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We must talk about constitutional issues in the election certification

We must talk about constitutional issues in the election certification
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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.”

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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 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.

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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.