Gohmert et al v. Pence

Filing 33

Additional Attachments to Main Document: 30 Response in Support of Motion,,.. (Sessions, William)

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Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 1 of 553 PageID #: 406 PLAINTIFFS’ APPENDIX TABLE OF CONTENTS Ackerman, Bruce & Fontana, David, Thomas Jefferson Counts Himself into the Presidency, 90 VA. L. REV. 551 (2004). 1 Colvin, Nathan L. & Foley, Edward B., The Twelfth Amendment: A Constitutional Ticking Time Bomb, 65 U. MIAMI L. REV. 475 (2010). 53 Hawley, Joshua D., The Transformative Twelfth Amendment, 55 WM. & MARY L. REV. 1501 (2014). 97 Josephson, William, Senate Election of the Vice President and House of Representatives Election of the President, 11 U. PA. J. CONST. L. 597 (2009). 152 Kesavan, Vasan, Is the Electoral Count Act Unconstitutional?, 80 N.C. L. REV. 1653 (2002). 207 Land, Chris & Schultz, David, On the Unenforceability of the Electoral Count Act, 13 RUTGERS J.L. & PUB. POL'Y 340 (2016). 318 Neumann, Richard K., The Revival of Impeachment as a Partisan Political Weapon, 34 HASTINGS CONST. L.Q. 161 (2007). 345 Siegel, Stephen A., The Conscientious Congressman’s Guide to the Electoral Count Act of 1887, 56 FLA. L. REV. 541 (2004). 460 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 2 of 553 PageID #: 407 THOMAS JEFFERSON COUNTS HIMSELF INTO THE PRESIDENCY, 90 Va. L. Rev. 551 90 Va. L. Rev. 551 Virginia Law Review April, 2004 Articles Bruce Ackerman a1 David Fontana aa1 Copyright (c) 2004 Virginia Law Review Association; Bruce Ackerman; David Fontana THOMAS JEFFERSON COUNTS HIMSELF INTO THE PRESIDENCY I. II. III. IV. V. Introduction Original Misunderstandings A. Founding Blunders B. A World Without Parties The Vermont Precedent A. The Rise of Party B. Rumors and Restraint C. Vote-Counting Day in Philadelphia The Election of 1800 A. The Run-Up B. Jefferson's Problem C. Jefferson's Decision Jefferson in Context A. Substance Over Form B. Prudence and Publicity C. Pinckney for President? D. Jefferson and the Rule of Law E. Dumb Luck Jefferson's Ghost A. From Cautionary Tale to Legal Precedent B. The Gloss of 1877 C. The 1887 Act 551 554 554 557 567 568 571 579 581 582 587 599 610 611 614 618 624 625 629 630 634 640 Introduction 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.” 1 *552 We last glimpsed the dangers lurking in these lines during the electoral crisis of 2000. As sitting Vice-President, Al Gore was the President of the Senate on January 6, 2001. So it fell to him to “open all the Certificates” and preside over the vote count. What if there had still been a dispute over the electoral votes from Florida? Consider the following scenario: After much Sturm und Drang, the Florida courts decide that Gore is the winner, but the Florida legislature grants the state's twenty-five electoral votes to George W. Bush. These rival authorities transmit competing electoral college certificates to Washington D.C., ready to be opened when the moment of truth arrives. Pursuant to constitutional command, the Vice-President “open[s] all the Certificates.” What happens next? The constitutional text does not speak clearly. It authorizes the Vice-President to “open” the certificates but leaves the extent of his further powers hidden in the passive voice: “and the Votes shall then be counted.” APPENDIX - 1 © 2021 Thomson Reuters. No claim to original U.S. Government Works. 1 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 3 of 553 PageID #: 408 THOMAS JEFFERSON COUNTS HIMSELF INTO THE PRESIDENCY, 90 Va. L. Rev. 551 These textual penumbras can be enlightened by precedents that have gone largely unnoticed for two centuries: the electoral vote disputes of 1796 and 1800. On these two occasions, John Adams and Thomas Jefferson found themselves in Al Gore's position. As Vice-Presidents in the preceding administration, they were presiding over a vote count in which they were leading candidates, and in both instances, they used their power to make rulings that favored their own election as President of the United States. This Article will present the first in-depth treatment of these precedents, 2 emphasizing the dramatic moment when Thomas Jefferson made a questionable ruling that enhanced his chances of becoming the next President of the United States, rather than John Adams or Charles Cotesworth Pinckney. Adams's decisions in 1797 were perfectly sensible but frame an analysis of Jefferson's problematic conduct the next time around. Vermont had cast four electoral votes for Adams and his running mate Thomas Pinckney, but the legality of the state's action had been publicly impugned and privately questioned by newspapers and politicians from both political parties. *553 When Adams opened the formal certificates from Vermont they seemed completely regular, containing no hint of legal deficiency. Despite their facial perfection, Adams provided members of Congress a formal opportunity to challenge Vermont's four electoral votes before announcing that he had won the election by three votes over Jefferson. He declared himself President only after the Republicans remained silent. Thomas Jefferson was remarkably aggressive as President of the Senate. Georgia's certificate--granting four electoral votes to Jefferson and four electoral votes to Aaron Burr--was constitutionally defective on its face, a deficiency that was announced on the floor of Congress and reported by leading newspapers of the day. 3 To resolve all doubts, we have located Georgia's certificate in the National Archives, and it does indeed reveal striking constitutional irregularities. Nevertheless, and in contrast to Adams, Jefferson failed to pause before counting Georgia's four electoral votes into the Republican column, declaring the final vote as if nothing were amiss. This ruling had serious consequences. With the Georgia votes included, the official tally was Jefferson seventy-three, Burr seventy-three, Adams sixty-five, Charles C. Pinckney sixty-four, and John Jay one. To resolve this tie, the two leading candidates went to their famous runoff in the House, which was only resolved in Jefferson's favor on the thirty-sixth ballot. Had Georgia's ballot been excluded, the vote count for Jefferson and for Burr sinks to sixty-nine each, and this would have made a big difference under the electoral ground rules framed in Philadelphia. As we will explain, 4 these rules would have admitted all five candidates into a runoff in the House. Including Adams, Pinckney, and Jay in the runoff would have dealt a serious blow to Jefferson's prospects. The Federalists would no longer have been stuck with Aaron Burr as the only alternative to their archenemy Jefferson. They could have rallied around a much more attractive “compromise” candidate: Charles Pinckney of South Carolina. Without the *554 decisive use of his power as President of the Senate, Jefferson might never have become President of the United States. This point was appreciated by contemporaries, but has dropped out of modern constitutional consciousness. 5 After bringing this forgotten precedent into public view, we will consider its potential relevance for future Electoral College crises, using a variation on Bush v. Gore 6 as an analytic platform. I. Original Misunderstandings This Part sets the stage for Jefferson's moment of truth as President of the Senate in 1801. Why did the Framers choose the sitting Vice-President to preside over the vote count in the first place? What were the rules, and animating ideals, of the Electoral College prior to enactment of the Twelfth Amendment? A. Founding Blunders The vice-presidency gave the Framers a lot of problems. They believed that a backstop was needed for the President, but they *555 were hard-put to figure out what to do with him while the President was alive. 7 For want of anything better, they assigned him the largely ceremonial office of President of the Senate. APPENDIX - 2 © 2021 Thomson Reuters. No claim to original U.S. Government Works. 2 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 4 of 553 PageID #: 409 THOMAS JEFFERSON COUNTS HIMSELF INTO THE PRESIDENCY, 90 Va. L. Rev. 551 But, alas, this office was not entirely ceremonial, and the Framers simply did not think through the full ramifications of this point. They recognized that the Senate would generate tie votes from time to time, and expressly granted the President of the Senate a tie-breaking vote. 8 They failed, however, to consider other moments when the Vice-President might wield real power. Their most obvious blunder involves impeachment proceedings. The Founders recognized the absurdity of allowing the Vice- President to preside over the Senate when the President was on trial for “high Crimes and Misdemeanors.” 9 He was inevitably an interested party in this affair, rising to the presidency if the incumbent were convicted. Given his personal stake in the matter, it was inappropriate for him to preside over the trial as President of the Senate, and so the text explicitly designates the Chief Justice as the presiding officer. 10 They failed, however, to consider that the Vice-President might also be impeached. Rather than designating the Chief Justice to preside over these trials as well, the text leaves this task to the President of the Senate. 11 Read literally, the Constitution seems to *556 authorize the Vice-President to preside over his own impeachment. 12 Our present problem reflects the same sort of technical incompetence. Although the Vice-President may be perfectly acceptable as a ceremonial leader of the Senate, he is a natural candidate in the next presidential contest. It is an obvious mistake to designate him as the presiding officer over the electoral vote count. The temptations for abuse of power are too great-- especially since the textual description of the vote count procedure is so inadequate. Even if the text had been elaborated with great precision, it was still wrong to give one candidate any sort of strategic advantage over his rivals. The designation of the President of the Senate as presiding officer was nothing more than a thoughtless extension of a ceremonial post to a position of power. If anyone had focused on the matter, the Convention could have cured the lapse easily. There was an obvious solution: The Constitution expressly replaced the Vice-President with the Chief Justice when it comes to presiding over the Senate during presidential impeachments. Just as the Chief Justice displaced him on these occasions, he could have replaced him at the electoral vote count. 13 *557 But the Convention never spotted this problem, or its obvious cure, and the forces of intellectual inertia propelled the President of the Senate into an unsuitable role. This failure is understandable, if not precisely excusable. The Convention spent an enormous amount of time on methods for selecting the President, repeatedly failing to find a solution that commanded enduring support. Hoping to get out of Philadelphia, the delegates finally pushed the problem onto the docket of a special committee, chaired by David Brearley, charged with solving previously irresolvable issues. 14 Despite the pressures of time, the delegates did spend most of two days-- September 5 and 6, 1787--on the Brearley proposals, 15 but two days were not nearly enough to confront all the problems involved in their novel design. There were many larger questions at stake than the role of the President of the Senate. With their eyes wandering to the exits, the Framers never focused on the absurdity of their job assignment. 16 So our problem arises as the result of technical incompetence at the Founding--which does not make it any less of a problem. B. A World Without Parties To set the stage further, consider the larger structure within which John Adams and Thomas Jefferson were operating at the moment of the vote count. We must return to the original understanding of the Electoral College before the enactment of the Twelfth Amendment. This requires something more than the mastery *558 of a few antiquated rules. These rules were based on an entirely different vision of American politics, and we will not get very far without grasping how this Founding vision differs from our own. For modern Americans, the two-party system is a pillar of democratic life. Fair competition between political parties is viewed as the great engine for disciplining despotic power. For us, an election without party competition is no election at all. This was not so for the Founders. They equated party with faction, and thought parties an unmitigated evil. Worse yet, they did not reach this judgment after soberly considering the democratic case for party competition. Nothing resembling the modern party system had yet emerged as a historical reality. 17 APPENDIX - 3 © 2021 Thomson Reuters. No claim to original U.S. Government Works. 3 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 5 of 553 PageID #: 410 THOMAS JEFFERSON COUNTS HIMSELF INTO THE PRESIDENCY, 90 Va. L. Rev. 551 Nor did classical republican theory encourage the Founders to glimpse the future that lay just over the horizon. The great republican writers of the past--Aristotle and Cicero, Machiavelli and Harrington--presented very different visions of the wellordered state. They were alike, however, in one crucial respect: Each equated party division with factional strife and deemed it the great nemesis of civilization. Republics died when leaders factionalized, with each cabal placing its narrow interests ahead of the public good. The result was an escalating cycle of instability and incivility, culminating in the despotic ascendancy of a Caesar or a Cromwell. The fundamental challenge was somehow to induce leaders to put the public good ahead of their own-and to sustain the unity of the Commonwealth against the ever-present dangers of factional disintegration. 18 These classical teachings resonated with the Founders' revolutionary experience. During their struggle against England, political division meant weakness before the imperial foe and bordered on betrayal: We will all hang separately if we do not hang together. This attitude, once formed and battle-hardened, was difficult to transcend. *559 Even Madison did not attempt to do so. His work at the Constitutional Convention and in The Federalist linked party with faction, condemning it as evil. 19 Madison's aim was to use Enlightenment political science to design a better constitutional machine to constrain the beast. 20 Rather than organizing a sound two-party system, the Madisonian republic tried to create a space for leaders to transcend the rule of faction altogether. The Constitution's basic tactic is divide-and-conquer. By creating government on a continental scale, the Framers hoped to make it difficult to organize large parties: Rather than one or two continental groupings, there would be a host of self-interested factions pushing and shoving for power. This labile structure would make it possible for patrician civic leaders like George Washington to rise above the fray and govern in the public interest. Rather than draft a Constitution for a two-party democracy, the Framers sought to organize a non-party republic. 21 Though this notion is strange to us, the original design of the Electoral College makes no sense without it. For us, it seems only natural for the major parties to take on the primary burden of selecting the leading candidates for the presidency, but this was a non-starter for the Framers. Rather than delegating this task to political parties, they hoped to design a scheme by which great statesmen would transcend the dynamics of faction. The model for such a leader, of course, sat before them as the presiding officer of the Constitutional Convention: George Washington. The challenge was to construct a system that would enable others like him to rise to the top. The problem was made more acute by the nature of eighteenth-century society. Politics, much more so than now, was emphatically local. Commercial and landed elites might compete for attention in each of the states, but few local leaders would have the opportunity to prove their mettle on a national basis. *560 As the Founders well understood, the war against England provided the revolutionary generation with exceptional opportunities to project themselves onto the continental stage. By virtue of their service in the patriots' army, Washington and others had demonstrated their republican virtue--or lack of it-- to an attentive audience in all thirteen states. The difficulties of wartime coordination also required civilian politicians to engage in extraordinary levels of interstate interaction as well as mutual assessment. But in ordinary times, would there be a steady supply of such “Continental Characters” ? 22 The more optimistic members of the Convention predicted that “Continental Characters will multiply as we more & more coalesce,” 23 but others were not so sure. 24 Unless steps were taken, each state's electors might join together and vote for a favorite son, leading to perplexity when all the votes were counted. This is where the Founders tried to economize on the short supply of true leaders through clever institutional engineering. Why not give two votes to each elector, but allow him to cast only one for a citizen from his own state? As Gouverneur Morris explained, “one vote is to be given to a man out of the State, and as this vote will not be thrown away, y the votes will fall on characters eminent & generally known.” 25 The vice-presidency became a functional imperative at this stage in the constitutional design. If the Framers had trusted electors to ignore local favorites, they might well have dispensed with the office. *561 26 Instead of creating a do-nothing (and politically mischievous) President of the Senate, they could have responded to the problem of presidential death or resignation by simply designating an official--perhaps the Secretary of State, perhaps the Speaker of the House--to serve as acting President until a special election could be held. In fact, this was the method used by the Second Congress to resolve the succession problem if both the President and Vice-President died or resigned. 27 APPENDIX - 4 © 2021 Thomson Reuters. No claim to original U.S. Government Works. 4 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 6 of 553 PageID #: 411 THOMAS JEFFERSON COUNTS HIMSELF INTO THE PRESIDENCY, 90 Va. L. Rev. 551 The Framers' ingenious two-vote system, however, invited the creation of two distinct offices. Without the vice-presidency, electors might leave one of their ballots blank and vote the other for a native son. But with the second spot in existence, the electors would hardly let it go to waste. One can imagine the thought process: “Of course George Washington is an out-ofstater, but I might as well vote for the best man since the Constitution requires me to move beyond our favorite sons. And in any event, I did get a chance to cast a ballot for our regional favorite, the Honorable John Q. Squire, who might even have a chance to be Vice-President!” Although most Vice-Presidents would likely waste their time in office as senatorial figureheads, this was beside the point. The underlying goal was to construct a clever system for selecting a President with a broad-based reputation for political virtue. When Elbridge Gerry (himself a future Vice-President) expressed a desire to eliminate the office, another delegate--Hugh Williamson of North Carolina--responded that “such an officer as *562 vice-President was not wanted. He was introduced only for the sake of a valuable mode of election which required two to be chosen at the same time.” 28 The original design had a second clever feature. Suppose, as was the case in both 1796 and 1800, that the College contained 138 members who cast 276 votes. Under the 1787 Constitution, the top choice could become President even if his name appeared on only seventy of the 276 votes. 29 The point of the Enlightenment machine was to construct the impression that the President was a man of truly national character even if the pickings were pretty slim. A man could become President when he was the second choice of a bare majority of electors. Even this clever expedient could sometimes fail to produce the simulacrum of a George Washington. Politics might become so state-centered that no candidate could gain even a minimal level of national support. How to proceed? The Brearley Committee proposed a back-up procedure under which the President would be selected by the Senate from the top five vote-getters in the Electoral College. 30 But the Senate had already been granted many special powers, and granting it still more threatened to give the entire system an “aristocratic complexion.” 31 This objection proved persuasive, leading to the most peculiar voting system known to our constitutional system. The Convention shifted the locus of authority from the Senate to the House, but retained the Senate's principle of equality in state voting power. For *563 presidential purposes only, each state delegation in the House would cast a single vote--Delaware's single representative and Virginia's large delegation counting equally 32 --and the balloting would proceed until a candidate received the votes of an absolute majority of the states. 33 This transformation of the people's House into a state-centered assembly may seem odd to us, but it made quite a bit of sense within the overall Founding framework. To put the point in numerical terms: If no single candidate garnered as many as seventy of the 276 votes cast by 138 electors, this would indicate that American politics had taken an emphatically decentralizing turn. As a consequence, should not the back-up mechanism likewise decentralize by giving an equal vote to each state in the Union? Perhaps, though, strong nationalists like Madison and Hamilton were not convinced. They tried to eliminate the back-up procedure, or at least reduce the frequency of its use. 34 These efforts were successfully resisted by the small states, which feared that electors from three or four large states might otherwise be in a position to dictate the presidential choice when a consensus candidate *564 was lacking. 35 If no national figure could gain one of the two places on a majority of the electors' ballots, the small states insisted on a runoff in the House in which each state counted equally. Under this scenario, the large states might dominate the process of nomination, but the small ones had a large say in the final decision. All this may have seemed sensible enough, but the time devoted to hammering it out led the Convention to slight a second design issue. This did not involve the failure of a candidate of continental stature to emerge from the Electoral College, but a mathematical oddity arising from the complexities of the emerging design. Since the Founders had given each elector two votes in their desire to overcome localism, it was now mathematically possible for several candidates to turn up on a majority of ballots--indeed, two could end up in a dead heat, with each winning, say, seventy-three votes apiece. How to break this tie? This question raises issues distinct from those involved when no presidential candidate has gained widespread support. In the no-majority case, the small states might reasonably suppose that the leader in the Electoral College would be a “favorite son” from a large state. After all, these local favorites could fish from a larger pool of electors than notables from small states, and so they would get to the top of a long list of candidates of merely local eminence. Since the small states would not play a major role in nominating candidates, it was reasonable for them to insist on greater importance in the final selection. APPENDIX - 5 © 2021 Thomson Reuters. No claim to original U.S. Government Works. 5 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 7 of 553 PageID #: 412 THOMAS JEFFERSON COUNTS HIMSELF INTO THE PRESIDENCY, 90 Va. L. Rev. 551 But the small states had no similar grievance when two candidates tied with the same majority vote total. Under this scenario, both candidates would have won their seventy-three votes by collecting electors from states of all sizes. In contrast to the nomajority case, there was no obvious bias against the small states in the tied-majority case. It follows that the Founders' odd voting rule--under which each state delegation in the House cast a single *565 ballot to select a President--was distinctly undermotivated in the tied-majority context. While it might have been sensible to give equal voting power to big Virginia and little Delaware when no candidate gained broad national support, this curious rule made little sense when two broad-based candidacies gained precisely the same number of votes. Generally speaking, the delegates were quite skilled at identifying fine-grained issues of institutional design. Indeed, they spotted an analogous issue in an earlier debate on presidential selection, but nothing came of it. 36 If they had given themselves adequate time, some sharp-eyed delegate likely would have remarked upon the distinctive character of the tied-majority case. Time was running short, however, when the Brearley proposals came to the floor, and no one focused on the problem in the rush to resolve a host of more contentious issues. 37 The Founders' lapse can be extenuated if we recall that they were legislating for a world without national political parties. In such a world, centuries might go by without a dead-heat between *566 two candidates with the national stature required to win a majority. Did not the Convention have better things to do than create wheels within wheels for dealing with such an unlikely possibility? Rather than create an entirely new voting system for the tied-majority case, the Convention modified only one feature of its standard House runoff to take it into account. If the odd case did arise, the Constitution provides that only the two candidates locked in the tie would enter the House runoff. When all candidates fell short of a majority, however, the five leading candidates enter the runoff (even if the top two were tied). Since this rule-within-a-rule is central to our story, the relevant constitutional text deserves careful scrutiny: The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. 38 Since these rules are rather complex, we explore their operation through a series of mathematical examples. Begin with the case of perfect compliance, where the electoral vote count proceeds without a legal hitch. During both the elections of 1796 and 1800, there were 138 electors casting 256 votes for President. So long as we assume perfect compliance, the operation of the runoff rules is straightforward. The magic number is seventy: “a Majority of the whole Number of Electors appointed.” If the two leading candidates tie with seventy votes or more, the text requires a two-man runoff; if they get sixty-nine or less, it requires the two leaders to join in a race involving the top five candidates. Matters get trickier when there is imperfect compliance, since there are two different ways in which a state may fail to register its electoral preferences. The first scenario arose in 1796 and involved Vermont. The problem--or so it was alleged--was that the state had failed to appoint its four electors in a legally valid fashion. As *567 we shall see, this charge was rejected. If the attack on Vermont had been upheld, however, the total number of electors “appointed” by the states would have amounted only to 134, not 138. This reduction, in turn, would have required a change in the “magic number” of electoral votes needed to avoid a five-candidate runoff. With only 134 electors “appointed,” the constitutional majority required was no longer seventy, but sixty-eight, votes. A different result obtains under the second scenario of imperfect compliance, which arose in 1800 and involved Georgia. This time around, nobody alleged that Georgia had failed to make a valid appointment of its four electors. The difficulty arose only at the second stage--the four electors did not cast ballots that satisfied the formal requirements laid down by the Constitution. While this might have resulted in the disqualification of the four Georgia votes, it did not require a recalculation of the “magic number.” Since Georgia's electors had undoubtedly been “appointed,” the number of electors from the entire Union remained at 138, and candidates required a majority of at least seventy votes to avoid a five-man runoff in the House. APPENDIX - 6 © 2021 Thomson Reuters. No claim to original U.S. Government Works. 6 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 8 of 553 PageID #: 413 THOMAS JEFFERSON COUNTS HIMSELF INTO THE PRESIDENCY, 90 Va. L. Rev. 551 This point would create a big problem when Jefferson presided over the electoral vote count of 1801. But we are now talking about 1787. As the days grew short in September, nobody at the Convention worried about the outside chance that an incumbent Vice-President, sitting as the President of the Senate, might manipulate an oddball rule to push himself into a House runoff with one rival rather than four. There were many more serious things to think about, as the Framers contemplated the fierce struggle for ratification that lay ahead. II. The Vermont Precedent Washington's presence at the head of the Constitutional Convention assured the delegates that their larger vision of a non-party republic was a living reality. Here was a man who had proved his public spirit through years of selfless service on the battlefield. This demonstration of “public character,” not any display of partisan wiles, would predictably win him a unanimous vote for the presidency. 39 Once he had set the nation on the right course, would the *568 constitutional machine assist his successors in sustaining his example of nonpartisan statesmanship? Washington was grimly determined to try. He included both Hamilton and Jefferson in his first Cabinet, and desperately sought to keep these great rivals in harness. But it was not to be. By the end of his first administration, the two party leaders were already locked in highly charged ideological conflict, and by the time Washington left office, the division between Federalists and Republicans had come to dominate the political scene. 40 The ink was hardly dry on the Constitution before its fundamental political premise began to disintegrate. America was becoming a proto-modern two-party democracy, raising entirely unexpected challenges to the Founding design for a republic dominated by non-party notables. 41 A. The Rise of Party Washington's Farewell Address nicely framed the transition to this new order. 42 On the one hand, it was a great act of nonpartisan statesmanship--in refusing a third term in office, Washington established a precedent against the pernicious tendency toward presidencies-for-life. On the other hand, partisan politics provided a backdrop to Washington's grave farewell. He postponed his announcement until September 17, 1796. This put the Republicans at a serious disadvantage in the presidential election campaign, as Jefferson and his supporters were not prepared to contest Washington's decision to continue in office. 43 Nevertheless, the Republicans almost managed to defeat John Adams, Washington's Vice-President and a man devoted to Washington's non-party ideal, who *569 was now obliged to make his way in the ascendant world of party politics. Adams's official position as Vice-President and his past service to the country made him an obvious candidate, but Alexander Hamilton was the true leader of the Federalist Party. Hamilton attempted to manipulate the Founders' ingenious two-vote system to deprive Adams of the presidency without allowing Thomas Jefferson to take the prize. 44 His scheme involved propelling the Federalists' second candidate, Thomas Pinckney of South Carolina, 45 to first place in the Electoral College. If every Federalist elector in the north voted for both Adams and Pinckney, this would allow South Carolina to put its favorite son ahead by voting for Pinckney but not Adams. To achieve this end, Hamilton engaged in some devious maneuvers that created a problem when the time came for the President of the Senate to count the votes. For Hamilton's scheme to succeed, he needed to convince the northern Federalists to resist the temptations of regional favoritism in their second ballot choices and cast their ballots for Pinckney as well as Adams. Professor Manning Dauer tells the story: [Hamilton] attempted to supply the stimulus which would cause the electors to support Pinckney. In the Boston Centinel of December 7, just as the electors were meeting, the following paragraph appeared, under a New York date line of November 26: “We have good authority to believe the election of electors in Vermont is invalid--being grounded on a Resolve of the Legislature, not a law.” Underneath this there appeared a note by the editor declaring that it was certainly to be hoped that this would not be true. If so, it shows the “necessity of union in the electors.” 46 The editor's implicit logic was clear enough. Since the race with the Republicans was going to be close, the loss of Vermont's four votes *570 for Adams and Pinckney might mean that the only Federalist who could beat Jefferson was Pinckney, aided by South Carolina's APPENDIX - 7 © 2021 Thomson Reuters. No claim to original U.S. Government Works. 7 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 9 of 553 PageID #: 414 THOMAS JEFFERSON COUNTS HIMSELF INTO THE PRESIDENCY, 90 Va. L. Rev. 551 favorite-son vote. While South Carolina's desertion of Adams might be regrettable, surely Pinckney was better than Jefferson. Hamilton's rumor failed to generate its desired effect. 47 Despite the disheartening news from Vermont, only thirteen of Massachusetts's electors voted a straight Adams-Pinckney ticket. 48 The other three voted for Adams but then cast a ballot for regional favorites--as did ten other Federalist electors from northern states. As a consequence, Pinckney lagged far behind Adams in the electoral vote--he received only fifty-nine votes to Adams's seventy-one. This gave the vice-presidency to Jefferson, with sixty-eight votes. Jefferson's running mate, Aaron Burr, was also victimized by favorite-son voting, and gained only thirty votes. 49 Though Hamilton's stratagem failed to produce northern solidarity for Pinckney, it did succeed in casting a shadow on the votecounting ritual. If Vermont's four votes were ruled invalid, Adams would lose the presidency to Jefferson by a single vote, sixty- eight to sixty-seven. 50 With remarkable speed, the Framers' technical *571 blunders were coming home to roost. It was a serious enough mistake to allow the sitting Vice-President to preside over his own election returns in the gentlemanly world of non-party notables. But this error was compounded once the vice-presidency had become swept up in the overheated context of a new and unfamiliar form of party competition. How would the system respond to the challenge? B. Rumors and Restraint The four Vermont electors for President and Vice-President cast their ballots on December 7, 1796 51 --two full months before John Adams was scheduled to preside over the vote count on February 8, 1797. As word of the Vermont votes trickled out of Montpelier to the larger world, newspapers and politicians throughout the country attacked their validity. 52 The New York Minerva & Mercantile Evening Advertiser began the controversy on November 26: *572 We have good authority to believe the election of Electors in Vermont is invalid--being grounded only on a Resolve of the Legislature, not a law. This is supposed to have been known to the ‘Patriots,’ of that State at the time. It being now too late to correct the mistake, it has leaked out in whispers. 53 Newspaper attacks on the Vermont vote continued through December. 54 *573 These reports contained three charges. The first denied that Vermont had enacted a valid law authorizing the procedure by which it had selected its electors. Though it was broadly recognized that Vermont had passed such a law in 1791, “We understand that the law alluded to made provision only for the election in 1792, and of course then expired.” 55 The second claimed that Vermont's appointments were invalid because they were made through a “resolve” rather than a formal legislative enactment. 56 The third argued that Vermont had violated a 1792 federal statute requiring the states to appoint their electors within a period of “thirty-four days preceding the first Wednesday in December.” 57 *574 None of these charges had legal merit. We have personally examined the Vermont archives 58 and we have determined that the 1791 statute regulating presidential electors was not a temporary measure for 1792 but a standing procedure for the indefinite future. Under its terms, Vermont's electors would be selected by a majority of the members of a “Grand Committee” consisting of “the Governor and Council and House of Representatives.” 59 There *575 is abundant evidence indicating that this procedure was followed in 1796. 60 The distinctive character of the Vermont procedure also refutes the complaint that the electors were selected through a “resolve” rather than ordinary legislation. Since Vermont's Governor cast a ballot for the electors along with members of his council and the Vermont House of Assembly, the “Grand Committee” was not an ordinary legislative body capable of enacting statutes. The Grand Committee chose electors by means of a “resolve” because it was specifically delegated this authority by the validly enacted 1791 statute. And finally, it simply is not true that Vermont had violated the federal statute by selecting its electors APPENDIX - 8 © 2021 Thomson Reuters. No claim to original U.S. Government Works. 8 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 10 of 553 PageID #: 415 THOMAS JEFFERSON COUNTS HIMSELF INTO THE PRESIDENCY, 90 Va. L. Rev. 551 before the beginning of the prescribed thirty-four day period. The records reveal that the Grand Committee made its choices on November 4, 1796, thirty-three days before “the first Wednesday in December.” 61 This was not enough, however, to make the charges unimportant. The newspaper accounts were sufficient to generate a cloud of suspicion. If the Republicans had chosen to press the issue, it *576 would have been difficult for Adams or anybody else to respond decisively at the time of the vote count. Consider especially the first of the three complaints--that the original Vermont protocol was a one-shot regulation designed specifically for the 1792 election, without legal force for 1796. The only way to learn the truth would have been to send a messenger to Vermont to inspect all the legislative records, but a round-trip journey to Montpelier would have taken weeks. 62 All sorts of mischief might have been attempted in the meantime. If the Republicans had raised a formal objection, therefore, Adams would have confronted a very real political problem--but not an irresolvable one. He could have responded by rejecting the Republicans' complaint on the basis of a legal presumption. After all, there was nothing formally defective on the face of Vermont's electoral documents. 63 And so the President of the Senate might announce that the state's papers were entitled to a presumption of legal regularity that could not be rebutted without a compelling showing of an underlying substantive problem. This might seem plausible, but the credibility of such a ruling would have been undercut by Adams's self-interest in the affair. Whatever he might say, and however justifiable, his ruling would have eliminated further inquiry into votes that provided his crucial margin of victory. This would have been a particularly awkward moment for such a ruling because 1796 marked the first contested presidential election in the nation's history. There were warring political parties. If Adams counted himself into the presidency, the Constitution would be off to a very bad start, even if the country accepted the legitimacy of the outcome. Only the self-restraint of the Republican leadership permitted the Constitution to avoid this early test of credibility. Rather than demagogue the issue, Jefferson self-consciously retired it from public view. The Vermont controversy simmered in the newspapers *577 throughout December, 64 and uncertainty about the Vermont vote was reflected in the ongoing informal tallies of the electoral vote. Since Jefferson was at Monticello throughout this period, 65 Madison was functioning as the operational leader in Philadelphia and regularly wrote to his chief for marching orders. His letter of Christmas Day 1796 begins with the caveat: “I can not yet entirely remove the uncertainty in which my last [letter] left the election. Unless the Vermont election of which little has of late been said, should contain some fatal vice, in it, Mr. Adams may be considered as the President elect.” 66 Jefferson replied on January 16, 1797: I observe doubts are still expressed as to the validity of the Vermont election. Surely in so great a case, substance & not form should prevail. I cannot suppose that the Vermont constitution has been strict in requiring particular forms of expressing the legislative will. As far as my disclaimer may have any effect, I pray you to declare it on every occasion foreseen or not foreseen by me, in favor of the choice of the people substantially expressed, and to prevent the phaenomenon of a Pseudo-president at so early a day. 67 Jefferson's words were decisive: The Vermont controversy dropped from public view during the run-up to the formal vote count on February 8, with Republican newspapers conceding the victory to Adams. 68 *578 Jefferson's decision adds some useful complexity to our larger story. We have stressed how the Framers' failure to anticipate the two-party system threatened to throw the constitutional system into a severe crisis. But Jefferson's letter suggests that the survival of classical republican ideals-- condemning faction, praising civic unity--tempered the very crisis that the Framers had failed to anticipate. Both Adams and Jefferson were hardly political innocents, and they were perfectly prepared to compete for power in the new partisan environment. Nevertheless, they remained powerfully attracted to the animating spirit of the Founding. When push came to shove, they sometimes--not always--managed to put these principles into practice in ways that softened the party assault on the non-party Constitution of 1787. Jefferson's January 16 letter was one such instance. 69 There can be no doubt that he was right: The country could ill afford “the phaenomenon of a Pseudo-president at so early a day.” 70 APPENDIX - 9 © 2021 Thomson Reuters. No claim to original U.S. Government Works. 9 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 11 of 553 PageID #: 416 THOMAS JEFFERSON COUNTS HIMSELF INTO THE PRESIDENCY, 90 Va. L. Rev. 551 *579 We will return to this theme in discussing the main subject of this essay: Jefferson's use of his power as Senate President to give himself a significant advantage in the Electoral College crisis of 1801. Before turning to this forgotten story, there is an additional lesson to be learned from our prelude. C. Vote-Counting Day in Philadelphia Without a doubt, most of the suspense had disappeared, but there was still a potential for intrigue on February 8, 1797, the day the votes were counted to pick the second President of the United States. Newspapers had ceased printing stories about the Vermont votes, but Adams and his supporters could not know for sure whether the Republicans were planning some last minute tricks. The stakes were enormous. If the Vermont electors had not been validly appointed, Adams would lose the state's four votes and Jefferson would become President by a margin of sixty-eight to sixty-seven. 71 The constitutional mathematics raised a strategic question for Adams: Would he provide his political enemies an explicit procedural opportunity to raise the Vermont matter and its potentially devastating consequences? Or would he make it as hard as possible for the Republicans to mount a challenge? The Annals of Congress describes the proceedings: The President of the Senate [John Adams] then thus addressed the two Houses: Gentlemen of the Senate, and of the House of Representatives: By the report which has been made to me by the tellers appointed by the two Houses to examine the votes, there are 71 votes for John Adams, 68 for Thomas Jefferson, 59 for Thomas Pinckney, 30 for Aaron Burr, 15 for Samuel Adams, 11 for Oliver Ellsworth, 7 for George Clinton, 5 for John Jay, 3 for James Iredell, 2 for George Washington, 2 for John Henry, 2 for Samuel *580 Johnston, and 1 for Charles C. Pinckney. The whole number of votes are 138; 70 votes, therefore, make a majority; so that the person who has 71 votes, which is the highest number, is elected President, and the person who has 68 votes, which is the next highest number, is elected Vice President. The President of the Senate then sat down for a moment, and rising again, thus addressed the two Houses: In obedience to the Constitution and Law of the United States, and to the commands of both Houses of Congress, expressed in their resolution passed in the present session, I declare that John Adams is elected President of the United States, for four years, to commence with the fourth day of March next; and that Thomas Jefferson is elected Vice President of the United States, for four years, to commence with the fourth day of March next. 72 “The President of the Senate then sat down for a moment.” Four years earlier, Vice-President Adams had also presided over the vote count, but the Annals of Congress contains no similar notation. 73 Indeed, no such pause is noted in any of the first fourteen presidential vote counts. It would seem, then, that Adams's action *581 was deliberate. Only one previous scholar has explicitly noted this incident: “Mr. Adams himself could certainly not raise the question of the validity of the Vermont votes; but he seems to have given an opportunity for objections if anyone should see fit to raise them.” 74 A deflationary interpretation is available--perhaps Adams was only marking a transition between two phases of the proceeding, symbolizing that the vote count had concluded and the time had come for a final and authoritative declaration of the result. Yet this seems unlikely. Adams was no fool: By sitting down, he was putting himself at the mercy of the Republican opposition in a close election. 75 He would not have paused unless he harbored some doubts about his authority as President of the Senate to resolve disputed issues unilaterally. Thomas Jefferson would take a different view four years later. APPENDIX - 10 © 2021 Thomson Reuters. No claim to original U.S. Government Works. 10 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 12 of 553 PageID #: 417 THOMAS JEFFERSON COUNTS HIMSELF INTO THE PRESIDENCY, 90 Va. L. Rev. 551 III. The Election of 1800 When John Adams opened the documents from Vermont in 1797, they were in perfect order. Thomas Jefferson faced a different situation when he opened Georgia's electoral votes in 1801: The certificate was illegal on its face. We begin by setting the problem in a larger context before focusing on Jefferson's response. *582 A. The Run-Up Washington's delay in announcing his Farewell Address constrained the ferocity of party competition in 1796. With the Great Man departing the scene at the end of September, the two sides had little time to escalate their struggle to fever pitch. Four years later, partisan battle reached one of its historic highs. 76 For both parties, the very future of the republic was at stake. For the Federalists, the Republicans were vicious factionalists who sought revolutionary upheaval along Jacobin lines. 77 For the Republicans, the Federalists were cryptomonarchists, aping English models at home and damaging the republican cause abroad. 78 Both sides reacted with extreme measures that testified to their high anxiety. Republican politicians in Kentucky and Virginia issued resolutions calling for extraordinary state actions to check the abuse of Federalist power, while Federalist judges threw Republican newspaper editors into jail for seditious libel. 79 As the moment of electoral truth neared, the written Constitution failed to discharge its most basic function. Whatever else it may or may not accomplish, a written constitution is supposed to provide everyone with undisputable rules of the game--telling *583 them what they must do to win elections, and how to determine who has lost. When judged by this key criterion, the Philadelphia Convention was a miserable failure. The rise of two-party competition had transformed the Framers' clever effort at institutional engineering into a constitutional nightmare. Failing to anticipate the rise of national parties, the Convention had focused on a different set of problems when designing its system of presidential selection. In the Framers' estimation, their big problem was state provincialism, and so they had developed their complex two-vote scheme to mitigate its effects. Despite the impact of political parties on the election of 1796, the system managed to operate more or less as the Framers envisioned. With second votes scattering on behalf of regional favorites, the number-two spot went to Thomas Jefferson, leader of the Republican party but also a “continental character” of the sort they wanted to guide the nation. As the 1800 race intensified, though, the electoral system became the object of intense partisan manipulation. On the state level, parties used their political power to manipulate the process of selecting electors--shifting to legislative selection, or changing the mode of popular choice, depending on their perception of partisan advantage. 80 The Federalists attempted the same maneuver on the national level, where they were in firm control of the presidency and both houses of Congress. Under the leadership of Federalist Senator James Ross, the Senate passed a bill establishing a special committee to “inquire, examine, decide, and report upon” irregularities that might occur in connection with the electoral vote. 81 This “Grand Committee” was to include six senators, six representatives, and the Chief Justice of the United States. 82 It was *584 to meet in secret 83 and its report would serve as the “final and conclusive determination of the admissibility or inadmissibility of the votes given by the electors for President and Vice-President of the United States.” 84 Passed on a party-line vote of sixteen to twelve in March 1800, the bill would have become law but for Congressman John Marshall's intervention in the House. Speaking before a House select committee, 85 Marshall raised constitutional objections to the proposed bill. 86 His amendments stripped the Committee of its authoritative status, giving the last word to both houses of Congress, meeting separately. The Committee's rejection of a state's electoral vote would be upheld only if a majority of both houses accepted its recommendation. 87 Marshall's success in weakening the proposal angered the more extreme Federalists. His measure passed the House but was rejected on another party-line vote in the Senate--with hard-line Federalists insisting that a Committee rejection be upheld if only one house supported its recommendation. 88 This demand led to an impasse, and the Ross initiative came to nothing, leaving the President of the Senate and Congress to confront the painfully inadequate constitutional text if a vote-counting problem should arise. 89 APPENDIX - 11 © 2021 Thomson Reuters. No claim to original U.S. Government Works. 11 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 13 of 553 PageID #: 418 THOMAS JEFFERSON COUNTS HIMSELF INTO THE PRESIDENCY, 90 Va. L. Rev. 551 *585 This ticking time-bomb was momentarily forgotten once the electoral returns started rolling in. In contrast to 1796, electors had sworn off the practice of substituting a favorite son for their party's vice-presidential candidate. With four years of battle under their belts, every elector voted a straight party-line ticket, with one exception. The Federalists wasted one of their second ballots on John Jay, giving John Adams a one-vote edge over his running mate Charles Cotesworth Pinckney, and neatly avoiding a House runoff if they won a majority. The Republicans were less astute. All of their electors voted a straight ticket, giving Jefferson and Burr an equal number of votes and throwing the race into the House. “[A]fter the most energetic efforts, crowned with success, we remain in the hands of our enemies by want of foresight in the original arrangement” 90 --so wrote Jefferson to Monroe on December 20. Almost two months remained before the day designated for the formal vote count, Wednesday, February 11, 1801. 91 This was a period of feverish activity, as Republicans and Federalists prepared their forces for the looming House runoff between Jefferson and Burr. If the protagonists had been aware of a problem with Georgia's electoral votes, they would have engaged in a related round of strategic maneuvering. Without Georgia's four electors, Jefferson and Burr could only claim sixty-nine valid votes apiece. As we have explained, 92 this would have forced them into a five-man runoff that included Adams, Pinckney, and Jay. 93 The possibility of a five-man race should have provoked an intense round of politicking--and yet we have found absolutely no documentary evidence of any such activity. In contrast, there is voluminous evidence detailing efforts by Federalist and Republican politicians to gain support from *586 House members in the two-man race between Jefferson and Burr they believed was in the offing. 94 The silence about the five-man possibility is deafening--no one seems to have anticipated the constitutional pitfalls awaiting Jefferson when he opened the ballots on February 11. Our conclusion is bolstered by Jefferson's confident treatment of an administrative matter. To ensure that all the electoral votes arrived in Washington in time, the governing statutes authorized the Secretary of State, then John Marshall, to “send a special messenger” if any state's electoral certificates had not arrived by the “first Wednesday in January.” 95 The states were sending envelopes containing their ballots to Jefferson, in his capacity as President of the Senate. 96 On December 28, he wrote Marshall that no special messengers would be required. 97 Jefferson's confidence was perfectly understandable--as we will see, the outside of the envelope from Georgia bears no indication of the constitutional problems contained within. 98 Moreover, it was perfectly understandable that Jefferson would go no further than the surface of the envelope, as the Constitution explicitly required him to “open all the Certificates” in full view of the House and Senate, 99 and he would have raised suspicions about ballot-tampering had he taken a peek beforehand. The emerging situation was the mirror image of the Vermont scenario of 1797. The complaints about Vermont were raised in the newspapers long before Adams opened the envelopes. 100 This gave the sitting Vice-President an opportunity to consider in advance how to conduct himself at the moment of truth. The potential legal *587 difficulty was made easier by the fact that the Vermont ballot was formally perfect. 101 And strategically, the stakes had been lowered dramatically when, thanks to Jefferson's behind-the-scenes intervention, the Republicans were no longer publicly complaining about the legality of the Vermont votes. When Adams provided his political enemies with a formal opportunity to protest at the vote-counting ritual, he could be quite confident that his enemies would not exploit the situation, and if they did, that he could legally justify a decision to place the Vermont votes in his column. Things were different in 1801. When the obvious defect in Georgia's ballot became evident on February 11, everybody would be in for a surprise, and high-stakes decisions would be required in a matter of minutes. Worse yet, the written Constitution served only to exacerbate the explosive situation. Rather than providing clear rules for resolving electoral vote problems, it explicitly handed the gavel to the worst possible presiding officer--the man with the most to gain by including Georgia's defective ballot-and failed to provide him with any rules to govern the tough cases. B. Jefferson's Problem APPENDIX - 12 © 2021 Thomson Reuters. No claim to original U.S. Government Works. 12 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 14 of 553 PageID #: 419 THOMAS JEFFERSON COUNTS HIMSELF INTO THE PRESIDENCY, 90 Va. L. Rev. 551 Whatever its other obscurities, Article II of the Constitution contains some plain instructions for each state's electors: “And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate.” 102 Call this the electoral vote, and it is the document that created legal problems for Georgia in 1800. A few statutory requirements are also relevant. George Washington's first election preceded the first session of Congress, but in 1792 Congress enacted a framework law for future contests. The statute instructs the “executive authority of each state” to create a second document that certifies the names of the electors who have been selected by the state. 103 Call this the certificate of ascertainment. The statute instructs the electors to enclose this certificate *588 with their electoral vote. 104 Once they have placed both documents in an envelope for delivery to the President of the Senate, they must also “certify[]” on the envelope “that a list of the votes of such state for President and Vice President is contained therein.” 105 The Georgia electors fulfilled both of these statutory requirements in 1801, but their electoral vote--the key document required by the Constitution-- dramatically fails to comply with the requirements of Article II and the norms established by the uniform practice of the states in every early election. 106 In 1796, for example, this is what Georgia's vote looked like: 107 *589 Figure 1 TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE As the Constitution prescribes, the upper half of the document contains “a List of all the Persons voted for, and of the Number of Votes for each.” 108 The bottom half complies with the second part of the constitutional command: “which List they shall sign and certify.” 109 Georgia's 1796 submission also contains a certificate of ascertainment *590 from the Governor certifying the four electors whose signatures appear on the electoral vote. 110 In contrast, Georgia's envelope of 1800 contains a single sheet of paper, not the two provided by every other state. On one side of the sheet, there is a legally perfect certificate of ascertainment, signed by Governor James Jackson, identifying the state's four electors in the standard fashion. There is, however, no physically distinct electoral vote. The only indication of the electors' preferences appears on the obverse side of the certificate of ascertainment. This is what it looks like: *591 Figure 2 TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE *592 To what extent does this primitive document satisfy the constitutional requirements? If we restrict ourselves to the four corners of the document, the answer is: not at all. To be sure, there is a “list” of four names under the headings “Jefferson” and “Burr,” but there is no statement certifying that the four individuals were casting the state's electoral votes for these two candidates. To clarify the formal deficiencies, simply measure the Georgia “vote” against the terms of the constitutional text. The Georgia document indeed contains a “List,” 111 but it does not say that it represents a list of “the Persons voted for.” 112 The four names appearing below “Jefferson” and “Burr” are those of the individuals certified by Governor Jackson, but the electors themselves have not “sign[ed] and certif[ied]” that the list actually represents a true statement of their preferences. 113 These constitutional requirements are purely technical, but they are not trivial. To the contrary, when read as part of the grander constitutional scheme, they seem quite important. Immediately after the Constitution imposes elaborate formalisms on each state's electoral vote, it proceeds to a provision that should, by now, be familiar: “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.” 114 Given the opacity of this provision, formalism might be just the thing needed to ensure its smooth operation. Since the text does not explicitly contemplate complex disputes over the validity of electoral votes, perhaps the best way to make it operational is to impose a crisp rule on the President of the Senate. When opening each ballot, he should assure himself that the voting APPENDIX - 13 © 2021 Thomson Reuters. No claim to original U.S. Government Works. 13 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 15 of 553 PageID #: 420 THOMAS JEFFERSON COUNTS HIMSELF INTO THE PRESIDENCY, 90 Va. L. Rev. 551 papers comply *593 with the formal constitutional and statutory requirements. If they do, the vote “shall then be counted;” 115 if not, it should not. Any other approach threatens to involve the President of the Senate in an uncertain proceeding in which he might be an interested party. The formalist's premise of a smoothly functioning machine, moreover, was regularly fulfilled during the early years of the republic: Each state in every prior election had submitted technically perfect electoral votes and certificates of ascertainment. 116 Yet formalism has the vices of its virtues: The disqualification of an entire state is a very serious matter. In 1800, Georgia was a frontier region without great legal sophistication. 117 If the Georgians had merely made a technical error in expressing their choice of Jefferson and Burr, would it not be wrong to disqualify them? Worse yet, the blunder had decisive national ramifications, transforming a two-man House runoff into a five-man race. Why should the nation's fate hinge on some backwoods blunder? But was the mistake merely technical? Viewing the matter from Washington, D.C., it would have been hard to know for sure. First of all, no other frontier state had ever made such a legal mistake. Tennessee, for example, had a much shorter history of organized government than did Georgia, but it had had no trouble complying with the explicit commands of the Constitution and the 1792 Act. Here is Tennessee's 1800 ballot: 118 *594 Figure 3 TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE *595 Not only did Georgia's ballot stick out like a sore thumb, but there was something particularly suspicious about it: Its electoral vote had been plastered on the backside of the certificate of ascertainment. This anomaly raises the disturbing possibility of a classic “bait and switch” operation. Under this scenario, Georgia's four electors actually did what everybody else did: They prepared a proper ballot, put it into the envelope with the certificate of ascertainment, and then signed the outside of the envelope. 119 At this point, some devious character enters the scene, removes the standard ballot, and casts four defective votes for Jefferson and Burr on the backside of the remaining certificate. He then seals the envelope and sends it on its merry way. The missing electoral document was not only suspicious in itself. The “bait and switch” scenario put the legal deficiencies of the ersatz ballot in a new and disturbing light. Criminals do not spend much time reading the Constitution. If a fraudster had removed the genuine ballot prepared by the true electors, it is not surprising that he created a legal mess when writing up his counterfeit. On this scenario, Georgia's legal mess was the result of a fraudster's elimination of the genuine item originally prepared by the true electors. Worse yet, Georgia was already notorious for shady dealing. In the Yazoo scandals, the state's leading politicians had sold vast tracts of public land at ridiculously low prices: “[O]nly one of the legislators voting for [the Yazoo act] had not been bribed in some way by the land companies.” 120 To be sure, Georgia's voters had recently *596 swept the corrupt politicos out of office, 121 but could Jefferson, sitting from a great distance in Washington, D.C., be confident that their replacements were not playing similar games? So much for the dark side. There were other bits of concrete evidence that pointed in a more reassuring direction. Pursuant to statutory instructions, Georgia's four electors had “certif[ied]” on their envelope to the President of the Senate “that a list of the votes . . . for President and Vice President [was] contained therein.” 122 As Figure 4 suggests, these four signatures match quite well with their name-sakes on the defective ballot illustrated in Figure 2: *597 Figure 4 TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE The history of mankind is littered with clever forgeries, and even today, handwriting analysis is more art than science. Nevertheless, if Jefferson were to compare the ballot with the envelope, he would not detect evidence of an obvious forgery. APPENDIX - 14 © 2021 Thomson Reuters. No claim to original U.S. Government Works. 14 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 16 of 553 PageID #: 421 THOMAS JEFFERSON COUNTS HIMSELF INTO THE PRESIDENCY, 90 Va. L. Rev. 551 So perhaps the *598 unconstitutional Georgia ballot was indeed the result of mere legal incompetence rather than gross skullduggery. This benign interpretation is supported by a final consideration. All through January, newspapers were reporting regularly that Jefferson and Burr had won all four of Georgia's electoral votes. 123 Given the broad publicity, surely the Federalists would have launched a vocal protest if they thought they had really won. The election of 1800 was one of the closest, and most partisan, in American history. If any of the Georgia electors had actually voted *599 for Adams or Pinckney, common sense suggests that they never would have remained silent as they saw their votes publicly misrepresented. Once the Georgia envelope was opened, clever lawyers might debate endlessly about the possibility of a “bait and switch” operation, yet for the sober statesman, the public silence in the period leading up to February 11 might seem more eloquent than anything lawyers might say afterward. This final point seems the most powerful argument supporting a decision to credit Jefferson and Burr with Georgia's four electoral votes in 1801. But is it sufficiently powerful to outweigh all the arguments on the other side? This was the key question facing Jefferson as he confronted his constitutional responsibilities as Senate President. How did he respond? C. Jefferson's Decision A glance at the official report of the vote count in the Annals of Congress is not the slightest bit revealing: Mr. Speaker, attended by the House, then went into the Senate Chamber, and took seats therein, when both Houses being assembled, Mr. Rutledge and Mr. Nicholas, the tellers on the part of this House, together with Mr. Wells, the teller on the part of the Senate, took seats at a table provided for them, in the front of the President of the Senate. The President of the Senate, in the presence of both Houses, proceeded to open the certificates of the Electors of the several States, beginning with the State of New Hampshire; and as the votes were read, the tellers on the part of each house, counted and took lists of the same, which, being compared, were delivered to the President of the Senate, and are as follows: STATES. Thomas Jefferson. Aaron Burr. John Adams. Charles C. Pinckney. New Hampshire- - - - - 6 6 Massachusetts- - - - - 16 16 Rhode Island - - - - - 4 3 Connecticut - - - - - 9 9 - - 4 4 12 12 Vermont - - New York - - New Jersey - - - - - 7 8 8 7 7 Delaware - - - - - 3 3 Maryland - - - 5 5 5 5 21 21 Kentucky- - - 4 4 North Carolina- - - 8 8 4 4 Tennessee - - - 3 3 South Carolina- - - 8 8 Georgia- - - 4 4 73 73 65 64 1 7 Pennsylvania- - - John Jay. Virginia- - - 1 *600 Recapitulation of the votes of the Electors. APPENDIX - 15 © 2021 Thomson Reuters. No claim to original U.S. Government Works. 