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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. The Capitol Building is on lockdown. Reports of shots fired in the House chamber.

    1. From reporters:
      “Protesters are on the third floor of the Senate, walking door to door, shouting “Where the f*ck are they?” They’re in the chamber. One is up on the dais yelling “Trump won that election!” Several people got on to a scaffolding outside Senate, took it to second floor, which looked like the area where McConnell’s office is located, and started banging on windows”

      This is crazy. I hope they all end up in jail. Good thing that so few of them are wearing masks, should make it easier to identify a lot of them from the videos and photos.

  2. After reading the pro-Trump comments I never quite comprehended how retarded Trump supporters are. There is NO evidence the election was rigged. The people who started flee after hearing the first “War of the Worlds” broadcast were more intelligent.

  3. With great sadness today marks the end of the Republic of the United States of America. This fall will cascade into a long night of despair and as the Bible prophecies it is better that the children of the last generation not be born. You and I will do just fine,but we have condemned our children and grandchildren today. Milquetoast like Turley will wring their hands ,sigh, and bow their heads to our old/new masters, but his grandchildren will pay the price.

    1. John shwarz, it’s not the end of the world. You’ll be fine.

      Going thru Trumpism withdrawal will take a few days. It’ll pass. Before long there will be the usual criticism and demagoguery of president Biden to soothe the pain.

    3. During the first C AD Christ said said some would be alive for his parousia. Did Jesus lie? Are some first C hearers of Christ alive now? Serious Qs.

  4. They have a Republican Governor, Kemp, because he was Secretary of State while running for governor, and he disenfranchised tens of thousands of voters in order to skew the vote in his favor. Stacey Abrams has been working on voter registration and turnout for a decade, so it’s silly to pretend that somehow this just spontaneously happened. You pretend that it’s just about D versus R and not about the specific people running. Both Loeffler and Perdue seem to have engaged in insider trading. Neither is standing up for the average voter. Voters are angry that Mitch McConnell won’t even allow a vote on $2K of economic help.

    Warnock and Ossoff won without cheating. Voters chose them. You don’t like the choice of the majority of GA’s voters, but it’s not your choice to make.

      1. Asserting that without presenting any evidence is worthless.

        What’s your evidence?

    1. Trump supporters are trying to break past police lines at the Capitol building. That isn’t democracy. It’s pretty sad that you’d suggest it is democracy.

      According to Capitol police officers, the US Capitol is on lockdown because of this tense situation with demonstrators outside the building. That’s not something any of us gotta love.

        1. You reveal yourself as unpatriotic.

          They’ve broken into the Capitol, shots fired (I don’t know by whom), tear gas has been sprayed in the Capitol, lawmakers have been evacuated.

          But you love it. Disgusting. Shame on you, shame, shame, shame.

    2. ‘Citizens’, Kurtz..?? They’re Deplorables from across the country trying to subvert our electoral process.

      1. They are citizens and patriots and are petitioning for redress of grievances with a peaceful protest. This is democracy in action

        Saloth Sar

    3. Saloth Sar, where are the rubber bullets and tear gas? Conservatives are rioting. Where are the police beating these rioters?

      I thought Trump supporters were “peaceful”. Apparently not. They are violent thugs, thugs I say.

    1. billionaires and their lackeys wetting britches now, lol, I am very pleased at this peaceful protest!

      Sal Sar

    2. I was looking for the fires burning in the background like at the “mostly peaceful” protests in Seattle. Nary a wiff of smoke. No one was shot. No businesses and their owners lives destroyed. Just a supposed gathering of the declared evil ones.

      1. I’m looking for the use of tear gas against these non-peaceful protesters, like that used against the peaceful protesters in Lafayette Park in June.

        1. they fired tear gas, just watched it. won’t work. let them try live rounds if they want, that wont work either

          Congress ran away. Praise God I lived to see this day. Billionaires tremble with fear, I tremble with joy. Hallelujah

          Sal Sar

  9. In typical Turley fashion, instead of criticizing those pathetic Republicans who want to hitch their wagon to the (fading, dying) Trump star by putting on the charade of an absolutely baseless “objection” to the Electoral College votes, he finds a way to turn this abuse of power and violation of their oath to protect and defend the Constitution into criticism against mainstream media and Democrats. Yeah, it won’t work, but hey, it might get at least some of the Trump deplorables to see you as someone who supports their hero, so who cares about the Constitution or their oath to protect and defend it? It’s not as though the votes Trump refuses to accept haven’t been counted, re-counted, signature verified and certified, even by Republican office holders and election officials. It’s not as though voting and vote counting weren’t under scrutiny. It’s not as though 60 + courts, including the SCOTUS, have rejected Trump’s phony claims of fraud. And, Turley, therein lies the difference and the reason why the way you chose to write this post is so wrong.

