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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. It is awesome time to be experiencing this great start of a much needed, long overdue revolution of the Communist Democrats.
    They ain’t see nothing yet

    A general dissolution of principles and manners will more surely overthrow the liberties of America than the whole force of the common enemy. While the people are virtuous they cannot be subdued; but when once they lose their virtue then will be ready to surrender their liberties to the first external or internal invader.”
    ― Samuel Adams

    1. The orange occupant of the oval office has incited violence and hatred since his installation. He is a con man who has done nothing but self-serve and violate all decent norms of society. That you find common ground with such a disreputable cur speaks volumes about your weak-minded idol worship. I pity you.

  3. The next gale that sweeps from the north will bring to
    our ears the clash of resounding arms! Our brethren are already in the
    field! Why stand we here idle?

    Patrick Henry

  4. Rioter uses a metal barricade to try to break open a Capitol building door. These are ANTIFA dressed like MAGA doing what Antifa does in exactly the ways Antifa does it. This is NOT Maga doing this violence! The Feds know it too….

    2. The Feds DO know this. Yet they will never ever acknowledge or validate this. This is the work of ANTIFA. Feds and media will turn a blind eye, never investigate the Antifa plots, never expose any of it.

    4. Anonymous, the claim that it was ANTIFA pretending to be MAGA rioters has already been proved to be false. This is just a poor attempt at deflecting blame for what is clearly MAGA zealots rioting in the Capitol incited by the president himself.

      Pathetic excuses such as those no longer have any credibility. That’s exactly how trump supporters are taken for a ride every day.

  5. As you can see some trump supporters here are experiencing an orgasmic moment seeing a “revolution” at the Capitol. It’s the death throes of what has been the worst presidency in U.S. history. This IS Trump’s legacy.

  6. Ga senate race just declared for Ossof!

    See ya’ MItch, buh bye Lindsay, after awhile Ron. It’s Chuck’s Senate now. Thanks for all the help Trump!

    Happy Days Are Here Again!

    3. These whiners have finally destroyed the GOP. Trump has no control over the mob he whipped up. His brand is done. He will probably go to prison, not for the statements of the day, but because he can no longer use the threat of violence of his nutcases as a deterrent to exposing and fully prosecuting his crimes when he’s out. That only works when he can actually control them. If it’s going to happen at this point it’s just going to have to happen. Better to bite the bullet and end this than have him drag it out another 4-8 years. Now that he’s fully alienated most of the GOP, no one is going to try and save him. Giuliani may face charges for his words too.

  7. And as for what is happening today in the Capitol of this banana republic, Washington DC, JT?
    What about that?

  8. Well, Turley, have you seen what’s going on in Washington this afternoon? Does it sound like any “rhetoric” by media or Democrats caused the unprecedented riot ordered, aided and abetted by your hero? Was the risk exaggerated? I saw a still photo of a woman on a guerney, no top on, bloody bandages on her chest, being ambued by emergency personnel after getting shot in the chest. She might survive, but it doesn’t look good when she has stopped breathing. No big deal–right? I mean, it’s all the fault of the mainstream media exaggerating the risk of Trump’s call to arms–right?

  9. You’ve become ridiculous Professor. Your boy finally got what he wanted today, a coup. I’ve watch for the last several years while you’ve presented false equivalencies between the behavior of the Democratic and Republican parties. Trump gives speeches encouraging police brutality, expounding ridiculous conspiracy theories, encouraging blatant racism, engaging in open graft, and your main concern is his critics hair pulling. Congratulations, you’ve help to coddle a sociopath and a fascist.

  10. This is going really well. I’m sure Trump’s popularity will soar and he’ll really be missed. Hard to imagine a more inspiring exit from public service than his exit tour of the last 2 months.

    Come back soon! Don’t forget to write!

  11. TRUMP ERA ENDING AS EXPECTED.. IN TOTAL EMBARRASSMENT FOR U.S.

    Those of us paying attention always knew Donald Trump would never go peacefully. And today we’re seeing how a stooge for Vladimir Putin is taking the country down with him.

    It was almost a year ago that Trump’s impeachment trial began. What a missed opportunity! Trump’s phone call to Georgia on Saturday confirmed that he had pressured Ukraine’s president in a very similar manner. And today’s chaos in Washington totally validates the Mueller Probe. Donald Trump is a stooge at war with America.

    Trump must be removed from office immediately and held at a military base until President-Elect Biden can safely take command.

  12. Early reports are that the phk’in Commies, (Like Pelosi/McConnell etc…), that have stolen their way into control of our US govt have ordered a full Tiananmen Square & to murder unarmed American women, children, etc protester, but not to harm a hair on the head of Chinese Govt Agents, antifa, BLM Terrorist.

    Looks/Sounds like interesting optics to me.

    We’ll see what happens.