15 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 17 of 553 PageID #: 422 THOMAS JEFFERSON COUNTS HIMSELF INTO THE PRESIDENCY, 90 Va. L. Rev. 551 Thomas Jefferson - - - -73 Aaron Burr- - - - -73 John Adams- - - - -65 - -64 - -1 Charles Cotesworth Pinckney John Jay- - - The President of the Senate, in pursuance of the duty enjoined upon him, announced the state of the votes to both Houses, and declared that Thomas Jefferson, of Virginia, and Aaron Burr, of New York, having the greatest number, and a majority of the votes of all the Electors appointed, and, being *601 equal, it remained for the House of Representatives to determine the choice. The two Houses then separated; and the House of Representatives, being returned to their Chamber, proceeded, in the manner prescribed by the Constitution, to the choice of a President of the United States . . . . 124 There is no indication of a problem with the Georgia ballot. In contrast to John Adams in 1797, Jefferson does not sit down after the vote count to give others a chance to raise an objection. 125 He immediately pushes the proceedings to the next stage: a House runoff between Burr and himself for the presidency. So far as the Annals and all of the other official versions are concerned, there was no problem with the Georgia vote. The newspapers tell a different story. Here is the account from the Philadelphia Aurora & General Advertiser: “The Tellers declared there was some informality in the votes of Georgia, but believing them to be the true votes, reported them as such.” 126 The Aurora was the leading Republican paper of the time, noteworthy for its partisanship in a partisan age. 127 Since its story cast a shadow (however slight) on Jefferson's claim to an Electoral College majority, it certainly would not have fabricated the incident out of whole cloth. The Aurora's report was copied verbatim in Boston, New York, Philadelphia, and even Savannah, by newspapers of every political leaning. 128 At least one other paper--Boston's Mercury and New- *602 England Palladium--published a story that varied the language slightly: “The votes from Georgia, were rather informal--but accepted.” 129 To further enhance verisimilitude, all the newspapers put a precise time on their report: “half past 3 o'clock, p.m.” 130 No newspaper explicitly described Jefferson's role in the affair. Those following the Aurora flashed a searchlight on the “tellers.” It was these gentlemen, two from the House and one from the Senate, who “declared [that] there was some informality . . . but believing them to be the true votes, reported them as such.” 131 As a constitutional matter, however, the tellers lacked the authority to make a binding decision. Article II does not mention their existence, let alone vest them with any decisionmaking authority. 132 Moreover, the official proceedings did not give the last word to the tellers, but to Jefferson: The President of the Senate, in pursuance of the duty enjoined upon him, announced the state of the votes to both Houses, and declared that Thomas Jefferson, of Virginia, and Aaron Burr, of New York, having the greatest number, and a majority of the votes of all the Electors appointed, and, being equal, it remained for the House of Representatives to determine the choice. 133 *603 We are now in a position to present a stripped-down version of our story: Strong evidence demonstrates that the tellers told Jefferson (apparently loud enough for the news to get out to the public 134 ) that there was a problem with the Georgia vote. Our inspection of the original documents tells us that they were right. Nevertheless, Jefferson asserted his authority, as President of the Senate, to proceed in the face of this report. He decisively resolved the issue APPENDIX - 16 © 2021 Thomson Reuters. No claim to original U.S. Government Works. 16 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 18 of 553 PageID #: 423 THOMAS JEFFERSON COUNTS HIMSELF INTO THE PRESIDENCY, 90 Va. L. Rev. 551 by counting Georgia's vote as part of the final tally, even though he was an interested party in the affair. Despite the extraordinary character of this action, nobody rose to protest. 135 If we limit ourselves to strictly contemporaneous sources, this is all we are entitled to say--more than enough, as we shall see, to raise a host of historiographic and constitutional issues. Before broadening the inquiry, we trace the remarkable fate of this incident in American history. After all, it is no small thing to learn that Thomas Jefferson counted his rivals out of the race in the House runoff for the presidency. This remarkable fact, however, has somehow eluded the devoted attentions of generations of Jefferson lovers and Jefferson haters. 136 And it would have eluded our attention *604 as well, except for the serendipitous discovery of a remarkable book by Matthew Livingston Davis. 137 Written in 1836, Davis's two-volume Memoirs of Aaron Burr contains a graphic description of the scene: On the 11th of February the ballots were opened. During the performance of this ceremony a most extraordinary incident occurred. As it is known to but few now living, and never been publicly spoken of, it has been deemed proper to record it here, as a part of the history of that exciting contest. The Aurora of the 16th of February, 1801, remarks, that “the tellers declared that there was some informality in the votes of Georgia; but, believing them to be true votes, reported them as such.” No explanation of the nature of this informality was given; nor is it known that any has ever been given since. .... . . . Mr. Jefferson was the presiding officer. On opening the package [of] endorsed Georgia votes, it was discovered to be totally irregular. The statement now about to be given is derived from an honourable gentleman, a member of Congress from the state of New-York during the administration of Mr. Jefferson, and yet living in this state. He says that Mr. Wells (a teller on the part of the Senate) informed him that the envelope was blank; *605 that the return of the votes was not authenticated by the signatures of the electors, or any of them, either on the outside or the inside of the envelope, or in any other manner; that it merely stated in the inside that the votes of Georgia were, for Thomas Jefferson four, and for Aaron Burr four, without the signature of any person whatsoever. Mr. Wells added, that he was very undecided as to the proper course to be pursued by the tellers. It was, however, suggested by one of them that the paper should be handed to the presiding officer, without any statement from the tellers except that the return was informal; that he consented to this arrangement under the firm conviction that Mr. Jefferson would announce the nature of the informality from the chair; but, to his utmost surprise, he (Mr. Jefferson) rapidly declared that the votes of Georgia were four for Thomas Jefferson and four for Aaron Burr, without noticing their informality, and in a hurried manner put them aside, and then broke the seals and handed to the tellers the package from the next state. Mr. Wells observed, that as soon as Mr. Jefferson looked at the paper purporting to contain a statement of the electoral vote of the state of Georgia, his countenance changed, but that the decision and promptitude with which he acted on that occasion convinced him of that which he (a federalist) and his party had always doubted, that is to say, Mr. Jefferson's decision of character, at least when his own interest was at hazard. 138 How much weight should be given to this astonishing account? On its face, it is double hearsay. Davis heard the account from an anonymous New York Congressman who had heard it from Wells. There were three tellers at the proceedings: Federalist William Wells from the Senate, Federalist John Rutledge, and Republican John Nicholas from the House. Our search of the principal archives containing Davis's papers, and those of the tellers, has failed to uncover further corroboration. 139 Worse yet, Davis was a *606 long-time Burr loyalist and an active and life-long Jefferson-hater. 140 During his moderately successful career in New York politics, he certainly did not have a standout reputation for integrity. 141 When publishing a posthumous selection of Burr's papers, he aimed to put his hero in the best light, sometimes destroying or altering originals for this greater good. 142 APPENDIX - 17 © 2021 Thomson Reuters. No claim to original U.S. Government Works. 17 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 19 of 553 PageID #: 424 THOMAS JEFFERSON COUNTS HIMSELF INTO THE PRESIDENCY, 90 Va. L. Rev. 551 Nevertheless, Davis is sometimes careful in his treatment of sources. While he excludes Burr's love letters from his book, he is scrupulous enough to announce the omission in his Preface 143 --a *607 punctilio that other editors of the era would have considered unnecessary. A similar candor marks his report of the vote-counting episode of 1801. He does not puff up the truth value of his account, but clearly states that it is double hearsay, leaving it up to the reader to assess its ultimate validity. 144 What is more, Davis did not create the story out of whole cloth. The Aurora does say what he says it says 145 and, most crucially, our inspection of the original documents in the National Archives confirms the key fact that the Georgia ballot was legally defective, and blatantly so. Davis goes beyond our contemporaneous sources in one important particular. While the newspapers focus on the tellers' public announcement of Georgia's deficiency, Davis highlights Jefferson's aggressive action to preempt further consideration of the matter. Should we believe Davis on this point? Perhaps the final answer is tucked away in some forgotten archive. Until some lucky researcher hits pay-dirt, it certainty will elude us. Moreover, Davis's hearsay report does contain errors on other matters. While Federalist Senator William Wells was indeed the teller designated by the Senate, he did not discover that “the envelope was blank; that the return of the votes was not authenticated by the signatures of the electors, or any of them, either on the outside or the inside of the envelope, or in any other manner.” 146 As Figure 2 demonstrates, the electors did sign their names, as required by statute, on the outside of the envelope. 147 Davis is also incorrect in asserting that the Georgia ballot “merely stated in the inside that the votes of Georgia were, for Thomas Jefferson four, and *608 for Aaron Burr four, without the signature of any person whatsoever.” 148 As we have seen, the paper does contain signatures, but the signatories do not specify that they are casting an electoral ballot, much less certify their ballot by the standard method. It is easy to make too much of such discrepancies, which often afflict hearsay reports as they proceed from one speaker to the next. As Senator Wells's report moved to an anonymous Congressman and then to Davis, some noise entered the signal, but not to the point of overwhelming the basic story: Georgia's ballot was obviously defective. And if this much of the message came through, one should hesitate before dismissing the further report of Jefferson's explicit ruling. After all, the Constitution delegated to Jefferson, and only Jefferson, an affirmative role in the vote-counting ritual. 149 While it is debatable whether the text gave him the authority to make a decisive ruling, it is abundantly clear that the tellers had absolutely no authority to resolve the matter, and it was perfectly logical for them to relieve themselves of the decisional burden by handing the ballot to Jefferson. Once they had done so, no responsible presiding officer would have proceeded without examining the suspect ballot papers. Davis's report, while melodramatic, comports with the common sense of the situation. 150 *609 What is more, we have uncovered another evidentiary source testifying to Jefferson's involvement. Apparently, his decisive action was memorable enough to survive as an oral tradition in Congress as late as 1876, when Senator Hannibal Hamlin recalled the event: [T]here was no certificate accompanying the return that the Electors met and balloted. It had nothing on its face to show that the votes were given for anybody. Clearly it did not conform to the Constitution, but it was counted as shown by the record. There was a tradition that the tellers handed it back to Mr. Jefferson, who returned it to them, and decided that it must be counted. 151 In contrast to Davis, Hamlin reports the details surrounding Georgia's ballot with perfect accuracy. Despite the passage of seventy-five years, he says-- correctly--that the Georgia envelope contained a certificate of ascertainment, but that the ballot “had nothing on its face to show that the votes were given for anybody.” 152 His invocation of “tradition” seems to go back to a source that is independent of Davis. APPENDIX - 18 © 2021 Thomson Reuters. No claim to original U.S. Government Works. 18 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 20 of 553 PageID #: 425 THOMAS JEFFERSON COUNTS HIMSELF INTO THE PRESIDENCY, 90 Va. L. Rev. 551 Of course, these two post-1801 sources contribute their confirming testimony thirty-five and seventy-five years after the fact. Nevertheless, *610 modern historians have entirely failed to take it into account, allowing the entire episode to fall out of sight and mind for more than a hundred years. 153 Our story is constructed out of three categories of material. Official documents demonstrate the illegality of the Georgia ballot, and that counting them was necessary in pushing the electoral vote totals for Jefferson and Burr beyond the crucial threshold of seventy votes. They also reveal that Jefferson, “in pursuance of the duty enjoined upon him” as President of the Senate, 154 expressly found that he and Burr had gained “a majority of the votes of all the Electors appointed.” 155 Only on this basis did he send the matter to “the House of Representatives to determine the choice” 156 for President in a runoff limited to two, rather than five, candidates. Contemporaneous newspaper reports establish that Jefferson did not make his decision inadvertently, but that the tellers clearly and publicly announced the defect in the Georgia vote. Subsequent hearsay accounts confirm that Jefferson made a focused and self-conscious decision about the Georgia ballot, and resolved the question in a manner that dramatized the intrinsic weakness of the Founding design. But enough detective work. The next Part considers the larger constitutional significance of the Georgia episode. We examine this question on two fronts: first putting Jefferson's decision in its concrete historical context, and then considering its enduring implications as a precedent for future Electoral College disputes. IV. Jefferson in Context So the Founders made some serious mistakes, as did Thomas Jefferson. Constitutional muckraking isn't much the fashion in these hagiographic times, but it is tough to ignore some embarrassing questions: Surely the Framers should have been clever enough to note the danger of appointing the fox to superintend the chicken coop? Surely Jefferson should have been more upfront about excluding *611 his Federalist rivals from the House runoff on the basis of a transparently defective ballot? And yet, there is another side to our story. Placed in a greater historical context, Jefferson's decision may come to seem something more than a sorry tale of shabby self-dealing. Difficult though it may be to believe, Jefferson may have chosen the most statesmanlike way out of an impossible situation. There are even extenuating circumstances surrounding the initial blunder by the Founders: It was stupid to place the President of the Senate in the chair, but the outcome in 1801 might well have been worse had the Founders made a different institutional choice in 1787. Or so we shall argue. A. Substance Over Form Begin by recalling Jefferson's response to the controversy swirling around the Vermont ballot in 1796. Adams was a mere three votes ahead, and Vermont's total of four represented his margin of victory. Nevertheless, Jefferson refused to quibble his way into the presidency. Remember his words to Madison: “Surely in so great a case, substance & not form should prevail. . . . I pray you to declare it on every occasion foreseen or not foreseen by me, in favor of the choice of the people substantially expressed, and to prevent the phaenomenon of a Pseudo-president at so early a day.” 157 Jefferson's self-restraint in 1797 casts new light on his apparent self-dealing in 1801. Perhaps he was acting, in both cases, on the same principle: do not allow legal quibbling to produce “the phaenomenon of a Pseudo-president” not rooted in the “choice of the people.” In 1797, this principle meant supporting Adams; in 1801, himself. But, of course, this recharacterization begs a substantial question: How could Jefferson be so sure that the defect in Georgia's ballot was merely formal, and not the result of fraudulent misrepresentation? The question turns primarily on the weight properly accorded a single fact: During the final run-up to the vote count, Georgia's votes for Jefferson and Burr seemed a foregone conclusion. Newspapers *612 around the country were regularly placing them in the Republican column without controversy. 158 Nobody in Washington had made any contrary suggestions. Given the APPENDIX - 19 © 2021 Thomson Reuters. No claim to original U.S. Government Works. 19 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 21 of 553 PageID #: 426 THOMAS JEFFERSON COUNTS HIMSELF INTO THE PRESIDENCY, 90 Va. L. Rev. 551 ferocity of partisan combat at the time and the closeness of the election, the deafening silence had a plain meaning: No smoke equals no fire. For a man of the world-- and Jefferson was nothing if not a man of the world--there was an obvious inference. If the Federalists weren't complaining, then there was nothing to complain about. Despite the formal deficiencies, Georgia's votes should count in the Republican column, with form giving way to substance. Of course, Jefferson's judgment call may have been wrong, and one of us has traveled to Georgia on a factfinding mission to explore the matter further. 159 Our conclusion: The state's four electors indisputably voted for Jefferson and Burr, “to the great satisfaction of a large concourse of people assembled on the occasion.” 160 This report by Governor Jackson is abundantly confirmed in local *613 newspapers. 161 There is no question about it: If Georgia's votes had not been counted in Washington, form would have indeed triumphed over substance. We have been less successful in finding out why the Georgians failed, on this one occasion, to comply with constitutional rules consistently followed elsewhere. It is clear, however, that the Georgians had been particularly inattentive to federal requirements during the 1800 campaign. At an earlier stage, the legislature had passed a statute providing for the selection of electors as part of the general election scheduled in early October. 162 In taking this step, it violated a federal law requiring all states to pick their electors “within thirty-four days preceding the first Wednesday in December.” 163 When the bill reached Governor Jackson's desk, he identified the legal problem and vetoed the plan. 164 The legislature then refused to hold an additional election within the thirty-four-day window, and chose to select the four electors itself. 165 *614 Unfortunately, the Governor was not equally vigilant when the electors assembled before a “large concourse” to cast their ballots. Nobody intervened to correct Georgia's legal error, but there was no doubt about the underlying intent of the electors. 166 Jefferson was on solid ground in refusing to make a federal case out of frontier ineptitude. B. Prudence and Publicity But Jefferson did not merely place Georgia's votes into the Republican column; he did not publicly acknowledge the existence of any sort of problem. In contrast to John Adams four years earlier, he did not give his opponents a clear opportunity to raise the issue. Instead, he immediately proceeded to cut his Federalist opponents out of the runoff. 167 Although Jefferson's decision turned out to be substantively sound, surely it was procedurally defective? Perhaps not. Though Jefferson did not speak, the tellers announced the existence of the problem before handing him the Georgia document, and loud enough for the newspapers to carry the story throughout the land. 168 Two of the three tellers were Federalists, and one of them--if Davis is to be believed--was shocked by Jefferson's rapid disposition of the affair. 169 He certainly was in a position to stop the vote count and raise a formal objection if he chose, but he did not do so. There is every reason to suppose that the Georgia delegation was among the members of the House and Senate whose “presence” is constitutionally required at the vote-counting ceremony. Two of these Georgians--Benjamin Taliaferro of the House and *615 James Gunn of the Senate--had been elected as Federalists. 170 Surely one or another would have protested if he believed that the electors had actually voted a Federalist ticket. No intense partisanship was required to raise this point had it been well founded. It is wrong, then, to accuse Jefferson of exploiting his position to keep his opponents in the dark. His official silence helped conceal his ruling from posterity, but the Georgia problem was not a secret to the assembled congressmen. Jefferson had simply shifted the burden of going forward to the Federalists in the audience. If they wished to create a “Pseudo-president” by raising some legal quibbles, it was up to them to make a clear and focused objection. Jefferson certainly was not going to do anything to make their task any easier. 171 Jefferson's silence seems particularly sensible in the context of the confused legal situation prevailing in 1801. Just the year before, Congress tried to pass a statute creating an explicit procedure for dealing with electoral vote challenges, 172 but it failed to achieve consensus, 173 leaving everybody with the painfully ambiguous words of the Constitution as a guide. The text simply does not specify who is to have the last word. Though the President of the Senate *616 “opens” the votes, he is not expressly APPENDIX - 20 © 2021 Thomson Reuters. No claim to original U.S. Government Works. 20 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 22 of 553 PageID #: 427 THOMAS JEFFERSON COUNTS HIMSELF INTO THE PRESIDENCY, 90 Va. L. Rev. 551 authorized to do more; though vote counting occurs in the “presence” of the two houses, they are not expressly granted any sort of decisionmaking authority, let alone decisive power. 174 Jefferson's silence allowed everybody to resolve the matter without a heated legalistic battle. And there can be no question that the battle would have been heated. The Federalists had a clear majority in Congress. 175 This gave them an overwhelming interest in stretching the constitutional language to give the final word to the House and Senate; while Jefferson, outraged by the partisan theft of four crucial votes, would have had every incentive to insist upon an expansive reading of his own power to “open” the votes. As the parties struggled in legal limbo, they would soon confront another danger. There was no obvious method by which to resolve their argument. They would be facing an infinite regress: On the one hand, the President of the Senate could claim the right to decide whether the President of the Senate possessed the contested power; and on the other, senators and representatives might insist that their “presence” at the vote count authorized them to override the President's ruling. Worse yet, dispatching a factfinding mission to Georgia was not feasible. It was the dead of winter, and a snowstorm was swirling around the half-built Capitol. 176 Even during calmer weather, it would take a week or two to travel on terrible roads all the way to Augusta, the state capitol. 177 Only three weeks remained, however, before the inauguration of a new President. Time would run out *617 before a delegation could complete its factfinding mission and return with a report to the nation's capitol. 178 With factfinding unfeasible, and the constitutional text obscure, the proceedings might have simply disintegrated amidst a cloud of bitter legalisms--the worst possible result. The nation was already in an uproar over the Electoral College tie that had thrown the presidency into the House. Confusion would have been compounded if the House runoff had been postponed indefinitely while partisans quarreled without any obvious means of closing the debate. The year 1801 marked the first time in American history that a political party was called upon to yield power to its rival. Even without a prolonged debate over Georgia, it took almost a week for the House to choose Jefferson over Burr on its thirty-sixth ballot. 179 During this short period, the country was teetering on the brink of violence. It is not at all clear whether the forces for violent resolution could have been kept in check much longer. 180 There was a good deal of constitutional prudence in Jefferson's decision to keep silent. Any express ruling from the chair invited his opponents to initiate a counterproductive struggle between the President of the Senate and the two houses of Congress over their relative competence in the affair. In contrast, the notice from the tellers hit just the right note--placing the burden on the Federalists to raise an objection if there was any factual basis for supposing that Georgia's electors had cast their ballots for the Federalist candidates. The wisdom of Jefferson's decision is confirmed by another pregnant silence over the next few weeks. As we have seen, leading newspapers all around the country reported the problem with *618 Georgia's ballot. 181 Yet we have found no newspaper that contained even a hint of an objection to Jefferson's resolution of the issue--and this at a time when so many other aspects of the Electoral College crisis generated ceaseless controversy. The ready acceptance of this decision testifies to Jefferson's wisdom in avoiding a grand institutional confrontation that had no easy constitutional answer. C. Pinckney for President? To make a final point, suppose that Jefferson had single-mindedly pursued a formalist course. Once alerted to the problem by the tellers, he publicly inspects the documents and proclaims that the plain meaning of the Constitution requires him to disqualify the Georgia votes. 182 This would have left Jefferson and Burr with only sixty-nine votes remaining in their respective columns-- one shy of the seventy needed to exclude Adams, Pinckney, and Jay from the House runoff. 183 A shift to a five-man runoff would have been legally significant, but would it have changed the final outcome? Winning the runoff proved difficult for Jefferson even when Burr was his only opponent. Thanks to another Founding blunder, the House making the choice was the lame-duck body elected in 1798--a year when the Federalists scored significant election victories. 184 Although the party had suffered a number of defections, it still controlled the House when its members voted in ordinary fashion. APPENDIX - 21 © 2021 Thomson Reuters. No claim to original U.S. Government Works. 21 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 23 of 553 PageID #: 428 THOMAS JEFFERSON COUNTS HIMSELF INTO THE PRESIDENCY, 90 Va. L. Rev. 551 But the runoff was decided under special constitutional rules giving each state delegation a single vote. 185 This placed the Federalists at a strategic disadvantage--too many of their congressmen were bunched in too few states. When some Federalists defected to Jefferson, *619 the party could deliver only six states to Burr, while their great antagonist won the vote of eight states. This would have generated an easy victory for Jefferson but for another technical glitch by the Founders. The Constitution required the winning candidate to gain an absolute majority of all state delegations without considering the possibility that some delegations might divide equally. Had the Framers focused on this issue, perhaps they would have awarded a half-vote to each of the contending candidates. The absence of specific instructions had a devastating impact in 1801, however, when two of the states--Vermont and Maryland--split evenly and failed to cast a ballot. 186 As a consequence, Jefferson fell one vote short of the nine required, and the initial ballot resulted in a deadlock: eight for Jefferson, six for Burr, and two not voting. 187 The second ballot revealed a drop in Jefferson's support. Eleven Federalists initially voted for Jefferson in recognition of the obvious fact that he, rather than Burr, was the Republican candidate for President. When Jefferson fell short, five of these congressmen returned to their party, giving Burr a two or three vote majority. 188 Luckily for the Republicans, this shift in individual votes did not change the balance of power in any state delegation, and the impasse continued until the thirty-sixth ballot, with the Federalists desperately searching for a few additional votes. In the words of Congressman James Bayard, a key Federalist leader, “By deceiving one Man (a great blockhead) and tempting two (not incorruptible) [Burr] might have secured a majority of the States.” 189 *620 Jefferson did prevail in the end, 190 but the transformation of the runoff into a five-candidate affair would have made this final victory more difficult. Burr was not the Federalists' candidate of choice--they backed him only as a last-ditch effort to stop their archenemy Jefferson. With a five-man runoff, they could back real Federalists, and this might have made a difference. As we have seen, six Federalist congressmen were unwilling to vote for Burr, but they might have been happy to vote for Adams. At the very least, their blocking coalition would have had even more staying power. 191 In addition, after fifty or sixty ballots, the exhausted House might have broken the impasse by selecting a compromise candidate from among the three remaining contenders. At this point, the Federalists' vice-presidential candidate--Charles Cotesworth Pinckney--would have likely emerged as an exceptionally attractive dark horse. Pinckney was the sort of “continental character” the Founders envisioned as President, with a long and distinguished record of public service. He had had a fine career as a military officer during the Revolution 192 and he served as a delegate to the Constitutional Convention. 193 He also had established *621 a record of moderation during the 1790s--supporting his party when it came to the war with France, 194 but opposing it when it came to the oppressive Alien and Sedition Acts. 195 He would have had the wholehearted backing of the formidable Alexander Hamilton. 196 Indeed, once Adams left the scene, Pinckney became the Federalist standard-bearer for the presidential elections of 1804 and 1808. 197 Last but not least, Pinckney was a South Carolinian, making him an especially attractive compromise candidate. The bulk of Jefferson's support was in the South. 198 Had it become clear that Jefferson could never win nine state delegations, his followers *622 might have bitterly consented to the selection of another southerner of great distinction. 199 All of this is sheer speculation, but Pinckney's dark-horse candidacy gains a measure of reinforcement from one of our sources. Writing thirty-five years after the event, Davis concludes his hearsay account by putting words in the mouth of Senator William Wells, one of the three tellers: “Mr. Wells further stated, that if the votes of Georgia had not been thus counted, as it would have brought all the candidates into the House, Mr. Pinckney among the number, Mr. Jefferson could not have been elected President.” 200 Although Davis has been proven correct on his basic point about Georgia, his story contains too many other minor errors to justify *623 great confidence in this particular. 201 Nevertheless, his decision to mention Pinckney should not be discounted entirely. Whatever his other failings, Davis was politically astute. He would not have included the reference if he thought the dark-horse candidacy was a complete nonstarter. So there it is: With Jefferson and Adams battling to a hopeless impasse in the five-candidate runoff, the third President of the United States might well have been Charles Cotesworth Pinckney. APPENDIX - 22 © 2021 Thomson Reuters. No claim to original U.S. Government Works. 22 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 24 of 553 PageID #: 429 THOMAS JEFFERSON COUNTS HIMSELF INTO THE PRESIDENCY, 90 Va. L. Rev. 551 Consider the resulting uproar when it was discovered, weeks later, that Jefferson actually had won all four Georgia votes, and that his constitutional punctilios as President of the Senate had led to his own defeat by Federalist partisanship in the five-man runoff. The resulting crisis would have been far worse than those occurring in the aftermath of Hayes-Tilden in 1876 or BushGore in 2000. Both of these crises bitterly disappointed the losers, but they could never prove, beyond a reasonable doubt, that they had actually won the underlying electoral votes in controversy. In contrast, Jeffersonians would have been in a position to establish, to a certainty, that their candidate had been denied the presidency on a mere technicality. Perhaps, however, the operation of a final constitutional gimmick might have saved the situation. If the House of Representatives had selected Adams or Pinckney, it would have been up to the Senate to select the Vice-President under yet another set of rules. The Constitution generally gives this office to the defeated presidential candidate with the most votes, but the Senate is authorized to choose among candidates “who have equal votes” after the President has been selected--Jefferson or Burr in this case. 202 If the Senate had sought to console Jefferson with the number two spot, a national crisis might have been avoided if Pinckney (or Adams) had responded to the subsequent news from Georgia by voluntarily *624 allowing the Vice-President to become the fourth President of the United States. 203 If Pinckney or Adams refused to resign the country might, however, have found itself on the brink of civil war. Even during the two-man runoff, Republican governors were organizing military force in the event the House Federalists managed to reject Jefferson. Jefferson himself was making some very dark threats during the impasse. 204 But in the end, the Federalists chose to abandon Burr rather than push the country over the edge. Would they have shown similar restraint had their favorites remained in the running? This was a crisis the infant republic did well to avoid. D. Jefferson and the Rule of Law When we first discovered Georgia's electoral ballot in the National Archives, we believed we had a first-rate scandal on our hands. The meaning of it all seemed painfully clear: Jefferson egregiously violated the express terms of the Constitution in the pursuit of overweening ambition. His presidency was born of constitutional original sin. In its own way, this was as bad as Sally Hemings. The more we have pondered, however, the less we have been scandalized. To be sure, it is always a serious matter to ignore the rules laid down by the text, even when they are incompetently drafted. But in our constitutional tradition, the rule of rules is only one component of a more complex understanding of the rule of law. 205 Placed in full historical context, Jefferson's decision provokes renewed appreciation for the complexities of constitutional interpretation, with three distinct dimensions salient in the present case. The first --principle. As his actions in 1796 demonstrate, Jefferson was *625 serious about avoiding the “the phaenomenon of a Pseudo-president.” 206 Invalidating the Georgia ballot on a legal technicality would have been at war with this principle. Jefferson had ample reason to believe that Georgia had in fact cast its votes for the Republican ticket. He was correct to use his power as Senate President to assure that the vote-counting ritual in Washington corresponded to the true electoral decisions made in the states. The second --prudence. Jefferson was confronting a genuinely difficult institutional question. A high-visibility ruling on the Georgia ballot would have provoked an intense struggle between the President of the Senate and the Houses of Congress over their respective constitutional prerogatives. So long as notice of the Georgia problem had been conveyed to the opposition, was it not wise for Jefferson to avoid such a counterproductive struggle if at all possible? The third --pragmatism. Strict compliance with the formal rules risked genuinely catastrophic consequences. Sending all five candidates into the House runoff could have pushed the country to the brink of civil war. All in all, it was not the best moment for a rule of rules unvarnished by principle, prudence, or pragmatism to prevail. By recognizing this, Jefferson provides a glimpse into the meaning of constitutional statesmanship well worth bringing to light after all these years. E. Dumb Luck A dose of historicism adds nuance to our earlier critique of the Founding blunder--or better, blunders--in connection with the construction of the Electoral College. Recall that the most significant mistake involved the Founders' failure to anticipate the rise of national political parties. Others were more perceptive, most notably Edmund Burke, who had already begun to reflect APPENDIX - 23 © 2021 Thomson Reuters. No claim to original U.S. Government Works. 23 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 25 of 553 PageID #: 430 THOMAS JEFFERSON COUNTS HIMSELF INTO THE PRESIDENCY, 90 Va. L. Rev. 551 on this great change in political practice. 207 Had the Founders been equally far- *626 sighted, they would never have chosen their “two-vote” scheme for the Electoral College. Putting this big mistake to one side, it was still silly to give the sitting Vice-President a central position in the vote count. Had the Convention considered the likelihood that the President of the Senate might run for the presidency, they would have changed the text in a minute. But they did not, so they did not do so, and this failure is nothing to brag about. Nevertheless, the Georgia episode adds an ironic gloss to this Founding blunder. To see our point, suppose that the Framers had adverted to the problem and consider how they most probably would have solved it: If the sitting Vice-President was a poor choice to supervise the ballot count, who should be his replacement? The obvious pick was the Chief Justice--the only constitutional official possessing the impartiality required of the vote-counting job. Indeed, the Founders made this choice when confronting a similar problem in designing the impeachment process. The impeachment trial took place before the Senate, and the President of the Senate would preside unless the Convention made a special exception for his removal from the chair. The Founders spotted the absurdity of allowing the sitting Vice-President to preside over a proceeding that could make him President. Article I, Section 3 explicitly provides that “When the President . . . is tried, the Chief Justice shall preside.” 208 They undoubtedly would have made an identical substitution had they focused on the identical problem raised by the vote-counting ritual. This is the point at which our paradox emerges: Had the Founders possessed greater foresight, the result would have turned out *627 much worse. Jefferson's replacement as chair on February 11 would have been John Marshall, whom the Federalists had placed in office only the week before. 209 While the Founding blunder placed Jefferson in an awkward position, our ultimate conclusion is that he made the best of a bad situation--elevating substance over form and preventing a legitimation crisis of the first magnitude. In contrast, Chief Justice Marshall would almost certainly have acted differently. A confirmed Jefferson- hater, 210 he would have found himself in the delightful position of making a technically correct ruling against Georgia that favored Federalist interests. Since the Constitution explicitly requires that all the electors “sign and certify” their state's return, and clearly designate the persons they were “vot[ing] for,” the formal case was open and shut: “Sorry Georgia, but you don't count (and, alas, given the execrable postal service southwards, your formal deficiency cannot be cured by March 4).” So the Chief Justice rules that the vote total stands at sixty-nine for Jefferson and Burr, one short of a majority, and the Federalists get their men into the runoff. To be sure, Marshall was eminently capable of transcending formalism when it got in the way of his constitutional vision, but this vision certainly did not include Thomas Jefferson as President of the United States. Not even the most partisan Jeffersonian could reasonably complain if the Chief Justice, following the express commands of the Constitution, declared that there were only sixty-nine valid votes in favor of Jefferson and Burr. After all, had not the Founders put the Chief Justice in the chair precisely to assure that vote counting would proceed in strict compliance with the law? No less important, the Jeffersonians would have been in no position to launch an effective challenge to Chief Justice Marshall's decision. The Federalists controlled both houses of Congress and would have voted down any Republican motion to overrule the *628 chair. 211 If the Framers had done their homework, therefore, the vote count would have provided Marshall with a splendid opportunity to enter history, slightly prematurely, as a great defender of the written Constitution--but with a very different result. Consider a few scenarios. Suppose that, despite Chief Justice Marshall's ruling, Jefferson emerged victorious from the fiveman runoff. Marshall then would have been clearly marked by Jefferson as Public Enemy Number One. With the President threatening reprisals, would Marshall have had the courage to write Marbury v. Madison? 212 Would his fellow Justices have joined him in this premeditated assault on the Jeffersonian presidency? And even if they had pushed forward, would the Supreme Court have emerged unscathed? After all, Jefferson's campaign to sweep the Federalist Justices from the Court only failed when the Senate refused to impeach Justice Samuel Chase in a very close vote. 213 Jefferson would have prosecuted this campaign even more fiercely had his great judicial antagonist sought to block his way to the presidency during the vote count controversy. Chief Justice Marshall's prospects would have been no less grim had his ruling led to the victory of his patron Adams, 214 or his friend Pinckney. 215 At best, the Chief Justice would have tied his judicial reputation to a ruling that would have been reviled by APPENDIX - 24 © 2021 Thomson Reuters. No claim to original U.S. Government Works. 24 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 26 of 553 PageID #: 431 THOMAS JEFFERSON COUNTS HIMSELF INTO THE PRESIDENCY, 90 Va. L. Rev. 551 a large portion of the population; at worst, his decision of February 11 would *629 have helped precipitate a bloody conflict over presidential succession. 216 As we contemplate these scenarios it is impossible to mistake the contribution of dumb luck to the affair--“dumb luck” in the technical sense. By “dumb” we mean that the Founders were mistaken in putting the Vice-President in a constitutional situation marked by an egregious conflict of interest; by “luck” we mean that we are all lucky that they were dumb, since if they had been smarter, things would have come out worse, possibly much worse. V. Jefferson's Ghost Perhaps our discovery has historical value, but does it have enduring legal significance? At the very least, the story serves as a cautionary tale. The republic avoided a serious crisis in 1801, yet there is no reason to rely on dumb luck when lightning strikes again. We urgently require a constitutional amendment removing the sitting VicePresident from the chair. And yet, despite the 2000 fiasco, there has been no serious effort to focus on the time bomb that might explode the next time around if the existing vote-counting process operates without judicial interference. This failure has a single cause: the Supreme Court's unanticipated intervention in the electoral contest between George W. Bush and Albert Gore. While an Electoral College crisis is never exactly fun, 2000 was the perfect year for it to happen. The country was enjoying an unparalleled period of peace and prosperity. The leading contenders made every effort to blur their underlying disagreements. Nobody supposed that there was much at stake in the choice between Bush and Gore. If the Supreme Court had not intervened, Congress would have solved the succession problem in one way or another, but in a way that would have emphasized the obvious anachronisms and irrationalities of the existing system. As the television cameras introduced countless viewers to the arcana of the electoral count, everybody would agree on one thing--it was a clear mistake to allow Vice-President Al Gore to preside over his own contest with Bush, and we should pass a constitutional amendment to eliminate such absurdities from future contests. *630 Judge Richard Posner is precisely wrong, then, in asserting that the looming electoral-count crisis on Capitol Hill serves as the only sound justification for the Supreme Court's decision in Bush v. Gore. 217 The next vote-counting disaster probably will strike at a much less propitious moment in the history of the republic--a time when ideologically polarized political parties may be struggling for the White House under conditions of grave economic or international distress. At such a moment, Judge Posner's talk of crisis might have real substance. When this time comes--in 2004 or 2084--the Supreme Court may be unwilling or unable to save the day, and Americans will be forced to accept the antique legal arrangements the politicians of 2000 failed to address. Whatever the jurisprudential merits of Judge Posner's vaunted “pragmatism,” his particular brand is particularly short-sighted. The election crisis of 2000 provided the “optimal” opportunity to generate the political energy needed to spur constitutional amendment. If Bush v. Gore has any sound justification, Judge Posner has not found it. 218 A. From Cautionary Tale to Legal Precedent It appears then, that we are stuck with what the Founders have given us, 219 at least until the next crisis forces the issue to the forefront of public concern. This disheartening conclusion returns us to our motivating question: Since the original constitutional structure continues to guide us, should Jefferson's decision serve as an important legal precedent in interpreting its requirements? Begin with the case for an affirmative answer. As we have seen, the constitutional text does not clearly allocate decisionmaking power between the President of the Senate and the Congress. Worse yet, the text's opacity merely serves as the tip of the Founding iceberg--the sad truth is that nobody was thinking about the *631 problem in Philadelphia, and that is why the text is so unsatisfactory. Given this failure, even textualists should accord substantial weight to subsequent practice in resolving constitutional indeterminacies. 220 Ought implies can: If you can't follow the text, you should respect the conscientious practice of leading statesmen who have attempted to make sense of textual perplexity. The fact that Jefferson exercised the (textually arguable) authority, therefore, as Senate President on the Georgia matter seems very significant as a legal matter. 221 What is more, Jefferson's ruling *632 might well have made a difference to the outcome-- APPENDIX - 25 © 2021 Thomson Reuters. No claim to original U.S. Government Works. 25 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 27 of 553 PageID #: 432 THOMAS JEFFERSON COUNTS HIMSELF INTO THE PRESIDENCY, 90 Va. L. Rev. 551 one of his rivals could have emerged victorious from a five-man runoff. This greatly enhances the precedential significance of his ruling. While there have been quite a few counting controversies over the centuries, almost all of them did not make the slightest difference to the electoral outcome. 222 With the stakes nonexistent, there was no pressing reason for the participants to take the constitutional issues seriously. They were more inclined to resolve the matter quickly, so that the vote count could proceed to its predestined announcement of the victorious presidential candidate. 223 Not so in 1801, when the four Georgia votes were of the greatest strategic importance. The fact that it was Jefferson in the chair also matters. Putting hagiography to one side, he had devoted his four years as President of the Senate to drafting that body's first set of rules for parliamentary procedure 224 --rules that continue to influence the practice of both the Senate and House of Representatives even today. Finally, it would be wrong to dismiss and characterize Jefferson's ruling as merely self-interested. To the contrary, his decision can *633 be defended from the multiple perspectives of principle, prudence, and pragmatism. 225 So it would seem that if precedent is important anywhere in constitutional law, it would be important here--where a constitutional statesman of the first rank, having spent years reflecting on matters of parliamentary procedure, makes a ruling that illuminates a constitutional question that the Framers had so evidently failed to confront, let alone resolve, with any clarity. So much for the affirmative case for precedential significance. Are there any serious counterarguments? The most salient objection involves Jefferson's failure to announce his ruling publicly. Does not his refusal to take public responsibility for his decision undermine its enduring significance? This objection would be compelling if the legal deficiencies of the Georgia ballot had been kept secret. If the House and Senate had been kept in the dark, this would indeed deprive Jefferson's decision of any precedential value. It would indicate that Jefferson himself believed that he was engaging in a devious maneuver that could not withstand the test of public reason. But this is not what happened. The newspaper accounts make it perfectly clear that the tellers put the assembled House and Senate on notice of the Georgia deficiency. 226 Jefferson did not make his decision secretly. He simply shifted the burden to the senators and representatives to raise objections. While he might have gone further, in the manner of John Adams, his failure to do so was prudent under the circumstances. 227 The assembled senators and congressman had an opportunity to make an objection, and they did not make use of it. Moreover, Jefferson publicly took responsibility for the entire vote count: “[I]n pursuance of the duty enjoined upon him,” he declared that he and Burr had won “a majority of the votes of all the Electors appointed.” 228 He could not make this declaration without counting the four Georgia votes in the Republican column. So the *634 fact that he had made a ruling on the Georgia matter was obvious to anybody interested in counting the votes--and surely the senators and congressman observing Jefferson were, like all politicians, good at vote counting. No less important, the newspapers put the country on notice of the Georgia deficiencies, and, despite the bitter partisanship of the time, nobody seems to have protested Jefferson's decision. 229 In short, Jefferson's actions not only illuminate a constitutional question left unresolved by the original constitutional text, but they also resolved a potentially explosive problem in a manner that garnered public consent. What more can we ask of a legal precedent? It is true, of course, that the relevant documents disappeared for more than a century before they were rediscovered. This might be important if other precedents had accumulated during the interim that were inconsistent with Jefferson's ruling. If this had occurred, it might be wiser to ignore the rediscovered early precedent rather than disturb well-established arrangements. In the real world, however, the law remains unsettled. Apart from 1801 and 2001, there is only one other case where the powers of the Senate President posed a genuinely consequential issue. This involved the Hayes-Tilden crisis of 1877, and as we shall see, the resolution reached in 1877 should serve as a very important gloss on the meaning of 1801. It is one thing to recognize that the decision of 1801 is not the only relevant precedent; it is quite another to say that it should not count as a precedent when the Founding machinery once again explodes in our face. APPENDIX - 26 © 2021 Thomson Reuters. No claim to original U.S. Government Works. 26 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 28 of 553 PageID #: 433 THOMAS JEFFERSON COUNTS HIMSELF INTO THE PRESIDENCY, 90 Va. L. Rev. 551 B. The Gloss of 1877 The Hayes-Tilden election hit the nation at a bad time. The country was in the throes of a vicious economic depression, and the election returns threatened to inflame the passions of the recent Civil War. For the first time since 1860, the Democratic candidate, Samuel Tilden, had won the popular vote by a convincing margin of 250,000. 230 Yet his victory was jeopardized by a dispute over eighteen electoral votes from three southern states still under the *635 (very shaky) control of Republican Reconstruction governments. 231 If all eighteen found their way into the Republican column, Tilden would be deprived of his popular victory by a single electoral vote. With the Democrats clamoring at the gates of power, millions of Republicans saw the impending vote count in apocalyptic terms inherited from the Civil War. For these true believers, the Democratic party was the party of treason, threatening to profane the temple of the Union--a prospect to be avoided at all costs. What is more, the antiquated electoral machinery afforded them an opportunity to bar the barbarians from the White House. While the Democrats had won landslide victories in the House after the Panic of 1873, the Republicans remained in control of the Senate. 232 This provided them with a tempting constitutional technique for maintaining control over the presidency. VicePresident Henry Wilson had died in 1875, but the Republicans could still appoint the President Pro Tem of the Senate, who would then preside over the vote-counting ritual. 233 Their man in the chair could count the challenged Republican electors into the Hayes column while senators and representatives cheered and booed, but the Democrats could do little to change the outcome. Although the Democratic House might vote to overrule the chair, the Republican Senate would not support such a move--even if it were constitutional. To be sure, the precedent set by Thomas Jefferson in 1801 was not widely known at the time. 234 Nevertheless, there was a good deal of respectable constitutional opinion that expansively interpreted the Senate President's power to “open” the electoral certificates, transforming it into a grander authority to resolve with some finality doubtful questions arising in the votecounting process. Indeed, some Democrats had explicitly endorsed this view in congressional debates held before the HayesTilden election revealed *636 its short-run partisan implications. 235 This put Republicans in the delicious position of quoting Democratic politicians while their Senate President Pro Tem pushed Hayes into the White House. 236 Delicious but dangerous--how would the country react to such blatant partisanship? Fortunately, we will never know. In a remarkable show of political restraint, the Republican leadership refused to abuse the power of the Senate presidency for partisan ends. Instead, they reached out to House Democrats to pass the first statute in American history to regulate the vote-counting ritual. 237 The constitutional rationale for statutory action was based on the structure of the text: “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.” 238 Since the last provision grants the federal government a distinct “counting power,” but the preceding clauses do not clearly state how counting should proceed, Congress may enact appropriate legislation under the Necessary and Proper Clause. 239 *637 This straightforward rationale provided the Republican leadership with a solid platform for constructing a far more impartial procedure, calculated to assure the country of the integrity of the selection process. The proposed statute established a fifteen-man Electoral Commission comprised of five members of the House of Representatives, five senators, and five Justices of the Supreme Court. Each house was to appoint three members from the majority party and two from the minority--leading to a five-five split in the congressional delegation. The proposed statute also named four of the five Justices--two Democrats and two Republicans--and charged them with the task of naming a fifth as potential tie-breaker. 240 Although their choice was formally open, it was perfectly obvious who they were supposed to choose: Justice David Davis of Illinois. While he had begun his career in national politics as Abraham Lincoln's campaign manager in 1860, Davis had drifted away from the party's mainstream. By 1876, he was broadly *638 considered to be an independent with Democratic leanings, someone who would be fair to Tilden's claim. 241 APPENDIX - 27 © 2021 Thomson Reuters. No claim to original U.S. Government Works. 27 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 29 of 553 PageID #: 434 THOMAS JEFFERSON COUNTS HIMSELF INTO THE PRESIDENCY, 90 Va. L. Rev. 551 All things considered, the Republicans' proposed statute made the most of the constitutional materials available. By placing the final decision in Davis's hands, the leadership had effectively eliminated the prospect of partisan self-dealing by the President of the Senate. To be sure, the statute was cleverly designed to preserve the Senate President's symbolic centrality. He was assigned the task of “open[ing]” the ballots, but should a protest be voiced from the floor, he was instructed to pass the contested ballot to the Commission and await its decision before completing the vote count. 242 The Commission's decisions, in turn, could be overruled by a majority vote of each house of Congress acting separately, 243 but this was unlikely given the split in party control. The danger of self-dealing posed by the Senate President had been subordinated to a Commission carefully designed to achieve an impartial result. This fact was widely appreciated as the Senate bill made its way to the House for consideration. Just before the final vote in the House, Henry Payne, a Democratic leader and future member of the Electoral Commission, 244 urged his skeptical colleagues to consider the alternative: Without the statute, the Senate President might fill the constitutional vacuum with “a bold and unjustifiable usurpation.” 245 Other thoughtful Democrats supported this plea. Here is Henry Watterson: I regard Tilden's case as a good one; but I shall vote for the bill with the full consciousness that the action of the commission may bitterly disappoint me . . . . If it does, I shall still have discharged [my] duty in that manner which was best calculated to preserve constitutional forms and keep the peace of the country at a time *639 when the Republic was menaced and the people were not prepared for war. 246 And so a bipartisan group of leaders carried off a grand act of constitutional statesmanship, with the House joining the Senate to head off the possibility of willful abuse of power by the Senate President. This represented a remarkable act of self-restraint on the Republican side. 247 They had sacrificed the certainty of a Hayes presidency, through manipulation by the Senate President, for a mere possibility from the Commission. But in return, they obtained a greatly enhanced sense of constitutional legitimacy for the next President of the United States. Unfortunately, this triumph of statesmanship has been entirely lost in the fog of controversy subsequently generated by the actions of the Electoral Commission. The key to the entire plan was the appointment of Justice Davis-- the only man on the Supreme Court with a plausible claim to political neutrality. To nearly everyone's surprise, a Democratic-Greenback coalition in Illinois elected Davis to the United States Senate on January 25, just as the Electoral Commission bill was being enacted by Congress. 248 When Davis resigned from the Commission to take his Senate seat, he was replaced by Joseph Bradley--a distinguished jurist, but one plainly associated with the Republican party. 249 This allowed the Democrats to charge him with the rankest partisanship when he joined the seven other Commission Republicans in party-line votes in support of all eighteen of the Republican electors, over the heated dissent of the seven Commission Democrats. 250 The Democrats' cries of pain were only to be expected. It always hurts to lose. It remains an open--and probably unanswerable -- *640 question whether Bradley in fact succumbed to political pressures. Despite a vigorous effort by Charles Fairman to defend Bradley's integrity, 251 the Commission still remains under a dark cloud in legal circles. 252 Whatever one makes of Bradley's performance, it should not taint the statesmanship of those who created the Commission as an alternative to a ruling by the Senate President. While Bradley's decision was bound to be controversial, a blatantly partisan decision by the President Pro Tem of the Senate would have been far worse-- inflicting grievous damage on the Hayes presidency and the slow process of post-war reconciliation. One can only hope that similar statesmanship prevails the next time around, and that a new Electoral Commission is convened to resolve the problem. The 1877 statute, however, was a one-shot deal, and when Congress finally enacted a more permanent statute, it did not entirely eliminate the risk that the Senate President might once again dominate the vote-counting ritual. C. The 1887 Act Controversy over the Electoral Commission generated a decade of congressional debate, which finally gave rise to the Electoral Count Act of 1887. 253 Operating once again under the Necessary and Proper Clause, the statute shifted a great deal of the APPENDIX - 28 © 2021 Thomson Reuters. No claim to original U.S. Government Works. 28 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 30 of 553 PageID #: 435 THOMAS JEFFERSON COUNTS HIMSELF INTO THE PRESIDENCY, 90 Va. L. Rev. 551 decisional burden from the President of the Senate to the two houses of Congress. Speaking broadly, if a state submits a single return, the President of the Senate counts the ballot unless objections are raised and a majority in each house votes to reject it. 254 If a state *641 submits two or more returns, the President's job is also straightforward if majorities of both houses agree on the ballot that should be counted. Matters get murkier when the Houses disagree. In this case, the statute instructs the President to count the ballot certified by “the executive” 255 of the state. But what should he do if “the executive” signs two or more returns? The statute is silent, but the problem is real--especially where different members of “the executive” are elected independently. For example, Florida's Democratic Attorney General Robert Butterworth strongly supported Gore, 256 and Republican Secretary of State Katherine Harris produced opinions that notoriously favored Bush. 257 Suppose that the United States Supreme Court had remained on the sidelines and that the Florida court recount had given Gore's electors a razor-thin majority. As matters became more heated, Governor Jeb Bush may well have decided to sign this second return, but even if he refused, the Florida Supreme Court could have authorized the Attorney General to certify the return and send it on to the President of the Senate. When Senate President Al Gore opened the ballots on vote-counting day, he would have found two Florida returns signed by members of the “executive”--one for Bush and the other for Gore. Under the 1887 statute, each house must separately decide between the rival slates. *642 If they were to disagree--which was likely, but not certain 258 --the issue would have quickly returned to the President of the Senate. What next? Foreseeing this scenario, one of us signed a public statement urging Congress to follow the precedent of 1877 and create a new Electoral Commission. 259 This should be the remedy of choice the next time around, but if statesmanship fails, the ghost of Thomas Jefferson will return to center stage and we shall all be obliged to conjure with the meaning of his actions on that fateful day of February 11, 1801. Jefferson's precedent will not be squarely on point. The future President of the Senate will be required to act only after the issue has divided the House and Senate. In contrast, Jefferson resolved the Georgia matter without consulting the two houses, and we cannot know how he might have responded had one or both houses challenged his decision. Nevertheless, there can be no denying that Jefferson did more than “open” the Georgia ballot on that fateful day. He asserted his authority to decide the merits on a contestable issue. If some future Senate President were to claim a similar authority, he or she would not be wrong in pointing to Jefferson's precedent. If he follows Jefferson's lead, however, he cannot be allowed to go halfway. Jefferson used his power for a particular end--“to prevent the phaenomenon of a Pseudo-president.” 260 This should be the touchstone for any future President of the Senate. If he abuses *643 his authority to create a “Pseudo-president” by blatantly political vote counting, he would be converting Jefferson's precedent into a fig-leaf for a desperate act of political usurpation. Footnotes a1 Sterling Professor of Law and Political Science, Yale University. aa1 J.D. expected, Yale University, 2005; D.Phil. expected, Oxford University, 2004. The authors wish to thank Joyce Appleby, Larry Kramer, and Jack Rakove for their thoughtful remarks. 1 U.S. Const. art. II, § 1, cl. 3. 2 See infra note 5. 3 For further discussion of these matters, see infra notes 52-56 and accompanying text. 4 See infra note 30 and accompanying text. 5 The Vermont problem is mentioned in passing in a variety of sources. J. Hampden Dougherty, The Electoral System of the United States 33-34 (1906); 2 John J. Lalor, Cyclopedia of Political Science, Political Economy, and of the Political History of the United States 63, 68 (New York, Charles E. Merrill 1893); David A. McKnight, The Electoral System APPENDIX - 29 © 2021 Thomson Reuters. No claim to original U.S. Government Works. 29 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 31 of 553 PageID #: 436 THOMAS JEFFERSON COUNTS HIMSELF INTO THE PRESIDENCY, 90 Va. L. Rev. 551 of the United States 65, 260, 290 (Philadelphia, J.B. Lippcott & Co. 1878); 1 Edward Stanwood, A History of the Presidency from 1788 to 1897, at 51-52 (Charles Knowles Bolton ed., Augustus M. Kelley 1975) (1898); 16 The Papers of James Madison 152, 429 n.2 (J.C.A. Stagg et al. eds., 1989) [hereinafter Madison Papers]; 2 The Republic of Letters: The Correspondence between Thomas Jefferson and James Madison 1776-1826, at 959 n.23 (James Morton Smith ed., 1995) [hereinafter Smith]; C.C. Tansill, Congressional Control of the Electoral System, 34 Yale L.J. 511, 516 (1925); L. Kinvin Wroth, Election Contests and the Electoral Vote, 65 Dick. L. Rev. 321, 326 n.23 (1961). Professor Manning Dauer is the only scholar to explore the incident in some depth, scrutinizing some, but not all, of the reports about the Vermont issue. See Manning J. Dauer, The Adams Federalists 103-06 (1953). Jefferson's decision in 1800 has received even less attention, even though the legal problems were more acute and the stakes were much higher. There are only a few mentions of the Georgia incident. See House Spec. Comm., Counting Electoral Votes, H.R. Misc. Doc. No. 44-13, at 30 (1877) [hereinafter Counting Electoral Votes]; Dougherty, supra, at 35-36; Wroth, supra, at 326 n.23. These various sources largely cite one another. Vasan Kesavan mentions the issue more recently, citing to the preceding sources as well as to Professor Ackerman's unpublished manuscript, America on the Brink. Vasan Kesavan, Is the Electoral Count Act Unconstitutional?, 80 N.C. L. Rev. 1653, 1656 n.3, 1707 & n.230 (2002). 6 531 U.S. 98 (2000). 