    The same should be said of Trump’s efforts to get Pence to try to take ultra vires actions he cannot. Hey, the law and Constitution wouldn’t stop Trump and he doesn’t understand why it should stop Pence, either. Turley doesn’t comment about Trump’s outrageous demand that Pence refuse to follow the law and announce that Trump has won. Pence has no discretion. It’s like the person who reads the winners of the Academy Awards–they cannot change the choices of the Academy and award an Oscar to someone who didn’t win. Neither can Pence. The source of the lying about fraud and winning by a landslide is Trump’s disturbed psyche. He is a malignant narcissist. He cannot handle rejection, so, to quote his senior advisor, Kellyanne, he creates “alternative facts”. The saddest part of this is the number of his disciples who not only believe his lies but who have been conditioned to disbelieve anyone who says otherwise and to question their motives. That has serious implications for our future. This is literally how Hitler got his start.

    More of Turley’s mission to try to normalize the absurdly abnormal Trump

    1. See you in the trenches. Enemy Combatants.All democrats are now the enemy.. And this is WAR..

  10. Pingback: Turley Calls For Federal Election Commission - Victory Girls Blog

  11. China’s Global Communism Buys Win in Georgia – Americans in Georgia Lose Control of Their State

    China Ensconces Comrade Harris as U.S. President
    _________________________________________

    “Where is Jack Ma? Chinese tycoon not seen since October”

    “Alibaba co-founder has fallen out of favour with Beijing. Speculation is mounting over the whereabouts of the Chinese billionaire Jack Ma, who has not been seen or heard in public for more than two months.”

    – The Guardian
    ____________

    “National security law: Hong Kong rounds up 53 pro-democracy activists”

    “More than 50 of Hong Kong’s most prominent pro-democracy activists and politicians have been arrested in the biggest crackdown since China imposed a draconian security law last year. About 1,000 police took part in morning raids on 72 premises across the city. Those held helped run an unofficial “primary” to pick opposition candidates ahead of postponed 2020 elections. They are accused of trying to “overthrow” the government. Activists say the new law aims to quash dissent.”

    – BBC
    _____

    “Hybrid Warfare”

    “China Wages Cognitive Warfare To Topple Taiwan Government: Report”

    China is waging “cognitive warfare” against Taiwan and aims to topple its government by targeting the public with escalating misinformation campaigns this year, according to a national security think tank in Taipei.
    Released last week, INDSR’s 200-page report makes special mention of China’s online cognitive warfare—part of its larger “hybrid warfare”—which it conducts through Taiwan’s mainstream media platforms, including popular forums and ubiquitous mobile messaging application LINE. The aim, the authors say, is to create division and internal conflict, and to change the public’s voting behavior in favor of a more preferred candidate. The tactic was taken straight from Russia’s cyber operation playbook, according to a report chapter describing Beijing’s attempts to influence public opinion and thought.

    This is achieved through targeted misinformation campaigns as well as so-called “hack-and-leak” operations, INDSR said, noting that efforts to evoke emotions such as doubt, fear and anger all fall short of actual war, and are part of China’s “grey zone conflict” against Taiwan. Unlike authoritarian regimes with tightly controlled internet and media censorship, the guarantees of free speech and open society make liberal democracies particularly vulnerable to misinformation operations, the authors said.

    – Newsweek

  12. Watching Trump live now before crowd at rally on CSpan. While I think the crowd is completely wrong on their sympathies and purpose there, I was feeling empathy for them standing in the cold waiting, bobbing to the old hits. They’re Americans who care and believe enough to go there, and that’s something to celebrate – both the right to do it and their commitment. Good for them. But hey, pick somebody more worthy of that dedication next time. Out comes Donald and in probably his last rally is President in front of people who traveled from afar to ear and yes worship him, he just goes down his petty laundry list of complaints and how wronged he has been. Well no, he wasn’t, but even if he was, is that what is supposed inspire them. He’s still droning on and the crowd is not inspired, barely responding. Why would they?

