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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. You Commie Dim/Rinos/NY/Cali/DC Bureaucratic aholes look at more of what you’ve brought to our nation the past few years! Put this toothpaste back in the Jar! Watch it Twice.

    WARNING! GRAPHIC VIDEO – Female Trump Supporter Executed by Capitol Security

    21,138 views

    Jan 6, 2021
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    Save America March
    Save America March

    WARNING: THE FOOTAGE YOU ARE ABOUT TO SEE IS EXTREMELY GRAPHIC. Viewer Discretion is Advised

    https://banned.video/watch?id=5ff63502f23a18318ceb28a7

    2. When you violently storm the US Capital getting shot is a risk you take. The Capital Police should be praised for not shooting more of them. She was trying to break into a protected area.

    1. Sounds like something the reported 4 bus loads of antifa aholes that the DC police just escorted into DC would do!

        1. Yes! I heard from someone in govt, like Fauci, JFK & Oswald were both killed “with, not by” Covid 19.

          And after 10 pm always wear your mask as that’s when Covid 19 comes out & attacks people.

      2. Yes, because they’ve been doing it all summer! Burning buildings, attacking childen, killing people – all BLM/Antifa and Biden who bailed the ones eventually arrested out of jail!

  4. New Congresswoman, Rep. Cori Bush: “I believe the Republican members of Congress who have incited this domestic terror attack through their attempts to overturn the election must face consequences. They have broken their sacred Oath of Office. I will be introducing a resolution calling for their expulsion.”

    1. It is the commiecrats and BLM/Antifa that use those tactics! They infiltrated the crowd today and started the violence. Conservatives espouse law and order. You think a bunch of older Americans, including retirees are running around bursting through doors? As the stick figure Biden would say, “Come on, man!”

      1. I already posted photos of several of the right-wingers who broke into Pelosi’s office, who’ve already been identified as Nick Fuentes and Tim Gionet (AKA Baked Alaska)
        https://twitter.com/davenewworld_2/status/1346941481907593216

        They’re both far-right Trump supporters.

        Another Trump supporter who broke into Pelosi’s office, Richard “Bigo” Barnett, 60, from Gravette, Arkansas.
        https://twitter.com/_KaylaBrantley/status/1346950097033179137
        You think there aren’t Trump supporters in their 60s doing this?

        Who said that they’re all “older”? Here’s the Trump supporter known as the QAnon Shaman, whose name is Jake Angeli. Doesn’t look that old to me.
        twitter.com/ejdickson/status/1346946333484195840

        These are Trump supporters. They do NOT espouse law and order. Deal with the truth of who these people are.

  5. Melania Trump’s chief of staff Stephanie Grisham has resigned effective immediately after today’s protests.

  6. WE’VE SEEN THE ENEMY

    AND THEY LOOK LIKE SMALL TOWN YAHOOS

    Yesterday on these threads, Commenter Kurtz assured us that Trump’s supporters are a diverse coalition of ‘all’ Americans. ..They aren’t..!! Numerous photos in the news today reveal that the siege on our capitol involved an almost entirely White mob of small town, redneck types. ..What a surprise..!

    1. ah see the contempt it has for the people.
      and i didn’t say that, actually

      remember who founded this country. small town white rednecks. ah yes. we were here before the USA and we will outlive it, too

      anyhow that was no siege. by 2020 standards 2020 i would call that a peaceful protest. no arson and the only person that got killed was a protester

      remember what AOC said: “protests are not supposed to make people feel comfortable”

      by the way. see the price of #BTC? that tells you what people think of the “Almighty Dollar” now

      Saloth Sar

      1. Multiple people were injured, along with the person who was killed. They vandalized THE CAPITOL BUILDING. If you can’t be outraged about that, GFY.

        1. a security guy shot an unarmed woman. are you happy? she was a trump voter after all.

          1. No, assh0le, I’m not happy. Why would I be happy about someone being killed?

            You don’t get it. I don’t wish death on Trump supporters.

            1. “You don’t get it. I don’t wish death on Trump supporters.”

              Well, that’s what many of those commie aholes have said in public that’s what they want/intend to do.

  8. “There are two parties now, traitors and patriot’s” ….U.S. Grant 1861. “No amount of evidence will ever persuade an idiot”… M. Twain. So you Trump supporters wear your red hats, knowing everyone will look at you as a traitor and an idiot.

    1. FishWings,

      “No amount of (Election Fraud) evidence will ever persuade an idiot”… M. Twain.

      That’s correct Idiot

      I would suggest people inside the US not go out without a Red Hat on at this point.

  9. WORLD REACTS WITH SHOCK (AND GLEE) TO CHAOS AT U.S. CAPITOL

    In Russia, the violence fit neatly into the Kremlin’s propaganda narrative of a crumbling American democracy. Russia’s state-controlled news channel, Rossiya-24, broadcast the chaos in the Capitol on a split screen, one side showing happy Orthodox Christmas festivities in Russia, the other the violent mayhem in Washington.