7 We explain later why the vice-presidency was a functional imperative, given the Framers' ingenious voting system. See infra notes 26-29 and accompanying text. 8 U.S. Const. art. I, § 3, cl. 4 (“The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.”). 9 U.S. Const. art. II, § 4 (authorizing “remov[al] from Office” of “[t]he President, Vice President and all civil Officers of the United States... on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors”). 10 U.S. Const. art. I, § 3, cl. 6 (“The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.”). 11 Article I, § 3, clause 4 of the United States Constitution designates the Vice-President as “President of the Senate,” while Article I, § 3, clause 6 explicitly designates the Chief Justice as presiding officer “[w]hen the President... is tried” in an impeachment, yet does not expand this exception to include vice-presidential impeachments. It is true, of course, that Article I, § 3, clause 5 authorizes the Senate to choose other officers, including a President Pro Tem, and implicitly authorizes the latter to preside “in the absence of the Vice President.” This provision would allow the Vice-President voluntarily to vacate his place at the podium during his impeachment trial, but nothing in the text requires this. Even if the Vice-President passed the gavel to the President Pro Tem, that senator could be a blatant partisan who might use his power either to protect or to destroy the incumbent. Rather than allowing the President Pro Tem to intervene, the Framers should have placed the Chief Justice in control of vice-presidential, as well as presidential, impeachments. 12 We are certainly not the first to make this point. See Michael J. Gerhardt, The Federal Impeachment Process: A Constitutional and Historical Analysis 64-65 (1996); Stephen L. Carter, The Political Aspects of Judicial Power: Some Notes on the Presidential Immunity Decision, 131 U. Pa. L. Rev. 1341, 1357 & n.72 (1983); Stephen Carter, The Role of the Courts in Separation of Powers Disputes, 68 Wash. U. L.Q. 669, 675 (1990); Michael Stokes Paulsen, Someone Should Have Told Spiro Agnew, 14 Const. Comment. 245, 245-46 (1997); Richard M. Pious, Impeaching the President: The Intersection of Constitutional and Popular Law, 43 St. Louis U. L.J. 859, 862 n.15 (1999). But see Akhil Reed Amar & Vikram David Amar, Is the Presidential Succession Law Constitutional?, 48 Stan. L. Rev. 113, 122 n.59 (1995) (arguing that general conflict-of-interest principles prevent Vice-Presidents from presiding over their own impeachment trials); John D. Feerick, The Vice-Presidency and the Problems of Presidential Succession and Inability, 32 Fordham L. Rev. 457, 462 & n.30 (1964) (noting that “[p]resumably” the President Pro Tem of the Senate would preside). 13 The Founders had demonstrated a general awareness of the problems of asking an official to serve as a judge in his own case. See, e.g., The Federalist No. 10, at 47 (James Madison) (Clinton Rossiter ed., 1999) (“No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.”). APPENDIX - 30 © 2021 Thomson Reuters. No claim to original U.S. Government Works. 30 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 32 of 553 PageID #: 437 THOMAS JEFFERSON COUNTS HIMSELF INTO THE PRESIDENCY, 90 Va. L. Rev. 551 14 Called the “Committee of Postponed Parts,” the Brearley group was selected on August 31, 1787. 1 The Debates in the Several State Conventions on the Adoption of the Federal Constitution 280 (Jonathan Elliott ed., J.B. Lippincott Co. 1941) (1836) [hereinafter Elliot]. It was composed of eleven elected members, one from each participating state. Id. 15 2 The Records of the Federal Convention of 1787, at 505-31 (Max Farrand ed., 1937) [hereinafter Farrand]. 16 By far the best treatment of the Electoral College is provided by Professor Shlomo Slonim, The Electoral College at Philadelphia: The Evolution of an Ad Hoc Congress for the Selection of a President, 73 J. Am. Hist. 35 (1986). Slonim is particularly effective in demonstrating how the Electoral College cleverly solved a host of key problems at the time--most notably (1) enabling the small states and the slave states to extend to the presidency the disproportionate voting power they had won previously in the design of Congress, while (2) allowing the Convention to accommodate separation-ofpowers principles. Id. at 51-58. A discussion of these dimensions is beyond the scope of this Article. 17 Even in England, the words “Whig” and “Tory” referred largely to extended groupings of elite families, locked in factional struggle for power and patronage. L.B. Namier, The Structure of Politics at the Accession of George III (1929). For an appreciation of Namier as a political historian, see Linda Colley, Lewis Namier 46-71 (1989). 18 For a penetrating survey of eighteenth-century opposition to the notion of political parties, see Richard Hofstadter, The Idea of a Party System 1-39 (1969). 19 For a general discussion on the role of faction at the time of the Founding, see Gordon S. Wood, The Creation of the American Republic 1776-1787, at 559-60 (1969). 20 See 1 Bruce Ackerman, We the People: Foundations 165-99 (1991). 21 Hofstadter, supra note 18, at 40-73; Daniel Sisson, The American Revolution of 1800, at 23-69 (1974). 22 2 Farrand, supra note 15, at 501 (remarks of James Wilson, Sept. 4, 1787). 23 Id. (remarks of James Wilson, Sept. 4, 1787); see also id. (remarks of Abraham Baldwin, Sept. 4, 1787) (discussing how “increasing intercourse among the people of the States, would render important characters less & less unknown”). 24 George Mason was the most emphatic, asserting that a winner would fail to be selected “nineteen times in twenty.” Id. at 500 (remarks of George Mason, Sept. 4, 1787); see also id. at 512 (remarks of George Mason, Sept. 5, 1787). 25 Id. at 512 (remarks of Gouverneur Morris, Sept. 5, 1787). Morris was Pennsylvania's representative on the Brearley Committee of Postponed Parts, which was responsible for the Electoral College plan but did not make a formal report in support of its recommendations. Since Morris's arguments mesh so tightly with the Committee's proposal, it is likely that they were broadly shared, especially since analogous points were made earlier in the Convention by other members of the Brearley Committee. See id. at 113 (remarks of Hugh Williamson, July 25, 1787); id. (remarks of Gouverneur Morris, July 25, 1787); id. at 114 (remarks of James Madison, July 25, 1787). 26 See generally Amar & Amar, supra note 12, at 113-26 (arguing that Cabinet officials should follow the Vice-President in presidential succession). In the context of our argument, the Founders could have saved the step of creating a VicePresident and gone straight to Cabinet succession. 27 The first succession statute contemplated a special election in such circumstances, designating the President Pro Tempore of the Senate to serve in the interim. Act of March 1, 1792, ch. 8, §§ 9-10, 1 Stat. 239, 240-41 (repealed 1886). In 1886, Congress passed a law removing the President Pro Tempore and the Speaker of the House from the line of succession, and placed members of the Cabinet in the line of succession. Act of Jan. 19, 1886, ch. 4, § 1, 24 Stat. 1 (repealed 1947). This statute also allowed Congress to decide whether to call a special election to pick a new President. Id. In 1947, Congress passed a new law redesigning the line of succession after the Vice-President, which also eliminated all authority for a special election. See 3 U.S.C. § 19 (2000). The Twenty-fifth Amendment, effective in 1967, provides a procedure for replacing the Vice-President in a rapid fashion, hopefully rendering unnecessary the invocation of the provisions of the 1947 statute. U.S. Const. amend. XXV. 28 2 Farrand, supra note 15, at 537. APPENDIX - 31 © 2021 Thomson Reuters. No claim to original U.S. Government Works. 31 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 33 of 553 PageID #: 438 THOMAS JEFFERSON COUNTS HIMSELF INTO THE PRESIDENCY, 90 Va. L. Rev. 551 29 U.S. Const. art. II, § 1, cl. 3 (“The Electors shall meet in their respective States and vote by Ballot for two Persons.... The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed....”) (amended 1804). The Twelfth Amendment, effective in 1804, changed this rule. U.S. Const. amend. XII (“The Electors shall meet in their respective states, and vote by ballot for President and Vice-President... they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as VicePresident, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as VicePresident, and of the number of votes for each .... The person having the greatest number of votes for President, shall be the President.... The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed.”). 30 2 Farrand, supra note 15, at 494. 31 Id. at 524 (remarks of Hugh Williamson, Sept. 6, 1787); see id. at 527 (remarks of Roger Sherman, Sept. 6, 1787); id. (remarks of George Mason, Sept. 6, 1787). 32 In 1800, for example, Virginia's population of 807,557 (and its twenty-two representatives) and Delaware's population of 64,273 (and its one representative) would each be afforded a single vote in the House runoff. U.S. Census Bureau, Historical Statistics of the United States: Colonial Times to 1957, at 13, 693 (1960). 33 The Senate retained the power to select a Vice-President. U.S. Const. art. II, § 1, cl. 3 (“In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President.”) (amended 1804). The Twelfth Amendment altered this scheme. U.S. Const. amend. XII (“The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President.”). 34 2 Farrand, supra note 15, at 513 (remarks of James Madison, Sept. 5, 1787) (“Mr Madison considered it as a primary object to render an eventual resort to any part of the Legislature improbable.”). Later in the day, Madison and Williamson moved to amend the Brearley proposal to enable the Electoral College to name the President if “• of the Electors should vote for the same person.” Id. at 514. In 1800, this would have permitted a presidential candidate to gain office on the basis of forty-six out of the 276 ballots cast by the electors. Hamilton would have gone further, eliminating the back-up procedure entirely and awarding the presidency to the Electoral College winner regardless of the number of his electoral votes. Id. at 525 (remarks of Alexander Hamilton, Sept. 6, 1787). 35 The anxieties of the small states served as a leitmotiv throughout the Convention's interminable discussions of the presidential selection problem. See Slonim, supra note 16, at 48-51, 55-56. Indeed, when Madison proposed to dilute the required Electoral College majority, he immediately encountered the objection that his amendment “would put it in the power of three or four States to put in whom they pleased.” 2 Farrand, supra note 15, at 514 (remarks of Elbridge Gerry, Sept. 5, 1787). Madison's proposal lost by a vote of nine-to-two. Id. 36 On August 24, 1787, the Convention was considering a plan under which the President would be selected by a joint session of the House and Senate, each member casting a single ballot, and the delegates spotted a potential problem posed by a tie vote. 2 Farrand, supra note 15, at 403 (“Mr. Read moved ‘that in case the numbers for the two highest in votes should be equal, then the President of the Senate shall have an additional casting vote’, which was disagreed to by a general negative.”). 37 The window of opportunity for issue-spotting was particularly narrow, given the proposal that came to the floor. Recall that the Brearley Committee had initially proposed that the Senate, not the House, be given the task of selecting a President under the back-up procedure. See supra note 30 and accompanying text. If the Senate had retained this task, the Convention would have had no choice but to maintain a voting rule that granted equality to each state. It was only when the Convention voted to shift the locus of selection authority to the House that new design options, and concomitant complications, arose. But this vote occurred on September 6, toward the end of the Convention's debates. Here is Madison's report of the critical colloquy: Mr. Williamson suggested as better than an eventual choice by the Senate, that this choice should be made by the Legislature, voting by States and not per capita. Mr. Sherman suggested the House of Reps. as preferable to “the Legislature”, and moved, accordingly, APPENDIX - 32 © 2021 Thomson Reuters. No claim to original U.S. Government Works. 32 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 34 of 553 PageID #: 439 THOMAS JEFFERSON COUNTS HIMSELF INTO THE PRESIDENCY, 90 Va. L. Rev. 551 To strike out the words “The Senate shall immediately choose &c.” and insert “The House of Representatives shall immediately choose by ballot one of them for President, the members from each State having one vote.” Col: Mason liked the latter mode best as lessening the aristocratic influence of the Senate. 2 Farrand, supra note 15, at 527. 38 U.S. Const. art. 2, § 1, cl. 3 (amended 1804) (emphasis added). 39 See James W. Ceaser, Presidential Selection 41-88 (1979). 40 For a recent blow-by-blow account of the politics of the 1790s, see Bernard A. Weisberger, America Afire: Jefferson, Adams, and the Revolutionary Election of 1800 (2000). 41 To be sure, there were many respects in which the two-party competition of the 1790s differed from that of subsequent periods. Professor Ackerman explores this matter at greater length in his other work. See Bruce Ackerman, America on the Brink: The Constitutional Crisis of the Early Republic 25-43 (2001) (unpublished manuscript) (on file with the Virginia Law Review Association). 42 A perceptive treatment of both the politics and substance of the Farewell Address is provided in Stanley Elkins & Eric McKittrick, The Age of Federalism 489-97 (1993). 43 See generally id. (discussing partisan aspects of Washington's Farewell Address). 44 The best account is provided by Dauer, supra note 5, at 92-111. 45 Not to be confused with Charles Pinckney, who ran as Adams's running mate in 1800. Thomas Pinckney had recently returned home after negotiating a popular treaty with Spain. See Frances Leigh Williams, A Founding Family: The Pinckneys of South Carolina 304-09 (1978). 46 Dauer, supra note 5, at 103. 47 Hamilton also impugned the Vermont vote in personal correspondence. On December 1, 1796, he wrote to Jeremiah Wadsworth of his plan to throw the election to Thomas Pinckney, stating that: Judge Tichener in passing through informed me that from something which had occurred to his recollection while here he feared that the votes of Vermont would be lost for want of being warranted by a subsisting legislative Act. If so, Adams will not have sufficient votes to prevent the question going to the House of Representatives & then we can be at no loss for the result. The whole number I venture to depend on for Adams (including Vermont & two in Pennsylvania) is 73. Take off Vermont and there will be 69 which is less by one than the whole number of Electors. It may be said that Georgia also is irregular. This I do not consider as certain. But if so at first there was time enough to discover & rectify it. Not so as to Vermont. Besides who will take care to have the necessary authentic proof from Georgia? From Vermont it can be had & our patriots are not likely to neglect it. Letter from Alexander Hamilton to Jeremiah Wadsworth (Dec. 1, 1796), in 20 The Papers of Alexander Hamilton 418, 418 (Harold C. Syrett ed., 1974) (footnote call numbers omitted). The editor of Hamilton's papers notes that “Tichener” is Isaac Tichenor of Vermont, later a Federalist senator and then governor of the state. Id. at 419 n.3. 48 3 Annals of Cong. 1543 (1797). 49 Id. at 1543-44 (reporting entire tally). 50 If Vermont's selection of its electors had in fact been invalid, Jefferson's sixty-eight votes would have sufficed to gain him the presidency without a runoff. Without Vermont's four electors, only 134 Electors would have been validly appointed, and a majority of these amounted to sixty-eight votes. U.S. Const. art. II, § 1, cl. 3 (“The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed....”) (amended 1804) (emphasis added). See supra note 38 and accompanying text for further discussion. 51 The original electoral votes from Vermont state this date explicitly. For a report describing our inspection of the Vermont electoral votes, and where they can be found, see infra note 106. 52 We reviewed the following newspapers: (1) Columbian Centinel from Boston, Massachusetts: Editions from June 1796March 18, 1797 were examined because Professor Dauer quotes this newspaper as covering the situation surrounding APPENDIX - 33 © 2021 Thomson Reuters. No claim to original U.S. Government Works. 33 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 35 of 553 PageID #: 440 THOMAS JEFFERSON COUNTS HIMSELF INTO THE PRESIDENCY, 90 Va. L. Rev. 551 the Vermont votes, Dauer, supra note 5, at 103-04; (2) South-Carolina State Gazette: Editions from July 4, 1796February 1797 were examined because it is a southern newspaper, and a Vermont newspaper story stated that there were no problems with the Vermont votes and that it was all part of some sort of southern plot; (3) Columbian Mirror & Alexandria Gazette: Editions from October 1796-February 1797 were examined because it is another southern newspaper and one published in Thomas Jefferson's home state (Jefferson had much to gain if the Vermont votes were deemed invalid); (4) Kentucky Gazette: Editions from December 1796-March 1797 were examined to determine if there was any mention of the problems with the Kentucky electoral votes, discussed infra note 75, and also because it was another (at least quasi-) “southern” newspaper; (5) Greenleaf's New Daily Advertiser: Editions from October 1796-February 1797 were examined because its publisher, Simon Greenleaf, was a prominent Republican, see Jerome Mushkat, Matthew Livingston Davis and the Political Legacy of Aaron Burr, in 3 American Cities 109, 109 (Neil Larry Shumsky ed., 1996), and problems with the Vermont votes would have worked in favor of the Republican party; (6) Aurora & General Advertiser: Editions from June 1796-February 1797 were examined because it was printed in the capitol city at the time of the election; and (7) Gazette of the United States: Editions from June 1796-February 1797 were examined because it was the leading Federalist newspaper published in the capitol city. 53 Minerva & Mercantile Evening Advertiser (New York), Nov. 26, 1796, at 3. 54 On November 30, the Gazette of the United States reported that “Vermont, who has chosen electors, is to have no vote on the occasion.” Gazette of the United States (Philadelphia), Nov. 30, 1796, at 3. As we have seen, Professor Dauer emphasizes a December 7 story from the Columbian Centinel. Dauer, supra note 5, at 103-04. Here is the full Centinel text: The account received in town yesterday of the probable loss of the Vermont votes for President and Vice-President, may have an unfortunate effect on the decision of the Electors of this State. Every one feels deeply interested in the event, and the subject was yesterday discussed in the different private circles. Too many opinions have appeared to preponderate in favour of supporting Mr. PINCKNEY, at the risque of sacrificing Mr. ADAMS; but it will become the electors to consider that the voice of the people at large ought to be their guide. If we mean to make our contribution respectable in the eyes of Europeans, if we mean to prove that a republican government signifies the expression of the public voice, we must make it appear that the public voice designates the man who is to fill the first office in our government. If this is not the case, we had better at once trust all to the benevolence of Providence, for ours will become a government of chance, and of the worst kind of chance. Not only our national dignity, but all our essential interests depend upon our respective offices being filled by the men contemplated by the people; and if ever this great principle is done away, the loss of our liberties must soon follow. Besides all this, are we not to consider a little what is due to Mr. ADAMS? Will it be grateful, will it be just to act as if we looked upon him only as a convenience; that we think it will be well enough to have him for President, but as well to have any body else? More than all, and we ought seriously to weigh it, Mr. ADAMS it is ascertained by the best information from the different States, will have a greater number of votes than Mr. JEFFERSON even if Vermont is out of the question. Shall a momentary pusillanimity in Mr. ADAMS's friends put Mr. PINCKNEY in the presidential chair? Shall we by grasping at a shadow, lose the substance? No, Mr. RUSSELL, firmness is expected in the electors, and from their characters we may fairly presume they will not disappoint the public. Columbian Centinel (Boston), Dec. 7, 1796, at 2. The Aurora & General Advertiser of December reported that “[t]he Vermont election is said to be illegal from the non-existence of any law or resolution under which the Electors could act. The law under which they voted four years ago was temporary, and from a mistaken impression that it was of a permanent nature the electors of that State find themselves unauthorized.” Aurora & General Advertiser (Philadelphia), Dec. 12, 1796, at 2. On December 17, however, the Aurora wrote that “[w]e have heard no reason for setting aside the Vermont Electors, that appears of importance sufficient to produce so disagreeable an effect.” Aurora & General Advertiser (Philadelphia), Dec. 17, 1796, at 2; see also Letter from Joseph Jones to James Madison (Dec. 15, 1796), in 16 Madison Papers, supra note 5, at 428, 429 (“[T]he probabi[li]ty is that if Vermont has no choice that J. will have the majority necessary to his appointm[en]t.”). Newspapers of all political persuasions reported on the problem. The “decidedly Republican” Aurora & General Advertiser, David Hackett Fischer, The Revolution of American Conservatism 419 (1965), carried the most stories, while the “moderately Republican” Kentucky Gazette, id. at 423, carried only one. Aurora & General Advertiser (Philadelphia), Nov. 29, 1796, at 2; Aurora & General Advertiser (Philadelphia), Nov. 30, 1796, at 2; Aurora & General Advertiser (Philadelphia), Dec. 12, 1796, at 2; Aurora & General Advertiser (Philadelphia), Dec. 15, 1796, at 2; Aurora & General Advertiser (Philadelphia), Dec. 17, 1796, at 2; Aurora & General Advertiser (Philadelphia), Dec. 29, 1796, at 2; Kentucky Gazette, Jan. 18, 1797, at 2. The “decidedly Federalist” Columbian Centinel, Fischer, supra, at 414, ran a story; the “decidedly Federalist” Gazette of the United States, id. at 419, discussed Vermont; the “moderately Federalist” Columbian Mirror & Alexandria Gazette, id. at 420, carried a story; the “moderately Federalist” South-Carolina State Gazette, id. at 422, ran a story; and the APPENDIX - 34 © 2021 Thomson Reuters. No claim to original U.S. Government Works. 34 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 36 of 553 PageID #: 441 THOMAS JEFFERSON COUNTS HIMSELF INTO THE PRESIDENCY, 90 Va. L. Rev. 551 “very moderately Federalist” Minerva & Mercantile Evening Advertiser, id. at 417, discussed the Vermont problem. Columbian Centinel (Boston), Dec. 7, 1796, at 2; Gazette of the United States (Philadelphia), Nov. 30, 1796, at 3; Columbian Mirror & Alexandria Gazette (Boston), Dec. 27, 1796, at 3; South-Carolina State Gazette, Dec. 20, 1796; Minerva & Mercantile Evening Advertiser (New York), Nov. 26, 1796, at 3. 55 Aurora & General Advertiser (Philadelphia), Dec. 29, 1796, at 2; see 2 Smith, supra note 5, at 959 n.23; Aurora & General Advertiser (Philadelphia), Dec. 17, 1796, at 2. 56 Aurora & General Advertiser (Philadelphia), Dec. 17, 1796, at 2. 57 Act of March 1, 1792, ch. 8, § 1, 1 Stat. 239, 239; see also U.S. Const. art. II, § 1, cl. 4 (“The Congress may determine the Time of chusing the Electors....”); Aurora & General Advertiser (Philadelphia), Dec. 17, 1796, at 2 (making this argument). 58 We examined various materials in Vermont. At the State Department of Libraries, we examined: (1) compilations of laws passed by the Vermont state legislature from 1778-1799; (2) records of state legislative proceedings from 1778-1799; (3) the public papers of Thomas Chittenden, a leading figure in Vermont politics; (4) Vermont electoral statistics; (5) records of the Council of Censors, a body created by the Vermont Constitution of 1786 and charged with overseeing the legislative and executive branches of Vermont for compliance with the state Constitution; (6) editions of the Vermont Journal from January 1796-March 1797; (7) editions of the Rutland Herald from January 1796-March 1797; and (8) editions of the Vermont Gazette from January 1796-March 1797. At the Secretary of State's office in Montpelier, we searched the personal papers of prominent Vermonters from the 1790s, additional personal papers relating to the 1796 presidential electors, and records of the Governor and Council of Censors. At the Vermont Historical Society in Barre, the personal papers of additional prominent Vermonters from the 1790s were examined. Scholarship on early Vermont was also consulted. See, e.g., Roy Bearse, Vermont: A Guide to the Green Mountain State (1966); Hosea Beckley, The History of Vermont (Brattleboro, Vt., Geoge A. Salisbury 1846); Cora Cheney, Vermont: The State with the Storybook Past (1976); Charles Edward Crane, Let Me Show You Vermont (1937); Walter Hill Crockett, Vermont: The Green Mountain State (1921); Men of Vermont (Jacob G. Ullery ed., Brattleboro, Vt., Geoge A. Salisbury 1894); Perry H. Merrill, Vermont Under Four Flags (1975); Earle Newton, The Vermont Story (1949). Finally, we also consulted materials in the archival collections of John Adams (October 1796-February 1797), Aaron Burr (October 1796-February 1797), and Alexander Hamilton (October 1796-February 1797). 59 5 Journals and Proceedings of the General Assembly of the State of Vermont 1791-1792, at 82-83 (1970) [hereinafter Vermont General Assembly Proceedings] (“The bill entitled, An Act Directing the Mode of Appointing Electors to Elect a President and Vice-President of the United States, was read the second time, accepted, and sent to his Excellency and Council for revision and concurrence, or proposals of amendment.”); id. at 87-88 (“The following bills returned from Council concurred, and passed into laws of this State.... An Act Directing the Mode of Appointing Electors to Elect a President and Vice-President of the United States.”). The statute provides: An Act Directing the Mode of Appointing Electors to Elect a President and Vice President of the United States. November 3d, 1791. It is hereby Enacted by the General Assembly of the State of Vermont, That the Electors for electing a President and Vice President of the United States be appointed by the ballots of the Governor and Council and House of Representatives met in grand Committee and that those persons to the number which they have right to appoint who shall have a majority of the votes of said Grand Committee shall be declared to be duly appointed Electors of this State for the purposes aforesaid. 15 Laws of Vermont 1791-1795, at 43 (1966). 60 7 Vermont General Assembly Proceedings, supra note 59, at 350 (1973) (“On motion of Mr. Farrand, Resolved, That his Excellency the Governor and Council be requested to join the House of Representatives in grand committee tomorrow afternoon, to proceed by ballot to make choice of electors, to elect the president and vice-president of the United States.”); id. at 354 (“Agreeably to the order of the day, the Governor, Council and House of Assembly, joined in grand committee for the purpose of proceeding, by ballot, to the choice of electors to elect the president and vice-president of the United States.... The ballots being duly and severally taken, Capt. Elijah Dewey was declared duly elected, first; Col. Elisha Shelden, second; John Bridgman, Esq., third; and Oliver Gallup, Esq., fourth; electors to elect the president and vicepresident of the United States.”). Newspaper reports confirm this. On November 7, The Rutland Herald reported that “On Friday last the following Gentleman were chosen electors for the choice of a President for the United States. ELIJAH DEWEY, ELISHA SHELDON, JOHN BRIDGMAN, and OLIVER GALLUP, E'qr's.” Rutland Herald (Vermont), Nov. 7, 1796, at 3. On November 17, the Gazette of the United States ran a story under a November 7 Rutland dateline stating that “On Friday APPENDIX - 35 © 2021 Thomson Reuters. No claim to original U.S. Government Works. 35 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 37 of 553 PageID #: 442 THOMAS JEFFERSON COUNTS HIMSELF INTO THE PRESIDENCY, 90 Va. L. Rev. 551 last, the following gentlemen were chosen Electors for the choice of a President for the United States. Elijah Dewey, Elisha Sheldon, John Bridgman, and Oliver Gallup, Esqrs.” Gazette of the United States (Philadelphia), Nov. 17, 1796, at 3. These are the four names that appear on Vermont's electoral vote. 61 Act of March 1, 1792, ch. 8, § 1, 1 Stat. 239, 239; 7 Vermont General Assembly Proceedings, supra note 59, at 350, 354 (1973). 62 Clifford L. Lord & Elizabeth H. Lord, Historical Atlas of the United States 79 (1944). 63 There was little doubt, closer to election time, that Vermont wished to cast its votes for Adams. For example, the SouthCarolina State Gazette reported on November 19 that “[t]he Legislature of Vermont choose[s] the Electors for that State. That they will be true Federalists is undoubted.” South Carolina State Gazette, Nov. 19, 1796. 64 See supra note 54 and accompanying text. 65 Although Jefferson was a leading contestant for the presidency in 1796, he “remained at Monticello until the twentieth of February; then rode for Philadelphia, arriving on March 2, 1797.” Nathan Schachner, Thomas Jefferson 587 (1964). This means that he did not witness the vote-counting ritual in February. Indeed, Jefferson wrote a letter to Madison on January 30 with a Monticello dateline saying that he did not wish to come to Philadelphia even for the inauguration ceremonies in March (asserting that he need not attend). Letter from Thomas Jefferson to James Madison (Jan. 30, 1797), in 16 Madison Papers, supra note 5, at 479, 479. He evidently changed his mind later. There is no evidence that he was aware of Adams's precedent. 66 Letter from James Madison to Thomas Jefferson (Dec. 25, 1796), in 16 Madison Papers, supra note 5, at 435, 435. 67 Letter from Thomas Jefferson to James Madison (Jan. 16, 1797), in 16 Madison Papers, supra note 5, at 461, 461. 68 In the December 21 edition of Greenleaf's New Daily Advertiser, the Vermont votes were reported and a story with a Rutland dateline appeared stating that “[o]n Wednesday, the electors for the choice of a President and Vice-President of the United States, met in this town.--We are informed that all their votes were for the Hon. JOHN ADAMS, and the Hon. THOMAS PINCKNEY, Esqrs.” Greenleaf's New Daily Advertiser (New York), Dec. 21, 1796, at 3. On December 22, the Gazette of the United States and Greenleaf's New Daily Advertiser both counted Vermont's votes for the Federalists in their electoral vote chart. Gazette of the United States (Philadelphia), Dec. 22, 1796, at 3; Greenleaf's New Daily Advertiser (New York), Dec. 22, 1796, at 3. The Aurora & General Advertiser from that day ran a story stating that “[f]rom good authority we are [unreadable word] that the Electors of the State of Vermont have voted for John Adams and Thomas Pinckney.” Aurora & General Advertiser (Philadelphia), Dec. 22, 1796, at 2. The editions of the Gazette of the United States over the next two days counted the Vermont votes, and the same is true of the December 24, 1796, editions of the Columbian Centinel and Greenleaf's New Daily Advertiser. Gazette of the United States (Philadelphia), Dec. 23, 1796, at 3; Gazette of the United States (Philadelphia), Dec. 24, 1796, at 3; Columbian Centinel (Boston), Dec. 24, 1796, at 2; Greenleaf's New Daily Advertiser (New York), Dec. 24, 1796, at 3. 69 In previous correspondence with Madison, Jefferson had already suggested an unwillingness to press partisanship too far in an effort to obtain the presidency. His letter of December 17 contemplated the possibility that some of Adams's enemies in the Federalist party might seek to deprive Adams of the electoral votes that were rightly his, leading to a Jefferson-Adams dead-heat. Once again, Jefferson was explicit in his instructions: “I pray you and authorize you fully to solicit on my behalf that mr. Adams may be preferred. He has always been my senior from the commencement of our public life, and the expression of the public will being equal, this circumstance ought to give him the preference.” Letter from Thomas Jefferson to James Madison (Dec. 17, 1796), in 16 Madison Papers, supra note 5, at 431, 431-32. 70 Letter from Thomas Jefferson to James Madison (Jan. 16, 1797), in 16 Madison Papers, supra note 5, at 461, 461. 71 If Vermont's 1791 electoral statute had lapsed, then it had not validly appointed its four 1796 Electors, leaving only 134 remaining in the pool. Under the Constitution, this meant that Jefferson's sixty-eight votes were sufficient for him to prevail without a runoff. See supra note 50. 72 6 Annals of Cong. 2097-98 (1797) (second emphasis added). Some of the accounts of vote-counting day in 1797 simply copy the Annals of Congress report that Adams sat for a moment. 2 Abridgment of the Debates of Congress 63 (Thomas Borden ed., New York, D. Appleton & Co. 1857); Counting Electoral Votes, supra note 5, at 15 (reporting proceedings of Feb. 8, 1797); McKnight, supra note 5, at 392; Presidential Counts, at xxii (New York, D. Appleton & Co. 1877). APPENDIX - 36 © 2021 Thomson Reuters. No claim to original U.S. Government Works. 36 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 38 of 553 PageID #: 443 THOMAS JEFFERSON COUNTS HIMSELF INTO THE PRESIDENCY, 90 Va. L. Rev. 551 Others are identical in substance to the Annals but provide abbreviated versions, leaving out various details. These omit any mention of Adams's momentary pause but do not contradict the fuller accounts. H. Jour., 4th Cong., 2d Sess. 685-86 (1797); S. Jour., 4th Cong., 2d Sess. 320 (1797); Presidential Counts, supra, at 6, 9; Aurora & General Advertiser (Philadelphia), Feb. 9, 1797, at 3. 73 The various accounts of Adams's conduct in 1793 are briefer than in 1797, and it is possible that Adams indeed sat for a moment but that this action was not recorded. Counting Electoral Votes, supra note 5, at 10-11; 3 Annals of Cong. 874-75 (1793); H. Jour., 2d Cong., 2d Sess. 701-02 (1793); S. Jour., 2d Cong., 2d Sess. 485-86 (1793); 1 Abridgment of the Debates of Congress, supra note 72, at 385-86; McKnight, supra note 5, at 390-91; Presidential Counts, supra note 72, at xxii, 3. No explicit mention, however, is made of such behavior. 74 1 Stanwood, supra note 5, at 52. 75 There may also have been technical problems with the Kentucky electoral votes in 1797. Several sources state that Adams announced that there was only one copy of Kentucky's electoral votes. 6 Annals of Cong. 2096 (1797); 2 Abridgment of the Debates of Congress, supra note 72, at 62; Counting Electoral Votes, supra note 5, at 14-15; McKnight, supra note 5, at 392. After inspection of the National Archives collection of electoral votes, it appears that there are, in fact, duplicate copies of the Kentucky votes in the archives, but perhaps the duplicate was missing on vote-counting day in 1797. There was also debate about events in Pennsylvania. Two Jefferson supporters may have been elected, but their returns were submitted late and two Federalists presented themselves as the legitimate electors. Letter from Joseph Jones to James Madison (Dec. 15, 1796), in 16 Madison Papers, supra note 5, at 428, 429 n.1. In the end, it does not appear to have mattered all that much, as one of the two Federalist electors voted for Jefferson regardless. Letter from Thomas Jefferson to T.M. Randolph (Jan. 9, 1797), in Jefferson Papers 17286-87, available at http:// memory.loc.gov/ammem/mtjhtml/mtjser1.html (on file with the Virginia Law Review Association). 76 Walter Berns, Freedom of the Press and the Alien and Sedition Laws: A Reappraisal, 1970 Sup. Ct. Rev. 109, 111 (“With the exception of the Civil War and the periods immediately preceding and succeeding it[,]... America probably has not known a time when its politics were conducted with such vehemence and hatred.”). 77 See, e.g., Alexander DeConde, The Quasi-War 10-12, 28, 41 (1966). 78 See, e.g., Letter from Thomas Jefferson to Phillip Mazzei (Apr. 24, 1796), in 7 The Writings of Thomas Jefferson 72, 75-76 (Paul L. Ford ed., New York, G.P. Putnam's Sons 1896) (referring to the Federalists as an “Anglican [,] monarchical, & aristocratical party”). A North Carolina newspaper put it this way: Thomas Jefferson first drew the declaration of American independence;--he first framed the sacred political sentence that all men are born equal. John Adams says this is all a farce and a falsehood; that some men should be born Kings, and some should be born Nobles. Which of these, freemen of Pennsylvania, will you have for your President? Will you, by your votes, contribute to make the avowed friend of monarchy, President?--or will you, by neglectfully staying at home, permit others to saddle you with Political Slavery? Adams has Sons who might aim to succeed their father; Jefferson like Washington has no son. Adams is a fond admirer of the British Constitution, and says it is the first wonder of the world. Jefferson likes better our Federal Constitution, and thinks the British full of deformity, corruption and wickedness. Once more fellow citizens! Edenton State Gazette of North Carolina, Nov. 24, 1796. 79 This familiar story is well summarized in Weisberger, supra note 40, at 200-24. 80 Tadahisa Kuroda, The Origins of the Twelfth Amendment 72-82 (1994). 81 Counting Electoral Votes, supra note 5, at 18. Such irregularities included: the constitutional qualifications of the persons voted for as President and Vice-President of the United States, upon the constitutional qualifications of the electors appointed by the different States, and whether their appointment was authorized by the State legislature or not; upon all petitions and exceptions against corrupt, illegal conduct of the electors, or force, menaces, or improper means used to influence their votes; or against the truth of their returns, or the time, place, or manner of giving their votes. Id. 82 Id. at 17. APPENDIX - 37 © 2021 Thomson Reuters. No claim to original U.S. Government Works. 37 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 39 of 553 PageID #: 444 THOMAS JEFFERSON COUNTS HIMSELF INTO THE PRESIDENCY, 90 Va. L. Rev. 551 83 Id. 84 Id. at 18. 85 10 Annals of Cong. 670, 674 (1800). 86 See 2 Albert J. Beveridge, The Life of John Marshall 453-57 (1916). 87 10 Annals of Cong. 670, 674; see Counting Electoral Votes, supra note 5, at 24; Aurora & General Advertiser (Philadelphia), Feb. 19, 1800, at 2 (reprinting the bill's text in full). 88 See 2 Beveridge, supra note 86, at 456; Kuroda, supra note 80, at 80-82. 89 As sitting Vice-President, Jefferson was, of course, an interested observer, and was unimpressed by Marshall's efforts to control the Grand Committee: [T]he bill for the election of the Pres and V P has undergone much revolution. Marshall made a dexterous manoeuver; he declares against the constitutionality of the Senate's bill, and proposes that the right of decision of their grand committee should be controllable by the concurrent vote of the two Houses of congress; but to stand good if not rejected by a concurrent vote. You will readily estimate the amount of this sort of controul. The committee of the H. of R., however, took from the Committee the right of giving any opinion, requiring them to report facts only, and that the votes returned by the states should be counted, unless reported by a concurrent vote of both Houses. In what form they will pass them or us, cannot be foreseen. Letter from Thomas Jefferson to Edward Livingston (Apr. 30, 1800) in Jefferson Papers 18274, available at http:// memory.loc.gov/ammem/mtjhtml/mtjser1.html (on file with the Virginia Law Review Association). Jefferson seems to have misread Marshall's bill, which required both houses to uphold the Committee's decision before a full rejection could occur. Jefferson asserts that the Committee's decision would be valid unless both houses affirmatively rejected their findings. 90 Letter from Thomas Jefferson to James Monroe (Dec. 20, 1800), quoted in Dumas Malone, Jefferson and the Ordeal of Liberty 496 (1962). This letter can be found at the Library of Congress, Jefferson Papers 18511 (available at http:// memory.loc.gov/ammem/mtjhtml/mtjser1.html). 91 Act of March 1, 1792, ch. 8, § 5, 1 Stat. 239, 240. 92 See supra note 30 and accompanying text. 93 Id. 94 Professor Ackerman recounts their scheming at length in a forthcoming book. See Ackerman, supra note 41, at 60-132. 95 Act of March 1, 1792, ch. 8, § 4, 1 Stat. 239, 240. (empowering the Secretary of State to send a messenger to a state only if “a list of votes” had not been received by the first Wednesday in January). 96 U.S. Const. art. II, § 1, cl. 3. 97 Letter from Thomas Jefferson to John Marshall (Dec. 28, 1800), in 6 The Papers of John Marshall 45, 45-46 (Charles F. Hobson et al. eds., 1990) (“I have the honor to inform you that a list of the votes for President & Vice-president of the US. has come to my hands from every state of the union; and consequently that no special messenger to any of them need be provided by the department of state.”). 98 See infra notes 122-23 and accompanying text. 99 U.S. Const. art. II, § 1, cl. 3. 100 See supra note 54. 101 Of course, Adams could not have known this in advance. 102 U.S. Const. art. II, § 1, cl. 3. APPENDIX - 38 © 2021 Thomson Reuters. No claim to original U.S. Government Works. 38 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 40 of 553 PageID #: 445 THOMAS JEFFERSON COUNTS HIMSELF INTO THE PRESIDENCY, 90 Va. L. Rev. 551 103 Act of March 1, 1792, ch. 8, § 3, 1 Stat. 239, 240. 104 Id. 105 Id. § 2. A further detail: The electors are actually instructed to create three copies of the relevant documents, and place them in three separate envelopes containing three superscriptions. One set is personally delivered and one is mailed to the President of the Senate; the third goes to a local federal district judge for safekeeping. Id. § 2. Likewise, the state executive is instructed to prepare three copies of the certificate of ascertainment, one copy to be included in each set of electoral documents prepared by the electors. Id. § 3. 106 We have inspected every vote certificate submitted by the state Electors in the course of the first six elections. With the exception of Georgia's in 1800, each is in perfect order. At our request, the Library of Congress has prepared a microform of these early electoral votes. See Electoral Vote Records, Film. No. 189 (on file with the Yale Law Library) [hereinafter “Electoral Vote Records” ]. The first election, held in 1788, preceded the first session of Congress as well as the Act of 1792. New Hampshire submitted only the letter from the Electors required by Article II, with no letter from any “executive authority” as would have been required by the Act of 1792. Act of March 1, 1792, ch. 8, § 3, 1 Stat. 239, 240. Two states (Georgia and Maryland) did not send two copies of each item to the Capitol, as would later be required by the Act of 1792. Id. § 2. But in all other respects, the state documents fully comply with the rules laid down in the subsequent statute. 107 For those who find the script difficult to decipher, this document states that the Electors (whose four names appear below) met at a “place directed for the Electors to meet for the Election of President” and that “We the underwritten Electors do certify the above [four votes for Jefferson and four votes for George Clinton] to be a true” list of their votes. 108 U.S. Const. art. II, § 1, cl. 3. 109 Id. 110 We have inspected the original documents at the National Archives in Washington, D.C. 111 U.S. Const. art. II, § 1, cl. 3. 112 Id. 113 In the language of Article II and the Act of 1792, the “sign, certify, and transmit” language is modified by the pronoun “they,” clearly referring to the electors. U.S. Const. art. II, § 1, cl. 3 (stating that “they [the electors] shall sign and certify, and transmit” the electoral votes) (emphasis added); Act of March 1, 1792, ch. 8, § 2, 1 Stat. 239, 239-40 (stating that the electors “shall make and sign three certificates of all the votes by them given, and [the electors] shall seal up the same certifying on each that a list of the votes of such state for President and Vice President is contained therein”). This makes perfect practical sense-- would the Framers or the authors of the 1792 Act have wanted the electors to draft and certify part of the package and have some unnamed other complete the process? 114 U.S. Const. art. II, § 1, cl. 3. 115 Id. 116 See supra note 106 and accompanying text. 117 See infra note 120 and sources cited therein. 118 This document states that: Pursuant to [their] duty as Electors for the State of Tennessee, having convened in Knoxville on the first Wednesday of December in the year [one thousand] eight hundred and being legally qualified, we do certify that we voted by ballot for President and Vice President of the United States. And upon counting, the votes they were as follows [three for Jefferson and three for Burr]. The signatures of the electors appear below this statement. Electoral Vote Records, supra note 106. APPENDIX - 39 © 2021 Thomson Reuters. No claim to original U.S. Government Works. 39 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 41 of 553 PageID #: 446 THOMAS JEFFERSON COUNTS HIMSELF INTO THE PRESIDENCY, 90 Va. L. Rev. 551 119 The text is simplifying in one particular. Remember that the statute required the preparation of three sets of documents-two to be delivered to the President of the Senate and one to a local federal district judge. See supra note 105. 120 C. Peter McGrath, Yazoo 7 (1966). Georgia was very much a frontier state at the time, without a great deal of legal talent. See generally W.W. Abbot, The Royal Governors of Georgia: 1754-1775 (1959); T.S. Arthur & W.H. Carpenter, The History of Georgia, from Its Earliest Settlement to the Present Time (Philadelphia, Lippincott, Grambo & Co. 1852); Kenneth Coleman, The American Revolution in Georgia: 1763-1789 (1958); James F. Cook, The Governors of Georgia: 1754-1995 (1995); 2 Walter G. Cooper, The Story of Georgia (1938); 1 Warren Grice, Georgia Through Two Centuries (E. Merton Coulter ed., 1966); Amanda Johnson, Georgia as Colony and State (1938); 2 Charles C. Jones, Jr., The History of Georgia (Cambridge, The Riverside Press 1883); Spencer B. King, Jr., Georgia Voices: A Documentary History to 1872 (1966); Albert B. Saye, New Viewpoints in Georgia History 1732-1789 (1943); George Gillman Smith, The Story of Georgia and the Georgia People: 1732 to 1860 (1900). 121 McGrath, supra note 120, passim. 122 Act of March 1, 1792, ch. 8, § 2, 1 Stat. 239, 239-40. 123 There were five newspapers in Georgia at the time (the Augusta Chronicle, the Augusta Herald, the Columbian Museum & Savannah Advertiser, the Georgia Gazette, and the Louisville Gazette, the last of which became the Louisville Gazette & Republican Trumpet in April 1800), and we examined every edition of all five spanning the period of January 1800 to February 1801. We also examined editions of every newspaper in print anywhere in the country over the period of January to March 1801, as well as every edition of the Gazette of the United States published in 1800. Our conclusion: In the months leading up to the election, there was some uncertainty about the ultimate result, but as election day neared, the reports consistently indicated that Georgia would vote for Jefferson and Burr. On May 9, the Columbian Museum & Savannah Advertiser reported that Georgia would give four votes to Thomas Jefferson and four votes to Charles Pinckney in the upcoming election. Columbian Museum & Savannah Advertiser, May 9, 1800, at 2. On July 22, by contrast, the same publication reported that Georgia would give four votes each to Thomas Jefferson and Aaron Burr without explanation. Columbian Museum & Savannah Advertiser, July 22, 1800, at 3. On November 8, 1800, the Augusta Herald reported that Georgia would give four votes to Jefferson, while on November 11, 1800, the Gazette of the United States reported that Georgia would give two votes to Jefferson, two votes to Burr, two votes to Adams, and two votes to Pinckney, citing the “Columbian Mirror” as its source for the report. Augusta Herald, Nov. 8, 1800, at 2; Gazette of the United States (Philadelphia), Nov. 11, 1800. Four days later, the Gazette reported that Jefferson would receive four votes and that four votes would be “scattering.” Gazette of the United States (Philadelphia), Nov. 15, 1800, at 3. But by November 19, the Louisville Gazette & Republican Trumpet reported that “it is now reduced to a certainty, that Mr. Jefferson will get the four votes of this State, for president,” before repeating the names of the four electors the state legislature apparently picked originally: Morrison, Smelt, Graybill, and Lumpkin. Louisville Gazette & Republican Trumpet, Nov. 19, 1800, at 3. The Augusta Herald edition for November 26 repeated this information. Augusta Herald, Nov. 26, 1800, at 3. In its December 10 edition, the Augusta Herald discussed how each state had voted in the presidential election, and reported that Georgia had voted for Jefferson. Augusta Herald, Dec. 10, 1800, at 3. The same day, the Louisville Gazette & Republican Trumpet reported that “the State of Georgia w[ill] furnish four votes for Jefferson.” Louisville Gazette & Republican Trumpet, Dec. 10, 1800, at 1. On December 26, the Gazette of the United States reported that the “Electors of President and Vice-President in the State...[of] Georgia, have given a unanimous vote for Mr. Jefferson and Mr. Burr.” Gazette of the United States (Philadelphia), Dec. 26, 1800, at 3. 124 10 Annals of Cong. 1023-24 (1801). 125 None of the reports of Jefferson's actions from that day indicate that he paused or sat down. Counting Electoral Votes, supra note 5, at 30-31, 33; 10 Annals of Cong. 1023 (1801); H. Jour., 6th Cong., 1st Sess. 796-99 (1801); S. Jour., 6th Cong., 1st Sess. 124-25 (1801); 2 Abridgment of the Debates of Congress, supra note 72, at 531; McKnight, supra note 5, at 393; Presidential Counts, supra note 72, at xxii, 11, 16. 126 Aurora & General Advertiser (Philadelphia), Feb. 11, 1801, at 2. 127 Fischer, supra note 54, at 419 (identifying the Aurora as a “decidedly Republican” newspaper). 128 Columbian Centinel (Boston), Feb. 21, 1801, at 2; Columbian Museum & Savannah Advertiser, Feb. 27, 1801, at 3; Pennsylvania Gazette (Philadelphia), Feb. 18, 1801, at 2; Philadelphia Gazette & Daily Advertiser, Feb. 14, 1801, at 3; Spectator (New York), Feb. 18, 1801, at 3. The Centinel and The Philadelphia Gazette & Daily Advertiser were APPENDIX - 40 © 2021 Thomson Reuters. No claim to original U.S. Government Works. 40 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 42 of 553 PageID #: 447 THOMAS JEFFERSON COUNTS HIMSELF INTO THE PRESIDENCY, 90 Va. L. Rev. 551 “decidedly Federalist,” Fischer, supra note 54, at 414, 419. The Spectator and the Pennsylvania Gazette were “moderately Federalist.” Id. at 417, 419. The Columbian Museum and Savannah Advertiser was “very moderately Federalist.” Id. at 422. Again, the Aurora was “decidedly Republican.” Id. at 419. 129 Mercury & New-England Palladium (Boston), Feb. 24, 1801, at 2. 130 See supra notes 127-28. 131 See supra notes 126, 128. 132 A bill introduced on February 14, 1800, attempted to define the duties of the tellers, granting them strictly ministerial authority: [T]o receive the certificates of the Electors from the President of the Senate, after they shall have been opened and read, and to note in writing, the dates of the certificates, the names of the Electors, the time and place of their meeting, the number of votes given, and the names of the persons voted for; and also, the substance of the certificates from the Executive authority of each state, accompanying the certificates of the Electors.... A Bill Prescribing the mode of deciding disputed elections of President and Vice President of the United States, S., 6th Cong. (1800), microformed on 6th Congress, 1799-1801: Senate Bills (Library of Congress). For reference to the date of introduction, see Counting Electoral Votes, supra note 5, at 16; S. Jour., 6th Cong., 1st Sess., 23, 31 (1800). In any event, it failed to pass Congress. Kuroda, supra note 80, at 78-82. 133 10 Annals of Cong. 1024 (1801) (emphasis added). 134 McKnight describes the likely behavior of the tellers: “We all know that the custom of the tellers at a meeting is for one to count out aloud the votes as they are given and for the others to record them; this is undoubtedly what they did here on this extraordinary and unique occasion.” McKnight, supra note 5, at 292. Other sources also indicate that the tellers read the votes aloud. The analytical introduction to Presidential Counts states that “[i]n practice, the tellers have read the votes, one by one, after they have been opened or the seals sometimes broken, sometimes unbroken, by the presiding officer, or in some instances the packages with unbroken seals handed over by the presiding officer.” Presidential Counts, supra note 72, at xiii. 135 These conclusions about the order of events are based on an extensive review of all available accounts of votecounting day from the first election up through that of 1840, including (1) Annals of Congress (vote-counting day from 1789-1821); (2) Journal of the House of Representatives (vote-counting day from 1789-1817); (3) Journal of the Senate (vote-counting day from 1789-1817); (4) Abridgment of the Debates of Congress (vote-counting day from 1789-1801 and 1809-1841); (5) Gales & Seaton's Register of Debates in Congress (vote-counting day from 1825-1833); and (6) Counting Electoral Votes (vote-counting day from 1789-1841). Our survey extended to various secondary sources, including Dougherty, supra note 5; McKnight, supra note 5; Stanwood, supra note 5; and Presidential Counts, supra note 72. 136 See, e.g., John W. Burgess, The Law of the Electoral Count, 3 Pol. Sci. Q. 633 (1888); C.C. Tansill, supra note 5. There is only one scholar whose writing suggests that he may have examined the actual electoral documents in the National Archives. He does not, however, mention the legal problems with the Georgia vote, perhaps because he is not a lawyer. Kuroda, supra note 80, at 202 n.48 (1994) (including a citation to the actual Georgia electoral votes of 1800). None of the biographies of Jefferson or studies of the 1800 presidential election mentions the February 11 incident. We searched a multitude of Jefferson biographies available at the Library of Congress, and none of them contain any references to the incident. See, e.g., Joyce Appleby, Thomas Jefferson (2003); Alen Axelrod, Life and Work of Thomas Jefferson (2001); Joseph J. Ellis, American Sphinx: The Character of Thomas Jefferson (1996); Dumas Malone, Jefferson and His Time (1948); Dumas Malone, Thomas Jefferson as Political Leader (1963); Nathan Schachner, Thomas Jefferson: A Biography (1951); Weisberger, supra note 40. 137 Not entirely serendipitous: Professor Ackerman was preparing to write a book on the constitutional implications of the Jeffersonian “Revolution of 1800,” and was systematically researching the biographies of the leading protagonists in the struggle. See Ackerman, supra note 41. There are lots of biographies of lots of protagonists, however, and it would have been easy to have missed the reference in a single tome. 138 2 Matthew L. Davis, Memoirs of Aaron Burr with Miscellaneous Selections from His Correspondence 71-73 (New York, Harper & Bros. 1836). APPENDIX - 41 © 2021 Thomson Reuters. No claim to original U.S. Government Works. 41 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 43 of 553 PageID #: 448 THOMAS JEFFERSON COUNTS HIMSELF INTO THE PRESIDENCY, 90 Va. L. Rev. 551 139 Senator Wells's papers are located at the Historical Society of Delaware in Wilmington, Delaware and at the University of Pennsylvania. Representative Nicholas's papers are located at Columbia University, the Library of Congress, and the University of Virginia. Representative Rutledge's papers are located at Duke University, the Library of Congress, and the University of North Carolina at Chapel Hill. See also Robert K. Ratzlaff, John Rutledge, Jr., South Carolina Federalist, 1766-1819 (1982) (summarizing Rutledge's political life); Patrick J. Furlong, John Rutledge, Jr., and the Election of a Speaker of the House in 1799, 24 Wm. & Mary Q., 3d ser., 432 (1967) (reproducing a letter written by Rutledge). Jefferson's papers are scattered, but most are now online, and all are indexed at the Library of Congress. Davis's papers are located at the New York Historical Society. We also searched archival collections for John Adams, Aaron Burr, Alexander Hamilton, Robert Goodloe Harper, Thomas Jefferson, James Madison, John Nicholas, Wilson Cary Nicholas, Charles Pinckney, Thomas Pinckney, John Rutledge, Jr., and Samuel Smith. 140 Davis was sharply critical of Jefferson's victory in 1800. See Letter from Matthew L. Davis to Albert Gallatin (Jan. 2, 1801), in Matthew Livingston Davis Papers (New York Historical Society); Letter from Matthew L. Davis to Edward P. Livingston (Feb. 4, 1804), in Matthew Livingston Davis Papers (New York Historical Society). He frequently criticized Jefferson for his “lack of good character” and “unethical impulses.” See id. His strong partisanship was undoubtedly sharpened when Jefferson rejected Burr's nomination of Davis to the lucrative position of naval officer for the New York City Custom House. See Howard Lee McBain, De Witt Clinton and the Origin of the Spoils System in New York 140-44, reprinted in 28 Studies in History, Economics and Public Law 1 (1907). 141 Mushkat, supra note 52, at 107 (“Davis, as most historians view him, was a man who could never resist a shady deal or a dishonest dollar, a man whose political acumen was constantly available for sale to the highest bidder.”). 142 Professor Mushkat notes that Davis “destroyed many letters that he considered damaging, altered others, and generally operated on the premise that future generations had no right to know the real Aaron Burr.” Id.; see also Worthington C. Ford, Some Papers of Aaron Burr, 29 Proc. Am. Antiquarian Soc'y 43, 44-45 (1919) (“[T]he righteous indignation of every student of the Burr period is fittingly directed against [Davis]. To dip casually into a collection and select almost accidentally a few papers would be a procedure to shame a modern investigator.... He took unpardonable liberties with the text of some which he did print.”). 143 Here is his statement: It is a matter of perfect notoriety, that among the papers left in my possession by the late Colonel Burr, there was a mass of letters and copies of letters written or received by him, from time to time, during a long life, indicating no very strict morality in some of his female correspondents. These letters contained matter that would have wounded the feelings of families more extensively than could be imagined. Their publication would have had a most injurious tendency, and created heartburnings that nothing but time could have cured. As soon as they came under my control I mentioned the subject to Colonel Burr; but he prohibited the destruction of any part of them during his lifetime. I separated them, however, from other letters in my possession, and placed them in a situation that made their publication next to impossible, whatever might have been my own fate. 1 Davis, supra note 138, at v. 144 Davis states that he edited Burr's papers “with the most scrupulous regard to [his] own reputation for correctness.” Id. According to Davis, the Burr Memoirs “stated facts, and the fair deductions from them, without the slightest intermixture of personal feeling.” Id. 145 Aurora & General Advertiser (Philadelphia), Feb. 16, 1801, at 2. 146 2 Davis, supra note 138, at 72. 147 See supra note 113 and accompanying text. 148 2 Davis, supra note 138, at 72. 149 U.S. Const. art. II, § 1, cl. 3 (“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.”) (emphasis added). APPENDIX - 42 © 2021 Thomson Reuters. No claim to original U.S. Government Works. 42 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 44 of 553 PageID #: 449 THOMAS JEFFERSON COUNTS HIMSELF INTO THE PRESIDENCY, 90 Va. L. Rev. 551 150 A final detail of Davis's account requires separate consideration. He says that, after hurriedly counting the Georgia vote into the Republican column, Jefferson “handed to the tellers the package from the next state.” 2 Davis, supra note 138, at 73. It is possible (though not likely), however, that Georgia's envelope was opened last. The electoral votes were not counted in state alphabetical order. Instead, a peculiar geographic ordering had become customary. In 1797, for example, John Adams began in the South with Tennessee and worked his way northward. Counting Electoral Votes, supra note 5, at 12-13; S. Jour., 4th Cong., 2d Sess. 320 (1797); 2 Abridgment of the Debates of Congress, supra note 72, at 62-63; Presidential Counts, supra note 72, at 9. In 1801, Jefferson began with New Hampshire and worked his way southward. Counting Electoral Votes, supra note 5, at 30, 33; 10 Annals of Cong. 1023-24 (1801); H. Jour., 6th Cong., 2d Sess. 796-98 (1801); S. Jour., 6th Cong., 2d Sess. 124-25 (1801); 2 Abridgment of the Debates of Congress, supra note 72; Presidential Counts, supra note 72, at xxii, 11, 16. Georgia might be deemed the southernmost state on some reckonings, thereby suggesting that its envelope would have been opened last. Georgia's votes were counted last, after South Carolina's, in 1793. Counting Electoral Votes, supra note 5, at 10; H. Jour., 2d Cong., 2d Sess. 702 (1793); S. Jour., 2d Cong., 2d Sess. 485 (1793); McKnight, supra note 5, at 390-91. But in 1797, all reports except one indicate that Georgia was counted third (after Tennessee and Kentucky). Counting Electoral Votes, supra note 5, at 13; 9 S. Jour., 4th Cong., 2d Sess. 320 (1797). But see H. Jour., 4th Cong., 2d Sess. 686 (1797) (listing Georgia last). In 1805, Georgia was counted before Tennessee, Kentucky, and Ohio (which had not been in the Union for the 1800 election), and occupied this position for quite a while. Counting Electoral Votes, supra note 5, at 36; 14 Annals of Cong. 1195 (1805); H. Jour., 8th Cong., 2d Sess. 137 (1805); S. Jour., 8th Cong., 2d Sess. 453 (1805); Presidential Counts, supra note 72, at 19, 21. Accounts dealing with February 11, 1801, disagree on the order of voting. Several sources list Georgia last in the stateby-state vote graphs. Counting Electoral Votes, supra note 5, at 30; 10 Annals of Cong. 1023 (1801); S. Jour., 6th Cong., 2d Sess. 125 (1801); 2 Abridgment of the Debates of Congress, supra note 72, at 531; Presidential Counts, supra note 72, at 11, 16. Yet others place it third-to-last, followed by Kentucky and Tennessee. H. Jour., 6th Cong., 2d Sess. 799 (1801); Stanwood, supra note 5, at 63. This placement is more consistent with Georgia's treatment in the immediately preceding and succeeding electoral counts. 151 McKnight, supra note 5, at 293. 152 Id. 153 See supra notes 5, 136. 154 10 Annals of Cong. 1024 (1801). 155 Id. 156 Id. 157 Letter from Thomas Jefferson to James Madison (Jan. 16, 1797), in 16 Madison Papers, supra note 5, at 461, 461. 158 See supra note 123. 159 Our review included an examination of the following materials: (1) the papers of eight of the most prominent Georgia political figures of the period (Georgia Historical Society, Savannah) (additionally, each of the other collections was searched for papers concerning these eight personalities); (2) every edition of every Georgia newspaper from January 1800 to February 1801 (University of Georgia Hargrett Library for Rare Books and Manuscripts, Athens); (3) records of the Georgia Senate and the Georgia House of Representatives for 1799 and 1800; and (4) a book containing the Governor's outgoing official correspondence covering the period between January 1799 and March 1801 (Georgia Department of Archives and History, Atlanta). A broad range of secondary literature was also examined. See supra note 120 and sources cited therein; see also E. Merton Coulter, Abraham Baldwin: Patriot, Educator, and Founding Father (1987); William Omer Foster, Sr., James Jackson: Duelist and Militant Statesman (1960); Harvey H. Jackson, Lachlan McIntosh and the Politics of Revolutionary Georgia (1979); George R. Lamplugh, Politics on the Periphery: Factions and Parties in Georgia, 1783-1806 (1986); Walter McElreath, A Treatise on the Constitution of Georgia (1912); Albert Berry Saye, A Constitutional History of Georgia: 1732-1968 (1970); E. Merton Coulter, Edward Telfair, 20 Ga. Hist. Q. 99 (1936); Patrick J. Furlong, Abraham Baldwin: A Georgia Yankee as Old Congress-man, 56 Ga. Hist. Q. 51 (1972); George R. Lamplugh, George Walton, Chief Justice of Georgia, 1783-1785, 65 Ga. Hist. Q. 82 (1981); George R. Lamplugh, “Oh the Colossus! The Colossus!”: James Jackson and the Jeffersonian Republican Party in Georgia, APPENDIX - 43 © 2021 Thomson Reuters. No claim to original U.S. Government Works. 43 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 45 of 553 PageID #: 450 THOMAS JEFFERSON COUNTS HIMSELF INTO THE PRESIDENCY, 90 Va. L. Rev. 551 1796-1806, 9 J. Early Republic 315 (1989); Edwin Bridges, George Walton: A Political Biography (1981) (unpublished Ph.D. dissertation, University of Chicago) (on file with the University of Chicago Library). 160 Letter from Governor James Jackson to Abraham Baldwin (Dec. 5, 1800), in Abraham Baldwin Papers (University of Georgia at Athens). 161 On November 19, the Louisville Gazette & Republican Trumpet reported that “[i]t is now reduced to a certainty that Mr. Jefferson will get the four votes in this state for president.” Louisville Gazette & Republican Trumpet, Nov. 19, 1800, at 3. Reports that Georgia voted for Jefferson and Burr appear in various editions of the Augusta Herald and the Georgia Gazette. Augusta Herald, Dec. 13, 1800, at 3; Augusta Herald, Dec. 27, 1800, at 2; Augusta Herald, Jan. 3, 1801, at 3; Augusta Herald, Jan. 17, 1801, at 2; Augusta Herald, Jan. 28, 1801, at 2; Georgia Gazette, Jan. 8, 1801, at 3. 162 Journal of the Ga. S. 29 (Nov. 30, 1799). 163 Act of March 1, 1792, ch. 8, § 1, 1 Stat. 239, 239. 164 Journal of the Ga. S. 39 (Dec. 5, 1799); see also Augusta Herald, Nov. 5, 1800, at 3 (referencing this problem with the proposed law). We have been unable to identify any Georgia law enacted before 1800 that regulated the selection of presidential electors. 165 Journal of the Ga. H.R. 62-63 (Nov. 5, 1800); Journal of the Georgia Senate 7-8 (Nov. 5, 1800). On November 18, both houses of the Georgia state legislature met and picked John Morrison, Dennis Smelt, Henry Greybill, and John Lumpkin as presidential electors. Journal of the Ga. H. R. 81 (Nov. 18, 1800); Journal of the Ga. S. 25 (Nov. 18, 1800). There is another ambiguity. David Blackshear cast one of the electoral votes from Georgia, but he was not chosen as one of the original electors. On November 18--the day the state legislature picked Smelt, Morrison, Greybill and Lumpkin-Governor Jackson may have discovered that Lumpkin could not serve due to family illness, and he may have appointed Blackshear in Lumpkin's place. In the Abraham Baldwin Papers, there is an official gubernatorial document (complete with seal) that mentions the “executive appointment of David Blackshear as an Elector for President and Vice President in the room of John Lumpkin.” James Jackson, Gubernatorial Statement (Nov. 18, 1800), in Abraham Baldwin Papers (University of Georgia at Athens). The University of Georgia archival staff seems to have dated this document November 18, but the document itself states that the Governor “caused the great seal of the said State to be put and affixed at the State House in Louisville this tenth day of December in the year of our Lord one thousand eight hundred.” Id. We think the later date is more plausible, especially since the Governor's outgoing correspondence book contains a letter addressed to Lumpkin and the other three electors dated November 19, 1800. Letter to Dennis Smelt, John Morrison, Henry Gr[e]ybill, and John Lumpkin (Nov. 19, 1800), in Governor's Letter Book of Gov. James Jackson: March 25, 1800-March 2, 1801, at 141 (Ga. Dep't of Archives and History) (1940). 