    Sad

    1. He’s still going on this crazy s..t and the crowd is silent. Like the crazy uncle who you don’t want to get started on who caused 9/11 or the Kennedy Assassination. On and on and on and on and on. As if he really thinks anyone is listening and it’s going to change anything.

      Sad

      Hey, did anyone hear about that election yesterday?

      1. I don’t know about Trump’s contentions and Im not watching them.

        But you mentioned two “conspiracy theories” the get more and more troubling all the time
        And you forgot the third, UFOs.

        Say, that reminds me. A Harvard professor Claims space rock was alien probe. Yes, just another crazy uncle

        https://nypost.com/2021/01/02/a-harvard-professor-says-an-alien-visited-in-2017/

        But but but the government “Debunked” all the UFOs!

        Well except for the ones they recently admitted of course

        See this is how it works. The press does not habitually “seek truth.” Hell sometimes it is not even seeking profits. But it is always serving the interests of its corporate controllers.

        Today a “conspiracy theory” is essentially just what a “heresy” was in the thirteenth century. Could be right or it could be wrong, but more importantly, as a heresy all understood, it was forbidden to believe. Same way now, “conspiracy theories”

        Here was my favorite conspiracy theory of 2020: “SARS COV 2 IS A LAB MADE VIRUS”

        seeing more proof for that all th time, but, it’s still a heresy

        I remain, a crazy uncle

        Saloth Sar

    2. So you don’t believe there was serious fraud committed in the 6 battleground states by the Dems? Is that your position – forget your other hyperbole and nonsense. I get how screwed up the Right is – I’m part of the Right. But that’s like nothing compared to election fraud. Do yourself a favor, google the Data Integrity Project. Bunch of young data scientists used AI and other analytics techniques on the voter data. Epoch times just had a great video interview with them, long form. They have found what looks like rock solid evidence of large scale fraud against Trump. Facts matter – or do you just not care? Cuz if this election was stolen – we are going to rise up buddy. I don’t care about the optics. I’m biding my time. Biden will get in. But if the investigations show clearly and incontravertibly that the election was stolen – we will remove Biden and Harris from office via force. We don’t need your pity – you’d better start focusing on facts vs. rhetoric or you leftist morons will bring us to civil war due to your ridiculous behavior.

  13. “What is odd is the President’s continued assurance to his supporters that this is a possible path to victory.”

    Is it anymore “odd” of assurances that the Democrats concocted in the past 4 years? Like A. Schiff and his toadie ChiCom agent 001/4 Smallballs each time they got before a camera regarding Russia Russia Russia?

    The nation is entitled to know who did what regarding election fraud and to see that it’s stopped in future elections. Sadly it won’t reverse the election results but something must be done to stop the Marxist attack on our democracy.

    1. REGARDING ABOVE:

      It seems like Vietnam Vet is always in sync with Estovir’s many puppets. A cynic might wonder if ‘Vietnam Vet’ is just a ‘patriotic-sounding’ name to endow this commenter with military ‘credentials’.

      1. Anny-No I’m a real American, I don’t know who Estovir is or where he hails from. Thank you for the connection to ‘patriot’ I am and will continue to be a patriot. I don’t know how or should I even have to prove I am who I am nor should anyone here who post’s. But you notice I do have the courage to post as a proud VietVet not “Anonymous”, just saying pal.

        1. It has been said many times on this forum that he is a homosexual who lives in West Hollywood. He stalks men on here when they reject him

          1. Anonymous, are you saying Vietnam Vet is really a homosexual? That could be if he’s really Estovir.

          2. Annie-That’s interesting, I haven’t notice comments of that nature on JT’s post’s. You must be quite a catch for this guy to stalk you when you rejected him or did you? Reject him I mean? You don’t live in West Hollywood do you?

  14. It’s official: 2020 was the worst year ever, except for almost all the other years in human history! Will 2021 be a better year? Take a look at the Babylon Bee’s official list of infallible predictions for next year and decide for yourself!