    2. Live coverage: Infowars …. Banned.Video will have up shortly the video of a Snuff Video by a DC LEO of an unarmed women protester.

  13. IF you’re going to have a revolution, have a real one…….. But not everyone can commit themselves to that kind of fierce courage.
    Revolutions are not for sissies.

    1. +1

      John Smith • a few seconds ago
      I don’t see anything in burning. Citizens occupied THEIR buildings

      inthebellyofthebeast • a few seconds ago
      When you wreck the system with fraud, the system breaks.

      Francis • a few seconds ago
      No outrage when Obama let them burn Kenosha

      I’m a Bad Man • a few seconds ago
      After watching democrat controlled city after city being burned and looted all of 2020………..I could care less if they burn it down. We can build a new one.

      Son of Coyote • a few seconds ago
      What goes around …comes around…..you f***** dimwits

      Dieti • a few seconds ago
      They are blaming the right. For what, not staying home and taking the steal with a chaser of Kool Aid? They are responsible for this, the GOP and the Dems for allowing this coup to happen. Our founding fathers called for this, gave us the right to do this in their own words. It seems an unarmed woman was shot by the cops? I guess its no big deal if she was a conservative, eh?

      Obie Wan • a few seconds ago
      Big deal, one ANTIFA “protest” did more carnage in a half hour then this “end of times” insurrection, ha, ha !!!

      1. “No outrage when Obama let them burn Kenosha”

        Are you high on something? That happened this year under Trump.

      1. “they are called rioters”

        What’s the matter “Burn it Down” boy?!

        How does your medicine taste?

        1. The next gale that sweeps from the north will bring to
          our ears the clash of resounding arms! Our brethren are already in the
          field! Why stand we here idle?

          Patrick Henry

      2. Svelaz…….what the hell are you talking about? I didn’t call anybody anything. I noted that revolutions are not for sissies..So, that means you’ll never be involved in one.

  14. Another in a long line of vital, fantastic, informative and well written articles by Professor Turley.

    I view Trump’s general departure as analogous POLITICALLY to Sherman burning the South after the Civil War. Obama and Trump seem to strangely share the failure of having entered office with so much fanfare, potential and chest-pounding, and both of them leaving after accomplishing almost nothing except further fracturing of the population and voters in particular. Trump could and should have used this as an opportunity to allow Turley to speak on his behalf to over turn and re-write the subject law, but what does Trump do instead? His usual, a lot of gasoline and a match. Trump could have sponsored a debate where Michael Scheuer would shred to pieces anyone Re. our prior ME policy and promoting no more Presidential military excursions, as he proposed during his 2016 campaign. But no, instead Trump hires Bolton and Pompeo, yech!

    Trump’s DOJ could have easily convicted Eric Holder and his ex-DOJ minions of colluding with the banks which personally caused the 2008 depression. And Obama for first degree felony murder of Muslim US citizens Anwar Al-Awlaki and his 16 year old son by the same name, and for corruption in letting all Bush and Cheney’s torturers off scot free. Instead, nothing.

    Another weird thing about Trump: with all his anti-military excursion 2016 rhetoric, he did seem to tamp down the heat GENERALLY in the ME, but his Israel-first/anti-Iran view gave Trump (and us) John Bolton again, one of the all time biggest war mongering scum bags, which maximized tension between Israel and Iran. (No wonder: watch the video of Bolton appearing at a ME war monger rally wherein he personally promises a US war vs. Iran. Which John may still give us considering how many POTUS listen to him.)

  15. Fweedom at Last!!!

    Frank Galvin waterwillows • an hour ago • edited
    Fight now or be enslaved for a century. These are PATRIOTS!

    Sterns Peanus Frank Galvin • an hour ago
    The CIVIL WAR has begun! Time to crush Dim and Rino skulls!

    Sharp Shtik Sterns Peanus • an hour ago
    American government is nothing but organized crime that needs to be destroyed and replaced.

    Sterns Peanus Sharp Shtik • an hour ago • edited
    They have left us with no choice but violent revolution

  16. Trump is directly inciting violence on the Capitol by holding a rally and encouraging the BS that is riling up this crowd. He WANTS it, He tweeted it a few days ago after the now infamous call.

    This is the free speech Turley wholly supports. Trump is yelling “fire” in a crowded nation.

      2. Hillary told Joe Biden: “Don’t ever concede the election under ANY circumstances.”

        Why is the same not okay for Trump? Why did we watch the media and the Dem politicians silently condone the Antifa/BLM violence, rioting, burning, looting, and anarchy that took place all last summer? But now it’s an outrage?

        Go to hell all the media and these hypocrites and liars.

        Message to President Trump: Burn it ALL down! Do it!