166 See supra note 123. 167 10 Annals of Cong. 1023-24 (1801). 168 See supra note 134 and accompanying text. 169 See supra note 138 and accompanying text. 170 Professor Dauer has Taliaferro listed as a Federalist. Dauer, supra note 5, at 323. The other member of the House of Representatives besides the Federalist Taliaferro, James Jones, had died before vote-counting day, but he was also a Federalist. Id. Senator Gunn, present on vote-counting day, was a Federalist. See Gunn, James, 1753-1801, at http:// bioguide.congress.gov/scripts/biodisplay.pl?index=G000526 (last visited Jan. 30, 2004) (on file with the Virginia Law Review Association). A book that provides information on all senators from Georgia does not list Gunn's partisan affiliation, but does say that he engaged in a duel with arch-Republican Georgia Governor and Senator James Jackson. Josephine Mellichamp, Senators from Georgia 23 (1976). 171 The principle of passivity established by Jefferson remains in force today. Under rules established by the Electoral Vote Count Act of 1887, the chair does not raise any questions regarding the legitimacy of electoral votes. Rather, a protest must be signed by at least one representative and one senator before its consideration will be in order. It should also be noted, however, that the Act requires the Senate President to apprise the assembled individuals of their opportunity to raise challenges. 3 U.S.C. § 15 (2000) ( “Upon such reading of any such certificate or paper, the President of the Senate shall call for objections, if any. Every objection shall be made in writing, and shall state clearly and concisely, APPENDIX - 44 © 2021 Thomson Reuters. No claim to original U.S. Government Works. 44 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 46 of 553 PageID #: 451 THOMAS JEFFERSON COUNTS HIMSELF INTO THE PRESIDENCY, 90 Va. L. Rev. 551 and without argument, the ground thereof, and shall be signed by at least one senator and one member of the House of Representatives before the same shall be received.”). 172 See supra note 81 and accompanying text. 173 See supra note 88 and accompanying text. 174 See supra notes 114 and 149 and accompanying text. 175 The presence of a Federalist majority in the House of Representatives was demonstrated on February 9, two days prior to the vote count, when the chamber met to set the rules for the anticipated House runoff. By a vote of fifty-four to fortyfive, the Federalists set a rule that the “doors of the House shall be closed during the balloting” (Rule 5th), and insisted by a vote of fifty-three to forty-seven that the House “shall not adjourn until a choice is made” (Rule 4th). See Historic Documents on Presidential Elections: 1787-1988, at 76-78 (Michael Nelson ed., 1991); see also Letter from Samuel Tyler to Gov. James Monroe (Feb. 9, 1801), in Original Letters, 1 Wm. & Mary Q., 1st ser., 99, 102 (1892) (noting that “the Feds had a majority of six votes” and had little difficulty getting their version of the rules adopted). 176 See James Rogers Sharp, American Politics in the Early Republic 267 (1994). 177 Lord & Lord, supra note 62, at 79. 178 The 1792 Act required the electors to send another envelope, containing a copy of their ballot and the certificate of ascertainment, to a local federal district judge. Act of Mar. 1, 1792, ch. 8, § 2, 1 Stat. 239, 239-40. It seems likely that these documents contained the same defects as those delivered to Washington, but we have not been able to locate them. If our suspicions are correct, a hypothetical factfinding mission would have required a good deal of time before getting to the bottom of the matter. Even had the district judge opened his envelope to find a formally perfect electoral ballot, it still would have taken too long for the mission to conclude its investigation and return to Washington before Inauguration Day. 179 10 Annals of Cong. 1028 (1801). 180 The reality of mob violence and the risk of civil war is discussed at length in Ackerman, supra note 41; see also Sisson, supra note 21, at 423-37 (providing a broad range of evidence). 181 See supra note 128 and accompanying text. 182 Note that the law required all electors to vote on the first Wednesday in December and did not provide for any sort of re-vote. Act of Mar. 1, 1792, ch. 8, § 2, 1 Stat. 239, 239-40. 183 See supra note 30 and accompanying text (describing conditions for two-candidate and five-candidate runoffs). 184 1798 was the year of an emerging conflict with France, and the Federalists utilized nationalist sentiment as a potent political weapon against the Republicans, who had been consistently pro-French in their foreign policy. See Ackerman, supra note 41, at 61-62. 185 See supra Section I.B. 186 10 Annals of Cong. 1028 (1801). 187 Id. 188 Under House rules, each member of a state delegation cast a secret ballot, and so there is no formal record of the votes of individual representatives. A Republican newspaper, however, the National Intelligencer and Washington Advertiser, published lists of the three ballots attributing votes to individual members. National Intelligencer and Washington Advertiser, Feb. 13, 1801, at 3; National Intelligencer and Washington Advertiser, Feb. 16, 1801, at 2; National Intelligencer and Washington Advertiser, Feb. 18, 1801, at 3. It reported that Jefferson won the individual vote by a margin of fifty-five to forty-nine on the first ballot, but that five defections occurred on the second and subsequent ballots. Historic Documents on Presidential Elections: 1787-1988, supra note 175, at 85-88. Given the extreme partisanship prevailing at the time, it would be a mistake to accept the Intelligencer's count as authoritative. If APPENDIX - 45 © 2021 Thomson Reuters. No claim to original U.S. Government Works. 45 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 47 of 553 PageID #: 452 THOMAS JEFFERSON COUNTS HIMSELF INTO THE PRESIDENCY, 90 Va. L. Rev. 551 there is any sort of bias in this report, however, it seems likely that a Republican newspaper would understate the extent of Federalist defection on the second ballot. 189 Letter from James A. Bayard to Alexander Hamilton (Mar. 8, 1801), in 25 The Papers of Alexander Hamilton 344, 345 (Harold C. Syrett ed., 1977). 190 Professor Ackerman provides a blow-by-blow account of Jefferson's victory in his forthcoming book. See Ackerman, supra note 41. 191 Professor Manning Dauer's research indicates one way to assess this point, as he provides a table indicating the party affiliation of each member of the House of Representatives. Dauer, supra note 5, at 288-331. If one were to assume that all Federalists voted for the leading Federalist candidate in the five-man runoff, it is an easy matter to use Professor Dauer's data to determine how the sixteen states would have voted. The result: eight states vote Federalist (Connecticut, Delaware, Georgia, Maryland, Massachusetts, New Hampshire, Rhode Island, and South Carolina); six states vote Republican (Kentucky, New Jersey, New York, Pennsylvania, Tennessee, and Virginia), and two states are evenly split (North Carolina and Vermont). This contrasts with the real-world results in the two-man runoff--where eight states voted for Jefferson, six voted for Burr, and two split. 10 Annals of Cong. 1028 (1801). Strict party-line voting, however, might not have prevailed if the Federalists had been afforded an opportunity to vote for a Federalist candidate, and we provide a more individualized analysis below. See infra note 199. Nevertheless, the hypothetical party-line vote provides a rough sense of the order of magnitude of the shift that would have been involved. Note, however, that the Dauer data does not yield a clear victory to the Federalist candidate: The Constitution requires a total of nine votes, and the hypothetical Federalist wins only eight. It is this conclusion that leads us to speculate about Pinckney's emergence as a compromise candidate in the text that follows. 192 Marvin R. Zahniser, Charles Cotesworth Pinckney: Founding Father 47-70 (1967). 193 Id. at 87-96. 194 Id. at 136-64. 195 Letter from William Vans Murray to John Quincy Adams (Mar, 22, 1799), in Annual Report of the American Historical Association for the Year 1912, 529, 529-30 (1914). 196 Pinckney admired Hamilton. E.g., Letter from Charles C. Pinckney to James McHenry (Oct. 31, 1798), in George Washington Papers (Library of Congress) (“I knew that [Hamilton's] talents in war were great, that he had a genius capable of forming an extensive military plan, and a spirit courageous & enterprising, equal to the execution of it.”) (on file with the Virginia Law Review Association). Hamilton conducted an aggressive campaign to elect Pinckney. He wrote letters to his comrades telling them of his decision to support the South Carolinian. See Letter from Alexander Hamilton to Theodore Sedgwick (May 10, 1800), in 24 The Papers of Alexander Hamilton, supra note 189, at 475, 475 (“I will never more be responsible for [Adams] by my direct support--even though the consequence should be the election of Jefferson.... The only way to prevent a fatal scism in the Federal party is to support G [eneral] Pinckney in good earnest.”) (emphasis omitted); Letter from Alexander Hamilton to Charles Carroll (Aug. 7, 1800), in 25 The Papers of Alexander Hamilton, supra note 189, at 60, 60 (“As between Pinckney & Adams I give a decided preference to the first.”). He traveled to New England and wrote to others of the support in the North for Pinckney. Introductory Note to Letter from Alexander Hamilton to Benjamin Stoddert (June 6, 1800), in 24 The Papers of Alexander Hamilton, supra note 189, at 574, 574-85; Letter from Alexander Hamilton to Charles Carroll (July 1, 1800), in 25 The Papers of Alexander Hamilton, supra note 189, at 1, 1-2; Letter from Alexander Hamilton to Oliver Wolcott, Junior (July 1, 1800), in 25 The Papers of Alexander Hamilton, supra note 189, at 4, 4-5 (“I have been in Massachusetts, New Hampshire & Rhode Island. There is little doubt of Federal Electors in all. But there is considerable doubt of a perfect Union in favour of Pinckney. The leaders of the first class are generally right but those of the second class are too much disposed to be wrong. It is essential to inform the most discreet of this description of the facts which denote unfitness in Mr. Adams. I have promised confidential friends a correct statement. To be able to give it, I must derive aid from you. Any thing you may write shall if you please be returned to you. But you must be exact & much in detail.”). 197 For a description of Pinckney's role as the Federalist standard-bearer in the 1804 and 1808 campaigns, see Zahniser, supra note 192, at 234-60. APPENDIX - 46 © 2021 Thomson Reuters. No claim to original U.S. Government Works. 46 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 48 of 553 PageID #: 453 THOMAS JEFFERSON COUNTS HIMSELF INTO THE PRESIDENCY, 90 Va. L. Rev. 551 198 In the two-candidate runoff, Jefferson won all southern states except for South Carolina. See 10 Annals of Cong. 1028 (1801). 199 A hypothetical scenario involving party-line voting in a five-candidate race was presented previously. See supra note 191. We shall now analyze the real-world voting in the two-candidate race and consider how Pinckney's compromise candidacy might have induced a swing in his direction. South Carolina consistently voted for Burr in the two-man runoff, and it seems obvious that the state would have been more than happy to shift to Pinckney, a favorite son. Pinckney also had obvious attractions for North Carolina, whose delegation was split five to five along party lines. While the state in fact cast its vote for Jefferson in the two-man runoff, Pinckney would have been a far more attractive candidate than Burr. Indeed, at least one newspaper report predicted that the state would split evenly when Burr was the only alternative. American & Daily Advertiser (Baltimore), Jan. 15, 1801, at 2. A North Carolina vote for Jefferson was hardly foreordained, especially if he had repeatedly demonstrated his incapacity to win the nine votes needed to win the presidency. The same is true of Georgia. Benjamin Taliaferro was elected as a Federalist but often voted with the Republicans, see Dauer, supra note 5, at 315-25, and voted for Jefferson over Burr in the runoff. National Intelligencer (D.C.), Feb. 13, 1801, at 3. Nevertheless, he would have been under intense pressure from the Federalist establishment to vote for Pinckney as a compromise candidate. With North Carolina and Georgia in his column, in addition to the block of six who voted for Burr, Pinckney would have required only one more swing vote. Potential support seems greatest from two states--Tennessee (voting one to zero for Jefferson) or Maryland (splitting four-to-four between Jefferson and Burr). Id. New Jersey was also teetering threeto-two during the Jefferson-Burr struggle, see id., and one of its Republicans, James Linn, was frequently mentioned as a potential defector to the Federalist cause. See Letter from Thomas Jefferson to James Madison (Dec. 19, 1800), in 17 Madison Papers, supra note 5, at 444, 444-45 (“It is thought by some that... Linn of N.J. will come over.”); see also Morton Borden, The Federalism of James A. Bayard 88 (1955) (“Mr. Linn of [New] Jersey is... at present with us, which gives the vote of that State--but might be thrown off.”) (citing Letter from John Dallas to Alexander Dallas (Jan. 15, 1801), in Alexander J. Dallas Papers (Historical Society of Pennsylvania)). 200 2 Davis, supra note 138, at 73. 201 See supra notes 146-48 and accompanying text. 202 U.S. Const. art. II, § 1, cl. 3 (“In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President.”) (amended 1804). 203 At the time, the Senate was composed of nineteen Federalists and thirteen Republicans. U.S. Bureau of the Census, Historical Statistics of the United States: Colonial Times to 1957, at 692 (1960). In contrast to the runoff in the House, each senator was to cast an individual vote. It was thus theoretically possible that the Federalists would have awarded the vice-presidency to Burr rather than Jefferson, but this seems quite unlikely. 204 See, e.g., Letter from Thomas Jefferson to James Monroe (Feb. 15, 1801), in Jefferson Papers 998, available at http:// memory.loc.gov/ammem/mtjhtml/mtjser1.html (on file with the Virginia Law Review Association). For a comprehensive examination of the explosive situation, see Ackerman, supra note 41, at 93-135. 205 But see Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175 (1989) (emphasizing the importance of rule-following in our legal tradition). 206 See supra note 157 and accompanying text. 207 See Edmund Burke, Thoughts on the Cause of the Present Discontents (1770), in 1 Select Works of Edmund Burke 69, 145-56 (Francis Canavan ed., 1999). Professor Richard Hofstadter, the most acute historian of this subject, could not find anybody in late eighteenth-century America who shared Burke's views. Hofstadter, supra note 18, at 29-35. 208 U.S. Const. art. I, § 3, cl. 6. For an explanation of this language, see William Rawle, A View of the Constitution of the United States of America 206 (Philadelphia, H.C. Carey & I. Lea 1825) (“As the vice president succeeds to the functions and emoluments of the president of the United States whenever a vacancy happens in the latter office, it would be inconsistent with the implied purity of a judge that a person under a probable bias of such a nature, should participate in the trial--and it would follow that he should wholly retire from the court.”). For an echo of this sentiment, albeit in the APPENDIX - 47 © 2021 Thomson Reuters. No claim to original U.S. Government Works. 47 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 49 of 553 PageID #: 454 THOMAS JEFFERSON COUNTS HIMSELF INTO THE PRESIDENCY, 90 Va. L. Rev. 551 context of factional politics, see The Federalist No. 10, at 47 (James Madison) (Clinton Rossiter ed., 1961) (“No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.”). 209 See 2 Beveridge, supra note 86, at 557-58. 210 See generally James F. Simon, What Kind of Nation: Thomas Jefferson, John Marshall, and the Epic Struggle to Create a United States (2002) (discussing the lasting political battle between the two); Ackerman, supra note 41 (detailing Marshall's extraordinarily partisan conduct during February 1801). 211 This contrasts with the institutional impasse that would have resulted if the Federalist Congress had sought to overrule Jefferson's explicit ruling. See supra Section IV.B. 212 5 U.S. (1 Cranch) 137 (1803). 213 See Simon, supra note 210, at 216-19. For a recap of this event, see Ackerman, supra note 41, at ch. 5. 214 Despite his ascent to the bench, Marshall accepted Adams's request to continue serving as his Secretary of State and was discharging his office in an extraordinarily partisan fashion. In early February, the Federalists in Congress and the administration had rammed through a Judiciary Act creating a set of lower circuit courts. In his capacity as Secretary of State, Marshall played a leading role in filling these new positions with Federalist cronies, including two of his brothersin-law--James Keith Taylor of Virginia and William McClung of Kentucky. See 2 Beveridge, supra note 86, at 560 n.2; 6 The Papers of John Marshall, supra note 97, at 78 n.2; Ackerman, supra note 41, at ch. 2. 215 Pinckney often corresponded with Chief Justice Marshall, discussing the best ways to promote Federalist interests. See, e.g., Letter from John Marshall to Charles C. Pinckney (Nov, 20, 1800), in 6 The Papers of John Marshall, supra note 97, at 16, 16-17. 216 See Ackerman, supra note 41. 217 531 U.S. 98 (2000). See generally Richard A. Posner, Breaking the Deadlock: The 2000 Election, the Constitution, and the Courts (2001) (arguing that the Supreme Court's decision was justified by pragmatic considerations of political stability). 218 In this he is not alone. See, e.g., Bush v. Gore: The Question of Legitimacy (Bruce Ackerman ed., 2002) (presenting perspectives on various justifications for the Supreme Court's decision to end the 2000 presidential election). 219 Of course, the Twelfth and Twenty-Second Amendments importantly altered the original mechanisms for presidential selection, but they do not speak to the particular issue in question here: the power of the Senate President to resolve questions arising with regard to the vote count. U.S. Const. amend. XII; U.S. Const. amend. XXII. 220 For a case study on the dangers of a misguided textualism, see Kesavan, supra note 5, at 1696-1759. Kesavan declares that the text forbids the President of the Senate from serving as the presiding officer of the vote count, despite the fact that he is the only officer explicitly mentioned by the text, and despite two centuries of unbroken practice in which he has performed this role without the slightest challenge. Instead, Kesavan disqualifies the Senate President on the basis of emanations from other constitutional clauses that do not explicitly speak to the problem. Id. at 1696-1701. Worse yet, he does not propose a plausible presiding officer substitute, instead stating that “[t]he answer to this question is simpler than it appears: One of the senators and representatives then and there present at the electoral count.” Id. at 1701. In any disputed election, however, each political party will want to have one of its own members serve as the presiding officer, and Kesavan does not say much about how best to choose among the applicants for the job. He states merely that “[e]ach parliamentary body has, almost by definition, the right to choose its presiding officer,” id., but fails to consider that there are two parliamentary bodies involved and that they will predictably disagree about whether a senator or representative should take the chair. Early commentators also discussed the subject. Chancellor Kent stated that “the president of the senate counts the votes, and determines the result, and that the two houses are present only as spectators, to witness the fairness and accuracy of the transaction, and to act only if no choice be made by the electors.” 1 James Kent, Commentaries on American Law 258-59 (New York, O. Halsted 1826). He also said that the Senate President has this power “in the absence of all legislative provision on the subject.” Id. at 258. APPENDIX - 48 © 2021 Thomson Reuters. No claim to original U.S. Government Works. 48 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 50 of 553 PageID #: 455 THOMAS JEFFERSON COUNTS HIMSELF INTO THE PRESIDENCY, 90 Va. L. Rev. 551 Much more importantly, subsequent Congresses have clearly understood the Constitution to imply that the Senate President should serve as presiding officer, owing to the fact that the Constitution commands him to open the electoral vote packages. Despite Kesavan's repeated claims to have divined the one true meaning of the “text,” his interpretations seem far less plausible than those that Congress has consistently adopted over the course of two centuries. 221 The constitutional opinions of early Congresses have often been interpreted as matters of great importance. See, e.g., Bowsher v. Synar, 478 U.S. 714, 723-24 (1986) (noting that records of the early Congresses provide “‘weighty evidence’ of the Constitution's meaning” (quoting Marsh v. Chambers, 463 U.S. 783, 790 (1983))); Humphrey's Ex'r v. United States, 295 U.S. 602, 630-31 (1935) (looking to the laws of early Congresses for support of its decision); Myers v. United States, 272 U.S. 52, 174-75 (1926) (stating that opinions of the First Congress “have always been regarded... as of the greatest weight” in constitutional interpretation). This is hardly the place to consider, in general, when this reliance is justified as a matter of constitutional theory. It suffices to say that it is justified in the present case. 222 The principal incidents are usefully summarized in Kesavan, supra note 5, at 1679-94. Although we find Kesavan's interpretations of the Constitution unpersuasive, his piece contains an admirably exhaustive review of the relevant primary and secondary literature. 223 Indeed, on several occasions, the President of the Senate has declared the results in a manner that expressly deprived his resolution of any precedential status. The practice began in 1821. Missouri had selected its electors before it had been formally admitted as a state by Congress. When its electoral vote was opened, the propriety of counting it was challenged. In response, the President of the Senate announced that Monroe had been elected President regardless of whether Missouri's vote was counted. See Kesavan, supra note 5, at 1681-83. The Senate President finessed the matter in an identical fashion during the vote count of 1837, in which the votes of Michigan were at issue. Id. at 1685. Vice-President Nixon took a similar approach when a late recount of the Hawaii vote revealed that the Kennedy-Johnson ticket had carried the state. As Senate President, he refused to count the earlier electoral vote that had been awarded to the Nixon-Lodge ticket on the basis of the pre-recount vote count. In counting the state's electors for his opponents, he declared that “[t]he Chair has knowledge, and is convinced that he is supported by the facts.” See 107 Cong. Rec. 290 (1961). He explicitly stated, however, that he was counting these votes merely to avoid further delay, and “without the intent of establishing a precedent.” Id. 224 Thomas Jefferson, A Manual of Parliamentary Practice for the Use of The Senate of the United States (D.C., Samuel Harrison Smith 1801). 225 See supra notes 205-06 and accompanying text. 226 See supra notes 126-31. 227 Even today, a challenge to an electoral vote requires at least one senator and one representative to come forward and make his objections explicit. Otherwise, the President of the Senate counts the vote. See supra note 171. 228 10 Annals of Cong. 1024 (1801). 229 See supra notes 126-31. 230 See Allan Nevins, Abram S. Hewitt 320 (1935). 231 Charles Fairman, Five Justices and the Electoral Commission of 1877, at 40-47, 57-116 (1988). 232 Democrats did not gain control of the Senate until the election of 1878. See 2 Congressional Quarterly, Guide to Congress 828 tbl. 30-1 (5th ed. 2000). 233 They selected Senator Thomas Ferry, a Michigan Republican. 1 Stanwood, supra note 5, at 388. 234 Some memory traces clearly remained, however. See supra note 151 and accompanying text. 235 See, e.g., 44 Cong. Rec. 1803 (1876) (statement of Sen. William Pinkney Whyte). Not all Democrats were in agreement, however. See, e.g., 43 Cong. Rec. 970 (1875) (statement of Sen. Bayard). APPENDIX - 49 © 2021 Thomson Reuters. No claim to original U.S. Government Works. 49 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 51 of 553 PageID #: 456 THOMAS JEFFERSON COUNTS HIMSELF INTO THE PRESIDENCY, 90 Va. L. Rev. 551 236 Republicans surely enjoyed reading of the views of Democratic Party Chairman Abram Hewitt, who, after the HayesTilden deadlock, had been vocal in asserting that the Senate President could not decide matters himself, but rather should work with “Congress to go behind the certificate and open the same to go into the merits of all cases.” Allan Nevins, Abram S. Hewitt 327 (1935). 237 The Democratic-controlled House, in response to a resolution proposed by Republican Representative George McCrary of Iowa, adopted legislation establishing a committee to consider how to resolve the situation. 44 Cong. Rec. 91-92 (1876). The Republican-controlled Senate then voted to establish its own committee. 44 Cong. Rec. 258 (1876). Starting on January 12, the two committees met together, and their collaborative efforts eventually generated the statute. 44 Cong. Rec. 613 (1877); 44 Cong. Rec. 1050 (1877). 238 U.S. Const. art. II, § 1, cl. 3. 239 U.S. Const. art. I, § 8, cl. 18. One does not need to look hard to find references to this clause as the basis for action to regulate the electoral count. 43 Cong. Rec. 974-75 (1875) (statement of Sen. Edmunds); 43 Cong. Rec. 971-73 (1875) (statement of Sen. Thurman); 10 Annals of Cong. 29-32 (1800). A decade later, the drafters of the Electoral Count Act assumed that the Necessary and Proper Clause was the part of the Constitution that gave them the authority to act. 48 Cong. Rec. 5461 (1884); Counting Electoral Votes, supra note 5, at 455 (statement of Sen. Edmunds). Consistent congressional practice of the past 125 years presupposes the Act's constitutionality, as does the recent Supreme Court decision in Bush v. Gore, 531 U.S. 98, 110-11 (2000), whose reasoning depends critically on Florida's presumed unwillingness to sacrifice the benefits provided to its electoral vote by the statute's “safe harbor” provision. Nevertheless, Vasan Kesavan urges us to reject this consistent practice in favor of an implausible interpretation of the constitutional text. Recall that the Constitution grants Congress power “[t]o make all Laws which shall be necessary and proper for carrying into Execution... all other powers vested by this Constitution in the Government of the United States.” U.S. Const. art. I, § 8, cl. 18. According to Article II, officers of the government are plainly vested with the power to “open” and to “count” the electoral ballots. U.S. Const. art. II, § 1, cl. 3. Nevertheless, Kesavan asserts that it “is more than doubtful” that this grant counts as a “power” within the meaning of the Necessary and Proper Clause. Kesavan, supra note 5, at 1737. Kesavan's comments fail to convince. He points to the fact that Article II does not explicitly use the word “power,” or some verbal analogue, in granting vote-counting authority. Id. at 1735-38. But why should this verbal technicality matter? Authority to count the votes is a “power” within the ordinary meaning of the term, and Kesavan gives no special reason for a narrowing construction, especially provided the generous interpretation traditionally given to the scope of the clause. See McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819). Kesavan adds that the constitutional concept of “power” requires that its holder have discretion in its exercise and that, in his view, the vote counters have no such discretion--they are simply to determine which votes are valid, and count only those. Kesavan, supra note 5, at 1737 n.351. Even if Kesavan were correct in viewing the power as nondiscretionary, it still remains a power, and a statute is still “necessary and proper” given the text's failure to make clear who should exercise the power in doubtful cases. In our view, it would require a far more compelling argument to override the deference that is due to the consistent practices of the Congress and the Supreme Court. 240 Act of January 29, 1877, ch. 37, § 2, 19 Stat. 227, 228. 241 Fairman, supra note 231, at 48-49; Willard L. King, Lincoln's Manager: David Davis 290-93 (1960). 242 Act of January 29, 1877, § 2, Ch. 37, 19 Stat. 227, 228-29 (1877). The case of single returns was to be handled by the two houses meeting separately, with a majority vote of each required to reject the return. Id. § 1. 243 Id. § 2. 244 Fairman, supra note 231, at 10, 47-48. 245 44 Cong. Rec. 1050 (1877). 246 Id. at 1007. 247 Unsurprisingly, the Republican rank and file was relatively unenthusiastic about ceding the power of the Senate President to a bipartisan commission. While the entire Senate voted 47 to 17 in favor of the bill, the Democrats supported it by APPENDIX - 50 © 2021 Thomson Reuters. No claim to original U.S. Government Works. 50 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 52 of 553 PageID #: 457 THOMAS JEFFERSON COUNTS HIMSELF INTO THE PRESIDENCY, 90 Va. L. Rev. 551 a lop-sided margin of 26 to 1, while the Senate Republicans divided narrowly with 21 in favor and 16 opposed. Id. at 913. Similarly, House Democrats voted 186 to 18 in favor while House Republicans voted against by a margin of 85 to 52, with the final count at 191 in favor and 86 opposed. Roy Morris, Jr., Fraud of the Century: Rutherford B. Hayes, Samuel Tilden, and the Stolen Election of 1876, at 218 (2003). 248 Morris, supra note 247, at 217-18. 249 Id. at 218-19. 250 See id. at 222-25. 251 Fairman, supra note 231, at 123-58. 252 See, e.g., Samuel Issacharoff, The Enabling Role of Democratic Constitutionalism: Fixed Rules and Some Implications for Contested Presidential Elections, 81 Tex. L. Rev. 1985, 2004 (2003) (“Although the Commission was seen by many to be completely fraudulent, the Democrats ultimately did accept its results, in exchange for an understanding that President Hayes would effectively end Reconstruction and would not run for re-election....”). All of the leading books by historians echo Issacharoff's comments. See Morris, supra note 247, at 222-25; Lloyd Robinson, The Stolen Election: Hayes Versus Tilden: 1876, at 164-68 (2001); C. Vann Woodward, Reunion and Reaction: The Compromise of 1877 and the End of Reconstruction (2d ed. 1966). 253 3 U.S.C. § 15 (2000). 254 Id. The “safe harbor” provision enacts into law a preference for picking electors by passing state laws governing the selection process. 3 U.S.C. § 5 (2000). This statutory provision encourages states to pass laws “prior to the day fixed for the appointment of the electors” and discusses the more favorable treatment a state abiding by that rule will receive in Congress. Id. 255 3 U.S.C. § 15 (2000) (“But if the two Houses shall disagree in respect of the counting of such votes, then, and in that case, the votes of the electors whose appointment shall have been certified by the executive of the State, under the seal thereof, shall be counted.”). 256 See, e.g., Mireya Navarro, A Staunch Gore Ally Influences Florida Ballot Fight, N.Y. Times, Nov. 16, 2000, at A27; Don Van Natta, Jr. & David Barstow, Election Officials Focus of Lobbying From Both Camps, N.Y. Times, Nov. 18, 2000, at A1 (“In Volusia County, the only Florida county to complete a full hand recount, the state's attorney general, Robert A. Butterworth, placed an unsolicited phone call a week ago to elections officials, advising them that they had the legal authority to go forward with a manual recount.”). 257 See, e.g., David Barstow, Data Permanently Erased From Florida Computers, N.Y. Times, Aug. 8, 2001, at A10; Richard L. Berke, 2 Sides Maneuver: Republican Rejects Offer That 2 Sides Accept a Count by Hand, N.Y. Times, Nov. 16, 2000, at A1 (“Ms. Harris... announced...that it was ‘my duty under Florida law’ to reject requests from several counties to update their totals.”). 258 On January 3, 2001, the Republicans controlled the House of Representatives by a margin of 223 to 211, whereas the Democrats controlled the evenly-divided Senate, with Gore casting the deciding vote (and Lieberman casting one of the fifty Democratic votes). See Helen Dewar & Juliet Eilperin, Divided Congress Takes Oath with Promises of Unity, Wash. Post, Jan. 4, 2001, at A8. It would be a mistake however, to assume strict party-line voting. Representatives and senators alike would have been swayed by prevailing sentiment in their own districts, as well as their own views on the merits. After all, Gore was the clear winner in the popular vote, and it is impossible to guess how heavily public opinion would have emphasized this point if the Supreme Court had not prematurely terminated the debate. 259 See Emergency Committee of Concerned Citizens 2000, The Election Crisis, N.Y. Times, Nov. 10, 2000, at A31 (“Perhaps a bipartisan National Electoral Commission of the Congress and the Supreme Court will have to settle the matter, based on the precedent set in resolving the disputed election of 1876.”). This was signed by Professor Ackerman, among others. 260 Letter from Thomas Jefferson to James Madison (Jan. 16, 1797), in 16 Madison Papers, supra note 5, at 461, 461. APPENDIX - 51 © 2021 Thomson Reuters. No claim to original U.S. Government Works. 51 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 53 of 553 PageID #: 458 THOMAS JEFFERSON COUNTS HIMSELF INTO THE PRESIDENCY, 90 Va. L. Rev. 551 90 VALR 551 End of Document © 2021 Thomson Reuters. No claim to original U.S. Government Works. APPENDIX - 52 © 2021 Thomson Reuters. No claim to original U.S. Government Works. 52 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 54 of 553 PageID #: 459 THE TWELFTH AMENDMENT: A CONSTITUTIONAL..., 64 U. Miami L. Rev. 475 64 U. Miami L. Rev. 475 University of Miami Law Review January, 2010 Symposium: How Far Have We Come Since 2000? Article Nathan L. Colvin, Edward B. Foley d1 Copyright (c) 2010 University of Miami Law Review; Nathan L. Colvin; Edward B. Foley THE TWELFTH AMENDMENT: A CONSTITUTIONAL TICKING TIME BOMB a1 In the original plan, as well as in the amendment, no provision is made for the discussion or decision of any questions, which may arise, as to the regularity and authenticity of the returns of the electoral votes . . . . It seems to have been taken for granted, that no question could ever arise on the subject; and that nothing more was necessary, than to open the certificates, which were produced, in the presence of both houses, and to count the names and numbers, as returned. --Justice Joseph Story 1 *476 I. Introduction Despite Justice Story's prescient warning, at first glance, some readers might wonder how an amendment to the Constitution that is rarely, if ever, a part of public discourse has the potential to create a national crisis in modern times. Justice Story was describing the Twelfth Amendment, which provides the constitutional framework for the selection of President and Vice President. 2 The potential for crisis comes from ambiguous constitutional text that has left modern interpreters with significant unanswered questions. There has been little legislative effort to address the problems with the text of the Twelfth Amendment, perhaps because our nation has not had a serious dispute over electoral votes reach the counting stage in Congress for over one hundred years. 3 The 2000 election never caused a serious dispute before Congress, because candidate Al Gore conceded defeat after the U.S. Supreme Court halted the recount of ballots in Florida. Thus, there was no further dispute over the winner of Florida's electoral votes by the time Gore, as President of the Senate, announced on January 6, 2001 before both *477 houses of Congress that George W. Bush had been elected President with a majority of electoral votes. Consequently, the last--and indeed only--major dispute in the nation's history over the counting of electoral votes to reach Congress was the Hayes-Tilden election in 1876. Although Congress adopted a new statute, the Electoral Count Act of 1887, in the aftermath of that crisis, the Twelfth Amendment itself has never been revised to fix the defects in it. The problems with the text of the Twelfth Amendment are twofold. First, the text of the amendment contains several ambiguities about how the process should work, particularly about how disputes regarding the validity of electoral votes should be resolved and who should resolve them. The second problem is the lack of guidance from other sources. There is little substantive case law on the subject, due in part to these ambiguities, the gravity of the topic (election of the President), and the scarcity of close presidential elections. Making matters worse, the statutory effort (the Electoral Count Act) to address the problem is inadequate, unwieldy, and arguably unconstitutional. APPENDIX - 53 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 1 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 55 of 553 PageID #: 460 THE TWELFTH AMENDMENT: A CONSTITUTIONAL..., 64 U. Miami L. Rev. 475 Although the Supreme Court's decision in Bush v. Gore 4 averted congressional confrontation over electoral votes pursuant to the deficient framework of the Twelfth Amendment, the episode signals the possibility that a similar dispute might arise again-but this time without the saving intervention of the Supreme Court. 5 Although the events of 2000 produced passing interest in the mechanism established by the Twelfth Amendment, since then there has been no sustained plan to prepare the nation if a dispute over electoral votes goes all the way to Congress. Nevertheless, the history of the Twelfth Amendment and the commentary on it during the nineteenth century show that the nation needs a contingency plan of this sort. Some nineteenth-century scholarship analyzed the historical instances in which the Twelfth Amendment issues have come up, and some scholarship has dealt with the complexity and problems of the Electoral Count Act. This Article attempts to create a continuous narrative of America's electoral vote disputes and analyze the problems in the modern context. The flaws of the Twelfth Amendment are so fundamental that constitutional change is necessary. We recognize the exceedingly difficult nature of attaining a constitutional amendment, especially on a topic where either of the two major political parties will want to block any measure it perceives as disadvantageous to its interests, either short *478 or long term. Moreover, like putting off preparations to defend against a once-a-century category five hurricane, it is easy to postpone consideration of a constitutional amendment designed to protect against another debacle of the kind that occurred in 1876 (and did not even materialize in 2000). Still, the need for a constitutional amendment to repair the defects of the Twelfth Amendment is so great--since the magnitude of the electoral storm is so severe should another 1876 arise--that it is worth raising the point. At the same time, however, given the unlikelihood of an amendment, despite its necessity, it is also worth proposing a second-best legislative solution that would modify the Electoral Count Act. This Article starts by analyzing the history of the Twelfth Amendment and then traces its usage and application through early American presidential elections. 6 Next, this Article examines the election of 1876 and Congress's attempt to solve some of the problems by enacting the Electoral Count Act of 1887 (ECA), followed by a brief discussion of the ECA's inadequacy (and possible constitutional defects) 7 in practice through the twentieth century. This Article concludes by reemphasizing the importance of having clear procedures for dealing with disputes over electors--for fairness, reducing partisanship, and creating a result that maximizes public acceptance and confidence. While the losing side in an electoral dispute will always be disappointed with the outcome, this should not mean that the loser must feel the path to that outcome was unfair. Additionally, the current system encourages judicial intervention that is unhealthy for the Supreme Court and undesirable for the nation. To forestall this undesirable outcome and any future problems, it is necessary for Congress to address this uncertainty by adopting constitutional changes before *479 another electoral dispute tests the system again. If the reader is to accept these conclusions, it invites the question, should we scrap the Electoral College altogether? Rather than address that weighty (and oft-discussed) question, this Article only addresses problems posed by the text of the Constitution and assumes preservation of the present Electoral College. 8 II. A History of the United States Presidential Electoral System: Practice, Reform Attempts, and Flaws Prior to ratification of the Twelfth Amendment, Congress relied on the Electoral College vote-counting procedures located in Article II of the Constitution. 9 The Twelfth Amendment made significant changes to the procedures for casting electoral votes, but the critical ambiguous text of the original Constitution, “[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,” was preserved. 10 While the amendment solved other problems, this sentence has been at the root of many subsequent controversies. The sentence almost suggests “a formula that forces us to suppose that according to the view of the framers of the Constitution, the question [of counting votes] was one simply of addition,” 11 and the use of the passive voice here suggests the Framers did not anticipate controversy in the electoral count. 12 This assumption, *480 that the counting of electoral votes would be a ministerial duty, was shortsightedness on the part of the Framers that led to ample debate and dispute throughout the 1800s. When a dispute arises over the validity of a state's electors, several ambiguities from this text arise. The starting issue for an analysis of electoral vote determination under the Constitution is ascertaining where the Constitution vests the power to count and/or determine the validity of votes, and this is where the first ambiguity comes from. There are four possible actors: (1) the Vice President of the United States acting as the President of the Senate, (2) the two houses of Congress acting together, (3) the two houses of Congress acting separately, and (4) the states. 13 The text of the Twelfth Amendment is unclear on this subject, APPENDIX - 54 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 2 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 56 of 553 PageID #: 461 THE TWELFTH AMENDMENT: A CONSTITUTIONAL..., 64 U. Miami L. Rev. 475 and, throughout our history, various theories have prevailed. Early scholars generally divided the patterns into three general periods. During the first period, from 1789 to 1821, the power was generally thought vested in the states or in the President of the Senate. 14 In the second period, from 1821 to 1861, Congress generally found that there was a *481 casus omissus in the Constitution as to who should count the votes and what power that actor had to reject votes. 15 In the third period, from 1861 to the present, 16 Congress acted affirmatively to determine the validity of electoral votes and for the first time rejected some votes. 17 At first, it might seem odd that three different interpretations of the same text have taken hold through history, but the Framers failed to explain the power of the President of the Senate or Congress in the process. 18 Early on, the President of the Senate would be called upon to make some judgments as presiding officer, and this might suggest that the Framers and their contemporaries thought the proper exercise of power belonged in the hands of this single individual. However, as time passed, this power increasingly tilted to Congress as a collective body. This is not surprising given the different interpretations available. On one hand, the text “in the Presence of the Senate and House of Representatives” 19 suggests the Framers might have intended for these bodies to serve as mere witnesses to the President of the Senate's act of counting. Other interpretive approaches suggest that either the Framers did not anticipate these possibilities or would surely not have placed such power in the hands of one individual, instead intending a greater role for Congress. Additionally, the Framers must not have anticipated that they were placing an individual likely to have a conflict of interest--the Vice President of the United States--at the center of the storm. Sure enough, the sitting Vice President has been a candidate for President or Vice President, while simultaneously serving in his capacity as President of the Senate. If the Vice President's role is merely ministerial, there is not much of a conflict of interest as a practical matter; but if the Vice President's duty encompasses resolving potentially decisive controversies over which candidate gets a state's electoral votes, then the conflict is monumental. 20 *482 Finally, perhaps the more important question about the Twelfth Amendment, if there was some sort of controversy in electoral votes (whether an elector has a defect or whether there are competing electors), could the Vice President or Congress-whichever is the final federal counting authority under the Constitution--go behind the certificate submitted by the state? How might the federal counting authority deal with multiple returns from a state? Congress has repeatedly considered this question, and opinions have varied. Running contrary to the notion that Congress has strong power to question the electoral returns of a state is another clause in the Constitution, which might suggest that Congress should afford strong deference to the state's submitted electors. 21 In all, one can summarize the questions about the counting power 22 as follows: • What is the power of the President of the Senate during the proceedings? • What is the power of Congress? Is it as a joint body or may Congress act as separate houses? • Is vote counting a ministerial task such that the role of the vote counter is that of simply adding the vote totals? • Under the Article II, Section 1, Clause 2 of the Constitution, what deference should be given to a state's determination of an election? *483 • How should multiple slates of votes from a single state be dealt with? • How far behind the certificate may the vote counter go (i.e., may the vote counter seek evidence of fraud, incorrect results, etc.)? • Can constitutionally invalid (ineligible electors, voting on the wrong day, votes from a territory, etc.) votes be rejected? • Can electoral votes subject to other defects (such as fraud, problematic voting procedures, contested elections, etc.) be rejected? • Is there room for judicial review? APPENDIX - 55 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 3 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 57 of 553 PageID #: 462 THE TWELFTH AMENDMENT: A CONSTITUTIONAL..., 64 U. Miami L. Rev. 475 A. Early Elections Under the Original Constitutional Framework 1. The First and Second Elections On April 6, 1789, Congress gathered in New York City to count the first electoral votes. The election was without controversy because the country was united around the candidacy of the George Washington, but the record of the proceedings does provide some understanding of how the Framers and their contemporaries might have understood the Constitution to operate on this matter. 23 Because the country was without a Vice President, the first order of business was to elect a member of the Senate as the President of the Senate “for the sole purpose of opening the certificates and counting the votes of the electors of the several States in the choice of a President and Vice-President of the United States.” 24 Both houses of Congress appointed members to “sit at the Clerk's table to make a list of the votes as they shall be declared.” 25 The record then shows that the President of the Senate “in [the House and Senate's] presence, had opened and counted the votes of the electors for President and Vice-President of the United States.” 26 This record might support a strong role for the President of the Senate in opening and *484 counting the votes, while the members at the clerk's table play the role of mere witnesses to his actions--keeping record of the votes. The record for the second election suggests a slight change to this procedure with more delegation of duty from the President of the Senate. 27 Prior to the count, Congress formed a committee to, among other items, “ascertain and report a mode of examining the votes for President and Vice-President.” 28 The committee declared that each house should appoint a “teller” to make a list of the votes as declared and deliver the results to the President of the Senate. 29 The record shows “[t]he two Houses having accordingly assembled, the certificates of the electors . . . were, by the Vice-President, opened, read, and delivered to the tellers appointed for the purpose, who, having examined and ascertained the votes, presented a list of them to the VicePresident.” 30 The nation reelected George Washington without controversy, but the record suggests some diminished role for the President of the Senate, as the tellers seemed to play a role in the counting. 31 2. Presidential Elections of 1796 and 1800 The record shows similar procedures during the next two elections, with the President of the Senate opening certificates and declaring results while the tellers made a list of the votes and delivered that list to the Vice President. 32 A recent piece of scholarship argues that in these *485 two presidential elections, John Adams and Thomas Jefferson, as Vice Presidents presiding over the electoral vote count, “used their power to make rulings that favored their own election as President of the United States.” 33 However, the two men parted ways when it came to involving Congress in the process: according to Professors Ackerman and Fontana, while Adams gave Congress a chance to object to his ruling, Jefferson did not. 34 In the election of 1796, reports and rumors suggested that the Vermont electors might have been constitutionally invalid. 35 The implications were high, as without the votes, Adams would have lost the presidency to Jefferson. The Annals of Congress notes that after announcing the final count, “[t]he President of the Senate then sat down for a moment, and rising again, thus addressed the two Houses.” 36 Scholars, including Professors Ackerman and Fontana, have argued that Adams was pausing to give an opportunity for objections. 37 Since no objection was heard, we cannot know for certain, nor can we guess, how Adams might have handled such objections. By contrast, as Vice President, Thomas Jefferson counted votes from Georgia that some argue were facially defective in terms of the formal requirements for their submission contained in the original Article II of the Constitution. 38 There was no allegation at the time (or subsequently) that nefarious conduct underlay the formal defect, giving Georgia's electoral votes to Jefferson and Burr rather than Adams and Pinckney. In other words, Georgia's submission was substantively accurate in naming Jefferson and Burr as the winners of its electoral votes, despite its formal defects. Still, the legal question remains whether Georgia's *486 votes can be counted, since the formal requirement protects against the possibility of fraud on other occasions. Even more, the institutional question exists: Who decides the legal question of whether Georgia's electoral votes can be counted despite their formal defect? Does Jefferson get to decide this all by himself, as President of the Senate? Even if he does, given his obvious self-interest in the particular election, should he give members of Congress the opportunity to consider the issue? APPENDIX - 56 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 4 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 58 of 553 PageID #: 463 THE TWELFTH AMENDMENT: A CONSTITUTIONAL..., 64 U. Miami L. Rev. 475 The available evidence suggests that the tellers (those opening the envelopes) notified Jefferson of the problem, and Vice President Jefferson “decisively” resolved the issue by counting the vote in the final tally. 39 Regardless of whether this should serve as precedent, it is clear that the text of the Constitution is extremely vague on the subject of counting Electoral College votes, and the possibility for controversy was always present. While the Constitution did not specify the exact role of the Vice President in opening and counting electoral votes from the states, the election of 1800 made evident the awkwardness of giving the Vice President the authority to resolve questions about the validity of electoral votes. 40 3. The Grand Committee Proposal of 1800 In early 1800, to prepare for the presidential election that would take place later that year, Federalist Senator James Ross proposed a bill to create a “Grand Committee” to “inquire, examine, decide, and report *487 upon” electoral vote irregularities. 41 The bill was likely a partisan attempt by the Federalists to ensure victory in the upcoming presidential election. 42 Under the proposed committee each house of Congress would have selected six members, and the Chief Justice would have served as the thirteenth member and chairman of the committee. 43 The concept largely came from the Federalist senators, but the Republicans attempted to amend the bill. Interestingly, the proposed amendment by Senator Nicholas recognized many of the problems that could arise with the returns and thus indicates that Congress was well aware of these problems as early as 1800, before adoption of the Twelfth Amendment. 44 Nicholas and the Republicans largely argued against the Federalist version's delegation of the vote counting from the joint session of Congress to a committee. 45 Republican Senator Charles Pinckney, a Framer of the Constitution, gave a strong speech in opposition that foreshadowed most of the themes for the debate that remain relevant today. The speech focused on the idea that the Constitution intended to prevent congressional interference with the presidential election, which might in turn compromise the *488 President's independence. 46 In the House, Federalist John Marshall raised constitutional objections and amended the bill to strip the committee of conclusive power. Instead, under Marshall's amendment, both houses of Congress, meeting separately, would have to agree that votes were invalid and should be rejected. 47 The House sent this amended bill back to the Senate, which removed many of Marshall's changes. The two houses could not agree upon amendments, and consequently the bill died. 48 Despite Pinckney and Marshall's statements and the Grand Committee Bill's defeat, clearly there was early confusion and disagreement about the power of Congress to regulate electoral vote counting. B. Passage of the Twelfth Amendment and Subsequent Elections Jefferson's ruling to count Georgia's electoral votes despite their formal deficiency was not the end of that electoral count in 1800. Inclusion of Georgia's votes caused Jefferson and Aaron Burr to be tied, with even votes, so that they were the only two candidates in a runoff to be settled by the House of Representatives. (Had Georgia's votes been *489 excluded, the runoff would have been among the top five vote-getters, a scenario that likely would have favored the Federalists in their opposition to Jefferson.) 49 It was clear on the national level that Republicans intended Jefferson as their choice for President, while Burr was the party's choice for Vice President. 50 While the original constitutional language gave each elector two votes, it did not allow the electors to designate one of their votes for President and the other for Vice President. Gaming the electoral votes became crucial, and party leaders considered having electors in some states cast votes for Jefferson and Burr while other electors cast votes for Jefferson and another Republican candidate to give Jefferson a clear victory. 51 However, Jefferson was concerned that he might be stuck with a Federalist Vice President if Burr lost too many second votes; a similar situation had happened to the Federalists in 1796 when Adams and Jefferson were President and Vice President. 52 Consequently, party leaders changed paths, urging a vote for the entire ticket. 53 Jefferson and Burr both received seventy-three electoral votes, throwing the election to the House of Representatives. There the Federalists maintained a majority; however under the Constitution, voting to elect the President is done by state delegation, with each state having a single vote. Under this rule, neither party had a majority because some states had split delegations. 54 Given this deadlock, Republicans faced two new undesirable outcomes--the Federalists might give the presidency to Aaron Burr, or worse, they could refuse to break deadlock leaving a Federalist as Acting President. 55 Balloting appeared to stall and rumors spread of military preparations in some Republican strongholds. 56 Ultimately, some Federalists were unwilling to risk conflict or a Burr presidency, and the House selected Jefferson as President *490 by the thirty-sixth ballot. 57 APPENDIX - 57 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 5 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 59 of 553 PageID #: 464 THE TWELFTH AMENDMENT: A CONSTITUTIONAL..., 64 U. Miami L. Rev. 475 The elections of 1796 and 1800 put both major political parties on notice about this particular problem with the Constitution. The 1796 election prompted Federalist initiatives to require electors to designate the office for which they casted ballots. 58 At the same time, the chief reform goal for Republicans was to ensure that the states selected electors by general or district elections rather than by legislative appointment. 59 The Republican experiences of the 1800 election led to a strong push for constitutional amendment 60 that had picked up steam by 1803, when the Republicans maintained strong majorities in the House and Senate. 61 The House took up the amendment first, focusing primarily on the issue of designation and the number of candidates the House might consider if no candidate received a majority of votes. 62 The Senate largely debated the same issues but also considered the virtue of retaining the office of Vice President and what contingency to make in the event that the House was unable to select a candidate. 63 In late 1803, both houses approved a final amendment that required designation of electoral votes, allowed the House to consider the three highest vote-getters if no candidate received a majority, and created a contingency if the House was unable to select a President. 64 Thirteen of the seventeen states ratified the amendment by June of 1804. 65 Notably, despite recognition during the Grand Committee debates that significant problems remained about how to deal with disputed electoral returns, Congress retained the ambiguous language that “[t]he President of the Senate shall, in the presence of the Senate and House of Representatives, *491 open all the certificates and the votes shall then be counted,” 66 in the Twelfth Amendment. Several possibilities exist for why Congress declined to fix this problem. It is clear that the country actually faced the repercussions of a lack of designation in the 1796 and 1800 elections, so the impetus for reform was much stronger on this point. Furthermore, despite strong majorities in Congress, the Republicans still had difficulty approving the amendment because of the requirement of a two-thirds majority in both houses--additional reform might have cost the Republicans votes. This might explain why the Republicans also did not pursue their prior goal to take appointment away from the state legislatures. 67 Indeed, the amendment itself was also a partisan maneuver to consolidate Republican power, and, with strong majorities, the Republicans likely were not concerned about disputed electoral returns. 1. Elections Under the New Amendment The election of 1804 was unremarkable except to note that the record contains two different and contrary descriptions of the proceedings. 68 The election of 1808 was a slightly different story--a Representative introduced a resolution stemming from complaints by Massachusetts residents suggesting that the appointment of the Massachusetts electors was “irregular and unconstitutional.” 69 The resolution called for an investigation and passed the House, however a scholar who researched further was unable to find any subsequent action. 70 Otherwise, there were no difficulties until the election of 1816. Indiana had adopted a constitution in June of 1816, but Congress did not admit the state to the Union until December 1816; despite this, the state still submitted electors. 71 The method adopted for conducting the count was not unlike the previous few electoral counts, 72 but, upon reaching Indiana's *492 votes, a member of the House rose to make the first recorded objection to accepting the submission of the electoral votes. 73 A senator motioned to allow the House of Representatives to deliberate the question. 74 Another senator seconded the motion, and the President of the Senate put the question to the members of the Senate, who agreed. 75 The votes of Indiana were inconsequential in the ultimate outcome of the election, and the House could not come to any conclusions; so the two houses joined once again to finish the counting, including Indiana's votes. 76 A similar situation arose in the election of 1820 over the status of the State of Missouri. Missouri's standing as a free or slave state was one of the first real flash points leading up to the Civil War. Missouri had adopted a constitution in July 1820 but was not acknowledged as a state until August 1821 (after the electoral count) when the Missouri Compromise was finally accepted. 77 As Indiana did, Missouri still chose presidential electors and submitted their electoral votes to Congress; again, the votes did not affect the ultimate outcome of the election. 78 Moreover, as in the past, both houses formed a joint committee “to ascertain and report a mode of examining the votes.” 79 The only difference this time was that Missouri was not yet in the Union at the time of the count. Members of the joint committee anticipated and sought to avoid the problems. Prior to the count, the joint committee submitted a resolution that essentially amounted to a waiver of the question by stating two hypothetical vote totals. 80 APPENDIX - 58 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 6 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 60 of 553 PageID #: 465 THE TWELFTH AMENDMENT: A CONSTITUTIONAL..., 64 U. Miami L. Rev. 475 *493 The resolution was the subject of heated debate in the House. Representative Henry Clay defended the tactic by first noting that, “the Constitution was silent” on the issue. 81 Clay characterized this move as “avoiding” the issue and the uncertain paths: Suppose this resolution not adopted, the President of the Senate will proceed to open and count the votes; and would the House allow that officer, singly and alone, thus virtually to decide the question of the legality of the votes? If not, how then were they to proceed? Was it to be settled by the decision of the two Houses conjointly or of the Houses separately? . . . In fact there was no mode pointed out in the Constitution of settling litigated questions arising in the discharge of this duty; it was a casus omissus. 82 Clay understood that the question was open to many interpretations but likely could not see the two bodies reaching a resolution in this context of dispute between slave and nonslave states. He likely thought it better to fix the problem later by legislation or an amendment to the Constitution. 83 Clay's hope that Congress might avoid the constitutional ambiguities proved elusive. 84 Representative John Randolph argued that even this avoidance of the issue was unconstitutional because it suggested that Congress had “the power to decide on the votes of any State.” 85 Both houses agreed on the resolution but the debate sparked again during the actual electoral count, and the houses divided to discuss the issue again. 86 Despite the feelings of certain members of the House, the issue *494 was tabled and the two bodies joined to complete the count. The President of the Senate announced the vote in hypothetical terms as provided in the joint resolution. 87 Although the issue of slavery overshadowed the debate, both sides acknowledged that there was a clear problem to which no clear answer existed. This dispute marks the first full debate of the issues, as well as full recognition that a casus omissus existed on the issue in the Constitution. The alternative count also marked the first time that Congress maintained some, albeit restrained, power to control and canvass electoral votes. 88 Although Congress waived the issue, the view that there was a casus omissus with some room to influence decisions would control for the next forty years. 89 2. Constitutional Commentators Recognize the Potential for Problems Despite the lack of publicized controversies arising over the ambiguous language of the Constitution, the two most influential early commentators on the Constitution noted the problems created by the Twelfth Amendment. Perhaps none was as succinct as Justice Joseph Story, who suggested that the drafters of both texts seemed to take for granted that no problems would ever arise as to the regularity and authenticity of electoral returns. 90 Chancellor Kent also summarized some of the questions: The Constitution does not expressly declare by whom the votes are to be counted and the result declared. In the case of questionable votes, and a closely contested election, this power may be all-important; and I presume in the absence of all legislative provision on the subject, that the President of the Senate counts the votes, and determines the result, and that the two houses are present only as spectators, to witness the fairness and accuracy of the transaction, and to act only if no choice be made by the electors. 91 *495 3. Remaining Election Disputes During the Second Period In the election of 1836, the Indiana and Missouri question arose again. This time, Michigan submitted electors before formal admission to the Union. 92 Because Michigan's votes did not affect the ultimate outcome, Congress adopted a resolution nearly identical to the one it used in the case of Missouri, this time apparently without much debate. 93 There was an additional problem when allegations arose that several of the electors were ineligible because they held federal office. Henry Clay amended the normal resolution to allow the joint committee to “inquire into the expediency of ascertaining whether any votes were given at the recent election contrary to the prohibition contained in the second section of the second article of the Constitution,” although the findings of the committee were not binding. 94 APPENDIX - 59 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 7 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 61 of 553 PageID #: 466 THE TWELFTH AMENDMENT: A CONSTITUTIONAL..., 64 U. Miami L. Rev. 475 The joint committee concluded that the electors were clearly constitutionally ineligible from casting their votes. 95 In this case, Congress declared the voting of the ineligible electors “vitiated ab initio,” and the President of the Senate and tellers did not include their votes. 96 Again, it appears that these proceedings were less controversial than the previous two disputes. 