    January 1 – New Year resolutions begin

    January 5 – New Year resolutions downgraded

    January 20 – Biden sworn in

    January 21 – Biden dies of natural causes

    January 22 – Trump announces 2024 presidential run

    January 23 – 2024 Campaign kicks off

    January 25 – Obama releases new memoir

    January 27 – Feminists finally begin to reverse Handmaid’s Tale

    February 1 – All remaining Trump supporters hunted down and executed

    February 2 – Electoral college, First Amendment, Second Amendment, churches, and capitalism eliminated

    February 3 – Democrats announce return to unity

    February 26 – China officially annexes United States

    March 1 – Pronouns must be tattooed on forehead or hand

    1. scratch that sarcastic time frame off the white board,. it’s a whole nother ball game now

  15. (music to tune of Henry the Eighth I Am I Am)
    I’m a Con Man in the sham!
    I live down south in a garbage can.
    I got elected by some nit wits!
    RepubliCons are in the twits!

    And all nitwits are RepubliCons!
    We wouldn’t be Willy’s or Fred’s.
    Cause there ain’t nit wits in America.
    Who vote outside our pits!

  16. Mark Levin alleged on “Hannity” Tuesday night that Democrats used “non-legislature officers” in states with GOP legislatures to improperly change election laws and procedures, In a 6 minute monologue Levin said that “the Founding Fathers specifically rejected the direct election of the president as well as the idea that governors or the judiciary would be involved in the process of selecting electors.“Yet in four of those states, the executive and the judiciary had more impact and more input into the election laws leading up to this election than the state legislatures did,” he concluded. “They were utterly cut out. So here we have a problem. We have a constitutional crisis that nobody wants to talk about.” He also addressed WI and other states. I certainly cannot do justice to what he said but It is well worth a listen. I wish Professor Turley would address Mark’s comments.

    https://www.foxnews.com/media/levin-democrats-sought-to-win-2020-hook-or-by-crook-used-nonlegislature-officers

  17. This much everyone can be sure of.

    There will be even more crazy sh*t coming soon.

    If you are going to steal an election (or anything else for that matter) sloppiness is your enemy. Only the thieves can control that aspect, and the thieves failed miserably in that regard. It’s like a bank heist where some of the perpetrators forgot to put on gloves to hide their fingerprints, and therefore allowed the Detectives to easily discern who pulled of the robbery by the fingerprints left behind.

    As a result, all of this will see the light of day. Which is a very good thing. Because nothing disinfects like sunlight, and there is some very serious disinfecting that needs to occur.

    To be clear, this wasn’t just Democrats who were involved in the heist, there were also plenty of Republicans.

    In the meantime, they have awakened a sleeping giant. And the giant is extremely pissed off. Don’t send off men to fight and die in useless middle eastern wars for 20 years, and then expect those same men to just lay down and ignore getting screwed over.

    The same applies to the law enforcement community throughout the country, who have been derided, defunded, and villainized, by a small fringe group and most importantly the MSM.

    No ground can be held without ground soldiers.

    “Let your plans be dark and impenetrable as night, and when you move, fall like a thunderbolt.”

    – Sun Tzu (The Art of War)

    1. Sure it says ‘fall’ like a thunderbolt??? Seems ‘strike’ like a thunderbolt would be a less comical interpretation, Rhodesy. Falling like a thunderbolt seems a lot like pancaking yourself.

      Elvis Bug

      p.s. your idiocy seems a daunting challenge for the wisdom of THE ART OF WAR to have to navigate.

        1. They proclaim proof is required for election fraud. They fall quiet on proof required for Russian collusion. The hypocrites practice hypocrisy in calling out others as hypocrites. Blind in mind is much worse than blind in sight. One condition bares no fault the other is born in maliciousness.

          1. If you think anyone fell silent about proof required for conspiracy in Russia’s interference and obstruction of justice, you must have had your hands over your eyes and ears.

  18. Sure, the clown car caucus can formally object but it’s a flagrantly stupid move, timed at the absolute worst possible moment after the Georgia spanking yesterday. Does the clown car really want to start talking about their issues with the electoral college??? It’s the only way repubs win the presidency these days. Every four years out the demographics catastrophically shift further against them.

    A good friend of mine was a Seal and one tme in Thailand waiting on the timing to move on a mission the team was fishing for sharks…, someone hooked one and pulled it on to the deck where it flopped around wildly. A couple of guys wanted to shoot it…, which had the potential to sink the boat in a blood cloud. Yes, heavy drugs were involved — these guys all did them because you had to be dosed to navigate the territory they inhabited on a daily basis. Crazed anecdote, I know…, but what the clown car caucus is doing today is far more stupid politically.

    Elvis Bug

  19. I would not start a business in the U.S.

    If I owned one, I’d shut it down.

    Parasites need hosts. Don’t be that host.

    (whig98 was right.)

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