We Must Talk About Constitutional Issues In The Election Certification

Below is my column in the Hill on today’s challenge to the counting of electoral votes in Congress.  The challenge raises a long-standing debate over the authority of Congress in making such challenges.  What is clear in my view is that Vice President Michael Pence does not have the unilateral authority claimed by President Donald Trump to simply “send back” electoral votes for particular states. Nothing in the Constitution suggests such authority and the Electoral Count Act expressly contradicts such claimed authority. Indeed, such an act could bring an unprecedented challenge and judicial intervention in the certification of the presidential election.

What is odd is the President’s continued assurance to his supporters that this is a possible path to victory. Shortly after the election, I wrote that I thought the President was laying the foundations for a “Death Star” strategy but that it would not likely succeed. To make that Luke Skywalker shot, he needed a perfect alignment of elements. None of those elements are present today.  The over-hearted rhetoric from the President and his critics however are magnifying our divisions and anger.

Here is the column:

It is a touchstone of American constitutional law that nothing protects your right to shout “fire!” in a crowded theater. But what about yelling “fire!” in a crowded Congress? Democrats and the media have sounded the alarm that a planned challenge to electoral votes in Congress this week appears to be what Chuck Todd has called constitutional “arson” and Jake Tapper has called an attempted “bloodless coup.”

It is neither. Such rhetoric is disconnected from reality. Moreover, it also distracts us from critical constitutional issues. Ironically, the challenge is occurring rather close to the anniversary of the oral argument in Charles Schenck versus United States, the case in which Supreme Court Justice Oliver Wendell Holmes famously wrote that the First Amendment does not protect “falsely shouting ‘fire’ in a theatre and causing a panic.”

I have been an intense critic of that decision and of what Holmes wrote. However, the lines after that statement seem relevant today. They read, “The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about substantive evils that Congress has a right to prevent. It is a question of proximity and degree.”

The words of Todd, Tapper, and others seem designed to cause panic in an otherwise fireproof system. These individuals brush over the fact that Democrats have raised similar challenges against Republican presidents, with no cries about constitutional “arson” from members of Congress or the media. Indeed, some of those engaging in this rhetoric praised past challenges by Democrats in Congress.

When members like Senator Barbara Boxer challenged the certification in 2004, House Speaker Nancy Pelosi declared, “This is not as some of our Republican colleagues have referred to it sadly as frivolous. This debate is fundamental to our democracy.” Senator Dick Durbin said, “Some may criticize our colleague from California for bringing us here for this brief debate. I thank her for doing it because it gives members an opportunity once again on a bipartisan basis to look at a challenge that we face not just in the last election in one state but in many states.”

It was not constitutional arson then, and it is not that now. It is the use of a federal law to raise a challenge that has been raised in past elections over important issues of voter fraud or irregularity. As with past Democratic challenges, this one by Republicans will not succeed. However, the point of yelling “fire!” is to cause panic for political purposes.  The same is true for the rhetoric used by Trump and his supporters in claiming that this election was stolen and that opponents are traitors. Since the inauguration (when a mob burned cars and rioted), we have seen violence in Washington, including the violence in Lafayette Park outside of the White House.  Both sides have wiped their followers into a frenzy with such rhetoric. These are incidents of violence but not a coup from either the left or the right. Our constitutional system has survived far worse and will survive this period despite our best efforts.

In our current controversy, the more substantive issue is whether that law, the Electoral Count Act of 1887, is itself constitutional. The Wall Street Journal argued this week that the law is unconstitutional because there is no stated authority under the 12th Amendment for Congress to do anything other than count the votes certified by the states. If that is true, this challenge and prior challenges by Democrats are unconstitutional. The argument is not new. Academics have debated this poorly drafted law for decades.

There are reasons to question the Electoral Count Act. After all, the 12th Amendment states, in its relevant part, “The president of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.” That suggests to some that the process is ceremonial and ministerial. It is also important to note that the electoral votes of a given state can be challenged in the courts, as they were after the 2020 election. So it is not true that such votes are being submitted without legal support of their validity.

But there is a strong argument that the interpretation makes the special session largely perfunctory and without substance. Usually when a body is given a constitutional task, it must exercise a modicum of judgment on the validity or basis of the action. Even advocates of a narrow reading of the 12th Amendment often admit that it does not answer this question either way. It is silent on when certifications are challenged.