97 The election of 1856 produced a most unusual scenario. All of the votes cast were regular, but a massive snowstorm prevented Wisconsin's electors from casting their votes on the required day. 98 Congress did not seem to anticipate this issue, and the ensuing debate is worth analyzing not only to see how the role of the President of the Senate devolved, but *496 also the importance of the joint committee's resolution and the discussion about the counting powers. The Presiding Officer. Pursuant to law, and in obedience to the concurrent order of the two houses, the President of the Senate will now proceed to open and count the votes which have been given . . . . .... The Presiding Officer thereupon proceeded to open and hand to the tellers the votes of the several States . . . . Pending the count, Senator Cass said: I suggest that it is better to read the results of the vote, and not the certificates in full, unless the reading of the certificates be called for. The Presiding Officer. The Presiding Officer considers that the duty of counting the vote has devolved on the tellers under the concurrent order of the two houses; and he considers, further, that the tellers should determine for themselves in what way the votes are verified to them, and read as much as they may think proper to the two houses assembled. . . . It appeared from the certificate of the electors of the State of Wisconsin that the electoral vote of that State had not been cast on the day prescribed by law. Mr. Letcher. [Raising an objection] . . . I do not know what would be proper in a case of this sort; but I desire now to call attention to it, in order that the point may be brought to the attention of the country. A time may come when it would be a matter of importance to have these votes in regular shape. . . . The Presiding Officer. The Presiding Officer considers that debate is not in order while the tellers are counting the votes. Mr. Jones, of Tennessee. I suppose, Mr. President, the proper way would be for the tellers to report the facts to the convention of the two houses, and let them decide. The Presiding Officer. The Presiding Officer so considers. [The counting continued and the tellers reported that all certificates were regular, but Wisconsin voted on the incorrect day]. 99 From here, the debate took an interesting turn. The President of the Senate appears to have considered himself bound by two documents, the Constitution and the concurrent order of the two houses. 100 However, the concurrent resolution, as it was in the past, was written in general terms and merely described the procedures of the count. The President of the Senate appeared to act with the power of a Presiding Officer by counting *497 the votes and dismissing objections. 101 The Presiding Officer resisted objections and arguments until the two houses divided--there, the debate was fervent with topics covering a range of issues: the power of the President of the Senate, whether votes could be excluded, whether he could count or exclude the votes, whether the houses could do so separately or concurrently (or the House alone), and whether the penalty of complete disenfranchisement was too harsh when the people properly cast their votes. 102 The debate ran for two days, but the House could not reach an agreement; the debate closed with the President of the Senate's counting of Wisconsin's vote standing. 103 It was fortunate, once more, that Wisconsin's debatable electoral votes did not matter to determining the winner of the presidency. APPENDIX - 60 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 8 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 62 of 553 PageID #: 467 THE TWELFTH AMENDMENT: A CONSTITUTIONAL..., 64 U. Miami L. Rev. 475 C. Congress Assumes a Larger Role: Adoption and Use of the Twenty-second Joint Rule Congress continued this practice of waiving the issue and ignoring electoral disputes until 1865. 104 That year, Congress adopted a joint rule that gave it “unfettered discretion to reject electoral votes when only one house of Congress objected to receiving the votes.” 105 The Twenty-second Joint Rule is the broadest reach Congress has ever asserted over the electoral count. 106 Under the rule, an objection to an electoral vote *498 would have the ultimate effect of a near presumption to reject that set of votes. 107 On February 4, 1865, Congress passed a joint resolution excluding the electoral votes of the southern states, including Louisiana and Tennessee, which at the time were back under Union control. 108 During the proceedings, members of Congress demanded the production of the returns of Louisiana and Tennessee, but the President of the Senate refused and stated that he would comply agreeably with “the law of the land.” 109 The year 1865 marked the first time that Congress rejected the votes of a state, as well as a new period of understanding of the electoral count. 110 The divisive exigencies of the Reconstruction Era also led to congressional rejection of votes from southern states in 1869 and 1873. 111 The election of 1872 provided particularly interesting facts. Louisiana had submitted two slates of electors: one, the result of a partial canvass by a board appointed by the Governor and another one, submitted by a rival and unofficial canvassing body. 112 Both houses separated and rejected both of Louisiana's returns. 113 The votes of Arkansas were attested to by the Secretary of State but lacked a state seal. The House voted to accept these votes, while the Senate voted to reject them; so they did not count under the terms of the then-controlling Joint Rule. 114 Commentators described the rejection of Arkansas's votes as particularly unjust. The reason for the rejection was the lack of a state seal, but it turned out Arkansas did not have a state seal, and “in twenty minutes [the Senate] disfranchised about six hundred thousand people.” 115 There were also objections to the votes of Mississippi and Texas, but both houses accepted the votes. 116 Georgia's votes were challenged because they were cast for Horace Greeley, who ran for President but died in *499 between the popular election and the meeting of the electoral voters. 117 Objectors argued that he was not a person within the meaning of the Constitution. The Senate voted to accept the votes, but the House rejected them; so the Joint Rule required the rejection of the votes. 118 D. A Step Back: Repeal of the Twenty-second Joint Rule and the Ongoing Debate By 1875, Congress apparently realized that the Twenty-second Joint Rule went a step too far and allowed for the rejection of votes with too much ease. This interpretation of congressional motive might be a bit generous, as the Republicans anticipated that the Democrats would control the House of Representatives for the first time in two decades. 119 Therefore, Senate Republicans were no longer willing to allow the House to unilaterally discard electoral votes that could turn the outcome of the election or throw the election to the House. In 1875 and early 1876, Congress debated the necessity of making changes to the Twenty-second Joint Rule. 120 Charles Fairman's meticulous book on the Electoral Commission in the 1876 presidential election dispute contains a valuable summary of all of the important arguments and proposals. 121 The debates are important, as Fairman notes, 122 because they were conducted well before the 1876 election in an ostensible effort to remove as much partisanship as possible. 123 Additionally, the debates provide a useful illustration of the various arguments and theories foreshadowing the all-important crisis of 1876, to be discussed in the next section. As such, this section will briefly summarize the debates and proposals. Largely, the debates were simply a continuation of the same arguments that long consumed this issue. However, the debates took place in a different context, given the recent rejection of electoral votes by Congress under the Twenty-second Joint Rule. The early debate was exclusive to the Senate, starting simply with a suggestion to amend the Twenty-second Joint Rule to prohibit a single house from rejecting a *500 state's electoral votes. 124 Interestingly, the primary disagreement was not about the virtue of making a change, but whether Congress could make such a change without a constitutional amendment. The dividing lines were drawn between those who did not believe the Constitution gave Congress a “right to say whether votes shall be counted or not be counted” 125 and those who did. 126 APPENDIX - 61 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 9 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 63 of 553 PageID #: 468 THE TWELFTH AMENDMENT: A CONSTITUTIONAL..., 64 U. Miami L. Rev. 475 One of the strongest opponents of congressional power on this matter made two notable proposals. First, Senator Bayard suggested that the Constitution should be amended to create a tribunal that would have all power to determine any electoral disputes. 127 Second, the Senator suggested waiting until the next session of Congress, when it seemed likely that the Democrats would control the House, which might ensure that any decision would be “non-partisan.” 128 Senator Edmunds made a similar suggestion for a constitutional or statutory change that would defer the power to decide contests to some sort of bipartisan congressional committee or to a federal appeals court, with the possibility of appeal to the Supreme Court. 129 As the senators debated the virtues of the rule change that had allowed the houses to separate to deliberate disputes, one senator noted that even this suggestion was on unsettled ground. If Congress had the power to resolve disputes, might the language of the Twelfth Amendment require them to act as one joint body? 130 *501 Despite these colorful debates--or perhaps because of them--the Senate was unable to reach a resolution, but it took up the issue again in the following Congress. 131 Senator Morton introduced the same bill, and shortly thereafter the Senate repealed the Twenty-second Joint Rule. 132 The debate continued, and, for some, the possibility that a state could face disenfranchisement if the two houses could not agree in the case of competing certificates was too grim. 133 Several senators still maintained that any changes required constitutional amendment. 134 Eventually, the president pro tempore put the question of whether the bill should pass before the Senate; the vote showed thirtytwo votes to pass (including all but three Republicans) and twenty-six votes against (including all but three Democrats). 135 Disappointed by the lack of unanimity, some of the bill's supporters pushed for reconsideration, which delayed further action on the bill for several months. 136 Several senators asked to work on amendments that they hoped might achieve a greater consensus, but with the delay, the bill no longer had the same urgency and was laid to rest. 137 Despite weeks of intense debate, Congress did not pass the bill, but the Senate repealed the Twenty-second Joint Rule in 1876. 138 One senator described the debates as “strong proof of the want of direct provision in the Constitution in relation to this question of the count of the votes,” 139 while a later commentator noted *502 that “[i]t is seldom that views so diverse have been expressed in relation to a matter that seems so simple in itself.” 140 Despite decades of debate and the strong role that Congress assumed in the period before these debates, questions about congressional power over the electoral count persisted and in large regard remained unanswered. In this light, the Twentysecond Joint Rule and congressional action during this period should not be understood as authoritative precedent for several reasons. First, Republicans approved the rule during Reconstruction as a partisan tool to punish the southern states. Second, once it was clear that the Democrats would have some ability to use the rule in the House, the Senate rescinded the rule. 141 Finally, the rule had no defenders in the debates of 1875 and 1876 leading up to the election of 1876. 142 E. Presidential Election of 1876 and Enactment of the Electoral Count Act 1. The Election of 1876 and the Electoral Commission The most significant historical event to expose the flaws of the Twelfth Amendment was the presidential election of 1876. The contest between Republican Rutherford B. Hayes and Democrat Samuel Tilden would bring about the most serious congressional attempt to remedy the problems with the Amendment. The election came at a tumultuous time in American history: the Democrats had been in the minority for over twenty years, and commentators noted the harsh partisanship of the race. 143 Unlike prior disputes, and despite a solid popular-vote majority for Tilden, it became clear that the outcome of the election depended on tenuous results from three states--Florida, Louisiana, and South Carolina--and the resolution of an additional issue concerning a single elector in Oregon. 144 If Hayes could hold on to all the disputed electoral votes, then he would have an electoral majority (and thus the presidency); *503 whereas if Tilden secured just one of the disputed electoral votes, the majority (and the presidency) would be his. The disputes in Florida, Louisiana, and South Carolina arose as follows: In Florida, each county had a duty to conduct a canvass of votes and submit the results to the governor and the secretary of state; then a Board of State Canvassers was formed to canvass those returns. 145 Three different certificates of electors would eventually come to Congress from Florida. The first APPENDIX - 62 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 10 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 64 of 553 PageID #: 469 THE TWELFTH AMENDMENT: A CONSTITUTIONAL..., 64 U. Miami L. Rev. 475 certificate favored Hayes and was the result of the board's canvass; it was signed by the governor in a timely manner. 146 But in Florida, as in several other southern states, there were allegations of many improprieties surrounding the casting and counting of ballots (specifically violence, voter intimidation, and fraud). 147 Pro-Tilden Democrats objected to this first certificate on the ground that state and county canvassers had improperly discarded Democratic ballots, thereby swinging the election in Florida to Hayes. 148 In an effort to counteract this initial pro-Hayes certificate, the slate of presidential electors pledged to Tilden decided to go ahead and meet as if they were the authorized Electoral College delegates from Florida. 149 Upon the governor's refusal to certify these pro-Tilden votes, 150 the Florida attorney general submitted his own certification of them, 151 thereby creating a second certificate (albeit one of obviously questionable validity). Matters did not end there, however. The legislature passed a bill calling for a new canvass, which was later certified in favor of Tilden. 152 Additionally, a Florida circuit court ruled that the Tilden electors were the legitimate electors for Florida. 153 Relying on the new canvass and the court *504 opinion, the newly elected Democratic governor created a third certificate that essentially reaffirmed the presidential votes earlier cast by the Tilden electors on their own initiative. 154 As between the two pro-Tilden certificates, this third one had the virtue of being signed by the state's chief executive pursuant to the procedures mandated by the state's legislature and judiciary, but the second one had the virtue of its earlier timing in accordance with the Electoral College calendar established by Congress. Under similarly complicated circumstances, including allegations of fraud and violence, Louisiana also submitted three sets of certificates to Washington. 155 The first slate of electors was for Hayes; it came from the canvassing board and was certified by the ostensible governor. 156 The second was for Tilden, with these electors disregarding the work of the canvassing board on the ground that the board was corrupt. 157 This slate was certified by a different individual who purported to be the lawful governor. 158 The third slate was in effect a duplicate of the first. 159 South Carolina submitted two slates, one for Hayes from the Board of Canvassers, certified by the governor, and another for Tilden, alleging that the Tilden electors were the rightful voters. 160 In Oregon, the voters had elected a postmaster general as one of Hayes's electors, a possible violation of the constitutional prohibition against federal office holders acting as electors. 161 Because of this, the elector resigned from his office as postmaster, and Oregon law allowed the remaining electors to choose a replacement; they chose the resigned elector. 162 The Democratic Oregon governor refused to certify this slate *505 of electors and instead certified a slate with two Hayes electors and a Tilden elector as a replacement for the former postmaster. 163 The secretary of state, on the other hand, submitted a certificate that contained the three original Hayes electors and noted that there was no question that the Hayes electors received the most votes on election day. 164 As in 1796 and 1800, it appeared that the Constitution might thrust the Vice President into the center of the storm. However, President Grant's Vice President had died during his term in office, and the role of President of the Senate had shifted to the president pro tempore, a Republican. 165 Republicans controlled the Senate, while Democrats controlled the House. 166 Understandably, as it became clear that the election would be decided by these disputed votes, partisans began drawing lines. The Republicans argued for an interpretation of the Constitution that awarded the Senate president controlling power over the vote tally, while the Democrats contended the joint bodies of Congress should have such power. 167 But before this debate could be resolved, and prior to the presidential electors casting their votes in state capitals, the Senate and House appointed two committees to investigate the vote counts in the contested states. 168 Committee members went to the states to conduct the investigations, and their findings fell along partisan lines. 169 Knowing the history of disagreement about how to resolve these disputes, both houses appointed committees to report on how Congress might reach some sort of resolution. 170 The committees came together after the holidays and settled on the idea of a tribunal (the Electoral Commission) to investigate the disputes. 171 Various proposals for the composition of the tribunal were heard but the joint committee ultimately settled on a Commission that would contain five members from each house, and four Supreme Court Justices who would choose a APPENDIX - 63 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 11 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 65 of 553 PageID #: 470 THE TWELFTH AMENDMENT: A CONSTITUTIONAL..., 64 U. Miami L. Rev. 475 fifth Justice to join them. 172 Any decisions *506 by a majority of the Commission would be read before the joint session and would govern unless the two houses separately concurred otherwise. 173 Without the joint committee's proposed tribunal, it was clear that the two houses were at loggerheads. The Republicans seemingly had the upper hand, if the potentially crucial President of the Senate could exercise his judgment in Hayes's favor. But Tilden was confident that he could resist any move to compromise by asserting that he was the duly elected President--at least on the strength of Florida's votes, without regard to the other disputed states. He was prepared, if necessary, to throw the election to the Democratic-controlled House of Representatives on the ground that no candidate received a majority of the votes cast. 174 The outcome of both paths was uncertain enough that congressmen suggested various other compromises. 175 For instance, one senator introduced a constitutional amendment to give the Supreme Court jurisdiction *507 over the contest, but this amendment did not pass. 176 Both houses entertained extensive debates about the proposed Electoral Commission, which largely followed themes stretching back to the Grand Committee debates. 177 Ultimately, the bill passed the Senate with 47 votes (26 Democrats and 21 Republicans) compared to 17 nays (16 Republicans and 1 Democrat). 178 In the House, the vote was 191 in favor (159 Democrats and 32 Republicans) and 86 against (68 Republicans and 18 Democrats). 179 The process for counting votes under the new Electoral Commission Act was relatively straightforward. The President of the Senate opened the certificates from each state and allowed for objections from senators or representatives. 180 If a state submitted only a single return, only the two houses voting concurrently could reject that return. 181 If a state submitted multiple returns, and if a member of Congress raised an objection, the question went to the Commission, whose decision was final unless overridden by a majority in each house. 182 Given the nature of the partisan split between the two houses, this effectively gave final say to the Commission. 183 The presiding officer proceeded to open and count certificates until he reached the certificates from Florida. 184 He announced the three Florida certificates and all were objected to, at which time the certificates, accompanying papers, and objections were handed over to the Commission. *508 185 Those making the objections had an opportunity to present their case followed by counsel for both sides. 186 The dispute over Florida's electoral vote clearly was the decisive one, because it was here that Tilden was on strongest ground. Like Hayes, he had a certificate signed by the governor, but Tilden could claim that his certificate was superior because it was the most recent, thereby superseding the legal authority of the previous one for Hayes. The Republicans continued to argue that neither Congress nor the Commission could go beneath the face of the certificate to determine the true counting of the ballots for presidential electors. But Tilden readily could concede this point with respect to Florida: the face of his signed certificate declared him the winner. The Republicans, therefore, were left to contend that the earlier certificate was lawfully authoritative because federal law had specified a time by which the state must act, and the earlier certificate on its face complied with this deadline whereas the later one did not. 187 The congressional members of the Commission drew their conclusions along predictable partisan lines. 188 Each of the five Justices issued their own opinions, though all were certain that Justice Bradley's opinion would carry the outcome of the Commission's decision. 189 These opinions again fell along the predictable lines, and so we will only discuss Justice Bradley's opinion. Justice Bradley first concluded that the President of the Senate has merely ministerial powers, with no authority to conduct any investigation behind the certificates; any proper investigation “must be performed and exercised by the two Houses.” 190 But, Bradley noted that the “extreme reticence” of the Constitution left serious doubt about whether Congress had any power to go behind the returns. 191 Bradley turned next to Article II of the Constitution, which appeared to ensure that the “mode of appointment belong exclusively to the State. Congress has nothing to do with it, and no control over it, except . . . to determine the *509 time of choosing the electors, and the day on which they shall give their votes.” 192 Thus, Bradley concluded, the state controls all of the mechanics of the elections. 193 However, APPENDIX - 64 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 12 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 66 of 553 PageID #: 471 THE TWELFTH AMENDMENT: A CONSTITUTIONAL..., 64 U. Miami L. Rev. 475 this exclusive power and control of the State is ended and determined when the day fixed by Congress for voting has arrived, and the electors have deposited their votes and made out the lists and certificates required by the Constitution. Up to that time the whole proceeding (except the time of election) is conducted under State law and State authority. All machinery, whether of police, examining boards, or judicial tribunals, deemed requisite and necessary for securing and preserving the true voice of the State in the appointment of electors, is prescribed and provided for by the State itself . . . . 194 With this timing in mind, Bradley argued that “the findings and recorded determinations of the State board or constituted authorities [should be] binding and conclusive since the State can only act through its constituted authorities[.]” 195 Addressing whether this meant that Congress must accept potentially fraudulent results in the appointment of electors, Justice Bradley concluded that Congress has no jurisdiction to do otherwise because it is entirely within the state's jurisdiction to prevent frauds. 196 Florida statute imposed a duty upon the Florida governor to certify the returns, and Justice Bradley held that the certificate must at least be prima facie evidence of a valid return. Justice Bradley summarized his conclusion as follows: The governor's certificate is prima-facie evidence that the State canvassers performed their duty. Indeed, it is conceded by the objectors that they made a canvass and certified or declared the same. It is not the failure of the board to act, or to certify and declare the result of their action, but an illegal canvass, of which they complain. To review that canvass, in my judgment, the Houses of Congress have no jurisdiction or power. 197 *510 Thus, rejecting the initial certificate was problematic to Justice Bradley because it would require the Commission to review the performance of the Florida canvassing board. The Commission voted 8-7 against receiving any evidence in the case of the Florida electors, and therefore the governor's certificate was accepted. 198 The Commission's results were presented to the joint session and objections were heard. 199 The houses divided to vote on whether to accept the Commission's results, with the Senate quickly accepting the decision 44-24. 200 The House debated the subject much more thoroughly and rejected the decision by a vote of 168-103--but because the houses disagreed, the joint session accepted the Commission's decision that the Hayes's slate of electors was proper. 201 The Commission's Florida decision set the grounds for the Commission's analysis of the objections to the returns of the other states. The Commission, in an 8-7 decision, rejected the objections to the Louisiana certificate certified by the Republican board. 202 The same was the case for the electors of South Carolina. 203 Throughout the proceedings, the majority of the Commission had held that it should not “go behind the returns” but should instead accept the prima-facie-valid slate of electors. *511 204 The application of this principle does not seem as simple in the case of Florida, where two different governors certified two different returns by two different canvasses. The Commission's concept of a prima-facie-valid certificate may be easier to understand by looking more closely at the case of Oregon. By a vote of 8-7, the Commission held that the Hayes slate of electors, certified by the Oregon secretary of state, was proper and that the governor's refusal to sign did not void it. 205 (This decision was accepted by the Senate and rejected by the House.) 206 Oregon law required the secretary of state to canvass the votes for the electors in the presence of the governor, to make the list of electors, and to affix the seal of the state on the certificate. 207 Oregon law also required both the secretary of state and the governor to sign the seal, but in this case the governor refused due to an allegedly ineligible elector. 208 The ineligible elector had resigned his federal office after his election (a potential violation of the constitutional requirement for electors), and Oregon law gave the other electors the right to replace him. 209 The other electors chose to fill the vacancy with that same elector, who was now eligible. 210 These electors then recorded their votes for Hayes on the certificate and submitted it to the President of the Senate with certification from the secretary of state. 211 The governor issued his own certificate, naming the two original Hayes electors and substituting a Tilden elector for the ineligible elector. 212 Thus, the Commission was faced APPENDIX - 65 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 13 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 67 of 553 PageID #: 472 THE TWELFTH AMENDMENT: A CONSTITUTIONAL..., 64 U. Miami L. Rev. 475 with two competing returns. Arguably, under Oregon law, neither certificate was prima facie valid because neither certificate was signed by both the Secretary of State and the Governor. Thus, the counsel for Tilden adopted Hayes's earlier argument, asserted in the prior cases, that the Commission should not go behind the certificate of the governor. 213 Unsurprisingly, counsel for Hayes characterized the argument and prior holdings differently, claiming that in each state “by its laws there is some final ministerial canvass, which, completed, *512 shows what the election was; and we need only to look into the laws of this State . . . to see whether the apparent canvassing board was one that had such authority under the laws of the State.” 214 This argument held the day. Justice Bradley maintained that the secretary of state was the highest canvassing authority under Oregon law and that his certificate was not unlike those in Florida or Louisiana, which were approved by their canvassing boards. 215 So, the important question for the Commission was not whether the certificate was certified by the governor, but whether the certificate reflected the results reached and approved by the state's canvassing body as authorized by the laws in place in that state at the time. Declining to “go behind the returns” did not mean the Commission could not look at the state's laws and the evidence presented by the certificates themselves. Thus, if the state's highest canvassing authority approved the return, the certificate was the prima-facie-valid return from the state, and the Commission would not investigate further. But the distinction between Oregon and Florida, it must be emphasized, cannot be made on the basis of state law alone. To be sure, Oregon law demonstrated that the governor acted unlawfully in refusing to withhold his certification. But in Florida the state legislature ordered a re-canvassing of the vote for presidential electors, the canvassing board complied, and the new governor-- pursuant to that state law--signed that state's last-in-time (and thus ordinarily most lawfully authoritative) certificate. There was no allegation that the state legislature acted contrary to state constitutional law, and, even if there were, there would be the kind of federal constitutional issues that arose in Bush v. Gore (addressed by the concurrence there) about whether the state constitution could deprive the state legislature of authority that the Federal Constitution in Article Two gave to the state legislature concerning the appointment of presidential electors. 216 Finally, there was at least some argument that the third Florida certificate (resulting from the re-canvass requested by the legislature) reflected the actual results of the election. Thus, if the act of the Florida legislature in calling for a re-canvass was to be null and void, it must be so by virtue of federal law, not because of state law. What federal law? Bradley was not completely clear on the answer to this key question, but it appears that he argued that Article II of the U.S. Constitution constrains the authority of a state legislature to alter state law concerning the appointment of presidential *513 electors after the duly specified date on which they must meet. Justice Bradley addressed the question in his opinion: “The question then arises, whether the subsequent action of the courts or legislature of Florida can change the result arrived at and declared by the board of State canvassers . . . .” 217 Justice Bradley acknowledged that he originally thought a judicial modification of the canvassing board's decision in a quo warranto proceeding could supersede the board's initial determination. 218 But he changed his mind because the Florida proceeding came too late: If the [quo warranto] court had . . . rendered its decision before the votes of the electors were cast, its judgment, instead of that of the returning-board, would have been the final declaration of the result of the election. But its decision being rendered after the votes were given, it cannot have the operation to change or affect the vote, whatever effect it might have in a future judicial proceeding in relation to the presidential election. The judicial acts of officers de facto, until they are ousted by judicial process or otherwise, are valid and binding. 219 It is unclear what the basis of Bradley's reasoning is or whether it makes sense (and holds together as a matter of logical analysis). Bradley, at this point in his analysis, claimed to be looking to state law to figure out the authoritative status of the canvassing board's initial determination and its relationship to the subsequent judicial reversal of it. 220 It may be true that usually under state law, the acts of de facto officers are valid, and thus the votes of presidential electors ordinarily would stand once given, even if the individual electors had no valid title to their position at the time (because the ballot count on which their supposed title rests was erroneous). But what if the state legislature wishes to deviate from this general doctrine? If Florida wants to declare null and void the official acts of individuals purporting to act as presidential electors when those individuals should not have been acting as presidential electors--and instead wishes to recognize the action of individuals who were entitled to act as presidential electors (based on a corrected proper count of the ballots)--why cannot Florida law make that determination for itself and then have that determination be binding on Congress? For Bradley's analysis to hold up at all, it must be because the Federal APPENDIX - 66 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 14 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 68 of 553 PageID #: 473 THE TWELFTH AMENDMENT: A CONSTITUTIONAL..., 64 U. Miami L. Rev. 475 Constitution constrains the ability of states to revise their counting of ballots for presidential electors after the individuals who initially were determined to be appointed as presidential electors have exercised the sole function of their office. *514 Bradley makes clear that his reasoning rests on federal, rather than state, law in the next portion of his analysis: The State may, undoubtedly, provide by law for reviewing the action of the board of canvassers at any time before the electors have executed their functions. . . . The legislature may pass a law requiring the attendance of the supreme court or any other tribunal to supervise the action of the board, and to reverse it, if wrong. . . . No tampering with the result can be admitted after the day fixed by Congress for the casting of the electoral votes [for President], and after it has become manifest where the pinch of the contest for the Presidency lies, and how it may be manipulated. 221 Of course, nowadays the “pinch” is manifest by the morning after the citizens have cast their ballots for presidential electors, but the Framers of the Constitution (and even the Twelfth Amendment to a lesser extent) assumed that the presidential electors might on occasion exercise independent judgment about their vote for President. 222 Therefore, it is reasonable for Bradley to want to avoid the possibility of a state institution--legislature, court, or executive--undoing the work of the state's presidential electors after the electors have voted. 223 Bradley was emphatic on this point: I am entirely clear that the judicial proceedings in this case were destitute of validity to affect the votes given by the electors. Declared by the board of canvassers to have been elected, they were entitled, by virtue of that declaration, to act as such against all the world until ousted of their office. They proceeded to perform the entire functions of that office. They deposited their votes [for President] in a regular manner, and on the proper and only day designated for that purpose, and their act could not be annulled by the subsequent proceedings on the quo warranto, however valid these might be for other purposes. 224 Thus, Bradley concluded: I think no importance is to be attached to the acts performed by the *515 board of canvassers after the 6th day of December, nor to the acts of the Florida legislature in reference to the canvass. In my judgment, they are all unconstitutional and void. To allow a State legislature in any way to change the appointment of electors after they have been elected and given their votes, would be extremely dangerous. It would, in effect, make the legislature for the time being the electors, and would subvert the design of the Constitution in requiring all the electoral votes to be given on the same day. 225 Thus, according to Justice Bradley, state legislatures are incapable of error correction after that deadline, even if they are convinced that an error has been made in counting the popular votes for the state's presidential electors. In any event, whether or not Bradley's own reasoning was sound in explanation of his decisions regarding both Florida and Oregon, his rulings determined the outcome. More importantly, even if one thinks Bradley was sound in his constitutional argument forbidding Florida to undo the ruling of its canvassing board after the presidential electors had cast their votes, the correctness of this analysis does not eliminate the structural problem of the Twelfth Amendment itself--the lack of clear guidance as to which votes to accept and the ultimate arbiter of that decision. Bradley was only a commissioner, not a member of Congress. If the House of Representatives had refused to acquiesce in Bradley's 8-7 tie-breaking vote--or if in a future comparable crisis either House refuses to accept the kind of reasoning Bradley engaged in--the defect of the Twelfth Amendment comes to the fore. Someone in Bradley's position ultimately cannot control, but can only recommend. Whichever side stands to lose from the adoption of Bradley's position, whether the Senate (and its President) or the House (and its Speaker), must agree to acquiesce in the Bradley position despite disagreeing with it. If that side chooses not to acquiesce, then there is a crisis that the Constitution as presently written has no means of averting. APPENDIX - 67 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 15 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 69 of 553 PageID #: 474 THE TWELFTH AMENDMENT: A CONSTITUTIONAL..., 64 U. Miami L. Rev. 475 An argument exists that the delegation of congressional power to the Electoral Commission, particularly with such strong majorities in both houses, sets a constitutional precedent concerning the power of Congress to control the counting of electoral votes. But this argument is debatable, in that an act of Congress--particularly one to avert a crisis--cannot supersede the text of the Constitution itself. The Hayes and Tilden camps were truly at loggerheads, and the prospect of civil unrest *516 or war 226 cannot be separated from the desire for peaceful resolution. 227 Compromise was the only possible way to avert a total calamity. 228 Indeed, if the Republicans controlled Congress by wide margins, as they had in the prior decades, it is easy to imagine a much different approach and historical precedent. Even with the Commission in place, and given that the House and Senate were controlled by different parties, it was at least theoretically conceived that either the House or the Senate could have attempted to assert constitutional authority under the Twelfth Amendment to act unilaterally on behalf of its preferred candidate (the House by claiming that neither candidate received enough undisputed votes to be elected President outright, or the Senate under its presiding officer's authority). That the dispute did not linger after the Commission's 8-7 split decision is at least some blessing. 2. The Electoral Count Act--Congress Attempts to Address the Problem The infamous 1876 Hayes-Tilden presidential contest sparked years of congressional debate on reforming the procedures for counting presidential electors. The Electoral Count Act (ECA) of 1887, still on the books today, was the product of this debate. 229 The ECA attempts to *517 accomplish five tasks: 1) give the states enough time between election day and elector balloting day to settle controversies over the appointment of their presidential electors (Section 1) [codified as amended at 3 U.S.C. § 7]; 2) encourage the states to establish mechanisms for resolving contests over the appointment of presidential electors prior to the day of elector balloting (Section 2) [codified as amended at 3 U.S.C. § 5 and known as the “safe harbor” provision]; 3) publicize and place on the record the states' determination of the outcome of their elector appointment process (Section 3) [codified as amended at 3 U.S.C. § 6]; 4) minimize congressional involvement in resolving controversies over elector appointment not authoritatively resolved by the states (Section 4) [codified as amended at 3 U.S.C. § 15]; and 5) settle procedural issues for conducting the joint session at which Congress counts the states' electoral votes (Sections 4-7) [codified as amended at 3 U.S.C. §§ 15-18]. 230 Under the ECA, the two houses separately have control over the counting of the votes. In some respects the law does seek to tie Congress's hands and give deference to the state's election returns. 231 The ECA provides an elaborate procedure for how objections are to be made and considered, how and which types of votes might be rejected, when those votes might be rejected, and how much, if any, deference to give to the state. 232 Some legislators objected to conferring this power upon Congress, *518 particularly if Congress could simply reject votes if both houses were in agreement. 233 In 120 years, the provisions of the ECA have not been battle tested, and “[d]uring the 2000 presidential election dispute, politicians, lawyers, commentators, and Supreme Court justices seemed prone to misstate or misinterpret the provisions of the law, even those provisions which were clear to the generation that wrote them.” 234 As a result, questions remain about whether the ECA is constitutional, or whether Congress is actually bound by its provisions. 235 The ECA debate continued many of the same constitutional arguments about congressional power that were first used during the Grand Committee Bill debate in 1800. Congressmen raised an additional constitutional concern during the ECA debate: that this was “an unconstitutional attempt to bind Congress's discretion.” 236 There were two prongs to this argument: first, that the legislation required presidential approval and improperly involved the President in creating rules for determining presidential elections; 237 second, that one Congress *519 could never bind a future Congress. 238 Even some of the supporters of the ECA admitted they were uncertain whether the law was constitutional or binding but voted for the law because they argued it created a strong moral obligation from which a future Congress would not deviate. 239 APPENDIX - 68 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 16 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 70 of 553 PageID #: 475 THE TWELFTH AMENDMENT: A CONSTITUTIONAL..., 64 U. Miami L. Rev. 475 If the uncertain and tenuous relationship between the Twelfth Amendment and the Electoral Count Act is the main cause for current and future concern, a problem of almost equal magnitude is the complexity and ambiguity of the ECA itself-particularly with respect to the situation in which multiple certificates purport to be the state's authoritative electoral votes. The ECA has language addressing this situation, but that language is maddeningly difficult to parse, is subject to competing scholarly interpretations, and is arguably incomplete in terms of the circumstances that might arise. For example, what is supposed to happen under the ECA if, as with Florida in 1877, there are two certificates signed by the state's chief “executive” and the two houses of Congress disagree as to which of these two is authoritative? 240 F. The Elections of 1960, 1968 and 2000: Return to Waiver of the Issue? Unfortunately, the only instances of electoral controversy after the ECA's passage do not lend much help for determining how it works. In the 1960 election, Hawaii could have provided an interesting scenario when the state submitted three certificates to Congress. 241 Despite a Kennedy lead in early returns, the first official count gave Nixon the lead by 141 votes. 242 However, Democratic electors petitioned the courts *520 for a recount, and the request was granted on December 13. 243 While the state-court litigation was still pending, pursuant to the first official count, a slate of Nixon-Lodge electors voted on December 19 (the proper day), and this slate was certified by the acting governor of Hawaii and submitted to Congress. 244 The second certificate was a slate of Kennedy-Johnson electors who purported to cast their votes on the same day, pursuant to their own claim of authority given the pending dispute--their appointment as the state's electors was not certified by a state executive. 245 On December 30, the Hawaii court decreed that Kennedy was the proper winner of the state's electoral votes, by a margin of 115 votes. 246 Subsequently, in a third certificate, the newly elected governor of Hawaii, relying on the court's recount, certified that the Kennedy-Johnson electors who submitted their votes in the second certificate were the true electors of the State of Hawaii. 247 These three certificates from Hawaii in 1960 bear a remarkable similarity to the three certificates from Florida in the HayesTilden disputed election of 1876: one for the Republicans, and two for the Democrats. The sole Republican certificate met the congressional deadline and was signed by the governor. One of the Democratic certificates met the deadline, but was without the necessary certificate. The other had the necessary certificate, but did not meet the deadline because it purported to reflect an accurate and corrected counting of the state's ballots for its presidential electors. One might think that, based on the “precedent” from the Electoral Commission's treatment of Florida in the Hayes-Tilden dispute, the first (Republican) certificate from Hawaii would be ruled the authoritative one. But that is not what occurred. Instead, presidential candidate Nixon in his capacity as President of the Senate ruled in favor of the third certificate, the one reflecting the result of the judicial redetermination of the ballot count: In order not to delay the further count of the electoral vote here, the Chair, without the intent of establishing a precedent, suggests that the electors named in the certificate of the Governor of Hawaii dated January 4, 1961, be considered as the lawful electors from the State of Hawaii. If there is no objection in this joint convention, the Chair will *521 instruct the tellers--and he now does--to count the votes of those electors named in the certificate of the Governor of Hawaii dated January 4, 1961 . . . . 248 Ultimately, Hawaii's three electoral votes had no bearing on the ultimate outcome of the election of 1960. 249 There were no objections, and Nixon counted the votes. 250 This is the only instance of multiple slates of electors after passage of the ECA, but without the presidency at stake the ECA was not tested. Indeed, it is arguable that Nixon's conduct with respect to Hawaii simply bypassed the ECA altogether; it seems that under the ECA, the third certificate (the one accepted by Nixon) could not have been accepted without a concurrent vote from both houses of Congress. 251 In any event, had Hawaii's electoral votes been outcome determinative to the 1960 presidential election, it is entirely unclear how a controversy over them would have played out. APPENDIX - 69 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 17 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 71 of 553 PageID #: 476 THE TWELFTH AMENDMENT: A CONSTITUTIONAL..., 64 U. Miami L. Rev. 475 In 1969, a Republican elector from North Carolina was “faithless” 252 and gave his vote to George Wallace instead of Richard Nixon. The governor certified the state's electoral certificate with the knowledge of the faithless elector. 253 Before the electoral count, senators introduced a memorandum recommending that the faithless elector's vote be rejected and cast according to North Carolina's popular vote. 254 A representative objected during the electoral count and presented an objection signed by several representatives and senators, marking the first and only time the ECA procedures went into effect. 255 The houses split and debated the objection but only to consider whether to reject the vote. *522 Several representatives argued that the vote should be excluded on various grounds-- that Congress had a constitutional duty to protect the electoral system, that the faithless vote was not “regularly given” under the ECA, or on the now-recognized constitutional principle of “one [person], one vote.” 256 Those who argued against the objection did so because the vote was still “regularly given” under the ECA or because under the Constitution, the counting of the votes is only a ministerial duty. 257 Both houses rejected the objections in close votes. The debate demonstrated that many questions the ECA attempted to resolve remained unanswered--or worse yet, the enactment might have created new questions altogether. Vice President Al Gore presided over the electoral count following the 2000 election. There was potential for objections to be raised about the electors submitted from Florida, and Democratic House members submitted twenty objections but were unable to gain the support of a single senator in order start the ECA procedures. 258 Vice President Al Gore was in the unenviable position of overruling objections that were made on his own behalf, and no precedents were set. But if he had not conceded the election after the Supreme Court's decision in Bush v. Gore, and competing slates of electors had been sent to Congress from Florida, deep problems with the ECA procedures would have been exposed. Even assuming Gore did not unilaterally assert constitutional authority as President of the Senate to determine which of the competing slate of electors should be counted, he might have cast the tie-breaking vote in his own favor on any resolution concerning presidential electors taken up by the Senate in the vote-counting process. Similarly, if the Senate and House deadlocked, the ECA (at least on one interpretation) called for the “executive” of the state to be decisive, which either would have been candidate George W. Bush's brother, Jeb, or arguably unclear if another “executive” officer (say, the state's Democratic Attorney General) asserted Gore to be the rightful winner of Florida's votes. On one interpretation of the ECA (although not the only interpretation), Florida's electoral votes would need to be discarded, with the state's entire citizenry disenfranchised, and the presidential election would be thrown to the House of Representatives on the ground that no candidate had received a majority of electoral votes. Suppose, alternatively, that the Florida Supreme Court had ordered Governor Jeb Bush to sign a certificate *523 in Gore's favor, and he felt obligated to comply--with the consequence that Congress received two competing certificates signed by the same governor. Could Gore have decided to break the deadlock in his favor in this circumstance? The inadequacy of the ECA procedures is seen by some as a justification for the Supreme Court's agreeing to decide Bush v. Gore. 259 III. Summary of the Historical Flaws and Problems A. Summary of the Historical Problems The ambiguous text of the Twelfth Amendment has left us with several unclear answers to several questions. Historically speaking, the electoral disputes fall into several categories: • Eligibility of the electors • Eligibility of the state to submit electors • Whether the electors or state properly performed their duties • Whether the electoral certificate represents the genuine election results of a state There is still potential for such disputes. As recently as the 2000 election, multiple slates of electors or Congress contemplating rejection of a single slate of electors were both real possibilities, and members of Congress objected to counting Ohio's electoral votes in 2004. 260 While there is perhaps little concern about an ineligible state submitting electors, the concern about mixed election results in a state remains. APPENDIX - 70 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 18 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 72 of 553 PageID #: 477 THE TWELFTH AMENDMENT: A CONSTITUTIONAL..., 64 U. Miami L. Rev. 475 Once one or more of these disputes comes before the joint meeting of Congress, several constitutional questions have arisen about the procedures of the meeting: • What is the role of the President of the Senate? • Is vote counting simply a ministerial task, or can votes be rejected? • What level of deference should be given to a state's determination of an election? • How far behind the certificate may the vote counter go? • Can constitutionally invalid votes be rejected? • Can electoral votes subject to nonconstitutional defects be rejected? *524 • How should multiple slates of votes from a single state be dealt with? Are there satisfactory answers to any of these questions? Is historical precedent useful? If so, which historical precedent should hold the most weight? The role (as arbiter of the validity of electoral votes) that Congress first asserted in 1861 and continued through the enactment and use of the ECA encounters several problems. First, this role runs contrary to the first period from 1789 to 1821, when many of the Framers of the Constitution were in Congress. 261 Indeed when Congress attempted to assert such a role in 1800, Framer Charles Pinckney and future-Chief Justice John Marshall, among others, vehemently rejected the role as unconstitutional, and Congress rejected the bill. 262 Indeed, it also runs contrary to the second period from 1821 to 1861, when Congress was unable to come to a conclusion about the ability of the body to reject electoral votes. Secondly, the historical trend that led Congress to assert such power can be attributed in part to neglect on the part of the President of the Senate, as well as a natural tendency for Congress to gradually assert itself. For instance, one scholar points to the early use of congressionally appointed tellers to assist the President of the Senate as the first step in this trend. 263 The electoral counts, of course, occurred every four years, and as new generations of politicians took their place on Capitol Hill, precedents were easier to forget. The view that the President of the Senate retained such a level of control and power runs contrary to other conceptions of how the legislature should work and is, in a sense, quite autocratic--not to mention the now-obvious potential for conflicts of interest that can result from this type of unilateral assertion. 264 Coinciding with the abdication of the power of the President of the Senate, it is not unexpected for members of Congress to assert a stronger role for themselves in the count and to argue for such a constitutional interpretation. 265 Indeed, it would take an inordinate amount of *525 political willpower for a President of the Senate to reassert himself as an individual against the entire body of Congress. Finally, some of the historical precedents are affected by the particular circumstances in which they arose. First, Congress's strong role in the electoral count came about during the Civil War and Reconstruction Eras, culminating with the enactment of the Twenty-second Joint Rule. Radical Republicans, with strong majorities in both houses, sought to penalize the southern states for rebellion and secession while retaining as much power as possible. 266 Later, the use of the Electoral Commission is often described as a necessary compromise--attributed to the threat of turmoil, split political control in Congress, and lack of clear understanding of how the procedure should work. B. The ECA's Lack of Clarity and Other Problems Even as Congress has gradually increased its power over the process (assuming the role Congress has taken in adopting the ECA is constitutional), 267 this ascension to power leaves open the following questions: • Does the legislation contemplate judicial review? APPENDIX - 71 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 19 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 73 of 553 PageID #: 478 THE TWELFTH AMENDMENT: A CONSTITUTIONAL..., 64 U. Miami L. Rev. 475 • What constitutes a “regularly given vote”? 268 • Is there room for interpretation in the safe-harbor statute? 269 • The statute provides no guidance in several scenarios--how should Congress make a judgment as to which votes to count? The ECA did not limit congressional debate about the “faithless” elector in 1969. Under one interpretation of the Act, it was inappropriate for Congress to consider this issue (because there was but a single certificate from the state, it comported with the “safe harbor” deadline, and under the relevant interpretation the electoral votes were “regularly given”); under the alternative interpretation of the ECA, it was appropriate for the two houses of Congress to at least debate whether to discard *526 the vote of a “faithless” elector. Though it was certainly intended to create a thorough and clear process for review and resolution of disputes, the ECA has left much uncertainty. It is not hard to imagine that had the dispute truly mattered in the outcome of the election, litigation would have ensued. Whether the Supreme Court can review Congress's actions under the ECA, in counting the electoral votes or in choosing among various slates of electors, is a significant question. One of the more thorough reviews of the legislative history of the ECA reveals that Congress considered giving the Court some role in the process but rejected the idea every time, and it was clear that Congress did not think the Court had a constitutional role nor did it believe the Court should have any jurisdiction at all. 270 Senator Sherman noted at the time, “[T]here is a feeling in this country that we ought not to mingle our great judicial tribunal with political questions, and therefore this proposition has not met with much favor.” 271 C. A New Problem: Judicial Intervention in the 2000 Presidential Election and the Political Question Doctrine In 2000, the Supreme Court intervened in a presidential election for the first time. The decision was not without controversy and effectively ended recounts that the Florida Supreme Court deemed necessary under Florida law. 272 To this day, the decision is subject to thorough disagreement and debate from conservative and liberal legal scholars. 273 The advancement of Equal Protection Clause precedent dealing with the right to vote and election administration, 274 coupled with the uncertainty of the Twelfth Amendment suggest intervention of the Court in future cases on such grounds is possible, although uncertain. 275 *527 Many scholars have argued that the political question doctrine suggests that the Supreme Court should not intervene in an election dispute akin to the Florida dispute in 2000. 276 Regardless of the merit of the political question doctrine arguments, it is clear that this is yet another ambiguity of the Twelfth Amendment. 277 Absent a constitutional amendment clarifying the precise jurisdictional boundary between (a) the federal judiciary, in addressing the kind of Fourteenth Amendment questions presented in Bush v. Gore, and (b) Congress and its officers in exercising their constitutional duties under the Twelfth Amendment, there are bound to be future disputes over just how far the jurisdiction of the Court may intrude into the domain of Congress (and, conversely, just how far the political question doctrine prevents the Court from doing so). Given this inevitable turf-warfare, it is all the more reason why a constitutional amendment is necessary to remedy the defects of the Twelfth Amendment. Scholars who have defended both the Court's decision to intervene and its rationale for ending the recount have argued that the decision was *528 “a pragmatic solution to a looming national crisis.” 278 But Bush v. Gore, by its very entry into the territory, has created new uncertainties. What is the meaning and scope of the new Fourteenth Amendment jurisprudence generated by Bush v. Gore, and might it have application in disputes over future presidential elections? Next time, will the Court back away, leaving matters to Congress--or, if the Twelfth Amendment remains unfixed, will another potential crisis cause the Court to repeat the kind of intervention it undertook in Bush v. Gore? Bush v. Gore was an exercise of the Court's discretionary jurisdiction, and not a product of a statutorily specified procedure; therefore its ad hoc quality (whether or not necessary for its own occasion) calls for new rulemaking to regularize the procedure in the future. IV. Need for Constitutional Change to Avert Disaster APPENDIX - 72 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 20 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 74 of 553 PageID #: 479 THE TWELFTH AMENDMENT: A CONSTITUTIONAL..., 64 U. Miami L. Rev. 475 This history and summary of the problems in the Twelfth Amendment and in our system for addressing disputed electoral outcomes is not meant to show with certainty that crisis will one day rock the system. Indeed, if disputes like the HayesTilden election of 1876 demonstrate anything, it might be the great discretion with which both sides have been able to handle tenuous situations in the past. 279 However, the preceding sections do demonstrate that the failure of the Framers to foresee electoral disputes--and the resulting ambiguity in the Constitution--has created a system wrought with unanswered questions and conflicting precedents. If history is any indication, the procedure and subsequent outcome of any future dispute that makes it to Congress will likely be determined not by any statute or constitutional text, but by the partisan makeup of both houses. Additionally, because of the underlying ambiguities, the gravity of the stakes, and the precedent of Bush v. Gore, the Supreme Court is likely to remain an unpredictable “wild-card” factor in any future electoral dispute. Both of these situations are undesirable, and politicians and scholars have recognized the problems of the ambiguity *529 of the Constitution on these points for two centuries. The situation is like a ticking time bomb, waiting to explode under the right set of facts, and indeed-it is easy to see from the historical examples how the bomb might have exploded already were it not for the particular context of the dispute. The problem remains and Congress should fix the text in advance of a future crisis. 280 A. A Florida 2000 Hypothetical Exercise To reinforce the idea that the situation is both untenable and undesirable, it is useful to conduct a relatively simple hypothetical exercise. With the 2000 election still somewhat fresh in our collective memory, it is not hard to hypothesize how this system could have exploded in the past or might still in the future. If the Supreme Court refused to grant certiorari in Bush v. Gore, or if, as four Justices would have done, 281 the Court remanded the case to allow the recount to continue, a very different scenario was possible in the event that Al Gore won the recount. The Florida legislature, dominated by Republicans, was prepared to name George W. Bush as the proper winner and appoint a Bush slate of electors; and in all likelihood, Governor Jeb Bush also was prepared to certify that slate of electors and send it to Congress. 282 There are several *530 ways a competing Gore slate of electors could also have been appointed: if the Florida Supreme Court or the Florida attorney general (Gore's campaign chair) determined that the legislature's act defied Florida law, they might have certified and sent a slate of electors; or perhaps a state court might have compelled the governor to appoint a second slate. 283 Congress, faced with these hypothetical competing slates of electors, was divided. While the Republicans controlled the House of Representatives, the Senate was split fifty-fifty; assuming purely partisan voting, Vice President Gore would have been the tie-breaking vote. 284 If Congress chose to abide by the ECA, which is a significant question on its own, several problems still arise. If two different slates were certified by the governor (which happened in the 1960 presidential election), the ECA provides no guidance for how Congress should proceed. 285 If two different authorities had certified two different slates, for example one by the governor and one by the attorney general, the ECA would require a divided Congress to accept the slate certified by the governor--unless the Senate took the position (justifiably or not) that a slate certified by the attorney general was equally authoritative under the ECA. 286 Once the two houses are in disagreement, it is not difficult to imagine the controversy extending past inauguration day, which would trigger the Twentieth Amendment and a whole host of new uncertainties. 287 Changing *531 the partisan makeup of Congress, by giving strong majorities to the Democrats, makes for an equally interesting and unpredictable situation if Congress was faced with only Bush electors or competing slates of electors. 288 B. Reform Is Necessary Our hope is that this Article provides a thorough discussion of the constitutional ambiguities, the available interpretations and differing precedents, culminating with the Supreme Court's intervention in 2000--leading the reader to conclude that constitutional reform is necessary. The problems of the ambiguous text have arisen time and again through the course of our history, and through this discussion it should be clear that the questions remain as uncertain as ever. It is especially clear, that these issues remain relevant today, after our nation's collective experience in the 2000 election. The ambiguities of the Twelfth Amendment, together with the new precedent of Supreme Court intervention, have created a most undesirable situation--one in which the rules in advance of a 2000- or 1876-style dispute are tenuous at best. 289 *532 Thus, it is our hope that this Article might form the impetus for some debate about how to change the constitutional procedures for electing the President. We recognize that such a reform is not easy, from a political standpoint or from a theoretical standpoint. Constitutional reform is difficult, and, indeed, Congress has declined the opportunity to enact a fix to the Twelfth Amendment at several moments in APPENDIX - 73 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 21 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 75 of 553 PageID #: 480 THE TWELFTH AMENDMENT: A CONSTITUTIONAL..., 64 U. Miami L. Rev. 475 history. 290 The failure and inadequacy of the unwieldy ECA and Congress's previous attempt to fix the system demonstrate the difficulty of any new reforms. Nevertheless, as others have recognized in the past, it seems that the fix must be by constitutional amendment, and it should be done in advance of any future electoral disputes. Constitutional amendment is desirable over statutory reform for several reasons: First, underlying any statutory reform will be the possibility that Congress could simply ignore the statute on antibinding grounds. Second, the difficulty of passing an amendment *533 and achieving ratification will force both sides in Congress to compromise and reduce the possibility that the reform will mirror the previous partisan changes of the nineteenth century. The most difficult question will likely be who should be the ultimate decision-maker in the event of a future electoral dispute. Several possibilities exist. Congress could identify a single federal officer, more likely the Chief Justice rather than the President of the Senate, with the unilateral authority to resolve any disputes--but it would seem doubtful that Congress would want to assign such awesome power to a single individual. Congress could try to keep an equal role for each of its two houses, but the problem then is what to do if the houses deadlock. Congress could try to leave power over these disputes with the states, but what if there is a dispute about whether a state has handled the matter according to congressionally specified procedures? Ultimately, it seems that some new institution or mechanism needs to be developed. For instance, one of us has suggested the creation of a nonpartisan, specialized election court to be the final arbitrator of election disputes. 