. Lee. >> losers
Your name is an apt description for you.
+10
Elvis Bug
They will not stop until you and anyone like you are ejected to concentration “work” camp prisons, tortured and killed because they consider you deplorable. Don’t believe it? See present and histories of China, Russia, N. Vietnam, Cuba, Venezuela and now the United States of America.
Good news though: you can not find any ammo anywhere because deplorables bought all of the ammo available in 2020.
🇺🇸🇺🇸🇺🇸
!
I’ll trade you 3 cases of my 9 mm for 3 cases of your 5.56.
I’ll even throw in a Democrat for target shooting. What a deal!
😜
JT is nuts.
“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.”
Notice the “shall” word in there a few times. That means non-discretionary, must be done, no choice. There is zero ambiguity that when one candidate gets the majority of the EC vote then they win. The special session largely is NOT perfunctory and without substance, back in the 1700s these EC votes were coming in by horseback from all over and someone had to collect and count them, so Congress was a logical choice. To allow Congress to challenge the votes is would give Congress the power to make the EC merely advisory and give Congress the ultimate power to chose the President, and one can not read that power from what is a very clear line in the Constitution.
Also, when the Ds tried to challenge, it was wrong and unconstitutional then as it is now.
+10
Elvis Bug
so who decides what is a properly certified package of electors>?
Is it the secretary of state of every state>?
is it the presiding chairman of every state legislature?
does every state define clearly in law what is a properly certified package?
does the VP has a little box that Santa sends him with the “certificates” or how do those arrive?
see you clowns think it is all so simple. well. what if the simple meaning of the statute is this: the VP gets to decide what is a proper certification or not? he is the judge of it. maybe it is, that simple
I am not an expert on this process, I am just wondering. I have no opinion about these specifics per se.
but statutory schemes are not like computer programs.
they may have discretionary elements that have not ever been “noticed” because circstances did not arise
they are not like some inescapable prison. there is usually an exit somewhere, a door, some wiggle room so to speak
politics always involves varying levels of discretion. that is the essence of it, actually. who will “decide”
Saloth Sar
You, know, if you wanted to understand the process better, you could watch it in action.
https://www.c-span.org/video/?507663-1/joint-session-congress-counting-electoral-college-ballots
You could also read about it.
Congressional Research Service – Counting Electoral Votes: An Overview of Procedures at the Joint Session, Including Objections by Members of Congress – RL32717
https://fas.org/sgp/crs/misc/RL32717.pdf
A Senate candidate can be an abusive husband on tape, a rabid racist on tape and a bald faced liar on tape and still be elected if he’s a black democrat. The core of the GOP is part of the Go Along to Get Along Gang. They play for power and money, not for their voters or states they represent.
‘It’s somehow okay for the Left to topple monuments, burn businesses, create “autonomous zones,” drag people out of restaurants & cars, and cause all kinds of violence and mayhem; yet it’s an “unprecedented assault on democracy” when Trumpsters stage their own protest?’
Plus….it is almost certainly an infiltration by Antifa or other imbeds dressed like MAGA/Trump supporters who stormed the police barricades. This is a setup to make MAGA look bad. MAGA is about peaceful protests, not the bullsh*t that reeks of leftist infiltration. We knew they were scheming in this way. So do the Feds. Are they in on it too?
“Who Counts the Votes of the Presidential Electors?”
https://macris.substack.com/p/who-counts-the-votes-of-the-presidential
“And there is nothing stopping Pence, under the authority vested in him as President of the Senate, from declining to open and count the certificates from the six disputed states. If they are (as more than 70% of Republicans believe) certificates from non-electors appointed via voter fraud, why should he open and count them? As Harrison noted, “the certificates that the President of the Senate is to open… are those of the electors, not those of non-electors.”
The President’s position going into January 2021 is thus considerably stronger than the mainstream media would like to admit. There is Constitutional language and historical precedent that gives his Vice President the unilateral power to decide the outcome of our contested election.”
Rhodes, Pence HAS to count the votes. Choosing not to count them is not an option. The constitution is very clear on what pence has to do. When the word “shall” is used without any other choice present it means he MUST count them.
His job is just to count all the votes that have been certified. That’s it. It’s not about deciding what to accept. It’s just the formality of counting votes and put them on record.
The article was nuts. The “historical precedent” is the VP twice counting the votes as they were, not at all an argument that the VP has the power to discard votes.
I heard Republicans make the analogy of baseball this morning as if this was just like going to the umpire to confirm a strike.
No, this is like having been told by the umpire you struck out, you make up things and demand the next umpire overturn the call because the fans in your home stadium are upset, they say no so you go to umpires from several other games who also say no, then you go to the commissioner, who happens to be a fan of your team but still throws you out.
Finally, having exhausted all of your resources, you find some random fans of your team to try and deputize as umpires, come to MLB headquarters where they’re counting wins and losses, and demand that they let these folks change the result of your loss to a win, several months after the fact.
The alt-right is in it’s death throes folks, and it’s going to have to be dragged out of our country kicking and screaming via a long embarrassing fight that threatens to destroy the Republican Party, having cost them the White House and the senate.
Electoral Count Act was enacted by the Congress ; in order to be considered legal constitutionally has to be passed as Constitutional amendment with all the requirements attached which has not been done so far and , with all due respect to prof.Turley , in the view of many Constitutional scholars is unconstitutional.
President Trump has no problem bold faced lying to his supporters who sadly believe most everything he says. Thus the problem. We now have representatives and senators who are happy to do the same!
