A Single Submission of Electoral Votes from a State
The Twelfth Amendment is dangerously ambiguous. All it says on point is: “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.” It does not say what to do if there is a dispute over a state’s electoral voters, as surely there would be, if for example, Michigan’s electors appointed directly by the state legislature voted contrary to electors who most likely would have been appointed if all the vote-by-mail ballots in the state had been counted.
In other words, suppose there is a widespread belief that (1) pro-Biden electors would have been appointed in Michigan if all the mail ballots had been counted, but (2) after these ballots were destroyed — rendering it impossible to appoint electors based on a tally of the state’s popular vote — the state’s legislature directly appointed pro-Trump electors, who, on December 14, cast all sixteen of the state’s electoral votes for President Trump, and (3) this set of pro-Trump electoral votes is the only submission of electoral votes from Michigan to Congress, and, further, (4) that apart from Michigan, the Electoral College map shows Vice President Biden with 262 electoral votes, slightly ahead of President Trump’s 260 votes, meaning that if President Trump is awarded Michigan’s sixteen electoral votes, then he will have an Electoral College majority of 276 and won reelection to a second term.
Given the Twelfth Amendment’s ambiguity, what is supposed to happen in this situation? We can certainly imagine President Trump and his allies arguing vehemently that Michigan’s sixteen electoral votes should be counted as cast and submitted to Congress. But we can imagine Democrats contending that these electoral votes should not be counted because they would be contrary to the will of the popular vote in the state, which undoubtedly would have been tallied in favor of Vice President Biden.
In 1887, a little over a decade after the ferociously disputed Hayes-Tilden election of 1876, Congress enacted a statute to redress the ambiguity of the Twelfth Amendment and to regularize the procedure for handling any similar dispute that might occur again. When a state sends a single submission of electoral votes to Congress, the statute provides:
no electoral vote or votes from any State which shall have been regularly given by electors whose appointment has been lawfully certified to according to section 6 of this title from which but one return has been received shall be rejected, but the two Houses concurrently may reject the vote or votes when they agree that such vote or votes have not been so regularly given by electors whose appointment has been so certified.
This language appears to indicate a single submission of electoral votes from a state (“one return”) should not be rejected by Congress unless both houses of Congress, in separate decisions, agree to reject it.
This language, however, is complicated by the fact that it also speaks of electoral votes not “regularly given” or electors not “lawfully certified” by the state’s governor, as provided for in 3 U.S.C. § 6 (the aforementioned “section 6”). This additional language seems to suggest that, regardless of how the two houses act, a single submission of electoral votes from a state should not be rejected if both (a) the electors were “lawfully certified” by the governor under 3 U.S.C. § 6 and (b) the votes of these electors were “regularly given.” But if either of these conditions is debatable, and both houses of Congress agree to reject a single submission of electoral votes from a state, it is hard to imagine that there exists some other institution of government with the authority to second-guess Congress. Would Vice President Pence, as President of the Senate, have the authority to insist that Michigan’s electoral votes be counted for President Trump even if both the Senate and the House agree to reject them? One would think not. Likewise, it seems difficult to imagine that the Supreme Court could, or would, order both houses of Congress to count electoral votes from a state that the two houses agreed should not be counted.
Thus, as a practical matter, it would seem that as long as both houses of Congress agree to reject a single submission of electoral votes from a state, those electoral votes will be rejected regardless of what anyone else might think about their regularity or lawfulness. Conversely, if only one house of Congress votes to reject the single submission, then the statute seems to require these electoral votes to be counted no matter how strongly that one house objects or what any other institution of government, like the Supreme Court, might think. Moreover, in the hypothetical case we are considering, we can assume that the single submission of electoral votes based on direct appointment of the state legislature would not bear the certificate of the state’s governor. The legislature, being controlled by Republicans and appointing pro-Trump electors, presumably would be strenuously opposed by Governor Whitmer, a Democrat. Consequently, if that single submission of electoral votes from Michigan arrived in Congress, what happens next would seem to boil down to the partisan composition of the Senate and the House.
Uncertainty on How to Calculate an Electoral College Majority
It is worth pausing to reflect on just how anti-democratic — small-d — the Constitution, and the congressional procedures governing the Electoral College generally, are to permit this kind of result. The voters in a state support one candidate, but the ballots cannot be officially counted, and so the legislature appoints electors who support the other candidate. The two chambers of Congress divide on whether to reject these electoral votes that deviate from the popular will in the state, the division in Congress caused by one house sharing the same partisan allegiance as the state’s legislature. In this way, a candidate can achieve an Electoral College victory even when opposed by the voters of the pivotal state that secures that victory. It may be a scenario that is extremely unlikely to occur, but the fact that it can occur at all indicates that the system is, at heart, not a democratic one.