291 Or, if Congress would prefer a nonjudicial final arbiter, it could create standing rules for the kind of Electoral Commission that existed for the Hayes-Tilden dispute, with these rules better crafted to avoid the problem that emerged in that one episode: the single, nonpartisan neutral on a fifteen-member body was unable to serve. (It would likely be better, for example, to have a much smaller commission, where the number of nonpartisan neutrals more closely balances the number of partisan members; consider, as a possibility, a seven-member commission, with one member appointed by each of the majority and minority parties in both houses of Congress, with three nonpartisan neutrals unanimously selected by the first four.) Once Congress agrees on an ultimate decision-maker, Congress should make that decision-maker's jurisdiction decisively clear to eliminate any possibility that some other institution could attempt to interfere with its authority. Likewise, Congress should endeavor to ensure--as far as is humanly possible--that the procedural rules under which the ultimate decision-maker operate are absolutely clear. Ideally, the clarity of these procedures will constrain future political actors: they may not like the rules (just as many now do not like the fact that the President is not directly elected by a popular vote of all U.S. *534 citizens), but they will know the rules as specified in the Constitution and must abide by them. V. Conclusion When Justice Story commented on the ambiguities of the Constitution in electoral disputes, he must have presumed that questions of such grave importance would eventually be resolved. Instead, our country has embarked on a meandering journey of ad hoc approaches to resolving electoral disputes. The decision of the Supreme Court in 2000 marked only the most recent stop on this journey but was met with as much dissatisfaction as previous historic stops such as the Electoral Commission and the Twenty-second Joint Rule. Instead of waiting for the next electoral dispute and hoping that the Court or a bipartisan split in Congress might save our country, Congress should address this historic problem with an amendment to the Constitution that clearly addresses the electoral count procedures. Footnotes a1 Professors Bruce Ackerman and David Fontana used the term “ticking time bomb” to describe the same problems with the original language of the Constitution's Article II that the framers of the Twelfth Amendment incorporated into the text of the Twelfth Amendment. Because we agree with their conclusion that this problem is the equivalent to a “ticking time bomb,” we have decided to adopt their term. See Bruce Ackerman & David Fontana, Thomas Jefferson Counts Himself Into the Presidency, 90 Va. L. Rev. 551, 585, 629 (2004). d1 This historical essay is a collaboration between its two authors. Nathan L. Colvin, a student at The Ohio State University Moritz College of Law, undertook research on this topic under the supervision of Professor Edward B. Foley and deserves the credit for writing the initial draft as well as undertaking revisions in response to Professor Foley's edits and inputs. The problems posed by the ambiguity of the Twelfth Amendment were addressed by Professor Foley in his contribution to the symposium for which this essay is a contribution, and he is grateful for the opportunity that symposium provided APPENDIX - 74 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 22 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 76 of 553 PageID #: 481 THE TWELFTH AMENDMENT: A CONSTITUTIONAL..., 64 U. Miami L. Rev. 475 to discuss the problem (and potential solutions) with other symposium participants. To the extent that this historical essay goes beyond a description of the relevant facts, and begins to evaluate those facts with an eye to identifying a particular remedy to the deficiencies of the Twelfth Amendment, the evaluative emphasis and tone is a genuinely joint voice that combines the perspectives of the two coauthors. Had either author been writing this essay on his own, the emphasis and tone likely would have been distinct from the collaborative product published here. But both authors wished to downplay their own distinctive perspectives on the topic in the interest of producing a joint work--one reason being the fact that any potential reform of the Twelfth Amendment necessarily is a pluralistic enterprise. It surely will not be possible to amend the Constitution to remedy the defects, now over 200 years old, unless citizens of different political viewpoints can come together to, first, recognize the need to adopt a solution and, then, to develop one. This essay is our offering in that spirit. 1 3 Joseph Story, Commentaries on the Constitution of the United States § 1464 (Boston, Hilliard, Gray, & Co. 1833). Professor Foley originally encountered Justice Story's quote while researching one of our country's earliest disputed elections, the 1792 New York gubernatorial election. See Edward B. Foley, University Distinguished Lecture at the Ohio State University: The Original Bush v. Gore: An Historical Perspective on Disputed Elections (Oct. 14, 2008) (transcript available at http:// moritzlaw.osu.edu/electionlaw/docs/post_lecture_draft05march09.pdf). 2 The text of the Twelfth Amendment is lengthy, but the relevant portion is included below: The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;--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;--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; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. U.S. Const. amend. XII. The remaining relevant text is in Article II Section 1 of the Constitution. Clause 2 delegates the choosing of electors to the states and provides for the qualifications of electors. Clause 4 gives Congress the power to determine the day that all states select their respective electors and the day those electors must cast their votes. Both days must be uniform for all states. Clause 5 details the qualifications to be President. U.S. Const. art. II, § 1. 3 As a result, nineteenth-century legal scholars did recognize the problems with the Twelfth Amendment; some twentiethcentury scholars have recognized the problems, but little scholarship has been produced to trace the problems and argue for the necessity of constitutional reform. See, e.g., Laurence H. Tribe, Erog .v Hsub and its Disguises: Freeing Bush v. Gore from its Hall of Mirrors, 115 Harv. L. Rev. 170, 279 (2001) (noting the ambiguities and suggesting the questions remain unanswered today); Edward B. Foley, Voting next time--and in 2020, Election Law @ Moritz (Nov. 10, 2008), http:// moritzlaw.osu.edu/electionlaw/comments/articles.php?ID=3897 (identifying the disaster imbedded in the ambiguities of the Twelfth Amendment and arguing for the need resolve the questions). 4 531 U.S. 98 (2000). 5 See, e.g., Richard A. Posner, Breaking the Deadlock ix (2001) (defending the Court's judgment as a pragmatic approach to averting political and constitutional crisis). 6 Between the election of 1800 and the election of 1876 there were eleven disputes over electoral votes, and members of Congress raised twenty-one objections to the validity of the votes of different states. Throughout this time, Congress fervently debated the extent to which it had the ability to exercise power but passed no legislation. J. Hampden Dougherty, The Electoral System of the United States 105 (1906). 7 The discussion is brief because Vasan Kesavan has already provided a thorough analysis of the possible constitutional defects of the Electoral Count Act. See Vasan Kesavan, Is the Electoral Count Act Unconstitutional?, 80 N.C. L. Rev. 1653 (2002). Kesavan provides some summary of the history of the electoral counts with the purpose of showing the defects with the Electoral Count Act, and with this in mind, it is Kesavan's argument that the Electoral Count Act is the systemic illness in the electoral system. To that end, he proposes some revisions to the Act he argues would fit better with his understanding of the Constitution. Id. at 1811-12. We argue, instead, that the Electoral Count Act is a symptom APPENDIX - 75 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 23 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 77 of 553 PageID #: 482 THE TWELFTH AMENDMENT: A CONSTITUTIONAL..., 64 U. Miami L. Rev. 475 of an illness. The true illness is the ambiguity of the Twelfth Amendment, which has manifested itself in the Electoral Count Act and the historical instances of electoral disputes, including the most recent dispute over Florida in 2000. Thus, the Twelfth Amendment requires attention and remedy, and our historical analysis bears this in mind. 8 During the ratification debates, Alexander Hamilton said that the mode of electing the President was perhaps the only part of the Constitution to escape criticism. The Federalist No. 68 (Alexander Hamilton). Despite this, choosing a method of selecting a president was one of the hardest problems for the Constitutional Convention. Bruce Ackerman, The Failure of the Founding Fathers: Jefferson, Marshall, and the Rise of Presidential Democracy 27 (2005). The Convention considered various plans, including election by popular vote and parliamentary style appointment, but settled on the current system, which they adopted from the Maryland Constitution. See generally Tadahisa Kuroda, The Origins of the Twelfth Amendment 7-25 (1994); C.C. Tansill, Congressional Control of the Electoral System, 34 Yale L.J. 511, 511-14 (1925). The Electoral College was primarily a compromise between the interests of the large states and those of the small states. The constitutional debates about our electoral system were quite animated and perhaps among the most thorough in the Convention. See Kuroda, supra, at 7-8. The Framers explicitly rejected election by popular vote or selection by the national legislature--this Article will leave aside the debate about whether to change the substance of the Electoral College system. In other words, we assume for purposes of this Article that the formula for allocating the number of electoral votes should remain the same and that state legislatures should remain entitled to choosing the method by which their electors are selected. The only topic we address, thus, is the procedural one concerning how to resolve disputes that might arise over a state's electoral votes under this system. For a broader discussion on scrapping or reforming the Electoral College, see generally Ann Althouse, Electoral College Reform: Déjà Vu, 95 Nw. U. L. Rev. 993 (2001) (reviewing three of the top books concerning the Electoral College). 9 U.S. Const. art. II, § 1, cl. 3. 10 Id.; accord U.S. Const. amend. XII. 11 Dougherty, supra note 6, at 2 (quoting an earlier commentator on this point). 12 Perhaps this should not be surprising. The Framers did not anticipate, and indeed hoped to prevent, the formation of political parties. For them, George Washington was the model president. They hoped that the mechanism of the Electoral College could secure, if not exact replicas of this most virtuous model, at least sufficient facsimiles so that the president would be above partisanship. Ackerman, supra note 8, at 27-31. Additionally, early in our history, the state legislatures directly appointed their electors to cast ballots. It is easy to understand how the Constitutional Convention might have assumed that these votes would be legal and without controversy. The Constitution provided only a few requirements for electoral votes: that the electors themselves are not in the service of the United States and that the electors cast their votes for an eligible candidate. Perhaps the Framers assumed that no state would appoint ineligible electors and no elector would vote for an ineligible presidential candidate such that the counting would truly be mere addition. Dougherty, supra note 6, at 3-4. 13 It is undeniable that each state will play a major role in determining its own electoral votes, although it is debatable just how extensive or exclusive the state's authority is in this regard relative to potential congressional actors. What is more difficult to conceive is how the states, rather than a single national actor, could exercise final authority over the accumulation of all electoral votes from the various states and thus the declaration of the presidential winner. Moreover, insofar as the national task of accumulating the electoral votes from the several states may occasionally involve a question of what alleged submission from a particular state constitutes the actual electoral votes from that state, it becomes more difficult to assert that this question must finally and conclusively be resolved by the state itself rather than any national actor. But acknowledging this point invokes the possibility of making inroads on the exclusivity of each state's ability to determine its own electoral votes. Thus, figuring out what belongs exclusively to each state, and what belongs properly to a national institution, in the counting of electoral votes is no easy matter--and indeed has perplexed many of the discussants of this topic over the decades. 14 Tansill, supra note 8, at 511; see also David A. McKnight, The Electoral System of the United States 17 (1878) (“From the time of the first Congress in 1789 to the year 1821, history shows that the unquestioned custom was for the President of the Senate to declare the votes officially, whilst Counting was, what the language of the law would seem to convey clearly enough, simply enumeration.” (internal quotation marks omitted)). This period is perhaps notable because many of the Framers of the Constitution were members of Congress. The theory held until those individuals left government. See McKnight, supra, at 18. APPENDIX - 76 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 24 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 78 of 553 PageID #: 483 THE TWELFTH AMENDMENT: A CONSTITUTIONAL..., 64 U. Miami L. Rev. 475 15 McKnight, supra note 14, at 17 (“From 1821 to 1861 it was generally held that a casus omissus existed in the Constitution, and that no one was empowered to count; whilst Counting was used in the broader and unwarranted sense of canvassing.” (internal quotation marks omitted)); see also Tansill, supra note 8, at 520-21 (noting that for the first time in 1821 Congress maintained some power to control and canvass the votes and this view was accepted in practice for the next forty years). 16 Whether this period extends to the present is a difficult question. As will be seen, Congress has not faced a serious dispute over electoral returns since 1887. 17 McKnight, supra note 14, at 19 (noting the third period has been marked by the belief that Congress has the right, as an affirmative act, to count votes and thus to determine the legality of votes); see also Tansill, supra note 8, at 522-25. 18 See William H. Rehnquist, Centennial Crisis: The Disputed Election of 1876, at 99 (2004). Chief Justice Rehnquist described the Constitution as “silent as to who would do the counting.” Id. 19 U.S. Const. art. II, § 1, cl. 3. 20 See Bruce Ackerman & David Fontana, Thomas Jefferson Counts Himself into the Presidency, 90 Va. L. Rev. 551, 556 (2004) (“[T]he Vice-President ... is a natural candidate in the next presidential contest. It is an obvious mistake to designate him as the presiding officer over the electoral vote count.”). 21 See U.S. Const. art. II, § 1, cl. 2 (“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in Congress ....”). The early methods were quite diverse. In the election of 1796, six states used popular election to choose electors, while ten states gave the job to the state legislature. Some allowed the electors' votes to be split in proportion to the popular vote. Ackerman, supra note 8, at 31. The Court has interpreted this section, in the context of a state changing the method of appointing electors from election by popular vote to direct legislative appointment and suggested that it represents a strong delegation of power to the States. McPherson v. Blacker, 146 U.S. 1, 24-37 (1892) (discussing the different historical modes of appointing electors and suggesting there is no doubt that the legislature may resume appointing the electors). Some have argued that a state legislature might even appoint electors after an election has been held. 22 This list is not an exhaustive list of problems with the Twelfth Amendment as a whole. We intend to focus on the ambiguous text and counting power, but other scholars have noted other problems. For instance, some have noted that it is unclear whether rejected votes (or votes not given) should change the way the majority of votes required to be elected is calculated. For a discussion of this issue and a history of congressional practice, see Jack Maskell et al., Cong. Research Serv., Electoral Vote Counts in Congress: Survey of Certain Professional Practices (2000), available at http:// wikileaks.org/wiki/CRS-RL30769. Professors Levinson and Young have devoted an article to the so-called Habitation Clause of the Twelfth Amendment, which forbids electors from casting two votes for inhabitants of the same state, and have noted that it could raise a whole host of issues. Sanford Levinson & Ernest A. Young, Who's Afraid of the Twelfth Amendment?, 29 Fla. St. L. Rev. 925 (2001). 23 Of course, there is some uncertainty in relying on the record of the counts in the first place. For instance, the record for the first two counts is only a few pages long and certainly does not include every detail about the proceedings; however, it is the best evidence available. 24 H. Subcomm. on Compilation of Precedents, Counting Electoral Votes: Proceedings and Debates of Congress Relating to Counting the Electoral Votes for President and Vice-President of the United States, H.R. Misc. Doc. No. 44-13, at 7 (2d Sess.1877) [hereinafter Counting Electoral Votes]. Counting Electoral Votes is a compilation of federal records relevant to the counting of electoral votes, starting with the debates at the constitutional convention, congressional debates about proposed and accepted statutory and constitutional changes, and records of the proceedings of each electoral count. A House select committee tasked with determining a method to resolve the Hayes-Tilden dispute commissioned the document in the winter of 1876-1877. 7 Charles Fairman, Five Justices and the Electoral Commission of 1877, at 10 (The Oliver Wendell Holmes Devise: The History of the Supreme Court of the United States, Paul A. Freund & Stanley N. Katz eds., Supp. 1988). 25 Counting Electoral Votes, supra note 24, at 7. APPENDIX - 77 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 25 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 79 of 553 PageID #: 484 THE TWELFTH AMENDMENT: A CONSTITUTIONAL..., 64 U. Miami L. Rev. 475 26 Id. 27 Of course, it is impossible to know with any certainty if this was not a mere change in word choice rather than a change in the proceedings. 28 Counting Electoral Votes, supra note 24, at 10. 29 Id. 30 Id. 31 See Dougherty, supra note 6, at 33. Some scholars have suggested that even this might have been a departure from the Constitution. See 2 Cyclopaedia of Political Science, Political Economy, and of the Political History of the United States 62, 63 (John J. Lalor ed., 1899) (quoting Professor Alexander Johnston's assertion that “the intention of the system of American constitutional government was that the President of the Senate should canvass the votes: in accordance with a general authenticating law, if Congress would or could pass such a law; otherwise according to his best judgment”); see also Tansill, supra note 8, at 516 (agreeing that many scholars held that Congress could pass a general law providing for the authentication of the certificates, but the sole function of counting the votes belonged to the President of the Senate). Some scholars hold that the innocent and proper appointment of the tellers was the first inroad by Congress upon the President of the Senate's counting powers. Id. (quoting Professor Johnston on this point). 32 See Counting Electoral Votes, supra note 24, at 12-13, 30. The record for the 1792 and 1800 elections describes the action in the Senate chamber as follows: “the certificates of the electors of sixteen States were, by the Vice-President, opened and delivered to the tellers appointed for that purpose, who, having examined, and ascertained the number of votes, presented a list thereof to the Vice-President.” Id. at 30; accord id. at 10. It is difficult to say what the record meant by “having examined,” but this account suggests an even more active role than the one envisioned by the committee and, if accurate, cuts against Professors Ackerman and Fontana's argument that Jefferson as Vice President ruled on a questionable certificate in his own favor. See infra note 33 and accompanying text. If nothing else, this might just show the danger in relying on the record since other sources suggest the Vice President opened and announced the results. 33 Ackerman & Fontana, supra note 20, at 552. 34 Id. at 601. 35 Id. at 571. The charges were (1) that Vermont did not have a valid law authorizing the selection of electors; (2) that the electors were made through a “resolve” instead of a legislative enactment; and (3) that the appointment of the electors was not within the timeline provided by federal statute. Id. at 572-73. The chargers were serious enough that the candidates (including Jefferson at home in Virginia) were aware of the reports. Professors Ackerman and Fontana thoroughly discussed the reports and found the charges did not have legal merit. Id. at 571-79. 36 6 Annals of Cong. 2097-98 (1797). 37 Ackerman & Fontana, supra note 20, at 580-81; see also Edward Stanwood, A History of the Presidency from 1788 to 1897, at 51-52 (Charles Knowles Bolton ed., rev. ed. 1928). 38 Article II requires that each state's electors “sign and certify” their votes for President. U.S. Const. art. II, § 1, cl. 3 (emphasis added). Georgia's submission simply listed the names of the state's electors, without their signatures and certifications. Ackerman & Fontana, supra note 20, at 588-98, 612-13; see also, Norman J. Ornstein, Three Disputed Elections: 1800, 1824, 1876, in After the People Vote: A Guide to the Electoral College 29, 30 (John C. Fortier ed., 3d ed. 2004). 39 Ackerman & Fontana, supra note 20, at 603. The Memoirs of Aaron Burr suggests that Jefferson was even more aggressive in his actions, though the source is at least questionable given the memoirs were written by a staunch Burr loyalist. Id. at 604-06. Interestingly, a senator described the event in a similar fashion, though seemingly as oral tradition until 1876. Id. at 609. Notably, much like post-Bush v. Gore arguments, Ackerman and Fontana argue that Jefferson's actions were prudent because they averted certain constitutional crisis: Jefferson did not merely place Georgia's votes into the Republican column; he did not publicly acknowledge the existence of any sort of problem. In contrast to John Adams ... he did not give his opponents a clear opportunity to raise the issue. APPENDIX - 78 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 26 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 80 of 553 PageID #: 485 THE TWELFTH AMENDMENT: A CONSTITUTIONAL..., 64 U. Miami L. Rev. 475 .... Jefferson's silence seems particularly sensible in the context of the confused legal situation ... with the painfully ambiguous words of the Constitution as a guide.... Jefferson's silence allowed everybody to resolve the matter without a heated legalistic battle. Id. at 614-16; see also Ackerman, supra note 8, at 71-74 (“All things considered, Jefferson's obfuscations provided the best way out of the dark situation left by the Founders.... If Jefferson had raised the issue squarely ... everybody would have confronted an infinite regress: Could the president of the Senate claim the right to decide whether the president of the Senate possessed the contested power? To which the Federalist majorities in the House and Senate would counter that their constitutionally required ‘presence’ at the vote count authorized them to override the president's rulings from the chair. And so forth.”). 40 Ackerman and Fontana argue that the Founders overlooked the problem of placing the Vice President in such a prominent role because they optimistically thought the republic would remain without faction. See id. at 557-67. 41 Ackerman & Fontana, supra note 20, at 583 (internal quotation marks omitted); see also Kuroda, supra note 8, at 78; Tansill, supra note 8, at 517. 42 See, e.g., Jean Edward Smith, John Marshall: Definer of a Nation 263-64 (1996) (noting the partisan Federalist motives behind the bill and Federalist John Marshall's opposition to it on constitutional grounds); Kesavan, supra note 7, at 1669 (noting that the Federalist's motives behind the Grand Committee bill were to ensure Jefferson's defeat); L. Kinvin Wroth, Election Contests and the Electoral Vote, 65 Dick. L. Rev. 321, 327 (1961) (discussing the partisan motivations of the Grand Committee Bill's backers). 43 Counting Electoral Votes, supra note 24, at 17. The initial bill gave each House the power to appoint two members as tellers. The President of the Senate would open the electoral certificates so the tellers could record all of the relevant information. Then the Grand Committee, meeting in secret, could take all of the documents and determine the validity of all of the votes by majority vote. The committee had investigatory authority to subpoena witnesses and take testimony. After meeting, the committee would turn over its results as the “final and conclusive determination of the admissibility, or inadmissibility, of the votes.” Kuroda, supra note 8, at 78-79 (internal quotation marks omitted). 44 See Kuroda, supra note 8, at 79-80. Nicholas conceded that six legitimate issues might arise: (1) whether an Elector has been appointed in a mode authorized by the Legislature of his state or not; (2) whether the time at which he was chosen, and the day on which he gave his vote were those determined by Congress; (3) whether he was not at the time, a Senator or Representative of the United States, or held an office of trust or profit under the United States; (4) whether at least one of the persons for whom he has voted is an inhabitant of a state other than his own; (5) whether the Electors voted by ballot, and signed, certified and transmitted to the President of the Senate, a list of all the persons voted for, and the number of votes for each; (6) whether the persons voted for are natural born citizens, or were citizens of the United States, at the time of the adoption of the Constitution, were thirty-five years old, and has been fourteen years resident within the United States. Id. 45 Kuroda, supra note 8, at 80. 46 The speech is worth quoting because it provides an early and complete example of one point of view that various members of Congress have consistently held throughout these debates. Knowing that it was the intention of the Constitution to make the President completely independent of the Federal Legislature, I well remember it was the object, as it is at present ... to give to Congress no interference in or control over the election of a President.... It never was intended, nor could it have been safe, in the Constitution, to have given to Congress thus assembled in convention the right to object to any vote, or even to question whether they were constitutionally or properly given. This right of determining on the manner in which the electors shall vote; the inquiry into the qualifications, and the guards that are necessary to prevent disqualified or improper men voting, and to insure the votes being legally given, rests and is exclusively vested in the State Legislatures.... To give to Congress, even when assembled in convention, a right to reject or admit the votes of States, would have been so gross and dangerous an absurdity that the framers of the Constitution never could have been guilty of. How could they expect ... that party spirit would not prevail and govern every decision? Did they not know how easy it was to raise objections ...? Or must they not have supposed that, in putting the ultimate and final decision of the electors in Congress ... they would render the President their creature ...? Counting Electoral Votes, supra note 24, at 19-20. APPENDIX - 79 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 27 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 81 of 553 PageID #: 486 THE TWELFTH AMENDMENT: A CONSTITUTIONAL..., 64 U. Miami L. Rev. 475 Pinckney went on to discuss the problems of constitutional defects or double returns. For the constitutional requirements of electors, Pinckney argued that the framers left it to the State Legislatures to “perform their duties” on this point. Id. at 20. On the issue of double returns, Pinckney argued that the Grand Committee approach would actually serve as “temptation [for the minority in the state] to dispute every election, and to always bring forward double returns.” Id. at 20-21. 47 Ackerman & Fontana, supra note 20, at 584. 48 Tansill, supra note 8, at 518. The primary issue was whether the consent of one or both houses was required to reject a state's votes. See Kuroda, supra note 8, at 81; Wroth, supra note 42, at 327 (“The House, less aggressively partisan than the Senate, refused to accept a measure which would permit rejection by vote of the Senate alone. The bill failed when neither House would yield.”). 49 For more literature on the fascinating election of 1800 (in addition to Ackerman and Fontana's work), see Susan Dunn, Jefferson's Second Revolution (2004); John Ferling, Adams vs. Jefferson: The Tumultuous Election of 1800 (2004); Edward J. Larson, A Magnificent Catastrophe (2007). 50 This sentiment held even when the election was thrown to the House of Representatives as the Republican delegation from Burr's home state of New York continued to support Jefferson over Burr. Kuroda, supra note 8, at 103. 51 Id. at 99. 52 See id. at 108 (noting that the Federalists threw so many votes away from their choice for Vice President that Thomas Jefferson finished second). 53 Id. at 99. 54 Id. at 100. 55 Id. at 100-01. The Constitution was silent as to what should happen if the House could not select a candidate. Id. at 103. The possibility that the Federalists might stall in order to appoint one of their own as President was real, and actors on both sides were fully aware of this possibility. See generally Ackerman, supra note 8, at 36-54. John Marshall, then Secretary of State, was floated a possible replacement, and Professor Ackerman suggests that he might have actually been one of the primary protagonists behind this movement. Id. at 41-54, 80-85. 56 Id. at 105. 57 Id. (noting that rather than vote for Jefferson, many of the Federalists ultimately abstained to allow Jefferson to gain the votes of their delegations--Jefferson received no Federalist votes). 58 Id. at 109 (noting that the constitutional amendment process was active on this issue both in Congress and at the state level). 59 Id. at 110-11 (noting Republican activity in Congress and at the state level to ensure these goals). 60 Dougherty, supra note 6, at 37. Early initiatives began at both the state level and federal level in the two years directly following the election. See Kuroda, supra note 8, at 117-26. 61 Kuroda, supra note 8, at 127, 133 (noting a 96 to 38 Republican advantage in the House and a 24 to 9 advantage in the Senate). 62 For a thorough discussion and analysis of the House debate, see id. at 127-31. Federalists naturally argued that the constitutional amendment for elections was inappropriate when it was impossible to separate partisan motives from the ultimate product. Id. at 130. 63 For a thorough discussion and analysis of the Senate debate see id. at 133-43. The Federalist minority made similar arguments to maintain the status quo and were particularly concerned that the reforms would disadvantage the smaller states. Id. APPENDIX - 80 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 28 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 82 of 553 PageID #: 487 THE TWELFTH AMENDMENT: A CONSTITUTIONAL..., 64 U. Miami L. Rev. 475 64 See id. at 151. 65 Dougherty, supra note 6, at 26; see also Tansill, supra note 8, at 518 (noting the passage of the amendment was “really a constitutional recognition of the existence of political parties”). For discussion about ratification, see Kuroda, supra note 8, at 155-61. 66 U.S. Const. amend. XII. 67 On this point, the Republicans also did not have a partisan motive to pursue this goal as they had strong majorities in many of the states at the time. Kuroda argues that Jefferson was concerned primarily with maintaining Republican control of the federal government and was willing to abandon democratic reforms to this end. See Kuroda, supra note 8, at 171-72. 68 The description of the duties for the tellers was essentially the same as in the previous two counts, but the Senate record suggests the President of the Senate only opened the certificates and allowed the tellers to read the results and count the votes. However, the House record reports that the Vice President “open[ed] all the certificates and count[ed] all the votes.” Counting Electoral Votes, supra note 24, at 36-37. 69 Kesavan, supra note 7, at 1679 (internal quotation marks omitted); see also Counting Electoral Votes, supra note 24, at 37-39. 70 Kesavan, supra note 7, at 1679-80. 71 Dougherty, supra note 6, at 40. 72 See Counting Electoral Votes, supra note 24, at 44, 46; see also Tansill, supra note 8, at 519. 73 The member addressed his objection to the Speaker of the House who retorted, “the two Houses had met for the purpose-the single specified purpose--of performing the constitutional duty which they were then discharging, and that while so acting, in joint meeting, they could consider no proposition, nor perform any business not prescribed by the Constitution.” Counting Electoral Votes, supra note 24, at 46. 74 Id. 75 Id. 76 Id. at 47. The House debate included a few points worth mentioning. First, the member who raised the objection noted that he did so because although the votes were of no consequence, “the time might arrive when it would be of the greatest importance in the election of President of the United States, and that it would be better to settle it now, when its decision would not affect the election.” Id. There was some concern about whether any resolution to the question should be done jointly with the Senate, or if the House could act independently. (One member was particularly concerned that a joint resolution would suggest that the House could not act independently in the future). Id. 77 Dougherty, supra note 6, at 42. The issue was wording in the Missouri Constitution that directed the state legislature to prevent freed slaves from coming into the state. A majority in Congress would not allow admission to the Union until this provision was changed. Tansill, supra note 8, at 520. 78 Dougherty, supra note 6, at 42-43. 79 Counting Electoral Votes, supra note 24, at 51. 80 This part of the resolution read: That if any objection be made to the votes of Missouri, and the counting or omitting to count which shall not essentially change the result of the election, in that case they shall be reported by the President of the Senate in the following manner: Were the votes of Missouri to be counted, the result would be, for A B for President of the United States, ---votes. If not counted for A B for President of the United States, ---- votes. But in either event A B is elected President of the United States. Id. APPENDIX - 81 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 29 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 83 of 553 PageID #: 488 THE TWELFTH AMENDMENT: A CONSTITUTIONAL..., 64 U. Miami L. Rev. 475 81 Id. at 52. Senator Barbour presented the resolution and noted that he considered the problem to be “a casus omissus in the Constitution,” subject to remedy only by an act of Congress or an amendment to the Constitution. Id. at 49. 82 Id. at 52. 83 Id. 84 By contrast, it appears that the Senate did not debate the subject as vociferously, perhaps because it focused on the propriety of dealing with the question separate from the House. See id. at 49. 85 Id. at 51. Those in opposition essentially echoed Senator Pinckney's pleas during debate over the Grand Committee bill. Representative Trimble was of the opinion that the resolution did not give “due to State rights” and was concerned that it might be cited as precedent. Id. at 52. Representative Floyd “protested against this assumption of authority on the part of Congress.” Id. The vote tally in the House was close, ninety yeas and sixty-seven nays, with members on both sides unsure about whether Congress could actually reject the votes. See id.; see also Tansill, supra note 8, at 520. 86 This time, Representative Randolph renewed his arguments with dramatic flair, suggesting that there was no such power in the Constitution to supply the defect to the casus omissus, that this would effectively boot Missouri from membership in the Union, and that it might set such a precedent that a President, “not only not worthy of being at the head of the nation, but not worthy of being at the head of a petty corporation” might manipulate the vote for his own gain. Counting Electoral Votes, supra note 24, at 54-55. 87 Id. at 56. This was not without controversy. Again members protested, demanding to know the actual vote tally. Representative Randolph offered a resolution that the election was illegal, but it was ignored. Id. 88 Tansill, supra note 8, at 520. 89 Id. at 521. 90 Story, supra note 1. 91 1 James Kent, Commentaries on American Law 277 (O.W. Holmes, Jr. ed., Fred B. Rothman & Co. 1989) (1826). Of course, Kent's view of the Vice President's power is not unanimous, and, as we will see, the power has certainly shifted with the passage of time. One scholar suggested that early precedent actually suggests quite the opposite conclusion. See 2 George Bancroft, History of the Formation of the Constitution of the United States of America 185 n.1 (New York, D. Appleton & Co. 1882) (“The vice-president was never charged with the power to count the votes. The person who counted the first votes for president and vice-president was no vice-president, but a senator elected by the senate as its officer ....”). 92 Dougherty, supra note 6, at 48. 93 See Counting Electoral Votes, supra note 24, at 72-74. 94 Id. at 70. It was alleged that some of the electors were postmasters and one a pension agent. Id. at 71. 95 Id. Reporting to the Senate on the joint committee's work, Senator Grundy noted that the problems that might arise in a less obvious case: Should a case occur in which it became necessary to ascertain and determine upon the qualifications of electors of President ... the important question would be presented, what tribunal would, under the Constitution, be competent to decide? Whether the respective colleges of electors in the different States should decide upon the qualifications of their own members, or Congress should exercise the power, is a question which the committee are of [the] opinion ought to be settled by a permanent provision upon the subject. Id. 96 Id. at 73-74. APPENDIX - 82 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 30 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 84 of 553 PageID #: 489 THE TWELFTH AMENDMENT: A CONSTITUTIONAL..., 64 U. Miami L. Rev. 475 97 The record really does not show much dissension, but one senator did presciently ask what might happen if the outcome of the election hinged on these votes. Senator Grundy of the joint committee stated that he could not answer such a hypothetical. Id. 98 See U.S. Const. art. II, § 1, cl. 4. 99 Counting Electoral Votes, supra note 24, 87-88. 100 See id. at 89. 101 See id. at 89-91 (recording objections, including an accusation that the Presiding Officer had acted beyond his authority, as well as the Presiding Officer's responses). The presiding officer maintained that the only role in joint session was to count the votes and that any other function must be performed as separate houses. Id. 102 Id. at 93-144. 103 Id. 104 See Stephen A Siegel, The Conscientious Congressman's Guide to the Electoral Count Act of 1887, 56 Fla. L. Rev. 541, 557 (2004). 105 Id. In larger part, as with the earlier Grand Committee bill, the partisan intent of this rule was to ensure that one party (then the Federalists, now the Republicans) could control the vote counting process and to penalize southern states as needed. The full rule stated that if any question were raised, the Senate shall thereupon withdraw, and said question shall be submitted to that body for its decision; and the Speaker of the House of Representatives shall in like manner submit said question to the House of Representatives for its decision; and no question shall be decided affirmatively, and no vote objected to shall be counted, except by the concurring votes of the two Houses. Dougherty, supra note 6, at 78 (internal quotation marks and emphasis omitted). 106 See Tansill, supra note 8, at 522 (calling the rule the “climax of Congressional control”). Adoption of the rule was, of course, not without controversy. Senators questioned the competence of Congress “to legislate at all in reference to the counting of the votes,” and “whether Congress is clothed with any power over the subject of counting of [the] electoral votes.” Counting Electoral Votes, supra note 24, at 150 (statements of Senators Harris and Doolittle). Senator Doolittle described the question as “one of the most grave” that could possibly arise under the Constitution but recommended that Congress avoid the question, as it had in the past, because the result of the election did not hinge on the answer. Id. at 151-52. 107 If there was an objection to a vote, the vote could only be counted if both houses separately agreed to count the vote. See supra note 105 and accompanying text. 108 Tansill, supra note 8, at 523. 109 McKnight, supra note 14, at 310. 110 Dougherty, supra note 6, at 80; Tansill, supra note 8, at 523. 111 Several southern states were not permitted to participate in the election because their governments were not “adequately organized.” There was a question about Georgia's eligibility, and a resolution provided for an “alternative count” of its votes as had been done before the Civil War. However, during the vote, objections were heard; and under the Twentysecond Joint Rule, the houses separated to resolve the issue. The House voted to reject Georgia's votes; but as a joint body, the President of the Senate ruled, much to the consternation of many members of the House, that the alternative count resolution should be followed. Dougherty, supra note 6, at 81-84. 112 Id. at 86. 113 Counting Electoral Votes, supra note 24, at 407. 114 Dougherty, supra note 6, at 86-87. APPENDIX - 83 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 31 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 85 of 553 PageID #: 490 THE TWELFTH AMENDMENT: A CONSTITUTIONAL..., 64 U. Miami L. Rev. 475 115 Id. at 88 (internal quotation marks omitted). 116 The objections were that Mississippi failed to state that the electors voted by ballot and that the authenticity of the seal from Texas was uncertain. Id. at 87. 117 Kesavan, supra note 7, at 1687. 118 Dougherty, supra note 6, at 87-88. 119 See id. at 92 (“It was known that the succeeding House of Representatives would be under Democratic control.”). 120 Fairman, supra note 24, at 9 (noting “the effort of Senators in February 1875, renewed in March 1876, to frame a proper measure to regulate the counting of electoral votes, including cases where conflicting returns were sent up from a State”). 121 See id. at 9-39. 122 See id. at 9 (“It was an exercise in innocence and truth, in patriotism and faith.”). 123 One might argue, however, that Republicans were trying to act quickly before they would lose power over the issue. 124 Fairman, supra note 24, at 10. It was recognized that simply repealing the rule was not enough, because this would not address a situation of multiple, competing returns where each house recognized a different return as valid. On this, both Republicans and Democrats agreed that further explanation was necessary. Id. at 12. 125 Id. at 10-11 (summarizing the arguments of Senator Bayard, a leading Democrat, who thought all power in this regard belonged to the states and the role of Congress was simply to add up the votes). However, when faced with a question about competing returns, the Senator was largely evasive and unsure. Id. at 11. Notably, Senator Morton, who proposed the initial amendment changing the Twenty-second Joint Rule, also had severe doubts about Congress's power to adopt any regulating rule in the first place, but felt that changing the old rule was more important. Id. at 13 (summarizing Senator Morton's arguments). 126 For instance, see the arguments of Senators Edmunds (a Republican) and Thurman (a Democrat). Id. at 13-14; see also id. at 26 (quoting Senator Frelinghuysen, “it seems to me that, where the Constitution commits a subject to Congress and yet leaves it so undefined, so general, we have a power according to our discretion by law to carry out the authority committed to us....” (alteration in original) (internal quotation marks omitted)). 127 Id. at 16. 128 Id. Senator Hamilton, a Democrat, also believed that Congress could not regulate on this point, but believed the problem should be fixed by a constitutional amendment. Id. at 19. 129 Id. at 17-18. In response to the idea that a presidential election could be the subject of litigation, some senators suggested that it would violate the separation of powers. Id. at 18. Senator Edmunds's amendment, which would have created a committee whose conclusions would be accepted unless rejected by both houses, also failed. Id. at 19. 130 Id. at 19 (quoting Democratic Senator Merrimon, who argued that every aspect of the electoral count required Congress to act as a joint body). But see id. at 31 (noting that Senator Merrimon later changed his mind on the subject of Congress acting as a joint body). Senator Merrimon also questioned the power of Congress to go behind the state's certificates and maintained that the states must provide for their own manner of determining the outcome of disputes. According to Senator Merrimon, Congress's only power was to reject a forged certificate or to perhaps reject a state's votes if it had not in fact held an election. Id. at 20. 131 Id. at 22. 132 Id. 133 See id. at 23. One proposal suggested that in this event, the state delegations, including senators, should vote on the issue with each state having a single vote; if the delegation could not come to an agreement, that state would not have a vote. Id. This suggestion was proposed as an amendment. Id. at 25-27. Senators supported it because of the apparent APPENDIX - 84 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 32 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 86 of 553 PageID #: 491 THE TWELFTH AMENDMENT: A CONSTITUTIONAL..., 64 U. Miami L. Rev. 475 similarity to the Twelfth Amendment's procedure for an election thrown to the House and because it seemed to create a solution that did not appear to favor either political party. Id. at 25. However, the amendment was rejected by a fairly wide margin. Id. at 30-31. Another amendment gave the decision to the presiding officer of the Senate, the Speaker of the House, and the Chief Justice of the Supreme Court. Id. at 26-27. Another senator suggested the “spirit of the Constitution” would allow the President of the Senate to decide. Id. at 23. This was, of course, opposed because of the likelihood that he might be a candidate himself. Id. at 31-32. 134 See, e.g., id. at 28-29. For instance, one senator suggested that this was akin to Congress providing for a federal investigation of a state's gubernatorial election. Id. at 28. Some also maintained that the power was entirely vested in the President of the Senate. Id. Some of the senators who believed an amendment was necessary were willing to vote for this bill in the meantime. Id. at 28-30. 135 Id. at 35. 136 Id. at 35-36. 137 Id. at 36-37. 138 Siegel, supra note 104, at 558 n.92. 139 Dougherty, supra note 6, at 100 (quoting Senator Bayard) (internal quotation marks omitted). 140 Id. at 100-01. 141 Id. at 102 (“It was said that the inspiration of the bill was partisan and its object to forestall a free and impartial consideration of this grave matter by the next Congress, in which the House of Representatives would be under Democratic control.”). 142 Id. at 95 (“The twenty-second joint rule had few, if any, defenders.”). 143 The administration of the sitting President, Ulysses S. Grant, was perhaps one of the most scandalous in our history. See Rehnquist, supra note 18, at 15-32. The economy was in poor shape, and bitterness over Reconstruction created “a solid bloc of votes for the Democrats.” Id. at 32. There were riots in Louisiana and rumors that thousands of persons were going to descend upon Washington D.C. for the counting of the votes. Dougherty, supra note 6, at 107. For the authoritative book on the resolution of the dispute, see generally Fairman, supra note 24. For an account more favorable to Tilden, see generally Roy Morris, Jr., Fraud of the Century: Rutherford B. Hayes, Samuel Tilden and the Stolen Election of 1876 (2003). 144 Fairman, supra note 24, at 40-46; Rehnquist, supra note 18, at 99. 145 Fairman, supra note 24, at 58-59. 146 Id. at 59; Dougherty, supra note 6, at 143. 147 Fairman, supra note 24, at 60. 148 See id. One account of these events, written in the early twentieth century, assessed the state canvassing board's manipulations: On the whole, it is not improbable that an unpartisan board ... would in the end have found a small majority for Tilden. The least partisan man who witnessed the count, namely General Barlow, took that view of the case. He had gone to Florida at the request of Grant, he was a Republican, but he came to the conclusion that on the evidence the board should give Tilden a majority of from 30 to 55. He even urged one of the Republican members of the board to adopt such a course, but without effect. Paul Leland Haworth, The Hayes-Tilden Disputed Presidential Election of 1876, at 75 (AMS Press 1979) (1906). 149 They did so on December 6, the date specified by Congress for the meeting of the Electoral College, and thus the same day that the pro-Hayes electors certified by the state canvassing board also met. Haworth, supra note 148, at 76-77. 150 Fairman, supra note 24, at 64. APPENDIX - 85 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 33 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 87 of 553 PageID #: 492 THE TWELFTH AMENDMENT: A CONSTITUTIONAL..., 64 U. Miami L. Rev. 475 151 Haworth, supra note 148, at 76-77. 152 Id. at 79. 153 Id.. Similar allegations followed Florida's gubernatorial race, and the Florida Supreme Court issued a mandamus directing the canvassing board to restore certain votes. This order changed the outcome of the election and replaced the Republican governor with a Democratic governor. Id. at 77. 154 Fairman, supra note 24, at 64. 155 Dougherty, supra note 6, at 162. 156 Id. at 163-65 (noting that the objection to this slate was the canvassing board's abuse of its power by unwarranted rejection of votes). 157 “It is needless to say that the result announced by the returning board had been attained by a series of grossly partisan and illegal acts.” Haworth, supra note 148, at 116. Haworth goes on to consider, however, whether this malfeasance nonetheless achieved rough justice: “Did the returning board ... merely take back stolen property? ... [Was this] one of those rare situations in which two wrongs go to make a right?” Id. at 117. 158 Dougherty, supra note 6, at 165. 159 Id. The third certificate was primarily produced out of concern that the first certificate contained a technical defect in regard to the endorsement on the envelope. Haworth, supra note 148, at 114-15. 160 Id. at 202-03. Democrats objected that South Carolina did not properly form procedures to select electors, was not a republican form of government, and that the Federal army and marshals interfered with voting. Id. 161 Fairman, supra note 24, at 43. 162 Id. at 117. 163 Id. The Chairman of the Democratic National Committee telegrammed this request to the governor, and the telegram illustrates the Chairman's hopes that the move would force Congress to “go behind” all certificates. See id. at 43. 164 Id. at 117. 165 Rehnquist, supra note 18, at 100. 166 Id. 167 See id.; Dougherty, supra note 6, at 107-08. 168 Fairman, supra note 24, at 47-48. 169 Rehnquist, supra note 18, at 113-14. 170 Fairman, supra note 24, at 47-48. 171 Id. at 48. 172 Id. at 48-49; Rehnquist, supra note 18, at 115-19. The work of the committee was fairly bipartisan, with only one member dissenting from the final report that was submitted to both houses. Dougherty, supra note 6, at 110. The dissenting member, Senator Morton, was one of the key actors in the debates about replacing the Twenty-second Joint Rule. Morton continued to doubt the power of Congress to submit any questions to another tribunal. Fairman, supra note 24, at 49. The most critical question with which the committee dealt was the ability of the Electoral Commission to “‘descend below the decision of a State authority.”’ Dougherty, supra note 6, at 113. Ultimately, the compromise did not clearly express whether or how far behind the results the commission would be permitted to go. The additional question raised by the committee was whether the commission was constitutional, and the dissenting member maintained the bill was unconstitutional. Id. at 114-15. Of the four Justices appointed to the commission, two were known to be Republicans APPENDIX - 86 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 34 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 88 of 553 PageID #: 493 THE TWELFTH AMENDMENT: A CONSTITUTIONAL..., 64 U. Miami L. Rev. 475 and two were known to be Democrats. See Rehnquist, supra note 18, at 118-19. The fifth Justice was figured to be David Davis, thought to be the most independent member of the Court at the time. Fairman, supra note 24, at 54. However, to his surprise, he was elected by the state legislature to the U.S. Senate seat for Illinois, and the Justices were left to choose a Justice known to be a stronger Republican. Dougherty, supra note 6, at 135; Fairman, supra note 24, at 54. 173 Fairman, supra note 24, at 49. 174 Rehnquist, supra note 18, at 116. 175 Despite the uncertainty of either position, each of the two candidates was confident that his constitutional position was the correct one. See id. at 115-16. Still, it was not difficult to understand why both sides saw the necessity to compromise. As Senator Edmunds described the situation in a law review article, it was easy at this point in American history to see a situation whereby both Hayes and Tilden took the oath of office; both might try to command the military and executive branch offices; the legislative branch would be paralyzed; and the nation might descend once again into civil war. George F. Edmunds, Presidential Elections, 12 Am. L. Rev. 1, 3-4 (1877) ( “Without some settlement ... it was morally certain that the Senate would declare Mr. Hayes to be the lawful President, and the House of Representatives would declare that the lawful President was Mr. Tilden. In that case, each of those gentlemen would have taken the oaths of office, and attempted to exercise its duties; each would have called upon the army and the people to sustain him against the usurpations of the other ....”). Senator Merrimon, who believed Congress had no power to delegate to another tribunal, felt there was no other possibility but to accept this tribunal. Fairman, supra note 24, at 50 (quoting Senator Merrimon, “I feel constrained to yield doubts in favor of this bill. It may have the effect of preserving the life of the Republic.”). Finally, if any deadlock extended past inauguration day, it was unclear what the next steps might have been. This issue was not addressed until the Twentieth Amendment. See U.S. Const. amend. XX, § 3. 176 Rehnquist, supra note 18, at 114. 177 See Dougherty, supra note 6, at 111-35. Most of the differences during the debate were the same as those that had been raised in the past. Some congressmen were certain the outcome would simply hinge on the opinions of the “non-partisan fifth justice.” One senator took it upon himself to argue for eight hours that the counting power did not reside in the President of the Senate. Id. at 117-18. The senator relied on the text, historical practice, various unsuccessful bills, and common sense, and apparently the argument was well received. Id. at 117-23. One senator, who supported giving the Supreme Court power to determine the matter, urged his colleagues to submit a constitutional amendment to the states to remove any future embarrassment. Id. at 125. In the House, future President James Garfield, relying especially on the use of passive voice in the relevant constitutional text, made a plea for Congress to resume what he thought was its proper role--that of a mere witness to the opening and counting of the votes. Id. at 129. To do otherwise, he argued, would obliterate the constitutional safeguards and forever make Congress “a grand returning board.” Id. at 129-30 (internal quotation marks omitted); see also Fairman, supra note 24, at 49-55 (summarizing some of the arguments of proponents and opponents of the Commission). 178 Fairman, supra note 24, at 50. 179 Id. at 53. 180 Rehnquist, supra note 18, at 163. 181 Dougherty, supra note 6, at 110. 182 Id. at 111. For instance, three certificates were opened from Florida, and all three had objections so they were referred to the Commission. Rehnquist, supra note 18, at 164-65. 183 Rehnquist, supra note 18, at 163-64; see also Dougherty, supra note 6, at 110-11. 184 Fairman, supra note 24, at 57-58. 185 Id. at 58. 186 Id. For a summary of the arguments by the objectors and counsel, see id. at 58-78. APPENDIX - 87 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 35 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 89 of 553 PageID #: 494 THE TWELFTH AMENDMENT: A CONSTITUTIONAL..., 64 U. Miami L. Rev. 475 187 For an account of the Republican argument that emphasizes the temporal distinction between the two gubernatorially signed certificates, see Haworth, supra note 148, at 228-29. 188 For a summary of the arguments of these commission members, see Fairman, supra note 24, at 78-87. 189 Id. at 95 (noting James Garfield's diary, which mentioned that all knew Bradley held the casting vote). For summaries of the opinions of the Justices, see id. at 87-112. 190 Proceedings of the Electoral Commission and of the Two Houses of Congress in Joint Meeting Relative to the Count of Electoral Votes Cast December 6, 1876 for the Presidential Term Commencing March 4, 1877, at 1020 (1877) [hereinafter Proceedings] (statement of Justice Bradley). 191 Id. (quoting Justice Bradley). 192 Id. at 1020 (quoting Justice Bradley). Going further, Justice Bradley noted that the prohibition against federal office holders acting as electors makes clear that the Constitution intended to remove any congressional or federal influence from the process. Id. at 1021. 193 Id. at 1021. 194 Id. (quoting Justice Bradley). 195 Id. (quoting Justice Bradley). 196 Id. (“To revise the canvass of that election [of electors], as made by the State authorities, on the suggestion of fraud, or for any other cause, would be tantamount to a recanvass.” (quoting Justice Bradley)). On this point, Justice Bradley drew an interesting analogy to another provision of the Constitution--Article I, Section 5, Clause 1, which states that “[e]ach House shall be the Judge of the Elections, Returns and Qualifications of its own Members ....” Justice Bradley noted that the contrast between this provision and the constitutional provisions on presidential elections weighed against giving Congress the same power over the presidential elections as it holds over its own elections. See id. at 1021-22. 197 Id. at 1023 (emphasis omitted) (quoting Justice Bradley). 198 Fairman, supra note 24, at 110. The remaining issue was a possible constitutionally ineligible elector, and Justice Bradley went against the Republicans and voted to hear some testimony on this question. Justice Bradley, again the deciding vote, concluded that the elector resigned his office before the election. Id. at 113. He also concluded that the constitutional provision “does not have the effect of annulling the vote given by one who, though disqualified, is regularly elected, and acts as an elector.” Proceedings, supra note 190, at 1025. In his own notes, Justice Bradley explored this issue further. He noted that the constitutional ineligibility of an elector could create four views: 1. That his election, or appointment, is void[.] 2. That his election is only voidable, but if he act[s] as elector without a removal of the disqualification his vote will be void. 3. That his election is voidable, but if he act[s] his vote will be good--as the official act of an elector de facto. 4. That his election is neither void, nor voidable until some provision has been made by law for ascertaining and providing the ineligibility. Fairman, supra note 24, at 121 (quoting Justice Bradley). Justice Bradley decided that he was ultimately of the fourth view and that “until a law is passed providing a mode of ascertaining the fact of ineligibility, the issue cannot be raised when the two Houses are met .... They have no machinery for entering upon such a trial. Before their meeting they have no jurisdiction on the subject.” Id. at 122 (quoting Justice Bradley). Thus, according to Justice Bradley, the houses possessed the constitutional authority to reject ineligible electors but required a statute to provide the method for making the determination. 199 Fairman, supra note 24, at 114. 200 Id. at 115. 201 Id. at 116. APPENDIX - 88 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 36 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 90 of 553 PageID #: 495 THE TWELFTH AMENDMENT: A CONSTITUTIONAL..., 64 U. Miami L. Rev. 475 202 Id. at 116-17. The Commission's decision was accepted by the Senate and rejected by the House. Id. at 117. 203 Id. at 119. 204 See, e.g., id. at 114, 116. 205 Id. at 117. 206 Id. 207 Id. 208 Id. 209 Id. 210 Id. 211 Dougherty, supra note 6, at 187. 212 Id. Because the two original Hayes electors refused to recognize the governor's replacement elector, the replacement elector appointed two additional replacements. The governor's replacement elector cast his vote for Tilden, while the additional replacements cast their votes for Hayes and this return ultimately went to Congress. Id. at 187-88. 213 See id. at 185. 214 Id. at 186 (quoting Mr. Evarts arguing on behalf of Hayes) (internal quotation marks omitted). 215 Id. at 197. 216 See Bush v. Gore, 531 U.S. 98, 112-13 (2000) (Rehnquist, C. J., concurring). 217 Proceedings, supra note 190, at 1023 (quoting Justice Bradley). 218 Id. at 1024. 219 Id. (quoting Justice Bradley). 220 See id. (reviewing the powers of the board as defined by state statute). 221 Id. (emphasis added). 222 See, e.g., The Federalist No. 68 (Alexander Hamilton) (“It was equally desirable, that the immediate election should be made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice. A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations.”); see generally Vasan Kesavan, The Very Faithless Elector?, 104 W. Va. L. Rev. 123 (2001). Indeed, the first “faithless elector” was a Federalist elector who voted for Democrat-Republican Thomas Jefferson in 1796. See id. at 124 n.5. 223 But if Bradley was right on this point, then Nixon acted unconstitutionally in permitting Hawaii's third slate of electoral votes to be counted in the election of 1960. See infra Part II.F. 224 Proceedings, supra note 190, at 1024 (quoting Justice Bradley). 225 Id. at 1025 (quoting Justice Bradley). 226 The threat of civil unrest was real. President Grant deployed federal troops to various areas to maintain peace during the counting of the votes. Ornstein, supra note 38, at 35. APPENDIX - 89 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 37 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 91 of 553 PageID #: 496 THE TWELFTH AMENDMENT: A CONSTITUTIONAL..., 64 U. Miami L. Rev. 475 227 Additionally, both political parties might have thought the Electoral Commission would actually award their candidate a victory. Dougherty, supra note 6, at 134. 228 As one commentator noted, the law actually captured Congress's continued uncertainty about its power. In a doubly uncertain move, Congress gave the Electoral Commission “the same powers, if any, now possessed for that purpose by the two Houses acting separately or together.” Id. at 133 (internal quotation marks omitted). Here, Congress avoided conclusions about the amount (if any!) of power that Congress possessed and whether that power, if it existed, was in the two houses acting together or separately. As the commentator noted, the “outcome of practically one hundred years of discussion of a brief clause of the Constitution was a law confessedly temporary in its operation, in which the doubts of a century are crystallized into statutory form.” Id. This demonstrates that at its heart, the bill was a compromise and again a waiver of an opportunity to assert the nature of congressional power over the electoral count. It might be argued that whereas before, Congress had waived the question when the outcome was not in doubt, here it waived the question and allowed an extraconstitutional body to determine the outcome of the election, going so far, as Dougherty notes, as to bind itself to the decision of that body. Id. at 134; see also E.W. Stoughton, The “Electoral Conspiracy” Bubble Exploded, 125 N. Am. Rev. 198 (1877) (noting that the Electoral Commission was a result of the unity of the leaders of the Democrats and the willingness of the Republicans to surrender political advantage in the interest of peace to stave off a situation where the President of the Senate declared Hayes President while the House of Representatives elected Tilden). 229 230 3 U.S.C. §§ 5- 6, 15-18 (2006). The final law was the product of nearly ten years of The statute is codified at congressional effort: Senator Edmunds introduced the first bill in 1878, and the Senate passed a similar bill three times without the House acting. Dougherty, supra note 6, at 215. The legislative history of the bill was recently and thoroughly documented elsewhere. See generally Erick Schickler et al., Safe at Any Speed: Legislative Intent, the Electoral Count Act of 1887, and Bush v. Gore, 16 J.L. & Pol. 717 (2000); Siegel, supra note 104. Siegel, supra note 104, at 578-79. The Act originally gave states until “the second Monday in January” to hold the meeting of presidential electors, id. at 583, whereas today, the statute specifies “the first Monday after the second Wednesday in December,” 3 U.S.C. § 7, as the date for this Electoral College meeting. 231 The strongest example of this is the so-called “safe-harbor” aspect of the statute. If a state has a law, enacted prior to the day fixed for appointing electors, that governs the “determination of any controversy or contest,” and that determination is made six days before the day fixed for the meeting of the electors--Congress must accept that slate of electors. After the People Vote, supra note 38, at 5 (internal quotation marks omitted). 