    Footage of bloodied Americans lying on the ground recalled the channel’s coverage of American-backed street protests in Ukraine in the winter of 2013-14, reinforcing Russia’s message that the United States is now harvesting at home the violent fruit of its own foreign meddling.

    The world’s strongmen and dictators “must be in euphoric and celebratory mood,” wrote Yossi Melman, a writer for Haaretz, the Israeli newspaper. “The glorified democracy in the world is in shambles like a third world country.”

    “As Mexicans, what is surprising is that for the first time the United States, which has been an example of democracy, is becoming the counterexample of it,” said Ana Paula Ordorica, a Mexican newspaper columnist and television host, who covered the U.S. election in November for Televisa. “This is something that normally, the U.S. would watch happen in another country.”

    Amid the expressions of horror and concern, there were also some hopeful voices, insisting that this was a last convulsion of the Trump presidency rather than the beginning of the end of Western democracy.

    “I trust in the strength of America’s democracy,” tweeted Prime Minister Pedro Sanchez of Spain. “The new Presidency of@JoeBiden will overcome this time of tension, uniting the American people.”

    Edited from: “America’s Friends Express Shock As Capitol Attack “Shakes The World”

    Today’s New York Times

    1. How sad that we are calling them protesters. They are rioters and terrorists. Stupidity and ignorance are not a valid excuse for criminal behavior.

  12. The woman who was shot inside the Capitol and taken to the hospital has died.

  13. Do you realize now what you have done? US gets the kind of ‘democracy’ it championed overseas
    By Nebojsa Malic

    A crowd of protesters stormed Congress protesting a presidential election they claimed had been fraudulent. When this happened in Serbia in 2000, the US called it democracy. When it happened in Washington, DC – not so much.

    Scenes from the US Capitol on Wednesday, as protesters backing President Donald Trump disrupted the joint session of Congress meeting to certify the election of Democrat Joe Biden, looked very much like Belgrade in October 2000.

    The sight was later repeated in Ukraine – twice, in 2004 and 2014 – Georgia, Moldova, Belarus, and several Central Asian former Soviet republics. On every occasion, the US backed the “people power,” because American NGOs and embassies were supporting what became known as “color revolutions.”

    Also on rt.com Trump supporter SHOT during Capitol breach, now in critical condition
    Same thing happened in 2011 with the “Arab Spring” that started in Tunisia and then burned its way across North Africa to the Persian Gulf. In some places it “succeeded,” overthrowing decades-old governments. In others it failed, setting off wars in Libya and Syria and blood on the streets of Bahrain. Again, the US cheered this on as democracy – except for Bahrain, which hosts a major naval base.

    More recently, the US denounced as illegitimate the presidential elections in Belarus, Bolivia and Venezuela. While Minsk and Caracas managed to resist – and got sanctioned for it – the “democrats” in La Paz were successful for a while, but ended up losing the vote last year.

    Also on rt.com America masterminded ‘color revolutions’ around the world. Now the very same techniques are being used at home
    Way back in 2004, the Guardian wrote approvingly about how the US has created a “slick” operation of “engineering democracy through the ballot box and civil disobedience,” developing since Belgrade a “template for winning other people’s elections.”

    Now the same mainstream media that slavishly followed the State Department line in denouncing elections elsewhere as “rigged” and color revolutions as spontaneous democracy are clutching their pearls when Americans who believe their election was stolen take to the streets and storm their Capitol.

    1. Ah, but this election wasn’t stolen, they’d say – it was pure as driven snow, “most secure ever,” all the experts who told us for four years the previous one was “hacked by Russia” tell us so! And Joe Biden won the most votes in history while hardly leaving his basement. Whether you believe this official narrative about the US election or not doesn’t really matter, however. Partisan myopia simply won’t let people understand the magnitude of what is on display here: utter moral bankruptcy of the entire US political and media establishment.

      Republicans and Democrats alike used “color revolutions” as a political weapon for years, preaching democracy even as their astroturfed coups snuffed out any vestiges of it that might have developed organically. Over the past year, they’ve done so at home as well, using Covid-19 lockdowns to abolish elementary constitutional rights, culminating with changing the electoral rules to better serve “our democracy,” defined as whatever gets them power.

      What did they think people would do when all avenues of airing their grievances were closed off? Meekly submit – or take a page out of the same playbook the politicians and the media spent 20 years celebrating?