NOW???? They’ve been lying to us for years. Go back to sleep.
Dear Professor, There is nothing odd or surprising about what Trump or his Republican cult members are doing And you know it. They want to delegitimize our government. They want to undercut any hope Biden may have or fixing the damage done to our Country by Trump and his Republican enablers and accomplices. Trump is not about anything but the big lie, the big smear and protecting himself. The country and its people are irrelevant to the Republican Party and Trump.
Has that working out so far asshat?
“ 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.”
In pointing this out Turley seems to be oblivious to the irony in asserting how relevant this is by saying those who are using “such rhetoric” are “yelling, fire, in congress”.
He thinks such rhetoric is harmful because it’s intent is to cause panic. Hey Turley, that same type of rhetoric is present on social media all the time. In fact you defend it quite strongly. When private companies who run such platforms choose to remove similar rhetoric you claim is a attack on free speech. Really?
It’s interesting that you focus only on those media figures like Todd and Tapper, but ignore Fox News pundits that do exactly the same thing when it involves election issues or parroting the president’s lies. You call it free speech, but when it comes to left leaning media it’s not free speech?
Clearly you recognize that free speech does have its limits. But don’t agree that there should be any. If that’s the case here in your blog hate speech, racist speech, violent speech, etc. should never be subject to removal or censorship. Even cursing, people should freely be able to spew the most vile curse laden speech in this blog as they see fit. Civility? Meh. If speech is censored because it’s uncivil according to your own logic it’s still an attack on free speech.
Once Trump leaves office Twitter will be free to ban him at their leisure since the prohibition on censoring free speech only applies to government. The constitution says nothing about private companies prohibited from censorship of free speech.
Trump’s own rhetoric over these past four years has incited racism, violence, encouraged hateful sentiment towards immigrants, etc. all cause harm and deliberately stoking resentment towards others. Here you claim two news anchors are causing panic over a few congressmen and senators objecting over clearly flawed reasons to Biden’s win.
This isn’t about two news anchors. This is about republicans deliberately wanting to subvert our own democratic process for their own benefit. They selfishly believe they were supposed to win despite the fact that they lost. Instead of accepting the difficult reality they want to deny voters their clear choice.
They have been lying so much for so long that they are literally believing their own lies.
And you yours.
I’m awaiting the day when Turley will subject himself to an online debate with a lawyer or interviewer who will confront his false narratives instead of his appearing on Trump TV where he is not so challenged. Even Talk Radio hosts occasionally take a question from a listener, but Turley simply lectures us with his views without defending them against criticism. The fact that he has not or will not expose himself to any criticism in a public forum is cowardly.
In fairness Jeffrey, he has appeared as an expert legal scholar before congressional committees, not the same as a debate and the exchanges are not with fellow legal scholars but congressmen and Senators. Here he is before Rep Eric Swalwell and you can see why he has since tried to roast the congressman in numerous columns here.
Joe Friday,
I realize he has testified before Congress, but I am looking forward to his defending his views in a public debate since then as opposed to being questioned under a 5-minute rule. I agree that Turley certainly has an obvious vendetta against certain individuals, namely, Weissmann and Schiff.
Jeffrey, exactly. It’s easy to dictate to others when you don’t face the possibility of being challenged or criticized in person. To rebut his points as he makes them.
Svelaz, I wonder if Turley is confronted by his students in his classes. I read an article recently in which many students and GW alumni are very dismayed by his lending credence to Trumpism.
Silver-man you insult and defame Turley. How about this. You’re a slanderous pig wallowing in your own slop.
Turley has done it before right on this page reprised his debates with other scholars. Look it up you liar.
You stink like the fecal lies squirting out of your facial orifice.
Sal Sar
Once again Turley purposefully ignores the big news so he can go after his perceived rivals, in this case not much about the guy trying to start fires and all about the manners of those from opposing networks trying to pull the alarm. If an attempt by the leader of one party who is also the President, and a large part of it’s elected officials to overturn an election is not a real fire, there is no such thing. Our host is becoming as predictable as Rush Limbaugh and any number of us who have followed him could write his columns for him if he wants to take a day off.
True. Turley is a sellout. He has NEVER criticized one “disconnected from reality” comment of Hannity, Carlson, Ingraham or Levin. He would never be able to sit through one of their typical hateful monologues without blushing in shame. He appears on these programs and validates them. It is despicable.
You have to be paid to be a sellout, genius. Y’know, like virtually all of Silicon Valley, much of our dem party, corporate America, media, and higher ed who all kowtow to China/lowest common denominator millennials/gen z etc. for a buck, or for power. Sorry that the integrity the Professor actually represents is a concept too complex for your mind to grasp, but so it goes with willful ignorance. If you don’t like it, don’t read it, no one is holding your eyeballs open and forcing you.
Unless you, too, are paid to post here. Who would be the ‘sellout’ then, hm?
Turley: “What is odd is the President’s continued assurance to his supporters that this is a possible path to victory.“
There is nothing odd about it. You said it yourself about the rhetoric of Jake Tapper and Chuck Todd that theirs “was a disconnect from reality.”
If only you would level such harsh criticism against the inveterate liar in the White House. You seem to know the measure of the cable competitors of your employer Fox News, but you still have trouble figuring out that Trump and his followers are truly the ones who are disconnected from reality.
How about yelling “Theater!” in a crowded fire?
Franz, very funny. “Theater in a crowded fire”. You must be thinking about Seattle.