The problem with a narrow interpretation is that it creates a serious blind spot that led to the law in the first place. The 1876 presidential election between Rutherford Hayes and Samuel Tilden threw the country into a crisis when electoral votes from South Carolina, Louisiana, and Florida, were challenged. There was rampant fraud, as South Carolina reported over 100 percent turnout, and rival sets of electoral votes were submitted. Following the narrow interpretation means you can only count the votes, despite there being different sets of votes to count.

The assumption is that Congress was given this task with an implicit right to confirm the validity of votes before counting them. This is not like the pardon power given to the president without any stated limitation other than applying solely to federal crimes. This is an action left to Congress without any specifics of how to carry it out in the face of controversies. For almost 150 years, Congress has exercised the authority to scrutinize and even decline to count votes in certifications.

If a challenge could be made in the judiciary, it seems likely the Supreme Court would note the ability of Congress to consider such challenges. But most of us would likely view that authority to be very narrow. Otherwise, a partisan Congress could ultimately reverse an election. That is also why Congress should reconsider and replace the Electoral Count Act. It is a debate worth having after Joe Biden is sworn in.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online @JonathanTurley.

 

This column was updated.

369 thoughts on “We Must Talk About Constitutional Issues In The Election Certification”

  1. This is the Democrat nominee for VP instigating violent riots that have left multiple Americans dead:

    “Everyone beware. They’re not gonna stop before election day in November, and they’re not gonna stop after election day… They’re not gonna let up and they should not.”

    1. Kamala and Joe’s campaigns were promoting and contributing to the Bail out fund for these rioters and thugs. Over 30 people were killed in the riots and over a BILLION in property damage done all last summer. Cities were on fire, minority and black-owned businesses were looted and destroyed. The reporting on the media cable channels? Not more than a peep from any of the Establishment Media. Nothing like we saw yesterday.

      Trump supporters are being smeared en masse as Domestic Terrorists? Will the media investigate and report accurately on what happnened yesterday at the Capitol? Antifa infilatration? How Trump supporters were by and large peaceful protestors? No. They will report the LIE and foment the rage that is now being pushed underground.

  2. https://www.fbi.gov/contact-us/field-offices/washingtondc/news/fbi-seeking-information-related-to-violent-activity-at-the-us-capitol-building

    FBI Seeking Information Related to Violent Activity at the U.S Capitol Building

    The FBI is seeking information that will assist in identifying individuals who are actively instigating violence in Washington, D.C. The FBI is accepting tips and digital media depicting rioting and violence in the U.S. Capitol Building and surrounding area in Washington, D.C., on January 6, 2021.

    If you have witnessed unlawful violent actions, we urge you to submit any information, photos, or videos that could be relevant at fbi.gov/USCapitol.

    Please use this form to submit any images, videos, or other multimedia files you have related to possible violations of federal law committed. Our goal is to preserve the public’s constitutional right to protest by protecting everyone from violence and other criminal activity.

    You may also call ‪1-800-CALL-FBI (1-‪800-225-5324) to verbally report tips and/or information related to this investigation.

    If you do not have an attachment but have information to provide, please submit it at tips.fbi.gov.

    1. Did I miss the Press Release where the FBI was doing that for Antifa violence in Portland, Seattle, Washington DC, and other places?

      They are right in doing this for the Capitol Building incursion…..but the same effort should be made for Leftist Groups as well especially in the wake of Riot, Arson, Looting, and assaults/murders of Police Officers.

      You seen any Federal Indictments of Antifa or BLM thugs?

  3. ‘When Antifa and BLM organized protests vastly more violent and destructive than anything we saw today, Joe Biden and Kamala Harris helped to raise bail money for them. This is the necessary context in which to understand their selective moral indignation over today’s events.’

    @dineshdsouza

    1. No. These Trumpers attacked the US Capital Building in an attempt to install an unelected president. It was a coup and was far worse then we have seen in a very long time.

      1. Molly,

        You continue to show yourselves a foolish Liar!

        It’s a distractable fact at a minimum of 8 states there was multiple vectors of fraud in Nov 3’rds vote that barely illegally moved Biden to the electoral lead.

        But you& your people do not wish to give the state legislator & investigators what is need to do their jobs.