232 Section four of the Act, codified at 3 U.S.C. § 15, outlines the procedure: [T]he President of the Senate shall call for objections, if any. Every objection shall be made in writing, and shall state clearly and concisely, and without argument, the ground thereof, and shall be signed by at least one Senator and one Member of the House of Representatives before the same shall be received. When all objections so made to any vote or paper from a State shall have been received and read, the Senate shall thereupon withdraw, and such objections shall be submitted to the Senate for its decision; and the Speaker of the House of Representatives shall, in like manner, submit such objections to the House of Representatives for its decision; and 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. 3 U.S.C. § 15 (2006). 233 See, e.g., 17 Cong. Rec. 816 (1886) (statement of Sen. Sherman) (“That is a dangerous power. [It] allows the two Houses of Congress, which are not armed with any constitutional power whatever over the electoral system, to reject the vote of every elector of every State, with or without cause, provided they are in harmony in that matter.”); see also Dougherty, supra note 6, at 235. 234 Siegel, supra note 104, at 544. 235 For a modern argument of possible constitutional defects concerning the ECA, see generally Kesavan, supra note 7. But see id. at 1660 (“The prevailing wisdom, in the Supreme Court and elsewhere, is that the Electoral Count Act is constitutional.”). Ackerman and others, however, have rejected some of Kesavan's arguments. See, e.g., Ackerman & APPENDIX - 90 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 38 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 92 of 553 PageID #: 497 THE TWELFTH AMENDMENT: A CONSTITUTIONAL..., 64 U. Miami L. Rev. 475 Fontana, supra note 20, at 636 n.239 (rejecting Kesavan's arguments); Wroth, supra note 42, at 344-53 (noting that Congress has jurisdiction for the resolution of these questions but suggesting that Congress grant the federal courts the power to reach binding decisions in all controversies). For a discussion of congressional debate on this subject leading up to the passage of the ECA, see Siegel, supra note 104, at 560-68. The weight of scholarly opinion seems to be that Congress presumptively will be inclined to follow the Electoral Count Act if a future dispute arises: to the extent that the Act provides adequate guidance and, most critically, to the extent that it is in the strategic political interest of each political party to do so. Regardless of the merits of the constitutional question, if there is sufficient political pressure on one party to abandon the procedures of the Electoral Count Act, in favor of a position based directly of their preferred interpretation of the Twelfth Amendment, the party and its members in Congress may choose that route. See Siegel, supra note 104, at 544 n.13 (“Viewed empirically, the ECA seems to be a complete success. During the hundred years before enacting the ECA, Congress frequently faced problems with electoral vote counting which, at times, dissolved into bitter wrangling and expedient solutions. These controversies occurred not only when the vote was close, as in 1877, but, more often, when the outcome did not matter in the slightest. Since the ECA's adoption, Congress's electoral vote counts have been smooth and free from conflict. Objections to counting particular votes have been dealt with in an orderly fashion and there have been no controversies over the counts.” (citation omitted)). 236 Siegel, supra note 104, at 560. 237 Id. at 560-61. When Congress passed a joint resolution in 1865 stripping southern states of their right to cast electors in the presidential election, President Lincoln signed the resolution but included a message disclaiming “all right of the executive to interfere in any way in the matter of canvassing or counting electoral votes.” After the People Vote, supra note 38, at 15 (internal quotation marks omitted). 238 Siegel, supra note 104, at 561; see, e.g., 8 Cong. Rec. 165 (1878) (statement of Sen. Garland) (“[A]n act passed by a previous Congress assuming to bind ... a succeeding Congress need not be repealed because it is void; and for that reason I oppose this bill.”); 13 Cong. Rec. 2652 (1882) (statement of Sen. Blair) (arguing that a future Congress would not be bound by the law); see also 1 Laurence H. Tribe, American Constitutional Law § 2-3 n.1 (3d ed. 2000); Tribe, supra note 3, at 277 (stating that the ECA is “shadowed by constitutional doubt over the power of one Congress to bind its successors in such matters”). 239 Siegel, supra note 104, at 563-66; see, e.g., 13 Cong. Rec. 2651 (1882) (statement of Sen. Morgan) (stating that the Senator will vote for the bill because he thinks once it is passed the men found in Congress will be more reluctant to part with a rule that previously received the sanction of the two houses and President). 240 Ackerman and Fontana raise this possibility, saying that another Electoral Commission of the kind that was created in 1877 would be necessary. Ackerman & Fontana, supra note 20, at 640-42. 241 See 107 Cong. Rec. 289 (1961). 242 Wroth, supra note 42, at 341. 243 Lum v. Bush, Civ. No. 7029 (Haw. Cir. Ct. Dec. 30, 1960), noted in 107 Cong. Rec. 290 (1961). 244 See 107 Cong. Rec. 289 (1961). 245 See id. 246 Lum v. Bush, Civ. No. 7029 (Haw. Cir. Ct. Dec. 30, 1960), noted in 107 Cong. Rec. 290 (1961); Wroth, supra note 42, at 341 (noting the state's Attorney General opposed the recount on the grounds that there was not enough time to resolve the dispute before federal law required the electors to vote). 247 107 Cong. Rec. 289-90 (1961). 248 Id. at 290 (emphasis added). 249 In this respect, Hawaii's votes differed from the combined effect of the electoral votes from Illinois and Texas, where Republicans were concerned that improper conduct by Democrats had given those states to Kennedy. In the first few days after Election Day, Nixon considered challenging the results in those two states but ultimately decided against APPENDIX - 91 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 39 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 93 of 553 PageID #: 498 THE TWELFTH AMENDMENT: A CONSTITUTIONAL..., 64 U. Miami L. Rev. 475 it. (It would have been necessary for Nixon to overturn the results in both states in order to prevail, and the judgment of some advisers was that challenging the result in Texas was out of reach.) Thus, no dispute over the electoral votes from Illinois and Texas reached Congress or Nixon as President of the Senate. While Professor Ackerman argues the result in Hawaii should stand as precedent for accepting late returns, see Bruce Ackerman, Anatomy of a Constitutional Coup, London Rev. of Books, Feb. 8, 2001, at 3, 6, Judge Posner maintains that Nixon's actions should not stand as precedent because Hawaii's votes did not change the outcome, and Nixon specifically said his action should not stand as precedent. Posner, supra note 5, at 135-36; 250 See Posner, supra note 5, at 135-36. 251 See 3 U.S.C. § 15 (2006). 252 A “faithless” elector votes for someone other than his party's presidential and vice-presidential candidates. After the People Vote, supra note 38, at 7. 253 Ten electors have violated their pledge and voted for a different candidate throughout history, but there has never been a concerted group of electors trying to swing the election. Id. 254 See id. at 14. 255 See id. 256 Kesavan, supra note 7, at 1693 (internal quotation marks omitted). 257 For instance, one representative argued that congressmen “are not election supervisors nor given discretion to recompute the vote received from a sovereign state. The Constitution clearly proscribes our duty as ‘to count the electoral votes,’ the ministerial function of a central collecting agency and a tabulating point.” Id. at 1694 (citing 115 Cong. Rec. 168 (1969)). 258 After the People Vote, supra note 38, at 14-15. 259 Richard A. Posner, Law, Pragmatism, and Democracy 322, 328-40 (2003); Michael J. Glennon, Nine Ways to Avoid a Train Wreck: How Title 3 Should Be Changed, 23 Cardozo L. Rev. 1159, 1160 (2002). 260 Ohio Representative Stephanie Tubbs Jones and California Senator Barbara Boxer objected to the counting of Ohio's electoral votes using the ECA procedures. 151 Cong. Rec. H86 (daily ed. Jan. 6, 2005). The two houses split and the House voted to reject the objection 267-31. Id. at H127. The Senate rejected the objection 74-1. Id. at H128. 261 See McKnight, supra note 14, at 17 (arguing that weight should be afforded to this period because Framers such as Langdon, King, Sherman, Madison, and Pinckney were seated in Congress). 262 See supra Part II.A.3. 263 McKnight, supra note 14, at 20 (noting the step-by-step gradual abdication of duties and arguing that this was not a surprising trend given the electoral count was a mere formality during these years). 264 See id. at 21. 265 See id. (“[Congressmen] entered the halls of legislation often with no definite idea of the constitutional powers of Congress .... Impressed with a sense of their own importance, when the season of Counting had returned they were ready to adopt any system consonant with a due regard to their own unquestionable dignity.”); id. at 22 (“[T]he prime cause of the final assumption of the canvassing power by Congress ... [was] the constant tendency of republican governments towards centralization.”); see also The Federalist No. 71 (Alexander Hamilton) (“The tendency of the legislative authority to absorb every other, has been fully displayed and illustrated .... In governments purely republican, this tendency is almost irresistible.”); Story, supra note 1, § 1432 (quoting the Federalist papers on this point with approval). 266 Many of the assertions of power by Congress came at a time of political strife. The first real extension occurred during the controversy over Missouri's admittance to the Union in 1821. Like the Twenty-second Joint Rule, the Grand Committee Bill of 1800 was an attempt by the Federalists to solidify their grasp on political power. APPENDIX - 92 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 40 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 94 of 553 PageID #: 499 THE TWELFTH AMENDMENT: A CONSTITUTIONAL..., 64 U. Miami L. Rev. 475 267 See supra note 235 and accompanying text (discussing objections to the constitutionality of the ECA). 268 See, e.g., John C. Fortier, The 2000 Election, in After the People Vote, supra note 38, at 37, 44 (noting that Congress must still decide whether votes were “regularly given”). 269 For instance, if the Supreme Court had not ended the 2000 Florida recount, could Congress have declined to afford the Florida electors safe-harbor status if, like Vice President Nixon, Congress considered a late-arriving slate of electors to be more authoritative under state law? See, e.g., id. (noting that Congress has latitude in judging whether state law for resolving controversies was followed). 270 See Siegel, supra note 104, at 563-65 (noting that several congressmen saw electoral vote counting as a political question). 271 17 Cong. Rec. 817 (1886) (statement of Sen. Sherman). 272 For an overview of the entire body of Florida 2000 litigation, see generally Posner, supra note 5. 273 Id.; see generally The Vote: Bush, Gore & the Supreme Court (Cass R. Sunstein & Richard A. Epstein eds., 2001). 274 The Bush v. Gore per curiam opinion found an Equal Protection Clause violation, relying on precedents such as Harper v. Virginia Board of Elections, 383 U.S. 663 (1966), Reynolds v. Sims, 377 U.S. 533 (1964), Gray v. Sanders, 372 U.S. 368 (1963), and Moore v. Ogilvie, 394 U.S. 814 (1969). See Bush v. Gore, 531 U.S. 98, 105-11 (2000) (per curiam). The one person, one vote jurisprudence is a relatively new wrinkle added to all of the questions presented by the ambiguities of the Twelfth Amendment. 275 See Edward B. Foley, The Future of Bush v. Gore, 68 Ohio St. L.J. 925, 952-57 (2007) (arguing that the Court would be hard-pressed to overturn Bush v. Gore in the future). But see Richard L. Hasen, The Untimely Death of Bush v. Gore, 60 Stan. L. Rev. 1, 3 (2007) (arguing that courts have been reluctant to understand Bush v. Gore as an important precedent). 276 Professor Erwin Chemerinsky was one of the most ardent supporters of the idea that Bush v. Gore was subject to the political question doctrine. See Erwin Chemerinsky, Bush v. Gore Was Not Justiciable, 76 Notre Dame L. Rev. 1093, 1094 (2001) (arguing that Bush v. Gore was not justiciable on three grounds: (1) Bush lacked standing to raise equal protection claims, (2) the case was not ripe for review, and (3) the case was a political question). Professor Laurence Tribe initially counted himself in Professor Chemerinsky's camp. See Tribe, supra note 3, at 277-86 (arguing that there is a “powerful case” based on the text of the Twelfth Amendment for the Court to play no role but to protect Congress's decision-making function). Later, Professor Tribe backtracked slightly: I confess ... the error of my overly mechanical formulation of the “political question” question in my first scholarly analysis of the dispute .... And I [now] offer a considerably more nuanced formulation that rejects ... my own Harvard Law Review position that the question was categorically non-justiciable, advancing instead a “political process” doctrine according to which political nonjusticiability, in an important class of instances, is akin to nonjusticiability for want of ripeness .... Laurence H. Tribe, The Unbearable Wrongness of Bush v. Gore, 19 Const. Comment. 571, 573-74 (2002). For a critique of Tribe's revised view, see Nelson Lund, Carnival of Mirrors: Laurence Tribe's “Unbearable Wrongness,” 19 Const. Comment. 609, 616-18 (2002). For different voices expressing Tribe's earlier (but since recanted) categorical view that the entire Bush v. Gore case was nonjusticiable, see Steven G. Calabresi, A Political Question, in Bush v. Gore: The Question of Legitimacy 129 (Bruce Ackerman ed., 2002); Erwin Chemerinsky, How Should We Think About Bush v. Gore?, 34 LOY. U. Chi. L.J. 1, 16 (2002) (suggesting, rather than definitively making, this argument; an earlier piece by Chemerinsky was more definitive on the issue, so arguably he did some backtracking comparable to Tribe's). 277 Undoubtedly, the Twelfth Amendment's language on this subject is not nearly as clear as the Impeachment Clause's language is about keeping all power in Congress. See U.S. Const. art. I, § 3, cl. 6 (“Senate shall have the sole Power to try all Impeachments.” (emphasis added)); see also Nixon v. United States, 506 U.S. 224, 237-38 (1993) (holding that the Impeachment Clause awards the Senate final authority to determine what it means to “try” an impeachment). 278 Posner, supra note 259, at 322, 328-40. Though he disagrees with the justification, Professor Tribe accepts the explanation of the Court's behavior as “stretching the constitutional fabric ... to protect the nation itself from being APPENDIX - 93 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 41 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 95 of 553 PageID #: 500 THE TWELFTH AMENDMENT: A CONSTITUTIONAL..., 64 U. Miami L. Rev. 475 torn apart.” Tribe, supra note 3, at 284-87; see also Bush v. Gore, 531 U.S. 1046, 1047 (2002) (Scalia, J., concurring) (arguing that grant of certiorari was necessary to prevent “casting a cloud” upon the legitimacy of the election); cf. Terri Bimes, Averting Crisis: The Role of the Supreme Court Justices in the 1876 Election, 3 Election L.J. 702, 703-05 (2004) (reviewing William H. Rehnquist, Centennial Crisis: The Disputed Election of 1876 (2004) and arguing that Rehnquist sought to justify the Court's intervention in the 2000 election by implying that the Supreme Court was the natural body to turn to in order to resolve the dispute). 279 Even so, one must ask if this discretion was the product of partisan splits in Congress and the prospect of violence if Congress could not reach a compromise. Indeed, if instead only one party controlled Congress in 1877, would the two parties have even sought compromise? 280 During debate after rescinding the Twenty-second Joint Rule, one senator provided the case for resolving the issue outside the context of an election: [W]hen [Congress] see[s] that such a contingency as this may be fraught with the consequences of revolution, [it should] provide beforehand against it. There never was a time when you could do it, when you would be less liable to the charge of any sinister influence, because it cannot change the result, it cannot determine anything except to settle the principle; and then when an occasion occurs that evil consequences may follow from settling it one way or the other, here will be a precedent showing that Congress, at a time when there was no inducement to anything but an honest and a straightforward decision of the case, maturely settled it, and settled it in such a manner that the influence of the decision will be morally binding upon our successors, and will be preserved. Counting Electoral Votes, supra note 24, at 153 (statement of Senator Hale). 281 Bush v. Gore, 531 U.S. 98, 127 (2002) (Stevens, J., dissenting, joined by Ginsburg, Breyer, JJ.) (“[T]he appropriate course of action would be to remand to allow more specific procedures for implementing the legislature's uniform general standard to be established.”); 282 id. at 134-35 (Souter, J., dissenting). Fortier, supra note 268, at 41 (stating that the Florida legislature started the process, and the Republicans argued that the Florida Supreme Court “had effectively changed the election recount law,” so it was the legislature's duty to appoint a Bush slate of electors); Tribe, supra note 3, at 276 (noting that the Florida legislature gave every indication that they would take this step); see also, id. (arguing that the Bush v. Gore per curiam opinion strongly suggested the state Bush, 531 U.S. at 104-)). In the wake of the 2000 election, at legislature could appoint electors at any time (citing least one state changed its law to allow the legislature or governor to directly appoint electors in certain circumstances. See N.C. Gen. Stat. § 163-213 (2007). Federal law also allows the legislature to appoint electors if the state “failed to make a choice on the day prescribed by law.” 3 U.S.C. § 2 (2006). But what exactly constitutes a failure to make a choice? There is at least arguably a distinction between, on the one hand, the state's citizenry not voting on Election Day (to which this statute obviously would apply) and, on the other, the state's dispute-resolution machinery taking extra time to determine what exactly the citizenry's voting was. See Akhil Reed Amar, Dunwody Distinguished Lecture in Law: Bush, Gore, Florida, and the Constitution (Mar. 24, 2009) (recording available at http:// streaming.video.ufl.edu/ ~law/20090324-dunwody.asx), in 61 Fla. L. Rev. (forthcoming Dec. 2009). 283 After the People Vote, supra note 38, at 16. 284 This also brings up another question: does the President of the Senate, in addition to the role of presiding officer under the Twelfth Amendment, get to cast tie-breaking votes in the Senate? Regardless, this is another example of the illadvised choice of placing one of the likely candidates for election in such a precarious and conflicted position during the electoral count proceedings. If Vice President Gore made decisions or cast tie-breaking votes in his own favor, one can imagine the public outcry and the resulting illegitimacy of his presidency. 285 After the People Vote, supra note 38, at 16; see Fortier, supra note 264, at 45 (noting it was entirely possible that the Florida courts might have compelled the governor to submit a second slate for Gore if Gore had prevailed in the recount). 286 See After the People Vote, supra note 38, at 16. If one political party controlled both houses of Congress, then it could ignore the certification by the governor. 287 See U.S. Const. amend. XX, § 3 (“If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor APPENDIX - 94 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 42 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 96 of 553 PageID #: 501 THE TWELFTH AMENDMENT: A CONSTITUTIONAL..., 64 U. Miami L. Rev. 475 a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.”). Congress has passed a statute, codified at 3 U.S.C. § 19 (2006), that creates a line of succession, starting with the Speaker of the House, in the event that by a “failure to qualify” there is no President or Vice President. The Twentieth Amendment does not eliminate, and indeed potentially exacerbates, the problems associated with the institutional ambiguity of the Twelfth Amendment. The Twentieth Amendment seems to specify what to do if Inauguration Day arrives and a President has not been recognized as elected under the Twelfth Amendment--although the language of the Twentieth Amendment, with its apparent distinction between a President not having been “chosen” and one not having “qualified” confusing the matter, is far less than ideal to the task. But what is worse, suppose there is a dispute about whether a President has, or has not, been “chosen” or “qualified” by January 20? It is not hard to imagine the possibility. The President of the Senate might insist, either on behalf of himself under the Twelfth Amendment, or on behalf of the Senate as a body, that one candidate has indeed been elected before January 20, while at the same time the Speaker of the House might refuse to recognize the authority of the Senate president to declare the election over. The Speaker, too, could be acting on his own behalf, under the statutory line of presidential succession that arguably applies in this context under the Twentieth Amendment, or the Speaker could be asserting the institutional authority of the House of Representatives to chose a President when no candidate receives a majority in the Electoral College, which would be the case if a dispute caused the votes of a “swing state” to be discarded. From one perspective, it might be argued that the Twentieth Amendment necessarily applies in this situation, since there is a dispute over who is elected President. But from another perspective, that dispute is over, since the Senate president (the outgoing Vice President) has authoritatively ruled (at least according to him and his partisan supporters). In short, the defect of the Twelfth Amendment causes uncertainty about whether the procedures of the Twentieth Amendment have been triggered. 288 Congress could simply ignore the ECA altogether, or, assuming partisan voting within the framework of the ECA, the Democrats could refuse to afford the slate of electors protection because the Florida procedures for final determination of any controversy or contest did not play out as required under 3 U.S.C. § 5, or because the votes were not “regularly given” under 3 U.S.C. § 15. Alternatively, if a Democratic Congress was presented with Bush electors certified by the governor and Gore electors certified by another authority, could it refuse the deference that the ECA gives to the slate certified by governor under § 15? Again, arguably the votes were not “regularly given.” 289 Professor Amar discussed this idea in his Dunwody Lecture, noting that the opinions of scholars over the Bush v. Gore decision center on disagreements as to what the law was on Election Day and whether the Florida Supreme Court or the U.S. Supreme Court was departing from that law. Amar argues there is a consensus against actions that appear to be changing the rules or departing from the law after an election. See Amar, supra note 282; see also Richard L. Hasen, Bush v. Gore and the Lawless Principle: A Comment on Professor Amar, 61 Fla. L. Rev. (forthcoming 2009). These same concerns about departing from the “rules” are endemic in the Twelfth Amendment and ECA, particularly for disputes that reach Congress because of the competing interpretations available to members of Congress and scholars. 290 The issue was raised preceding the passage of the Twentieth Amendment. The legislative history of the Twentieth Amendment is worthy of a separate article and will not be detailed here. Nonetheless, it is worth briefly mentioning that early in the congressional proceedings leading to the adoption of the Twentieth Amendment, it was recognized that the Electoral Count Act of 1877 was inadequate in fixing the defects inherent in the Twelfth Amendment. Specifically, at a congressional hearing on New Year's Eve in 1924, the clerk of the House of Representatives, as part of his testimony, included an address he had given during that year's presidential election on the defects inherent in the then-existing process under the Twelfth Amendment and the Electoral Count Act. See Choice of President in Event President and Vice President Shall Not Have Been Elected and Qualified--Elimination of Electoral Messengers and Incidental Expenditure Required: Hearings on H.R. 10268 and H.R. 11256 Before the H. Comm. on Election of President, Vice President, and Reps. in Cong., 68th Cong. 5-18 (1924) (statement of Hon. William Tyler Page). In that address, the clerk observed that the resolution of the 1876 election was an ad hoc endeavor, by a process that was “extra constitutional.” Id. at 14. He also observed that the Electoral Count Act “[a]t best ... is open not only to serious constitutional objections but to the criticism that it leaves unsettled a number of points that in the future may easily lead to serious disputes.” Id. at 13. The problem inheres in the fact that the Twelfth Amendment identifies no body, other than arguably the President of the Senate, to resolve conclusively any question concerning the counting of electoral votes, but history has prevented the Senate president as a single individual from asserting this unilateral authority. “Nothing short of a constitutional amendment can supply the omissions which time has revealed,” the clerk concluded. Id. Alas, however, by the time Congress proposed the Twentieth Amendment to the states, over seven years later, the need to rectify these omissions had been overlooked once more. Instead, the Twentieth Amendment focused on what were perceived as more pressing matters, including the possible deaths of both a President-elect and Vice President-elect, and the failure of the House APPENDIX - 95 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 43 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 97 of 553 PageID #: 502 THE TWELFTH AMENDMENT: A CONSTITUTIONAL..., 64 U. Miami L. Rev. 475 and Senate to choose, even when the duty unquestionably falls upon them (as in the presidential election of 1824). Thus, the same need for a rectifying constitutional amendment that persisted in 1924 still exists today, despite the subsequent adoption of the Twentieth Amendment. 291 See Edward B. Foley, The Analysis and Mitigation of Electoral Errors: Theory, Practice, Policy, 18 Stan. L. & Pol'y Rev. 350, 376-81. For an example of how the election court could work in the context of a presidential election dispute, see Election Law @ Moritz, Election Court, http:// moritzlaw.osu.edu/electionlaw/electioncourt (last visited Mar. 10, 2009) (including briefs, arguments, and opinions resulting from the decision of a three-judge panel in a hypothetical McCain v. Obama 2008 dispute). 64 UMIALR 475 End of Document © 2020 Thomson Reuters. No claim to original U.S. Government Works. APPENDIX - 96 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 44 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 98 of 553 PageID #: 503 THE TRANSFORMATIVE TWELFTH AMENDMENT, 55 Wm. & Mary L. Rev. 1501 55 Wm. & Mary L. Rev. 1501 William and Mary Law Review April, 2014 Article Joshua D. Hawley a1 Copyright (c) 2014 William and Mary Law Review; Joshua D. Hawley THE TRANSFORMATIVE TWELFTH AMENDMENT Abstract Scholars have long treated the Twelfth Amendment as a constitutional obscurity, a merely mechanical adjustment to the electoral college-and perhaps a less than successful one at that. This consensus is mistaken. In fact, the Twelfth Amendment accomplished one of the most consequential changes to the structure of our constitutional government yet. It fundamentally altered the nature of the Executive and the Executive's relationship to the other branches of government. The Amendment changed the Executive into something it had not been before: a political office. The presidency designed at Philadelphia was intended to be neither a policymaking nor a representative institution, but rather an apolitical office standing above partisan conflict. The Twelfth Amendment changed this design. It converted the electoral college into a form of public election, facilitating organized political competition for the presidency and linking the office to popular majorities. This revision of the electoral college had twin structural effects. First, the Amendment unified the executive branch under the political control of the President and made single-party control of the Executive a near certainty. Second, the Amendment changed the Executive's relationship to Congress by conferring on the President new warrants for political action and a representative status it had not previously enjoyed. Together, these structural changes altered the very nature of the Executive-and along with it, the meaning of “executive power.” *1502 This Article concludes with a close analysis of the Amendment's interpretive implications for contested questions of executive power, including the President's power to remove subordinates, to conclude treaties and executive agreements, and to exercise directive authority over administrative agencies. *1503 Table Of Contents I. A. B. II. A. 1. 2. B. III. A. 1. 2. B. 1. 2. 3. IV. A. Introduction Before the Revolution: The Philadelphia Presidency Mr. Madison's Project Making a Patriot King The Road to the Political Presidency Political Potentials Politics and Structure The Crisis of 1800 Reimagining the Executive A Revolution in Form Enter the Twelfth Amendment Debate in the House Debate in the Senate Changing Structure: What the Twelfth Amendment Did Entrenching Political Competition Warranting Political Action Unifying the Executive Structural Reasoning About the Executive A Brief Defense of Structural Reasoning 1504 1510 1511 1514 1528 1529 1529 1535 1538 1541 1542 1544 1549 1554 1555 1556 1559 1562 1563 APPENDIX - 97 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 1 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 99 of 553 PageID #: 504 THE TRANSFORMATIVE TWELFTH AMENDMENT, 55 Wm. & Mary L. Rev. 1501 B. 1. 2. a. b. c. d. C. 1. 2. Application: The Removal Power The Core Argument Cases and Controversies Myers v. United Humphrey's Executor Bowsher v. Synar Morrison v. Olson Other Applications The Treaty Power Directive Authority over Administrative Agencies Conclusion 1566 1569 1573 1574 1576 1577 1578 1581 1581 1585 1586 *1504 “The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President and of the number of votes for each.... The person having the greatest Number of votes for President, shall be President, if such number a majority of the whole number of Electors appointed; and if no person have such a majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President.” -U.S. Constitution, Amendment XII (1804). Introduction It is time the Twelfth Amendment got its due. For years, the Amendment has been regarded as a constitutional nonentity a piece of textual fiddling not worth remembering or one that, if it bears any significance at all, serves only to illustrate the irredeemable absurdity of the electoral college. 1 Legal scholars have all but ignored the text; historians, similarly, have given it little attention. 2 *1505 The conclusion that the Amendment is inconsequential is prevalent and well- established. It is also wrong. Contrary to decades' worth of conventional wisdom, the Twelfth Amendment is in fact a transformative constitutional text that fundamentally altered the structure of American government by altering the character of the presidency and its relationship to the government's other branches. Indeed, the Twelfth Amendment is in many senses responsible for *1506 the modern separation of powers and the presidency as we know it today. The Twelfth Amendment changed the presidency by making it into something it had not been before: a political office. This change in the basic character of the Executive is a fact long overlooked by legal scholars, but one which has major import not only for the functioning of the constitutional system, but also for the meaning of the “executive power” referenced in Article II, Section 1, 3 as well as the other, enumerated powers of Sections 2 and 3. 4 The Executive designed at Philadelphia was an utterly original invention, so much that the Framers reached little consensus among themselves on how precisely it would operate. 5 What they did agree on was that the President was not to be a political actor. 6 In the Framers' scheme, Congress was the branch that represented the people and the branch that made policy; it was Congress that stood at the center of the Madisonian plan to “refine and enlarge” popular opinion into a truly public-spirited national will. 7 By contrast, the original Constitution cast the Executive as a check on congressional excess and as an enforcer of congressional laws. 8 Under the direction of a single President, the executive department would supply “energy” to law enforcement and enable the national government to meet emergencies with dispatch. 9 But beyond devising rules for consistent law administration, the President was not to advance policy on his 10 own. 11 No Framer imagined the President as the proponent of a legislative agenda, still less as the advocate of a particular political philosophy or spokesperson for political faction. 12 And the Framers certainly did *1507 not envision presidential election as the signal political event of the national republic, organizing the country's politics and driving its political debate. 13 All those things happened after Philadelphia, and all of them were made lasting by the Twelfth Amendment. The text altered constitutional structure in critical ways. By instructing electors to designate which of their ballots was cast for President, and which for Vice-President, the Amendment facilitated organized electoral competition for the presidency, connecting the office APPENDIX - 98 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 2 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 100 of 553 PageID #: 505 THE TRANSFORMATIVE TWELFTH AMENDMENT, 55 Wm. & Mary L. Rev. 1501 to popular majorities in a way it had not been before. 14 As it made the presidency more majoritarian, this change in balloting eroded the independence of the Vice-President and denigrated that office's political significance, rendering the executive branch at once more politically homogeneous and more politically unified under presidential control. 15 Coupled with further changes that reduced the number of candidates referred to the House of Representatives in the event of a disputed election, the total effect of the Amendment was to make the presidency a more truly representative and more populist political institution. 16 And this internal change in the Executive's character worked an external shift in the Executive's structural relationship to the other branches. The presidency's new connection with the public conferred on the office new warrants for exerting political leadership and also conveyed new incentives to act and lead, as well. 17 After the Twelfth Amendment, the presidency would become and remain an active, co-equally political branch. This mostly forgotten history has potentially broad implications for the meaning of the President's executive power and for his place in the Constitution's scheme of separated powers. This is because the content of executive authority is perhaps uniquely determined by constitutional structure. The text of Article II provides notoriously little guidance as to what executive power really consists of. Section 1's reference to “the executive power” leaves that term undefined, 18 and the list of discrete authorities conferred on the *1508 President in Sections 2 and 3 is terse, if not Delphic, and susceptible to widely divergent interpretations. 19 Justice Robert Jackson famously observed sixty years ago that “[j]ust what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh.” 20 And indeed, the powers and responsibilities outlined in Article II may mean quite different things depending on the character of the office to which they belong. The President's power to recommend to Congress “such Measures as he shall judge necessary and expedient,” 21 for instance, or to appoint officers of the United States 22 or to negotiate treaties, 23 appear in one light if exercised by an apolitical officer whose principal function is to facilitate congressional government, and in quite another if deployed by an elected representative of the people with authority to make policy and engage in political dispute. By transforming the presidency from an apolitical office into a robustly political one, the Twelfth Amendment transformed the constitutional order. In the Parts that follow, I propose to examine this structural shift and its consequences. I begin in Part I with a fresh analysis of the Executive that the Framers actually designed, finding it to be notably different from the one legal scholars all too frequently presume them to have intended. When we set aside modernist assumptions about presidential power and resist the urge to read later constitutional developments back into the text, we discover that the Framers' Executive was an institution insulated from, rather than connected to, the people. In Part II, I trace the discovery in the 1790s of the presidency's political potential, a discovery that proved so disruptive that it threatened a constitutional crisis. That crisis led ultimately to a new conception of the presidency, developed by the Republicans and articulated by their *1509 leader, Thomas Jefferson. And it inspired a constitutional renovation in the form of the Twelfth Amendment. In Part III, I turn to the Amendment itself, describing its path through Congress and the structural change its drafters intended it to accomplish. I conclude this Part with a close analysis of the Amendment's structural effects and their consequences. Having thoroughly analyzed the Amendment's text, history, and structural significance, I turn in Part IV to examine the Amendment's possible legal consequences by reference to one particularly enduring question of presidential power, the President's authority to remove executive officials without congressional approval. 24 The removal debate is of course longstanding, stretching back to the First Congress. 25 It remains an open-and fiercely contested-question today. It is in some sense the paradigmatic question of executive power, implicating the meaning of the Article II Vesting Clause; 26 the enumerated executive powers of Article II, Sections 2 and 3; and Congress's Article I authority to structure the executive branch. 27 The removal debate is also at a standstill, thanks largely to the ambivalence of the 1787 text and its associated history. 28 In this sense, the removal debate represents in microcosm the signature difficulties in interpreting executive power. Structural reasoning on the basis of the Twelfth Amendment has the potential to break the logjam. And this is only one possible application of the story of the Twelfth Amendment. I conclude Part IV by looking briefly at two other applications, the President's treaty power and his directive authority over administrative agencies. No doubt still more could be named. For whatever the precise application, the core point is this: to understand America's constitutional presidency, one must understand the Twelfth Amendment. APPENDIX - 99 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 3 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 101 of 553 PageID #: 506 THE TRANSFORMATIVE TWELFTH AMENDMENT, 55 Wm. & Mary L. Rev. 1501 *1510 I. Before the Revolution: The Philadelphia Presidency It is an oft-told story how the delegates came to Philadelphia in the summer of 1787 to save the fledgling republic. I propose to revisit Philadelphia once more, but for a limited purpose-to notice two features of the Framers' constitutional scheme that are often overlooked but are in fact critical for understanding their broader project and the Executive they crafted for it. First, the fact that the Framers' program for positive government centered on Congress, and second, that this government featured an apolitical President. To anticipate: The Philadelphia delegates envisioned Congress as the branch to represent the people, to set national policy, and to be the center of constitutional politics. 29 On the other hand, the Framers saw the President primarily as an officer whose purpose in the federal order was to facilitate government by legislature. 30 The President would do this by balancing the legislative branch with his veto, as well as his appointment and treaty powers, and by providing a steady execution of Congress's laws. 31 What the Framers did not imagine was that the President would function as a political actor. 32 And thus while they conferred on the office significant administrative powers, they withheld full control over the administration and failed to spell out the reach or meaning of his executive authority. This Part begins by examining the essentially Madisonian plan for constitutional reform that animated the delegates' work in 1787, a vision of deliberative majority rule centered on Congress. Bringing that project to the foreground will allow us then to turn to, and better understand, the delegates' construction of their apolitical Executive. The lesson of these labors is this: contrary to what advocates of the so-called “unitary executive” have often claimed, the Framers did not design the presidency to stand at the apex of the constitutional order. 33 Theirs was a more modest, and more *1511 deeply ambiguous office. 34 Yet, contrary to what others have argued, that ambiguity is best explained not by the Framers' division of executive power into “political” and “administrative” spheres, 35 still less by any intention to leave Article II's opacities to be resolved by George Washington, 36 but rather from the fact that the presidency's creators failed to imagine the institution for what it would shortly become: a political animal. A. Mr. Madison's Project The Framers intended their new constitutional government to be a government by legislature, with the presidency cast in a supporting role. 37 It was James Madison who supplied the Philadelphia Convention's reform agenda and the intellectual ballast to support it. Madison's major aim was to convert the loose-knit confederal government of the Articles into a fully integrated national republic capable of protecting citizens' rights and producing sound policy. 38 That meant reforming the legislature, first and foremost. “In a republican government, the legislative authority, necessarily, predominates,” Madison explained in Federalist No. 51. 39 Yet Madison and his allies at Philadelphia knew that government by legislature posed certain acute difficulties. 40 Their experience with the state legislatures in the decade after independence convinced them that legislatures were susceptible to capture by organized interests bent on enacting narrow parochial agendas-the famous *1512 problem of faction. 41 “True it is,” Madison reflected in 1785, “that no other rule exists, by which any question which may divide a Society, can be ultimately determined, but the will of the majority; but it is also true that the majority may trespass on the rights of the minority.” 42 The challenge was to construct a national government that avoided the diseases of majority faction but still reflected the majority will. 43 Madison's solution is familiar and justly celebrated. For our purposes, the critical point to note is the degree to which that solution centered on the legislature. In the now canonical Federalist No. 10, Madison explained that republics, as he defined them, had two principal advantages over democracies. 44 First, they delegated political decision making to representative bodies. 45 Thus freed from the need for citizens to meet and decide political matters in person, republics were able, secondly, to embrace a “greater number of citizens, and greater sphere of country.” 46 Madison's political science joined these advantages together in the design of the national legislature, as reflected in the final provisions of Article I. 47 That Article divided the new Congress into two houses. 48 The lower house was to be chosen by voters arranged in districts considerably larger than those used to choose delegates to the state legislatures, for Madisonian reasons: broadening the congressional electorate was meant to prevent parochial factions from controlling congressional elections. 49 Senators were to be selected by state legislatures to guarantee APPENDIX - 100 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 4 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 102 of 553 PageID #: 507 THE TRANSFORMATIVE TWELFTH AMENDMENT, 55 Wm. & Mary L. Rev. 1501 small states equal representation with larger ones, a feature Madison did not support, 50 but one that was nevertheless susceptible to Madisonian justification: because the pool of senatorial candidates would encompass the entire state, Senators would *1513 be men of high reputation, accomplished, respected, and with any luck, well- educated. 51 If it worked properly, this new Congress would reflect the people's preferences and shape them at the same time. 52 Congress would resist popular passions even as it obeyed the people's interests, elevating factional agendas and passing enthusiasms into a broad and considered public will. 53 It would be a government by majority rule, but anti-majoritarian in character. 54 It would be, in short, a deliberative government. 55 This was the Madisonian project. Yet Madison and his fellow delegates were mindful that popular assemblies, however well-constructed, suffered from certain incurable defects. For one thing, they were congenitally unfit for law enforcement. Madison had lamented the Articles' lack of law-enforcement authority before the Convention began. 56 And the crisis of Shay's Rebellion troubled the minds of many delegates, 57 who concluded from the federal government's inability to put down the uprising in timely fashion that the new government needed “vigor and dispatch” in law execution, as James Wilson put it. 58 Then too, all legislatures tended toward what Madison called “instability and encroachments.” 59 “The preservation of Republican Government,” Madison concluded, “required some expedient,” some “effectual check” for balancing the legislature as a whole and supplying its defects. 60 For this, the Framers turned to an independent executive branch separated from Congress and under the charge of a single President. 61 Proponents of the unitary Executive have been right to see in this decision a fairly momentous break with colonialera *1514 practice. 62 But the Philadelphia presidency was always and ever the servant of the Framers' broader experiment in Congress-centered deliberative government. 63 They turned to an independent Executive in order to make that government work. Indeed, even as they created the presidency, the delegates held few firm convictions about how precisely that presidency should operate. Madison notoriously confessed to George Washington on the eve of the Convention that he had not given the executive department much thought. 64 And really, this should come as no particular surprise. In Madison's political science, as in the text the Framers drafted, the Executive was a secondary office. Perhaps the most promising clue to how the Framers understood the Executive comes not in their debates about the content of executive power, which were spare and few, 65 but in the mode of election they chose for the office. From that choice we learn the following: the Executive the delegates fashioned to complete their project in congressional government was not to be a political actor, but rather an apolitical “Patriot King.” 66 B. Making a Patriot King Before September, the Convention considered three primary means of presidential election: by the national legislature (or a subset of it); by the people (either directly or through electors the people chose); or by one or more of the institutions of state government. 67 The most consistently popular method for the duration of the Convention's meeting was selection by Congress. 68 This was the *1515 approach proposed in the Virginia Plan 69 and repeatedly favored in floor votes. 70 And it might have won the day, had John Rutledge and the large states not attempted at the last minute to increase large-state influence in presidential selection. 71 That ill-timed maneuver revived small state-large state hostilities and sent the Convention into deadlock. 72 The electoral college emerged only at the Convention's end, as a compromise. 73 Yet in all the to-and-fro over presidential election, perhaps the most striking thing is what the delegates did not consider-the need to give the President democratic legitimacy. 74 Their presidency was not a representative institution. A firm majority of delegates believed that popular election by the people was neither workable nor wise. James Wilson first moved to select the Executive by direct vote of the public on June 2, 1787, just four days after Edmund Randolph introduced the Virginia Plan and two days before the delegates had conclusively settled on a single rather than plural presidency. 75 The motion failed seven states to two. 76 Wilson and his principal allies on the issue, Gouverneur Morris and Daniel Carroll, would try again on four separate occasions over the ensuing two and one-half months, each time falling short. 77 No more than six or APPENDIX - 101 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 5 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 103 of 553 PageID #: 508 THE TRANSFORMATIVE TWELFTH AMENDMENT, 55 Wm. & Mary L. Rev. 1501 seven delegates-from a pool of forty-two-spoke positively of popular election during debate, 78 and political scientist William Riker estimates that no more than eleven to at most seventeen delegates affirmatively supported public election at any point. 79 *1516 The reasons were various. Some delegates worried that permitting the people to vote would invite demagoguery and inflame the passions of faction. “A popular election in this case is radically vicious,” Elbridge Gerry warned on July 25. 80 “The ignorance of the people would put it in the power of some one set of men dispersed throughout the Union and acting in Concert to delude them into any appointment.” 81 Charles Pinckney raised the specter of the voting public deceived “by a few active [and] designing men.” 82 Hamilton would later explain that the Convention found it “peculiarly desirable to afford as little opportunity as possible to tumult and disorder.” 83 And Madison-who at one point favored popular election at the Conventionnevertheless ultimately endorsed the alternative mode the delegates selected as likely to “render the choice more judicious.” 84 But on balance, the delegates worried more that the public simply would not have sufficient information to judge the candidates for office. Hugh Williamson of North Carolina claimed that “there was the same difference between an election in this case, by the people and by the legislature, as between an appointment by lot, and by choice.” 85 The people were too dispersed, over too many miles and states, to know much of anything about candidates from states other than their own. “There are at present distinguished characters, who are known perhaps to almost every man,” Williamson said, thinking of Washington, but “[t]his will not always be the case.” 86 Most delegates agreed. 87 George Mason summed up the prevailing thought when he remarked that “[t]he extent of the Country renders *1517 it impossible that the people can have the requisite capacity to judge of the respective pretensions of the Candidates.” 88 These two arguments in combination proved decisive. Try as Wilson and his allies might, they could not persuade the Convention to embrace election by the populace. 89 And this tells us something quite important about the Philadelphia presidency-it was not an office the delegates believed required democratic sanction in order to be legitimate. Put another way, the role the delegates envisioned for their Executive did not require political, majoritarian warrants for action. Remarkably, not one delegate, not even the advocates of direct election, appeared to worry that the failure to give the people a vote would render the President impotent or presidential action somehow illegitimate. 90 Of the various claims Wilson and the pro-election contingent pressed, democratic legitimacy was never one. 91 Instead, Wilson urged public election merely to ensure that the President was sufficiently qualified, an individual of “general notoriety,” 92 or, as Morris put it, a person of “continental reputation.” 93 When the Convention finally did abandon election by the legislature in favor of the peculiar electoral college, it did so not from a desire to give the President democratic sanction, but from a concern that legislative election would frustrate the proper workings of Congress and ruin the Madisonian project of controlling faction. 94 Gouverneur Morris formulated the decisive argument in mid-July when he claimed that “[i]f the Legislature elect, it will be the work of intrigue, of cabal, and of faction; it will be like the election of a *1518 pope by a conclave of cardinals; real merit will rarely be the title to the appointment.” 95 By “intrigue” Morris meant deal-making, horse-trading, log-rolling-the sort of factional trade-offs that regularly occurred in the formation of parliamentary cabinet governments, 96 the sort of thing that dominated the legislatures in the states, and just what the Madisonian system was designed to prevent. 97 This was the argument that persuaded Madison himself, initially a supporter of congressional election, to support first popular election of the President and then an electoral college. 98 And it was the argument that carried the day in the Convention's closing weeks in September, when delegates found themselves snared in a voting cycle triggered by John Rutledge. 99 By late summer the Convention had, in a series of votes rejecting both popular election and election by popularly chosen electors, apparently reached consensus in favor of presidential election by the legislature. 100 But then on August 24, John Rutledge of South Carolina moved to elect the President by joint ballot of the two houses. 101 Small states balked, fearing that votes from the large states in the House of Representatives would overwhelm their votes in the Senate, thus giving the large states control of the presidency. 102 Suddenly neither election by legislature with joint ballot, nor election by the Senate voting singly, nor election by some type of elector could command a majority. 103 Fearing deadlock, the delegates referred the question to the Committee on Postponed Matters on August 31. 104 APPENDIX - 102 © 2020 Thomson Reuters. 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Rev. 1501 *1519 Working over a single weekend in early September, the Committee devised the electoral college. 105 In what would become familiar language, the Committee draft provided that “[e]ach State shall appoint in such manner as its Legislature may direct, a number of electors equal to the whole number of Senators and members of the House of Representatives to which the State may be entitled in the Legislature.” 106 The electors thus appointed were to “meet in their respective States, and vote by ballot for two persons, of whom one at least shall not be an inhabitant of the same State with themselves.” 107 The person with the most votes became President, the one with the second-most, Vice-President. 108 In the event of a tie, the Senate would choose between the candidates. 109 Should no contender receive a majority of votes, the Senate would choose from among “the five highest on the list.” 110 The Convention's reaction on September 4 was positive, or at least relieved. 111 Large-state delegates were pleased with their advantage in the total number of electors, which were weighted by population. Small-state delegates secured referral to the Senate in the event of a tie or indeterminate electoral vote, rather than to the House. 112 The only remaining hitch was the delegates' swelling concern that the Senate's legislative power-its say in treaty making and appointments and now its role in presidential election-would allow the Senate to dominate the government. 113 The problem was neatly solved when dual motions by Hugh Williamson and Roger Sherman proposed to transfer the voting in a disputed election from the Senate to the House which, to pacify small states, would cast ballots by state delegation. 114 The compromise took hold and the electoral college was born. *1520 One delegate to the Virginia ratifying convention would later complain that the college “seems rather founded on accident than any principle of government I ever heard of,” 115 but that assessment is perhaps too ungenerous. The plan did have an overarching principle, fully in keeping with the political science that animated the broader Madisonian project: to preserve the separation of the Executive from Congress in order to correct the defects of the legislative branch and avoid the “intrigue” and “cabal” that could wreck deliberative government. 116 What the electoral college did not do, what in fact the delegates had no concern to do, was link the President to popular majorities. 117 While the finalized Article II permitted the state legislatures to designate any method for choosing the electors they liked, including public voting, the actual decision on the candidates was to rest in the first place with the electors themselves, not the people, and quite possibly with the House as an ultimate matter. 118 Madison explained to the Virginia ratifying convention that the delegates found it “impracticable to elect [the President] by the immediate suffrages of the people” and as a result believed that “the people [should] choose the electors.” 119 Hamilton elaborated the point in Federalist No. 68. It was “peculiarly desirable” in the election of the Executive, he wrote, “to afford as little opportunity as possible” to the sort of “tumult and disorder” that frequently accompanied public elections. 120 The solution was to permit “the sense of the people [to] operate in the choice of the person to whom so important a trust was to be confided” 121 while committing the actual power of election to “an intermediate body of electors.” 122 This arrangement would forestall the “heats and ferments” characteristic of popular voting, and prevent their “communication,” like a disease, from the people to the chief executive. 123 Indeed, most of the Philadelphia delegates *1521 expected that it was the House that would ultimately choose the President in the normal course. They saw the electoral college as a sort of presidential primary, narrowing the field, with the House making the final decision “nineteen times in twenty.” 124 Either way, the President was not in any meaningful way to be elected by the public. In fact, the office was not designed to be politically contested at all. 125 The mechanics of the electoral college deliberately frustrated attempts at coordinated voting. Electors were to meet on the same day to cast their ballots, but “in their respective States,” 126 meaning there would be no oppportunity for deliberation as a “college.” 127 They were to vote for two candidates and could not designate which was their first choice and which second. 128 Once the votes were cast, the “college”-more accurately, the discrete bands of state electors-dissolved, never to assemble again. 129 As historian Jack Rakove has observed, “few of the framers anticipated, much less intended, that the election of the president would soon emerge as the most important stimulus for political innovation and the creation of alliances running across state lines.” 130 The Philadelphia system was not built for organized political competition. APPENDIX - 103 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 7 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 105 of 553 PageID #: 510 THE TRANSFORMATIVE TWELFTH AMENDMENT, 55 Wm. & Mary L. Rev. 1501 And all this means that the President was not meant to be a representative of the people, at least not in any direct sense. Congress was the representative branch. George Washington captured the Framers' understanding when he professed in 1790 to have “always believed that an unequivocally free and equal representation of the people in the legislature, together with an efficient and responsible executive, were the great pillars on which the preservation of American freedom must depend.” 131 Convention *1522 attendees repeatedly referred to Congress as the people's forum and members of Congress as the people's representatives. 132 They never spoke of the President in that manner. 133 To be sure, delegates did sometimes refer to the President as a “representative,” but it was as a representative of the national interest-an agent of the common good-something the Framers hoped the President would be by virtue of his independence from the Legislature, not as a popular representative of the people. 134 Madison voiced this view at the Convention when he commented that “[t]he Executive Magistrate would be considered as a national officer, acting for and equally sympathising with every part of the United States.” 135 Gouverneur Morris, in defending the President's share of the treaty power, similarly called the Executive “the general Guardian of the National interests.” 136 James Wilson made the same point the following year, during the ratification debates. “[B]eing elected by different parts of the United States, ... [the President] will consider himself as not particularly interested for any one of them, but will watch over the whole with paternal care and affection.” 137 It was in this sense and this sense only, as a disinterested agent of the public good, that the Framers referred to the President as a “man of the people.” 138 The Framers' presidency, in sum, was not a popular or majoritarian office. However they envisioned the contours of executive power, the Framers did not envision it as political authority. *1523 The ratifiers did not anticipate a political presidency either. Once the Grand Convention disbanded and the new Constitution began to circulate “out of doors,” opponents objected to the presidency on multiple grounds, but the President's political character was not one of them. Some of the Constitution's opponents objected to the President's unitary design and connection to the military. The President, Patrick Henry forecasted with his trademark melodrama, would be an “American Dictator,” 139 not because he would overwhelm Congress with his political authority, but rather because he commanded the armed forces. “[T]he army will salute him monarch: your militia will leave you, and assist in making him king[:] ... and what have you to oppose this force?” Henry taunted. 140 Other Antifederalists charged that the President was not strong or independent enough to resist the machinations of the Senate. “The executive is, in fact, the president and senate in all transactions of any importance,” the Federal Farmer complained. 141 “[H]e may always act with the senate, but never can effectually counteract its views.” 142 The Centinel letters argued the same point: “The President ... [will] be a mere pageant of state, unless he coincides with the views of the Senate.” 143 He will “either become the head of the aristocratic junto in that body, or its minion.” 144 Antifederalist criticisms were diverse, but had at least one thing in common: the failure to imagine the President as a political leader working within the Constitution's new political system. 145 As Ralph Ketcham has summarized, “There was surprisingly little concentration by the Anti-federalists on executive powers as such.” 146 *1524 Of all the protagonists involved in drafting and ratification, it was Alexander Hamilton who came closest to foretelling the President's future political role. Long an advocate of executive leadership, 147 Hamilton's Federalist essays described a President who would energetically administer the government. 148 Indeed, Hamilton appeared in some passages of those famous newspaper commentaries to regard the President as a political representative of the people. One of the few outright errors in the Federalist collection comes in Federalist No. 68, in which Hamilton casually remarked that “the people of each State shall choose a number of persons as electors.” 149 Of course it was up to the state legislatures, not the people themselves, to decide how the electors would be chosen. Popular election was only one of the options. Still, the slip is significant if it reveals that Hamilton thought of the President as the people's choice. But it likely does not. In that same essay, Hamilton explained at some length the necessity of separating the election of the President from the people, the better to insulate the chief magistrate from the “heats and ferments” of popular opinion. 150 When Hamilton referred to the President as the choice of the people, not only in Federalist No. 68 but also across the series of essays focused on the Executive, he meant, once again, that the President would represent the interests of the people. 151 APPENDIX - 104 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 8 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 106 of 553 PageID #: 511 THE TRANSFORMATIVE TWELFTH AMENDMENT, 55 Wm. & Mary L. Rev. 1501 Hamilton never advocated a political President at the Convention or during the ratification debates. He advocated political, policy-making administrators. The difference is worth noting. The man who wrote that “the true test of a good government is its aptitude *1525 and tendency to produce a good administration” 152 wanted a professional, and perhaps permanent, cadre of civil servants to devise policy and carry it into action. 153 These administrators would be supervised by the President, but not necessarily directed by him. 154 Hamilton apparently envisioned the President as a sort of figurehead, presiding in a politically neutral fashion over a government run by powerful administrative agents. 155 Hamilton's vision was for what historian Forrest McDonald has called “a permanent ministry independent of the president-or, as in the parliamentary system, one responsible to the legislative as well as the executive.” 156 These views were out of step with the rest of the Framers to the extent Hamilton foresaw an entity other than Congress at the center of the government, and his alternative vision would soon provoke considerable strife. But at least in 1787 and 1788, it was not a vision for a political presidency. 157 To sum up: the Framers created a constitutional system geared to produce deliberative government. 158 They placed a renovated Congress at its center and constructed an independent executive branch under the direction of a single President to balance Congress, supply its defects, and administer its laws. 159 The Article II presidency was a potent office but not, critically, a political one. 160 The President was not connected directly to the people, was not a popular representative, and lacked democratic warrants for action. 161 These are important insights because they challenge so much of the conventional wisdom about the original Article II Executive. Proponents of the unitary Executive have placed great stock in the *1526 President's supposedly representative character. John Yoo has stated matter of factly that a prominent theme in the federal Constitution is that “[t]he president is seen as the representative and protector of the people,” that, indeed, the presidency was meant “as not merely an executor of legislation, but as a new institution that represented the will of the people.” 162 On this basis, Yoo argues for an expansive interpretation of the Vesting Clause, 163 including the right to act beyond and sometimes contrary to the letter of the law. 164 Steven Calabresi also has relied on what he calls the Framers' “deliberat[e] and self consciou[s] cho[ice] to break with th[e] post-1776 preference for weak executives” and create a “powerful, plebiscitary office.” 