        1. Everyone in the media and all of the country KNOWS without a doubt that had Trump won, the Dems, the media, and their BrownShirts would have refused to accept the results of the election and we would have watched as Antifa/BLM thugs were deployed into our streets to foment violence and riot. We would have seen nonstop rioting, looting, burning, destroying property, setting the cities on fire and leftist violence just as we endured all last summer and in the lead up to the election.

          We all know it…

          1. The violence and lawbreaking we are witnessing now is ANTIFA infiltration. This is not MAGA. This is NOT coming from MAGA people. This is ANTIFA violence. Arrest them all and expose them as such!

          2. According to the left, the Dems and their media….what we are witnessing today is PEACEFUL PROTEST. What’s the problem Dems? What’s the difference? Because it is Trump protestors?

            Shut your hypocrite mouths.

            1. Burn it all down while Democrats and Republicans are barricaded inside, just like ANTIFA did for all of 2020

  17. ‘This is wrong and not who we are’: Donald Trump Jr. tells pro-Trump supporters to ‘be peaceful’ as they breach barriers and clash with police on Capitol Hill“

    This is hilarious, after stoking this crowd into a frenzy and feeding their fears for months? Trump Jr. this is EXACTLY what YOU and DADDY created. You own it.

  18. ANONYMOUS ATTACKS VIET VET AS ‘HOMOSEXUAL’

    Early this afternoon, in this jarring exchange, a gray ‘Anonymous’ dismissed ‘Viet Vet’ as a common ‘homosexual’. No one knows, of course, if ‘Viet Vet’ is a soldier of any kind. Yet the sheer ugliness of this attack marks a new low for the blog. It appears that our blog troll, widely known as ‘Estovir’, is routinely dismissing every commenter as ‘gay’ or ‘homosexual’. Yet it is widely suspected that Estovir himself is a repressed homosexual with serious issues of self-identity.

    VietVet says:January 6, 2021 at 1:32 PM

    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.

    Anonymous says:January 6, 2021 at 1:49 PM

    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. Hundreds of thousands fought.

      58,000 died.

      Why is this fraud allowed to solicit the glory others deserve?

      He served on a hilltop in the rear as a telephone operator and receptionist; busy doing his nails while men fought and died.

      He uses a fraudulent, misleading moniker to steal the glory of wounded patriots who suffered and the dead who gave all.

      Vietshame is his true Nome-de-cowardice.

  19. Congratulations Professor Turley. After following you for over a decade, back to when you used to appear on Meet the Press with Tim Russert, you were always I considered one of the most balanced voices of reason and Constitutional defenders out there. Until you started carrying water, for Donald Trump. You really are good at downplaying his obvious outright attempts to create bloodshed in our country. His insane non factual rhetoric calling out angry supporters to act as a small army to threaten and intimidate the opposition party, and now calling an army of thugs into DC who as of this moment, “stormed the capitol”, as I knew yesterday they would when Trump told them he’d lead them. Of course he chickened out, but they didn’t. And now we have our elected officials “sheltering in place” in their offices, the US Capitol locked down for these “peaceful patriots” supporting a President who made a phone call to strong arm Georgia officials into overturning the election. A phone call you downplayed ignoring the obvious threats trying to pretend “there could be alternative meanings”. Even though we all know there wasn’t. He was threatening them. And now he’s sent his thugs to our capitol and our Congress is in Chaos. Like a 3rd World Banana Republic. So Congratulations. While you did not get a Scotus nomination for your pliable relationship with reality while continually downplaying the actions of this Mobster in the White House, while simultaneously carrying his water to attack the opponents he’s going after, you did end up with a new role that history will no doubt crown you king of. You’ve become the most educated, articulate and reasonable sounding Mob Lawyer, who ever lived.

    1. “And now we have our elected officials “sheltering in place” in their offices”

      Has anyone set their office buildings on fire?

      Where was all of your concern when this was happening all Spring and Summer all around the US?

  20. Newton’s 3rd Law kicks in at the capitol.

    To those of you whining about what’s happening. Remember that you were the ones condoning all of the Antifa violence and destruction that occurred throughout the country this past Spring and Summer.

    This is just the beginning of what you brought upon yourselves.

    1. Newton’s laws don’t apply, and this isn’t an equal reaction. Antifa didn’t storm the Capitol building.

      1. Newton’s 3rd Law always applies, you idiot.

        This was brought on by all of the “liberals” who condoned Antifa violence for months.

        Now you’re seeing the result. It’s called blowback.

        1. LMAO, no, Newton’s third law doesn’t apply. Have you ever studied physics? Do you understand what Newton meant by “force”?

    2. Rhodes, so what you’re saying here is the “law and order” crowd can’t hold its high standards?

      Are they now going to attack the police and get rubber bullets to the face? Funny. I guess respect for the law is only skin deep.

      1. Attacking the police and “Burn it Down” is your gig, svelaz.

        Apparently when the shoe is on the other foot, you turn into what you really are.

        A pantywaist.

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