        By Default anyone supporting those fraudulent results have & are abetting in multiple Felonies against us American Citizens & in our court we find you people guilty as hell & unforgivable.

        1. Sorry typos/spell ck from everywhere… it’s late:

          Oky1 says:
          January 7, 2021 at 12:25 AM

          Molly,

          You continue to show yourselves a foolish Liar!

          It’s a demonstrable fact at a minimum of 8 states there had multiple vectors of fraud in Nov 3’rds vote that barely illegally moved Biden to the electoral lead. You won Nothing!

          But you& your people do not wish to give the state legislators & investigators what is needed to finish their jobs. Obstruction!

          By Default anyone supporting those fraudulent results have & are abetting in multiple Felonies against us American Citizens & in our court we find you people guilty as hell & unforgivable.

          aka: Close enough to this time of night.

          1. You know quite well that the allegations of fraud have been shown to be baseless. You are a traitor to the US.

  4. Today’s crime, from A Crime a Day:
    40 USC §5104(e)(1)(B) & §5109 make it a federal crime to enter the floor of either House of Congress through the use of force and violence.

    1. And a person was shot and killed while security defended the building, which was foreseeable given the mob’s violent entry, so throw some felony murder charges on top of that.

    1. The same people who allowed tech oligarchs to censor free speech, who shut down the country for a year & closed churches & schools & gave $700 billion of your money to foreign nations like Burma & Nepal are united tonight in the belief that it’s all Trump’s fault.

  5. The Senate has voted 93-6 against the objection to certifying Arizona’s EC votes.
    The House probably won’t vote for another hour, given the larger number of members who wish to speak.

  6. KUSI News confirms identity of woman shot and killed inside US Capitol

    Posted: January 6, 2021 KUSI Newsroom

    WASHINGTON (KUSI) — The woman who was shot and killed inside the US Capitol during the protests was from the San Diego area.

    KUSI News has spoken with her husband.

    The woman is Ashli Babbit, a 14-year veteran, who served four tours with the US Air Force, and was a high level security official throughout her time in service.

    Her husband says she was a strong supporter of President Trump, and was a great patriot to all who knew her.

    The Metropolitan Police Department says an investigation into her death continues.

    KUSI sends our condolences to her family and all who knew her. -KUSI

      1. No Molly, it’s been you that’s been on the wrong side of the US for some time now because you really have no concept of what Liberty, Freedom the USA is.

        I think you people should move to somewhere like communist Chinese instead of your constant push to bring Communist China here to this country.

        1. Storming the US Capital in order to block the Constitutional duty of Congress in an attempt to install an unelected president is treason, rebellion, and insurrection. The Trumpers will go down in history as a black mark on the US.

          And your dumbass Chinese Communist lie is quite old. You Trumpers have proven who you really are.

          1. Yes, we see right through all of the Election Fraud you people continue to insist on covering up.

            You commie aholes are guilty as hell & you can never shake it!

          2. Just ask Eric Swalwell about all those Chinese lies, he has first hand knowledge. If you don’t get an answer there ask Diane Feinstein. I understand that Barbara Boxer is the newest Chinese expert.

  7. Trump, in July –
    “Anarchists, Agitators or Protestors who vandalize or damage our Federal Courthouse in Portland, or any Federal Buildings in any of our Cities or States, will be prosecuted under our recently re-enacted Statues & Monuments Act. MINIMUM TEN YEARS IN PRISON. Don’t do it! @DHSgov”

    Let today’s Capitol vandals be charged.

  8. Joe Biden is prohibited from holding public office in the US government – By his own admission, then Vice President Joe Biden used upwards of $1 billion of US government loan guarantees in a bribery coercion scheme to threaten the Ukraine president to immediately terminate the Prosecutor General who was investigating the corrupt practices of Burisma Holdings, as well as the involvement of board director Hunter Biden.
    This criminal act constitutes a federal felony crime and disqualifies Biden from holding public office.
    http://stateofthenation.co/?p=24296

        1. He wasn’t doing anything illegal.

          No matter what you believe about it, he has not been indicted, much less convicted, of a felony, and he is not disqualified.

    1. The international community was agreed that the Prosecutor General needed to go and Biden was acting on official behalf of the US government.

  9. 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
    Share
    Download
    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

    1. 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.

      1. 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!

  10. 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.

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

  12. 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. 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.

  13. “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.

  14. 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

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