To be sure, however, the result would not be straightforward if both houses of Congress agreed to reject the electoral votes from Michigan in the scenario described. As indicated already, rejecting Michigan’s sixteen electoral votes would leave Vice President Biden with 262 and President Trump with 260. What then? Unfortunately, there are two plausible alternatives, depending on which is the correct way to calculate whether a candidate has achieved an Electoral College majority.
The Twelfth Amendment provides: “the person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of electors appointed.” But “if no person have such majority,” then the House of Representatives shall choose in a procedure where each state’s House delegation has one vote. Consequently, it matters how to calculate a “majority” for the purposes of this provision. Historically, though, there have been arguments for two different ways of doing so, and the matter has never been resolved.
The first method is to say that rejecting a state’s electoral votes does not change the denominator for purposes of calculating whether a candidate has received a majority of electoral votes. There is a total of 538 electoral votes, given that each state has the same number of electoral votes as it has both Senators and Representatives in Congress, plus the District of Columbia has three electoral votes by virtue of the Twenty-third Amendment. The smallest majority of 538 is 270, which is why much discussion of presidential elections focuses on the need to attain 270 electoral votes to win. For our immediate purposes, if rejecting Michigan’s sixteen electoral votes does not change the denominator, then it remains true that a candidate needs 270 electoral votes for a majority. Because both 262 and 260 fall short, on this view of the issue, rejecting the sixteen electoral votes from Michigan would cause the choice between President Trump and Vice President Biden to fall to the House of Representatives, voting by its special one-vote-per-state procedure.
The second method, however, reduces the denominator for calculating a majority of electoral votes by the number of electors whose appointment is rejected by Congress for being invalid. The argument behind this method is that an invalid appointment is equivalent to no appointment at all, and the text of the Twelfth Amendment seems to call for reducing the number if a state fails to appoint any electors (as New York did in the very first election, because of a deadlock between the two chambers of its state’s legislature). Because the majority is supposed to be calculated based on the “whole number of electors” who are actually appointed, not the total number of electors authorized to be appointed, the denominator would be 522—not 538—if Michigan’s legislature had not attempted a substitute appointment of electors after its failure to appoint by means of a popular vote (because of, again, the destruction of uncounted mailed ballots). The argument then would be that, because Congress considers as null and void the state legislature’s attempt to appoint electors contrary to what the complete count of the popular vote would have been, this null-and-void appointment is tantamount to no appointment at all, and therefore the denominator should be similarly reduced to 522. If that were to happen, then in the hypothetical case we are considering Vice President Biden would have a majority of electoral votes, as 262 is a (bare) majority of 522 (261 being exactly half of 522), and, thus, on this interpretation of the Twelfth Amendment Vice President Biden would be president-elect outright, without any need for a runoff in the House of Representatives where each state has one vote.
Is this second interpretation of the Twelfth Amendment correct? That’s debatable, and indeed it has been debated without ever being settled, for decades. When Congress was deliberating the Electoral Count Act of 1887, two of its key sponsors in the Senate —George Hoar of Massachusetts and William Maxwell Evarts of New York (who happened to be cousins) — divided over this question, and the Act never attempted to direct a future joint session convened to count electoral votes on which method of calculating the denominator to employ if the issue should arise.
We can be confident that if this issue were to prove consequential in the 2020 election, it would become ferociously contentious. Vice President Biden and his supporters would insist upon reducing the denominator so that he would be president-elect based on an outright Electoral College majority. President Trump and his allies, conversely, would be equally insistent that the denominator remain 538, so that the election would go to the House, where he would have a chance of prevailing based on the one-vote-per-state procedure. (Currently, Republicans are in the majority of 26 House delegations, the minimum number necessary to prevail in a House vote under the Twelfth Amendment. In January 2021, it would be the new House, not the current House, that would take this vote. But if Republicans manage to retain the same advantage in state delegations, they could achieve Trump’s reelection through this House procedure.)
Conclusion
The point of this analysis is not to be overly alarmist. The risk of mailed ballots being destroyed so that they cannot be counted is, presumably, extremely low. Nevertheless, the point is to observe the vulnerability that exists in the system of counting Electoral College votes if this unlikely scenario did materialize. It would be necessary to rely upon a normative commitment to small-d democracy on the part of Senators to guide the nation through the crisis. One could not rely on the existing rules and procedures of law to be adequate to the task.
The lesson is that, to assure a presidential election’s conformity to the basic democratic value that a state’s electoral votes reflect the will of the popular vote in the state — a democratic value resoundingly reaffirmed by the Supreme Court in the “faithless elector” case — it is essential that partisan politicians abide by this basic norm. The entire problem of a single submission of electoral votes deviating from the will of the popular vote could be averted if the state’s legislature committed not to act, based on partisan allegiance, contrary to the popular vote. The state legislature — even if dominated by members of the opposite party — could appoint electors in accordance with this clear understanding of what the popular vote would have shown.