Symposium: Leave courts out of presidential elector dispute

Derek Muller is a visiting professor of law at Notre Dame Law School. He wrote an amicus brief in support of neither party in Chiafalo v. Washington and Colorado Department of State v. Baca.

On January 6, 2017, the president of the Senate—Vice President Joe Biden—in the presence of the Senate and the House of Representatives, and with the assistance of four tellers, opened the certificates of the electors from each of the 50 states and the District of Columbia. The tellers counted the votes aloud, proceeding in alphabetical order by state. The count reached Colorado.

The teller, Representative Gregg Harper of Mississippi, announced to the joint session, “The certificate of the electoral vote of the State of Colorado seems to be regular in form and authentic, and it appears therefrom that Hillary Clinton of the State of New York received nine votes for President and Tim Kaine of the Commonwealth of Virginia received nine votes for Vice President.” These nine votes were ultimately included in the final vote total for Hillary Clinton, 227 electoral votes. Similarly, Congress counted 12 electoral votes from the state of Washington for various candidates.

Now, some electors from Colorado and Washington are asking the courts to review the state laws that govern the votes that Congress counted. Micheal Baca attempted to vote for John Kasich for president, and Baca was replaced in the Colorado delegation. Baca’s replacement’s vote was counted in Congress. (The same thing happened with an elector in Minnesota.) Washington had four electors who cast votes for candidates other than Hillary Clinton and Tim Kaine; their votes were counted, but they were later fined, and three electors, including Peter Bret Chiafalo, brought this claim.

Why are these cases in the Supreme Court? Why is this matter not left to Congress? These should be the preeminent questions for the court as it considers Chiafalo v. Washington and Colorado Department of State v. Baca.

Congress has the exclusive power to count electoral votes. The 12th Amendment provides that “[t]he 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.” Once Congress decided to count or not to count electoral votes, courts cannot revisit that decision.

Congress has exercised its judgment in every presidential election, sometimes overtly, about which votes are valid and whether state laws properly authorized the selection of presidential electors. In the 1808 election, for instance, Congress considered whether Massachusetts’ electors were chosen irregularly, and Congress rejected an irregular vote from Kentucky.

Congress decided among competing slates of electors in the elections of 1872 and 1876. It rejected votes from southern states after the Civil War and votes cast for deceased candidates. Other objections in Congress to state electoral submissions abound. In 1960, Hawaii sent the votes of three slates of electors, two Democratic slates and one Republican slate, to Congress. Congress expressly refused to set a precedent when it chose to count one of the Democratic slates.

The point of listing these incidents is not that the court should take notice of them in determining whether Colorado and Washington acted appropriately in 2016. Instead, this history shows that it remains with Congress, not the federal courts, to decide whether Colorado and Washington acted appropriately. And once Congress decided to count Baca’s replacement and Washington’s electors, there was nothing left for a federal court to do.

The procedural posture of this case differs radically from Bush v. Gore. There, the Supreme Court articulated the terms of a recount to the state of Florida. Florida ended up with a slate of Republican electors who voted for George W. Bush and Dick Cheney. These electoral votes were presented to Congress. Congress was free to reject Florida’s electors, regardless of what the Supreme Court said. Indeed, several members of the House of Representatives attempted to object to the counting of Florida’s electors, but they failed to clear the procedural hurdle that required at least one senator to join their objection. Furthermore, the Democratic electors could have submitted their votes for Al Gore and Joseph Lieberman to Congress and urged Congress to decide which slate to pick. But they didn’t.

The U.S. Court of Appeals for the 10th Circuit wrongly identified “a history of anomalous votes, all of which have been counted by Congress,” and stated that “we are aware of no instance in which Congress has failed to count an anomalous vote.” Until recently, no state law recognized a vacancy in the office of presidential elector when an elector cast a vote contrary to the candidate he pledged to support. Consider North Carolina in 1968, when Congress counted the vote of a “faithless” elector in the absence of a state statute authorizing a replacement. Only in recent history have such statutes been enacted. And only in 2016 were they ever used to replace an elector.

More to the point is whether Congress has ever counted the vote of an elector who replaced someone deemed under state law to be faithless. And in 2016, Congress did so twice—Congress counted the vote cast by a Colorado elector who replaced Baca when a vacancy arose, and Congress counted the vote of a replacement elector in Minnesota. Furthermore, Congress did refuse to count the votes of faithless electors—Congress did not count Baca’s vote because it did not recognize Baca as an elector. (Indeed, Baca never asked Congress to count his vote.)

Admittedly, the case from Washington presents greater challenges. Presidential electors from Washington were able to cast votes for their preferred candidates. Congress counted the votes cast for those candidates. Washington subsequently fined those electors. On the one hand, the court might conclude that Congress has the power to judge the regularity of the appointment of electors, including existing state laws that would impose fines on electors in certain circumstances. The court might also conclude that if Congress has authorized the greater power of a state in recognizing that an elector vacates his seat in certain circumstances, Congress has also authorized the lesser power of imposing a financial penalty on faithless electors. On the other hand, the presidential electors in Washington received a penalty only after Congress met and counted their votes.

The 12th Amendment expressly gives Congress the power to count electoral votes. That includes the power to determine which electors are proper and which electoral votes to count. A judicial decision that a state law wrongly replaced or disciplined a presidential elector would effectively second-guess Congress’ vote-counting. The Supreme Court should not second-guess Congress’ judgment, because the Constitution gives the power of determining the identities of electors and counting electoral votes to Congress, not to courts.