      I told you this was coming and I’ll tell you something else right now: It gets worse from here. The people within The System simply do not have a clue the level of anger there is outside of The System.I told you all. You poked and prodded and laughed and mocked. Now it’s here

      — Jesse Kelly (@JesseKellyDC) January 6, 2021

      1. Kelly is ignorant or lying. No one said that the 2016 election was “hacked by Russia.” Russia interfered — by hacking the DNC and releasing information and by depressing turnout via their troll farms — but they didn’t hack the election.

  14. Massive BLATANT double standards by the Media and the Democrat Party and all the so-called institutions is a big piece of this problem.

  16. I guess some are saying the Commie Agents in the Congress/Senate/DC Bureaucracy have turned into an Anti-American Unruly Mob.

    I hope you DC types can get that tooth paste back into the tube now that you foolishly squeezed it out. Jeezus, who could have guessed that toothpaste tube would have martyrs in it?

    I’m not sure but the videos look bad for Pelosi/McConnell/Commie agents Dims/Rinos. ck infowars… banned.video, etc…

    Jonathan Turley @JonathanTurley

    The mob scene unfolding on the Hill is the result of reckless rhetoric and a loss of faith in our constitutional system. Fortunately, the constitutional process was interrupted but it will resume unabated and unbowed. https://jonathanturley.org/2021/01/06/shouting-fire-in-a-crowded-congress-how-the-rhetoric-has-outstripped-the-reality-in-todays-electoral-challenge/ …

  17. If there must be trouble, let it be in my day, that my child may have peace.”
    ― Tom Paine

  18. Our cruel and unrelenting Enemy leaves us no choice but a brave resistance, or the most abject submission; this is all we can expect – We have therefore to resolve to conquer or die: Our own Country’s Honor, all call upon us for a vigorous and manly exertion, and if we now shamefully fail, we shall become infamous to the whole world. Let us therefore rely upon the goodness of the Cause, and the aid of the supreme Being, in whose hands Victory is, to animate and encourage us to great and noble Actions – The Eyes of all our Countrymen are now upon us, and we shall have their blessings, and praises, if happily we are the instruments of saving them from the Tyranny meditated against them. Let us therefore animate and encourage each other, and shew the whole world, that a Freeman contending for Liberty on his own ground is superior to any slavish mercenary on earth.

    ― George Washington

  19. “But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”

    – Declaration of Independence, July 4, 1776

    1. The American colonists’ breakup with the British Empire in 1776 wasn’t a sudden, impetuous act. Instead, the banding together of the 13 colonies to fight and win a war of independence against the Crown was the culmination of a series of events, which had begun more than a decade earlier. Escalations began shortly after the end of the French and Indian War—known elsewhere as the Seven Years War in 1763.

      1. The Stamp Act (March 1765)
      2. The Townshend Acts (June-July 1767)
      3. The Boston Massacre (March 1770)
      4. The Boston Tea Party (December 1773)
      5. The Coercive Acts (March-June 1774)
      6. Lexington and Concord (April 1775)
      7. British attacks on coastal towns (October 1775-January 1776)

      1. George,
        It began long before 1763.

        Effect of Salutary Neglect and its End:
        The British policy of salutary neglect toward the American colonies inadvertently contributed to the American Revolution.

        This was because during the period of salutary neglect, when the British government wasn’t enforcing its laws in the colonies, the colonists became accustomed to governing themselves.

        According to the book, Divided Loyalties, it was the years of salutary neglect and self-governing that actually helped American colonists develop their sense of independence and self-sufficiency:

        “In Walpole’s day the colonists, left to their own devices, got along as he knew they could. With a minimum of interference from London they had for years been exercising the mechanics of self-government, learning as they went, discovering through trial and error what worked and what did not, while growing ever so slowly into entities capable for the most part of running their own affairs.”

        Not only did the colonists become used to governing themselves due to salutary neglect, they also didn’t feel that Parliament had the authority to govern them anymore.

        The colonists felt they could only be represented in Parliament by politicians they actually voted for, hence their “no taxation without representation” motto that became popular during the American Revolution.

        Grenville disagreed and felt that although the colonists didn’t personally elect the politicians in Parliament, those politicians still served as their “virtual representation” rather than their “actual representation.”

        When the government used this argument to begin buckling down on the colonies, the colonists resented it and, realizing they were powerful enough to fight back, they resisted.

        Groups such as the Sons of Liberty and the Daughters of Liberty, which formed in protest of the new taxes, sprouted up in Boston and then spread to other cities and colonies.

        Riots and protests broke out in Boston, particularly the Stamp Act riots in August of 1765, the Boston Massacre in March of 1770, which began as a protest against the presence of British troops in the city, and the Boston Tea Party in December of 1773.

        This all created a very volatile situation in the American colonies and eventually sparked the Revolutionary War, which broke out after the Shot Heard Round the World was fired in April of 1775.
        https://historyofmassachusetts.org/what-was-the-british-policy-of-salutary-neglect/

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