165 He cites this claim as one reason to read the Vesting Clause to give the President control over officers within the executive branch. 166 But all this turns out to be untrue-or more accurately, it turns out to be anachronistic. The presidency would become a representative office, but the text of 1787 did not make it one. To the extent the case for the unitary Executive depends heavily, even critically, on the President's political character, the case cannot be rooted in the original Article II alone. Some of the most prominent critics of the unitary theory have likewise assumed that the presidency is and was meant to be a representative institution, or a political office of some type. 167 Cass Sunstein and Larry Lessig began with that assumption in their seminal article, The President and the Administration, and proceeded to explain both the lack of a textual removal power and Congress's rather active involvement in administration during the 1790s on the basis of a distinction between “political” and *1527 “administrative” authority. 168 But as they ultimately acknowledge, this division is more nineteenth-century gloss than original understanding 169 and, in any event, misleading. 170 Akhil Amar has recently argued that the Framers deliberately left Article II's terms opaque and its arrangement untidy in the expectation that George Washington would supply the definition of executive power through his practice as the first President. 171 Indeed, Amar goes so far as to claim that the Convention intended to delegate to Washington the authority to do so. 172 But this hypothesis is premised almost exclusively on a single comment in a private letter from Pierce Butler to a relative, 173 and as historians have long pointed out, it “hardly squares with the tangled record of proposals, tentative decisions, reconsiderations, and reversals from which the presidency finally, and belatedly, emerged.” 174 The ambiguity that attended the original Executive and early administrative practice owes less to some implicit delegation of interpretive authority to George Washington, or to a division between “political” and “administrative” power, than to the President's uncertain political status. The Framers could neglect to give the President full control over the executive branch, fail to define “executive power,” and remain comfortable with significant congressional involvement in administration precisely because they did not anticipate the President acting as a political leader, and certainly not as the political leader. 175 Politics was APPENDIX - 105 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 9 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 107 of 553 PageID #: 512 THE TRANSFORMATIVE TWELFTH AMENDMENT, 55 Wm. & Mary L. Rev. 1501 something for Congress to make and do. When the President began to engage in politics, the Founders' assignment of powers became far more contentious and their rationale for crafting Article II as they did increasingly hard to fathom. But then that is the story of the 1790s and the watershed election of 1800. *1528 II. The Road to the Political Presidency In forging a new model of government, the Framers had hoped to settle certain political questions once and for all. Madison opined in Federalist No. 49 that after ratification, frequent appeals to the people would no longer be necessary-in fact they would be malign, insofar as they kept in dispute fundamental questions of political principle. 176 The 1790s revealed that a great many political principles were not settled after all. 177 Sparked by Alexander Hamilton's ambitious banking and manufacturing plans, and fanned by the revolution in France, political controversy blazed in the 1790s. 178 That such deep and principled political disagreement would persist after the Constitution's adoption came as a shock to the decade's political actors. 179 But perhaps more surprising still was the role the presidency played in the decade's political conflagrations. The controversies of the 1790s revealed that in designing the presidency as they did, the Framers inadvertently vested the office with sizable political potential. 180 The structure of the branch permitted it to formulate policy and influence the legislature. 181 Indeed, the structure of the office uniquely suited it to exercise power. These facts-unintended, unlooked for, and largely unwanted-made the presidency an engine of political strife and an object of political competition. By decade's end, contending factions schemed to gain control of the government by gaining control of the Executive. The discovery of the Executive's political potential plunged the republic into crisis. Neither the Framers nor any other political actor had developed an account of the presidency as a political office. 182 This proved to be a dangerous intellectual deficit. Political leaders' inability to agree on how the presidency should operate and to whom it should be accountable nearly provoked armed conflict. 183 *1529 In the end, the crisis gave way to a new conception of the presidency that would require a new constitutional amendment for its realization. 184 This Part takes up each installment of this story in turn. I begin with the discovery of the Executive's political potential and its destabilizing consequences and then turn to the new constitutional synthesis that provided the apology for the Twelfth Amendment. A. Political Potentials 1. Politics and Structure The opening years of the 1790s destroyed any expectation that constitutional disputes were a thing of the past. There was Alexander Hamilton to thank for that. Hamilton's ambition as Secretary of the Treasury to transform America's agrarian economy into a commercialized and manufacturing powerhouse provoked fierce dissent. 185 In a series of three reports to Congress, Hamilton proposed to charter a national bank, levy new internal taxes, and increase foreign impost revenues. 186 His broader aims were to create a stable national currency and provide the nation's merchants access to large pools of capital. 187 James Madison and Thomas Jefferson read in Hamilton's proposals a covert bid to convert the republic into a capitalist aristocracy. 188 They were especially alarmed by Hamilton's enthusiasm for federal power. 189 By the early 1790s they had assembled a robust (if minority) opposition in Congress. 190 The train of revolution in France only heightened America's burgeoning political tension. Jefferson, in particular, sympathized with the revolutionaries and linked their struggle against monarchy to his and Madison's opposition to the Hamilton economic *1530 program. 191 The fight against Hamilton was a fight, Jefferson came to say, against “monocracy.” 192 The JeffersonMadison alliance took to calling itself “Democratic-Republican[s],” after the name of the private societies formed in Philadelphia and elsewhere to support the French Revolution. 193 Hamilton and his supporters, meanwhile, viewed the Republicans' sympathy for the French cause with alarm and read in their opposition to economic development a Jacobin agenda for radical social leveling. 194 Politics was back with a vengeance. APPENDIX - 106 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 10 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 108 of 553 PageID #: 513 THE TRANSFORMATIVE TWELFTH AMENDMENT, 55 Wm. & Mary L. Rev. 1501 And the second great surprise of the decade was the degree to which the executive branch was at the center of it. Though the Framers had built Congress to function as the locus of positive government, 195 already by the early 1790s the executive branch was exerting appreciable influence on congressional deliberation and policy-making. No doubt this development owed something to the personal skill of Hamilton, who creatively leveraged the resources of his Treasury post to shape Congress's work. 196 But above all, it was due to structure. By design, the Framers gave the presidency very little authority that would stand on its own. The President shares his most weighty executive powers with Congress, at least in some manner. The President's treaty and appointments powers are divided with the Senate; 197 the veto power is subject to congressional override; 198 and even the commander-in-chief power, the most potent of the authorities spelled out in Article II, is qualified by Congress's rights to declare war, 199 to appropriate funds for the military, 200 to make rules governing the armed forces, 201 to call forth the militia, 202 and to *1531 organize, arm, and discipline the militia as Congress sees fit. 203 As for the President's remaining Article II powers-like the authority to require opinions from department heads 204 or adjourn Congress when the houses could not agree 205 -they are more nearly ministerial in character. The upshot is that the President has relatively few powers not shared with Congress, and thus relatively little room to maneuver apart from congressional cooperation. 206 And yet, as Charles Black noticed nearly four decades ago, the Article II presidency was exceptionally well structured for the receipt and exercise of power. 207 In placing the branch under the direction of a single officer rather than several, the Constitution permitted the Executive to act with unity of purpose. 208 In freeing the President of the need to explain his decisions to a council of state, 209 or otherwise seek cabinet officers' input before acting, the Constitution allowed him to act with “dispatch.” 210 By investing him with some sort of authority over cabinet ministers, 211 the document made it possible for him to develop, review, and implement policy. Congress, by contrast, was handicapped in the exercise of power by just those mechanisms needed to avoid majoritarianism. 212 The division into two houses, each chosen by a different electorate, meant congressional leaders could not use a single majority to enact legislation; they would have to build a different coalition in each body. 213 That same division made devising a coherent policy agenda *1532 quite difficult because the two houses were elected to staggered terms, by different sets of voters, and thus populated with members who came to Congress with differing policy priorities. 214 And then there was the congressional leadership: the Constitution provided for none, certainly for none that straddled the two houses, making the interhouse coordination problem acute. 215 In the 1790s, these structural features began to play themselves out. Lacking the institutional means to develop policy, Congress turned to the Executive for help, and did so quite early on. It was Congress that initiated Hamilton's famous troika of reports to help it craft an economic program. 216 Indeed, the First and Second Congresses made a practice of referring fiscal questions to the Treasury for counsel. 217 Hamilton skillfully drafted his replies, crafting his answers in the form of policy recommendations so as to exert maximum influence on the legislative agenda. 218 Soon Hamilton and his staff were drafting legislation and forwarding it to friendly congressmen. 219 Secretary of State Jefferson did the same (though less frequently) on matters related to his department. 220 By the time of his resignation in 1795, Hamilton was known to visit Congress in person to lobby individual members, to attend committee hearings, to speak at legislative caucuses, and even to designate the membership of the committees to which his measures would be referred. 221 “Nothing,” Senator William Maclay of Pennsylvania said, “is done without him.” 222 Here again, Hamilton's unique talents and ambition surely accounted for some of these developments, but on the whole, constitutional structure drove the institutional praxis of the 1790s. 223 A constitutionally powerful but structurally disadvantaged *1533 Congress found itself turning again and again to a constitutionally weaker but structurally privileged Executive for aid in the business of governing. 224 This was not because Washington himself was committed to a political use of the presidency. On the contrary, Washington saw himself as a non-partisan figure and his office as an apolitical one. 225 He scrupulously avoided political statements, declined to lobby members of Congress, and generally refused to exercise his veto power for policy APPENDIX - 107 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 11 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 109 of 553 PageID #: 514 THE TRANSFORMATIVE TWELFTH AMENDMENT, 55 Wm. & Mary L. Rev. 1501 reasons. 226 He considered but removed policy language in his first inaugural address. 227 And tellingly, his annual reports to Congress were almost entirely devoid of policy recommendations, providing no direct guidance for legislative programs. 228 When he permitted his deputies, principally Hamilton, to develop policy and recommend it to Congress, he arguably did not regard those policies as properly his own. 229 Instead, Washington, as President, pursued an essentially collaborative politics, not so different, as one political scientist has remarked, from the British king-in-council model. 230 This collaborative institutional behavior revealed Washington's conception of the President as a professional executor, above party and above politics, with no distinct political or programmatic agenda of his own to press. 231 Still, the office was undeniably exerting political influence. 232 And that was unquestionably controversial. As early as Washington's first term, Madison and Jefferson grew uneasy with the influence they were surprised to find the Executive exerting on Congress. 233 In the House, Madison objected to Congress's emerging practice of *1534 referring policy questions to the executive branch for advice. 234 He repeatedly pressed to stop those referrals and finally succeeded in 1795. 235 Madison was even less sanguine about executive lobbying, bill drafting, and influence on the legislative calendar. Partly at Madison's behest, the Third Congress amended the House's rules to require every proposed revenue law to be debated in the Committee of the Whole; the new rules similarly forbade the House from approving any tax increase until debated on the floor. 236 The intent of both changes was to frustrate outside executive influence on the House's procedures. 237 Madison also spearheaded the creation of two standing committees to assist the House in policy development, again with the aim of countering executive pressure. 238 In sum, although the structure of the two branches may have been familiar to political actors, 239 the practical consequences of that structure were not. On the contrary, Madison, Jefferson, and their allies blamed Hamilton for what they perceived to be a fundamental misuse of executive authority. 240 But the effects of structure could not be denied. By the end of Washington's tenure, both Madison and Jefferson recognized the political potential Article II created in the presidency. 241 They concluded that controlling the legislature was not enough to control the government because the presidency had proved too consequential. If they wanted to direct the state, they needed to capture the Executive. 242 This was the fact of constitutional structure. It was a fact not lost on Hamilton and his Federalist cohort either. Before Washington left office, both Federalists and Republicans began assembling party organizations for the purpose of amassing enough electoral votes in the states to elevate their favored candidate. 243 Yet *1535 this dawning realization of the presidency's political potential and the race to capture it posed two profound problems for the constitutional order-one conceptual and one structural. The conceptual problem was that no set of political actors had yet developed an account of the Executive and its place within the constitutional system that could explain the political potential the 1790s had made apparent, or justify using the presidency for political ends. 244 The structural problem was that Article II was not designed to permit electoral competition for the executive office. 245 If both Republicans and Federalists understood by the mid-1790s that they needed to win control of the Executive to control the government, the Constitution gave them no clear, or clearly legitimate, method for doing so. 246 These problems merged to produce the wrenching constitutional crisis of 1800. 2. The Crisis of 1800 Precisely as Article II contemplated with its provisions leaving the time and manner of selecting electors to the states, the presidential election in 1800 was more exactly a series of discrete state elections than a national one. 247 Five states that year chose their college members by popular election-Virginia, Maryland, Rhode Island, North Carolina, and Kentucky. 248 Virginia and Kentucky elected by general ticket, while the other three conducted elections in congressional districts. 249 Ten of the remaining eleven states chose electors in the state legislature; 250 Vermont, meanwhile, delegated the choice to a “grand committee” consisting of the governor, an executive council, and the state house of representatives. 251 The elections occurred at various points through the summer and fall. 252 In the run-up, both Republicans and Federalists *1536 organized feverishly to persuade the relevant voters to choose electors pledged to their particular candidates. 253 In hopes of making at least some APPENDIX - 108 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 12 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 110 of 553 PageID #: 515 THE TRANSFORMATIVE TWELFTH AMENDMENT, 55 Wm. & Mary L. Rev. 1501 sort of coordinated voting possible in the electoral college, Republican congressmen caucused in May 1800 to designate their preferred candidates for President and Vice-President. 254 They settled on Thomas Jefferson and Aaron Burr. 255 Federalist congressmen, guided by Alexander Hamilton, used the same mechanism to choose incumbent John Adams as their presidential candidate and Charles Pinckney for Vice- President. 256 But thanks to Article II's electoral college, all the planning and maneuvering and attempted coordination yielded an unexpected result. The Republicans outpolled Adams and Pinckney, who received sixty-five and sixty-four votes, respectively. 257 But, unable to know how other Republican electors had voted in other states, or indeed whether Federalist electors had (as Hamilton advised) concentrated their second votes behind Pinckney in an effort to elevate him over the Republican choice, the Republican electors failed to divert at least one of their second votes to a candidate other than Burr. 258 In so doing, they denied Jefferson an outright majority. 259 When all the ballots were counted, Jefferson and Burr had sixty-nine votes apiece. 260 According to the rules of Article II, the election moved immediately to the House of Representatives, which would decide between the top five candidates. 261 As only five candidates had received votes from the electors, all options were, so to speak, on the table. Due to a quirk of tradition, however, the new Congress with its healthy Republican majority, would not convene until after the new President was sworn in, on March 4, 1801. 262 So *1537 it was the expiring, Federalist-controlled Sixth Congress that held the fate of the presidency. For thirty-five ballots cast over six days, Federalist congressmen persisted in refusing to vote for Thomas Jefferson, whom they regarded as a threat to the very existence of the republic. 263 Meanwhile, rumors raced about the capital. Members of the Pennsylvania congressional delegation each received a letter from Philadelphia Republicans, warning them that the day Congress denied Jefferson or Burr the presidency would be “the first day of revolution and Civil War.” 264 Pennsylvania's Republican governor, Thomas McKean, went so far as to make preliminary preparations to mobilize his state's militia in the event the congressional Federalists prevented the ascension of one of the Republican candidates. 265 Virginia's James Monroe did the same. 266 The deep problems of the presidency's unanticipated political potential-mechanical and conceptual-were taking their toll. The mechanical design of the electoral college, which forbade discrimination between presidential and vice-presidential votes, 267 prevented electors from communicating, and referred the top five vote-getters to the House, kept Jefferson from winning the election even though he was clearly the first choice of a majority of electors. 268 Once the election devolved on the (lame-duck) House of Representatives, the conceptual problem proved just as intractable. Lacking a shared idea as to whom the President was politically accountable and why, Republicans and Federalists could not agree on which candidate the House should elect. Republicans argued that the people's choice, as reflected in the electoral college, should control. 269 Federalists *1538 rejected this populist theory of presidential election and seemed initially determined to choose the candidate they thought best for the Union, regardless of how the electors voted. 270 Shaken by threats of armed conflict and the specter of disunion, and following a decisive intervention by Alexander Hamilton, who urged compromise, 271 Federalist congressmen finally relented. On February 17, 1801, the House of Representatives elected Thomas Jefferson on the thirty-sixth ballot, ten states to four, with two abstaining. 272 The Federalists' stand-down resolved the electoral crisis, but provided no answers to the emergent problem of the politicized presidency. In the immediately following years, those answers would come from the supposed skeptics of executive power, the Jeffersonled Republicans. Over the course of the election of 1800 and the years shortly following, the Republicans developed a new account of the President's connection to the people-one that would justify fresh uses of presidential power and lead ultimately to a revised conception of the presidency as a political office. 273 But the structure of the Constitution had to be changed to make this reimagined presidency a reality. In 1803, Republicans amended Article II to more directly link the President and the people and to permit political partisans to more effectively contest presidential elections. 274 In this way, the Twelfth Amendment reset the separation of powers and changed American government. Before we can appreciate fully the transformation it wrought, however, we must take account of the idea that supplied its logic: the Republican case for the political presidency. APPENDIX - 109 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 13 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 111 of 553 PageID #: 516 THE TRANSFORMATIVE TWELFTH AMENDMENT, 55 Wm. & Mary L. Rev. 1501 B. Reimagining the Executive The Republicans developed their notion of a political Executive over time and in various forums as they struggled to capture the presidency, but it was their leader, Thomas Jefferson, who gave the *1539 idea mature theoretical expression in his 1801 inaugural address. 275 In those remarks, Jefferson outlined an office more populist, more politically active, and more constitutionally central than the one made in Philadelphia. 276 As of 1801, however, the presidency Jefferson described was an office founded only in speech. It would require constitutional change to become a reality. Jefferson delivered his inaugural address on March 4, 1801 to a Senate chamber so crowded that one observer, Margaret Bayard Smith, declared she believed “not another creature could enter.” 277 Jefferson's new ideas about his office were evident almost immediately. Whereas Washington and Adams had both addressed their inaugural remarks to Congress, Jefferson directed his speech to “[f]riends [and] [f]ellow [c]itizens.” 278 That was no coincidence. Jefferson cast the President as an exponent and advocate of political principle. That is, Jefferson reimagined the Executive as a political actor. 279 According to Jefferson, it was not merely the President's prerogative, but his duty to found his administration on political principles and to offer those principles to the people for their endorsement. 280 Midway through his brief address, Jefferson announced he found it only “proper” that his electorate “should understand what I deem the essential principles of our government”-and proceeded to list fourteen of them. 281 Astute listeners quickly recognized “the manifesto of the party and a declaration ... of [[Jefferson's] political creed.” 282 This was quite deliberate. Jefferson believed that the President should act not as a king above party, but as a delegate of the people, chosen by them to prosecute a political agenda they approved. In his view, the presidency should be an instrument of *1540 popular, majoritarian self-rule. 283 A politically responsive, politically accountable Executive was the principal means by which the people exercised control over their government. 284 In keeping with this philosophy, Jefferson cast himself as the people's representative. He referred to “the post you [the people] have assigned me.” 285 He asked for the public's “confidence” and for popular support against those who opposed him. 286 He concluded the address by promising to rely “on the patronage of [[the people's] good will” to perform “with obedience” the task they had assigned him, and “to retire from it whenever you become sensible how much better choices it is in your power to make.” 287 This was the President as popular delegate. For that model to work, however, presidential election had to become something it had not been for the Framers in 1787: a type of national plebiscite. The original Article II had taken care to insulate the choice of the President from the “tumult and disorder” of popular majorities. 288 Jefferson now claimed that the great purpose of presidential election was to give voice to majority opinion. Republicans in Congress had made the same argument in the throes of the 1800 election dispute, arguing as the Federalists forced ballot after ballot that a vote to deny Jefferson the presidency was a vote to usurp the rule of the people. 289 At the hands of Jefferson and the Republicans, the electoral college morphed from an independent body of leading men with the authority to select the President to a merely formal mechanism for expressing the majority's preference. And precisely because presidential elections should be, according to Jefferson, a national plebiscite organized around the political principles the candidates espoused, public endorsement of a given candidate conferred public authority on the victor to enact his principles. 290 Thus Jefferson told his listeners that the political points he deemed “essential” and which he understood the people to *1541 have endorsed were principles he now intended to use “to shape [the government's] administration.” 291 Put another way, the people's approval authorized the President to administer his office in a political manner, according to a particular political agenda. With this logic, Jefferson decisively abandoned the apolitical Executive the framers crafted in Philadelphia. 292 The Jeffersonian President was no patriot king; rather, an instrument of majority rule. Indeed, for Jefferson, the election of the President, not Congress, became the primary means by which the people expressed their will in the constitutional system. 293 Yet however compelling this vision, it found no home in the Constitution. The electoral college as Jefferson described it simply did not exist, not in 1801. He might call his own election a national plebiscite, but in fact the rules of Article II prevented the APPENDIX - 110 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 14 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 112 of 553 PageID #: 517 THE TRANSFORMATIVE TWELFTH AMENDMENT, 55 Wm. & Mary L. Rev. 1501 public, when they were permitted to vote for electors at all, from designating which candidate they wanted for President and which for Vice-President. 294 The electoral college thus provided no mechanism for the people to confer political approval on any specific candidate. Article II also prevented coordination between electors, which in the absence of ballot designation made organized party competition for executive offices difficult at best. 295 In frustrating both public participation and organized electioneering, Article II forestalled just the sort of national choice between competing political principles Jefferson thought presidential election should become. If the political presidency Jefferson described was to be fact, not just rhetoric, Article II would have to change. And that is what the Twelfth Amendment did. III. A Revolution in Form Most observers have missed the significance of the Twelfth Amendment because of what it did not do. It did not abolish the electoral college; it did not institute a direct national plebiscite; it *1542 did not direct the states to choose their electors by popular vote. 296 At first glance, the Amendment seems to have done relatively little, even to be, as Bruce Ackerman has recently said, “the very opposite of a serious attempt to think the problem [of presidential selection] through.” 297 First glances can be deceiving. The Amendment in fact fundamentally altered the operation of the electoral college, and with it, the relationship between the executive and legislative branches. The Amendment accomplished this by directing electors to designate their ballots for President and Vice-President and by reducing Congress's role in presidential elections in favor of greater and more direct control by the people. The effect was to facilitate political competition for the Executive, further unify the branch under the political control of the President, and make the President the choice of popular majorities. These innovations converted the Philadelphia presidency into a political one for good, shifting the structure of the constitutional order along the way. In the end, the Republicans' Twelfth Amendment gave the President's executive powers new scope and potentially new meaning, even as it produced a different sort of politics from the one the Framers had anticipated-one no longer congressional, but centered on the President. A. Enter the Twelfth Amendment The Amendment began life on October 17, 1803, when Representative John Dawson, Republican from Virginia, introduced the following resolution on the floor of the House: That, in all future elections of President and Vice President, the persons shall be particularly designated, by declaring which is voted for as President, and which as Vice President. 298 De Witt Clinton, Republican from New York, introduced substantially similar language in the Senate four days later. 299 Debate *1543 began first in the House, on October 19, 300 and lasted for nine days, with the House voting to approve an amendment proposal on October 28. 301 Meanwhile, Senators began debate on October 24, but kept at it only briefly before various exigencies, including the need to debate the Treaty of Paris with which President Jefferson proposed to purchase the Louisiana territory, 302 forced delay. The Senate eventually returned to the Amendment on November 23. 303 After a week of robust and sometimes heated debate, the Senate approved on December 2, 1803 a version different from the House's text in a modest yet, as we shall see, critical way regarding the number of candidates referred to the House in the case of a disputed election. 304 The House ultimately accepted the Senate's version on December 8. 305 As the Amendment cycled through Congress, debate narrowed to three major issues. First was the Amendment's leading feature, the designation of ballots for President and Vice-President. 306 Amendment supporters in fact called the text the “designating” Amendment. 307 Designation was not a new idea; it had previously enjoyed bipartisan support. 308 But in the Eighth Congress, the designating principle proved controversial. Once raised, it invited two additional and difficult questions-the proper number of candidates to be referred to the House in the event of a disputed election 309 and the status of the vice-presidency. 310 These three issues together formed *1544 the core of congressional debate. Raised in sequence, each was logically, even inseparably, connected to the other, and by the conclusion of debate in early December, Republicans offered essentially one argument on APPENDIX - 111 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 15 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 113 of 553 PageID #: 518 THE TRANSFORMATIVE TWELFTH AMENDMENT, 55 Wm. & Mary L. Rev. 1501 all three subjects: it was the right of popular majorities to choose the President. 311 Listening to their case, the Federalist John Quincy Adams realized that Amendment sponsors wanted to “reform [the Constitution's] federative institutions upon popular principles.” 312 He was exactly correct. 1. Debate in the House The debate began in the House with designation. 313 Dawson's terse initial draft called for ballot designation and nothing more, 314 and Republicans made their case for it first on rather technical grounds. 315 Representative John Clopton, a Republican from Virginia and one of the Amendment's primary supporters, reminded his listeners just how easy it was, in the absence of separate ballots for President and Vice-President, for the electoral college to wind up selecting as President a candidate who was the first choice of practically no one. 316 Clopton posed the hypothetical of an election between four presidential candidates in which the electors split their “first choice” votes between two candidates, while more or less uniformly giving their “second choice” votes to a third and scattering only a handful of votes to the fourth. 317 The result was that the third candidate, whom no elector wanted to be President, became President, and one of the first two candidates became Vice-President instead. 318 A mechanism so liable to malfunction, where malfunction meant failure to reflect voters' specific preferences for President and Vice-President, “cannot be expected,” Clopton concluded, to “receive the public confidence.” 319 *1545 The scenarios only became more complex and troubling when one factored in organized partisan competition for the presidency. The election of 1796 demonstrated that because the second-highest vote recipient automatically became Vice- President, the President and Vice-President might often be aligned with different parties. 320 A hostile and scheming VicePresident, however, might use his constitutional presence in the Senate to build an independent power base, allying with opposition Senators to thwart the President's agenda and create a sort of shadow government. 321 Any attempt to prevent this outcome posed additional problems. Electors who wanted to ensure that both of their party's candidates came to office, and to the specific offices for which the party had chosen them, had limited options. They could give exactly the same number of votes to their presidential and vice-presidential candidates, but that would produce the very deadlock between the top two candidates that sent the election of 1800 to the House of Representatives. 322 Alternatively, electors might toss away a handful of their secondchoice votes on a candidate not from their party who had no chance of attaining any office. But this route would only be safe if electors were sure their majority was sufficiently large to prevent the other party from placing their top-finishing candidate into the vice-presidency. 323 For that matter, the majority party had to be careful who they nominated for Vice-President on their own ticket because the minority might cast a number of their second-choice votes for the majority's vice-presidential candidate and thereby make that candidate the President. 324 This last scenario is just what Republicans feared Federalists intended to do in 1804, elevating Aaron Burr over Jefferson. 325 John Quincy Adams inadvertently summarized the mechanical case for designation when he concluded that “the present mode is too much like choice by lot.” 326 One small mistake by one anonymous elector could prevent the public's clear preference for President from *1546 claiming victory. 327 The only way to make the college accommodate specific voter preferences was to designate the ballots. 328 Republicans were not content to rest on this argument, however. They pressed forward to link ballot designation with election by popular majority. “For, sir,” John Clopton claimed, “in a Government constituted as our Government is ... all the constituted authorities are the agents of the people”-or should be-and that emphatically included the President. 329 It was inexcusable in a government founded on popular rule that the electoral college could not accurately register the people's preferences for President and Vice-President. “[T]he suffrages given for the election of those agents ought ever to be a complete expression of the public will,” Clopton said, “and should ... be directed immediately to those persons in whom the Electors intend to place confidence, as their agents, in the particular offices for which the elections are made.” 330 This logic led naturally to the second major issue in debate-the number of candidates to be referred to the House in the event of a disputed election. On October 19, just two days after Dawson introduced his minimalist text, Republicans proposed to reduce the number of candidates referred from five to some smaller contingent. 331 Representative Clay proposed two; 332 the House committee appointed to consider Dawson's resolution suggested three. 333 Here too, the case could be made on mechanical APPENDIX - 112 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 16 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 114 of 553 PageID #: 519 THE TRANSFORMATIVE TWELFTH AMENDMENT, 55 Wm. & Mary L. Rev. 1501 grounds. The original Article II provided for five candidates to be referred, but those five were candidates for both President and Vice-President; the original text did not recognize any distinction. 334 If the ballots were to be separated, the logic of Article II suggested only approximately half that number-two or three-should be referred to the House for election specifically as President, and similarly with the candidates for Vice-President. 335 *1547 But once again the Republicans quickly carried the argument onto populist terrain. They contended that reducing the number of candidates referred to the House was the only way to keep faith with the great original purpose of the Constitution, popular sovereignty. 336 “[T]he object of the proposed amendment” was the vindication of “a fundamental principle,” John Clopton argued. 337 “It is the primary, essential, and distinguishing attribute of the Government, that the will of the people should be done; and that elections should be according to the will of the people.” 338 This was historical revisionism, but of a revealing kind. In the Republicans' retelling, the electoral college was never meant to insulate presidential election from popular choice, but rather to effectuate the public will. 339 That meant election by the House, or any entity other than the people, ought to be an anomaly. Republican G.W. Campbell drew the threads of the argument together. 340 It was “the duty of this House ... to secure to the people the benefits of choosing the President,” he said, 341 which implied “resorting to Legislative interposition only in extraordinary cases.” 342 Furthermore, when legislative intervention was absolutely unavoidable, as in the case of an electoral deadlock, it was essential to constrain the House's discretion as much as possible to the popular will. That is why reducing the number referred to the House was so critical. “[T]hose only should be capable of Legislative election who possessed a strong evidence of enjoying the confidence of the people,” Campbell explained. 343 The import of these linked arguments for designation and referral was not lost on Federalists, who quickly understood that Republicans were arguing for a form of majoritarian election. In what was to become a recurrent theme, Federalists accused the Republicans of seeking to denigrate the role of small states in presidential election and promote capture of the Executive by political factions. 344 *1548 Both were arguments against majoritarian election. Federalist Gaylord Griswold of New York put the small-state argument succinctly to the House on October 28. 345 “In no other place than on this floor are the smaller States on an equal footing with the larger States in the choice of the President of the United States,” he said. 346 Separating the presidential and vice-presidential ballots would make referral to the House less common and thus diminish the small states' chances to influence the voting. 347 Federalists deployed the same logic against reducing the number of referred candidates. 348 The Federalists' protests on behalf of the small states were perhaps a bit disingenuous, considering so few Federalists hailed from small states themselves. 349 But Federalists also objected to majoritarian election on a more principled ground that demonstrated they understood the systemic change Republicans hoped to achieve. Federalists argued the Republicans' amendment would politicize presidential election and foster political faction. 350 “The present mode of bringing forward candidates” for election, Gaylord Griswold told the House, “is the least liable to call forth art, intrigue, and corruption,” precisely because the electoral college made political coordination severely difficult. 351 The Amendment, however, would facilitate organized political competition with all its pathologies. 352 “[T]he moment the mode pointed out by this resolution is adopted,” Griswold warned, “the door for intrigue and corruption is open.” 353 “[T]he power of party, influence of office, art, cunning, intrigue, and corruption” would all be deployed to win the presidency. 354 This point brought House Federalists to the heart of their case against the Amendment. The majoritarian fevers it would unleash and the political competition it would engender would work together *1549 to bind the President to the public in a way the original Constitution did not provide, and which it was not built to accommodate. 355 The effect would be to elevate the presidency above all other offices in the government. “But, sir, I could not then suppose, nor do I yet think,” Benjamin Huger summed up for the Federalists, “that the salvation and political happiness of the Republic depends so entirely on the election of any one man as President.” 356 Republicans wanted a representative, political presidency. Federalists were not willing to go along. With the major purposes of the Amendment now in the open, the House voted on October 28 to adopt the draft by a margin of eighty-eight to thirty-one, but not before Federalists scored a partial victory. 357 Whether because they found the small-state APPENDIX - 113 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 17 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 115 of 553 PageID #: 520 THE TRANSFORMATIVE TWELFTH AMENDMENT, 55 Wm. & Mary L. Rev. 1501 argument troubling or out of concern for the House's institutional prerogatives, a key group of Republicans voted to leave the number of candidates referred to the House in the case of an electoral deadlock at five rather than three. 358 2. Debate in the Senate It fell to Republicans in the Senate to reforge the majoritarian link between ballot designation and change in the referral number. Their effort to do so, however, brought the structural implications of the Amendment into sharper focus and prompted perhaps the most insightful argument against the proposed Amendment, one focused on its implications for the vice-presidency. Debate re-opened in the upper chamber on November 23, 1803, and returned immediately to the referral question. 359 The Republicans were ready. When John Quincy Adams suggested that referring only three candidates to the House would diminish the small states' role, 360 Republican Samuel Smith of Maryland promptly dismissed the argument as a distraction. 361 He contended *1550 that differences between small and large states had not been a point of contention in Congress in the last ten years. 362 Moreover, there was no principled ground on which to support ballot designation but not a reduction in the House's electoral role-at least, not if one accepted that the purpose of ballot designation was to render presidential selection more public and popular. “[T]he principles correspond so exactly as to support and enforce each other,” Smith insisted. 363 “It is to place the election in the hands of the people we wish to designate; it is for the same purpose we wish to keep the election out of the House of Representatives.” 364 Senate Republicans explicitly and repeatedly drew the connection between reducing the House's role and majoritarian election. “[T]he number three in the amendment ... brought the election two degrees nearer the people,” James Jackson asserted. 365 Senator John Taylor claimed that anything more than this number would annihilate “the elective power of the people.” 366 But it was William Cocke, Republican of Tennessee, who put the finest point on the argument: the President, he said, should be a “man of the people,” and that meant he ought to be chosen by the people and not the legislature. 367 Having closed ranks on the referral question, Senate Republicans amended the draft on November 29 to refer three candidates to the House rather than five. 368 But their populist-sounding arguments prompted a fresh Federalist rejoinder. In the House, Federalists had pointed out that a more truly majoritarian form of presidential election would entrench political competition for the office, making the presidency political as a result. 369 Senate Federalists now argued that this same majoritarianism would alter the internal structure of the executive branch. Stephen Bradley of Vermont expressed the point most colorfully. Enact this Amendment, he argued, and the “Vice President would be hawked about at market, and given as change for votes for the Presidency.” 370 Separating the *1551 ballots for President and Vice-President meant that in the future no Vice-President could again claim what Thomas Jefferson did in 1796-that he had been the choice for President of a very substantial portion of the electorate. Yet without the political cachet that votes for President lent, and with precious few constitutional responsibilities to fall back on, the Vice-President would become a resolutely secondary political figure. 371 Federalists predicted this would render the executive branch more internally unified even as it fostered the presidency's political character. James Hillhouse of Connecticut developed the argument for the Federalists by way of an alternative history of the vicepresidency's original purpose. In his story, the recent factional competition for the presidency was the same political temptation the Framers constructed their system to guard against. 372 “The First Magistratcy of this nation is an object capable of exciting ambition; and no doubt it would one day or other be sought after by dangerous and enterprising men,” Hillhouse said. 373 That is where the vice-presidency came in. “It was to place a check upon this ambition that the Constitution provided for a competitor for the Chief Magistrate.” 374 According to Hillhouse, “once or twice there may be such an organization of party as will secure for a conspicuous character the majority of votes.” 375 But that contemptible party spirit would not endure. So long as it did, the original electoral college made it likely that “men of each of the parties may hold the two principal offices of the Government” and in this way “be checks upon each other.” 376 Hillhouse's history was fictive. In fact, the Framers never contemplated the political competition for the presidency that erupted in the late 1790s. 377 But this imagined counter-narrative did draw out two important truths. The first was that the original electoral college made the executive branch something less than politically hierarchical because the Vice- President did not necessar- *1552 ily owe his station to the President's good will or to the President's party. 378 The second was that separating the ballots would destroy whatever institutional independence the vice-presidency might claim. Designation would make it very APPENDIX - 114 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 18 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 116 of 553 PageID #: 521 THE TRANSFORMATIVE TWELFTH AMENDMENT, 55 Wm. & Mary L. Rev. 1501 unlikely that the President and Vice-President would ever be of different parties going forward and made it certain that the Vice-President would never have been anyone's first choice for President. And all this meant the Vice-President would become clearly the chief executive's political subordinate. In the age of parties and political competition, the executive branch would become unified under the control of a single party and directed entirely by a single executive officer. Federalists forecast profound consequences. The corollary effect of demoting the Vice-President was to fix the public's eyes, as well as political competition, on the presidency. Do this, Federalists warned, and the presidency would become a populist office. “[B]y the new amendment, it would be every man to his own book,” Hillhouse warned, “and every demagogue would be a leader and a champion.” 379 The Republicans, he contended, had been blinded by “idol worship” of the presidency and now would have the citizens believe “there is only one man of correct politics in the United States.” 380 He feared a popularly backed President would come to dominate the entire federal system. 381 Samuel White, Federalist of Delaware, similarly predicted that the Republican's constitutional renovation would unleash “the licentiousness of democracy” and lead ultimately to a quasidictatorship. 382 “[U]pon this designating plan the public attention will be entirely engrossed in the election of the President, in making one great man,” he said. 383 Uriah Tracy wondered “If the gentlemen wish to shake the Constitution to pieces, if majorities must decide everything, why not go at once to a simple democracy?” 384 Tellingly, the Republicans made no effort to deny the popularizing tendency of their Amendment. Nor did they deny that the *1553 Amendment would demote the vice-presidency or make the President a political actor. 385 Instead, they defended the right of the people to control the Executive by public election. The Federalists, Republicans said, were defending rule by the minority. This was the Republicans' closing argument, and with it they indicted not just their party opponents but the original electoral college too. “Is it better that the people-a fair majority of the popular principle-should elect Executive power; or, that a minor faction should be enabled to embarrass and defeat the judgment and will of this majority?” John Taylor asked on the final day of Senate debate. 386 William Cocke sharpened the refrain: “I say, I do not understand the principle of minorities governing majorities. The law of the minority is not the law of the Constitution, and it is not the law for me.” 387 To Federalist charges that the Amendment would destroy institutional checks within the executive branch or make the President too great a figure, the Republicans responded with more populism. “The great check imposed upon Executive power,” John Taylor said, “was a popular mode of election.” 388 This was a different sort of political science than the one the Framers wrote at Philadelphia. The Republicans' President was the choice of the people, the people's representative, and the means by which the people controlled the administration of the laws. He was the creature of political competition and perhaps even the leader of a political faction. In all events, he was a political actor, empowered by the people to act on the political principles he announced to them. For all the Republicans' protests that the designating Amendment worked no great alteration in the Constitution's frame, 389 constitutional renovation was in fact the point and the result. The Senate voted to approve the final text of the Amendment on December 2, 1803, by a margin of twenty-two to ten. 390 It commanded electors to “name in their ballots the person voted for as *1554 President, and in distinct ballots the person voted for as Vice-President” 391 and further provided that in the event no candidate received a majority of the votes for President, the House would choose from among the “persons having the highest numbers not exceeding three.” 392 After brief debate, the House followed suit six days later on December 8, 1803, adopting the Senate's version. 393 Kentucky, Virginia, North Carolina, and Ohio ratified before January. 394 Maryland followed on January 7 and Pennsylvania on January 9. 395 After brief but heated debate, Vermont-a small state-ratified on January 30. 396 New York joined the affirmative tally in February, while New Jersey, Rhode Island, South Carolina, and Georgia approved the Amendment shortly thereafter. 397 By the time every state legislature had cast its votes, the Amendment received the approval of all but four states-Delaware and three states from Federalist New England: Massachusetts, Connecticut, and New Hampshire. 398 Secretary of State James Madison proclaimed the text adopted as the Twelfth Amendment to the United States Constitution on September 25, 1804, just in time for the presidential election. 399 B. Changing Structure: What the Twelfth Amendment Did APPENDIX - 115 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 19 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 117 of 553 PageID #: 522 THE TRANSFORMATIVE TWELFTH AMENDMENT, 55 Wm. & Mary L. Rev. 1501 Constitutional text creates constitutional structure-or changes it, and that is what the Twelfth Amendment did. By changing the mode of executive election, the Amendment facilitated and indeed entrenched organized political competition for the presidency. This constitutional alteration in turn worked at least two additional structural changes: It conferred new warrants for political action on *1555 the President. And it unified the executive branch internally by removing the Vice- President as a possible political rival. To describe these alterations is to describe the rise of the political presidency. Together, the changes, and the presidency they created, amounted to a structural realignment of the federal system. 1. Entrenching Political Competition Before the late 1790s, centrally coordinated, national competition for the executive office was unheard of and largely unimagined. After the Twelfth Amendment, it became commonplace. Directing electors to designate their ballots for President and Vice-President solved the problem of elector coordination posed by the original Article II. With electors casting one vote specifically for a presidential candidate and one for a vice-presidential aspirant, there would be no more guessing as to how many electoral votes a given candidate had at any one time, the question that had so confounded partisans in 1800. 400 Eliminating this information deficit meant parties would now be able to run presidential and vice-presidential candidates effectively on a single ticket. 401 State electors only needed to pledge their support to a given ticket before being selected. Provided they did, the electoral vote could be contested and won with no need for electors to meet in person or confer. 402 The Amendment did not require pledged electors nor party tickets, but it made these practices effective mechanisms for capturing the presidency and powerfully encouraged parties to organize competition in this way. If the original Article II had made it difficult to win an electoral majority by coordinated campaigning, the Twelfth Amendment made it all but impossible to win without it. 403 Parties began nominating candidate tickets in 1796, when the parties' respective congressional caucuses chose the candidates. That means of selection would last until 1824, to be replaced by nominating conventions, but the institution of the party ticket endured. 404 Meanwhile, the practice of pledged partisan electors *1556 became similarly entrenched. “[T]he people do not elect a person for an elector who, they know, does not intend to vote for a particular person as President,” Congressman Samuel Mitchell remarked in 1802. 405 In time, multiple states would require their electors to pledge support to a particular candidate. 406 The Amendment worked to entrench organized competition in another way. The new text reduced the number of electoralcollege ballots cast for President by half and actually made it more likely that the top-finishing candidate would not gain an outright electoral majority unless political parties actively concentrated national support behind two or three leading contenders. 407 The Amendment thus made political parties central to achieving one of its primary objectives, keeping election out of the House of Representatives. 408 As political scientist James Ceaser has observed, “[I]f parties began to disintegrate, the Twelfth Amendment ... provided a powerful new justification for recreating them.” 409 This was perhaps an ironic result given that Republicans, for all their enthusiasm regarding political competition, remained ambivalent on the question of political parties as permanent institutions. A good many Republicans hoped the parties would in due course pass away. 410 But the Twelfth Amendment made this most unlikely. Instead, it provided powerful incentives for party organization and made the presidency both the subject and beneficiary of ongoing, organized political competition. 2. Warranting Political Action That competition conferred on the Executive something the office had not enjoyed before: democratic warrants for political action, along with democratic incentives to act. Political competition had a democratizing effect. Whereas only five states chose their electors by popular vote in 1800, over half did by 1816, and all but one by *1557 1828. 411 Still, even in 1804, the Twelfth Amendment fostered public-oriented political electioneering that linked the presidency to the populace in a way it had not been previously. The shift in presidential behavior that this newfound representative status authorized was observable almost immediately in Jefferson's presidency. To be sure, some of Jefferson's political practices as President predated the adoption of the Twelfth Amendment. Still, it was Jefferson's view of the Executive as a representative office that informed his new praxis, and he and the Republicans would point to the Twelfth Amendment as making their vision constitutional. 412 APPENDIX - 116 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 20 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 118 of 553 PageID #: 523 THE TRANSFORMATIVE TWELFTH AMENDMENT, 55 Wm. & Mary L. Rev. 1501 Whereas Washington and Adams had studiously avoided overly political statements, especially in their inaugural addresses, 413 Jefferson made them forthrightly, even boldly. 414 He claimed to speak as a political leader. 415 He also claimed to speak as a policy leader. Neither Washington nor Adams used their annual messages to Congress to argue the merits of specific pieces of legislation, and neither attempted to influence directly the deliberations in Congress. 416 Jefferson did both. 417 In fact, Jefferson embraced political leadership of Congress of a kind that only Hamilton had ventured to try; Jefferson, however, did so as President, not as a cabinet secretary. 418 Jefferson began by deputizing a member of the Republican House caucus to act as his spokesman in that body. 419 This floor leader was a “presidential agent[], appointed by the executive, and dismissed at his pleasure.” 420 Jefferson routinely communicated his wishes to the caucus, articulated legislative priorities, and suggested draft legislation. 421 His influence was so great that Federalist Timothy Pickering could remark, with only modest overstatement, that Jefferson “secretly dictates every measure which is seriously proposed and supported.” 422 His practice *1558 would set the pattern for Presidents to come. 423 Future Executives would be more or less aggressive than Jefferson in establishing a policy agenda and advocating its passage, 424 but all would enjoy the democratic authority to do so. 425 Jefferson also exerted greater control than his predecessors over the executive branch. 426 Washington had filled cabinet seats and other official posts on the basis of competence, character and reputation, 427 but Jefferson expressly included political allegiance as a criterion for appointment and dismissal. 428 Upon assuming office, he set about determinedly changing the complexion of the executive branch from a Federalist to a Republican hue by filling the 316 offices subject to his appointment power with Republican loyalists. 429 When asked to justify his departure from the earlier, non-partisan norm of appointment, Jefferson offered an essentially populist rejoinder. The “public sentiment [had] at length declared itself” in favor of the Republican political program through the medium of presidential election, he said. 430 “Is it political intolerance” for Republicans thus “to claim a proportionate share in the direction of public affairs?” 431 Jefferson portrayed political control of the executive branch as the means by which the people, acting through a political President, implemented the principles they preferred. 432 And once again, the democratic warrant of public approval would make the same arguments available to all future Presidents. Not surprisingly, the vast majority has followed Jefferson's practice. 433 *1559 If public approval communicated political authority to act, it also imposed political consequences for the actions Presidents took, and this made presidential election a catalytic event. A more public form of election meant that any and all presidential action would now be subject to popular judgment, just as Congress's actions were. But the President's institutional prominence and head of state status made him specially accountable for his performance and for the performance of the federal government as a whole. In the words of political scientist Stephen Skowronek, the presidential office “focuses the eyes and draws out the attachments of the people.” 434 The President could be blamed for the operation of the government in a way no individual congressman could, precisely because he appeared responsible in a way no individual congressman did. As the everperceptive Alexis de Tocqueville observed, the Executive's “honor, property, liberty, and life stand as constant guarantees to the people that he will make good use of his power.” 435 Presidential elections became a referendum on the state of the union. Jefferson anticipated that the election of the Executive would come to work in just this manner. Presidential terms, he told a correspondent in 1805, were effectively eight years in length, “with a power to remove at the end of the first four” should the people decide, after assessing the President's performance, that he was “doing wrong.” 436 Presidential election, in other words, was a form of performance review. In this way, public-style election spurred the President not just to good conduct, but to affirmative action, and not just to execute the policies Congress adopted, but to pursue his own agenda. 437 3. Unifying the Executive In addition to conveying new warrants for political leadership, the Amendment granted the President a freer hand in exercising political power by reducing the Vice-President to a decidedly *1560 subordinate status. 438 The institutional consequences were significant. The Executive might well have become politicized, after all, without becoming politically homogeneous. Congress was a political institution, and it was anything but homogeneous: different members elected by different constituencies at different times guaranteed robust political diversity. 439 And although the Constitution vested the executive power in a single President, the document created two elective executive offices. 440 This structure made it entirely possible, as Federalist APPENDIX - 117 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 21 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 119 of 553 PageID #: 524 THE TRANSFORMATIVE TWELFTH AMENDMENT, 55 Wm. & Mary L. Rev. 1501 congressmen in 1803 hoped, that the Vice-President would emerge as a political rival to the chief executive. 441 There is in fact ample precedent for such a development. Nearly every state in the American union operates with a politically heterogeneous executive, 442 as indeed do most other nations that employ a presidentialist system. 443 A politically independent Vice-President was a very real possibility, and might have significantly altered the practice of executive administration. 444 But even as it politicized the executive branch, the Twelfth Amendment ruled political heterogeneity out. Separating the ballots for President and Vice-President meant that no future Vice-President would ever be able to claim that he was the choice for President of a significant segment of the public. 445 Nor would he ever likely again be the leader of a major political faction outside the President's party. 446 Although in theory electors might vote for a presidential candidate from one party and a vicepresidential candidate from another, the new political realities the Twelfth Amendment helped create made such ticket splitting improbable. 447 Parties placed their candidates before the public (or the state legislature) as pairs. Some states in the early 1800s listed the *1561 candidates as a pair on the ballot, as all do today, 448 and electors typically pledged themselves to party tickets. In addition, a party had every incentive to nominate its most attractive and well-known candidate for President rather than for Vice-President. 449 This practice made it unlikely that vice-presidential candidates would be sufficiently popular to win election on their own, without party backing. In turn, it was difficult for vice-presidential candidates to establish a compelling identity apart from the party apparatus. 450 Louis Clinton Hatch once famously remarked that John Calhoun was “the only American statesman of the first or second rank who held the Vice-Presidency in the century between its occupancy by Jefferson and Roosevelt.” 451 That was because the Twelfth Amendment made the vice-presidency a tertiary office, and the President the unrivaled political leader of the executive branch. *** One might legitimately wonder about the counterfactual question: 452 Was the Twelfth Amendment truly necessary to the emergence of the political presidency? Or would this change in the Executive have happened anyway? Well before the adoption of the Twelfth Amendment the presidency was having political effect. Hamilton demonstrated that executive officers could influence the legislature and craft policy, 453 and Washington showed that the President could manage foreign affairs largely on his own. 454 The structure of Article II made these things possible insofar as it uniquely fitted the Executive to receive and exercise power. 455 But these early practices revealed only the political potential of the presidency; they showed that the Executive's actions carried *1562 political implications. They did not make the presidency a political office. For that, the Executive required some sort of democratic sanction. And this is what the Twelfth Amendment conferred. It is entirely possible, of course, that political actors might have found some other way to confer democratic warrant on the presidency apart from the particular changes to presidential election the Twelfth Amendment made. But in any scenario, some reform of the electoral college was essential. If the President was to be connected to the people, and acquire democratic warrants for political action, the non-public election specified by the 1787 Constitution had to change. This is what the Twelfth Amendment did. None of this is to argue that Twelfth Amendment led ineluctably to what we now call the “modern presidency.” The hyperkinetic chief executive familiar to Americans of the twenty-first century is the product of multiple complex and interlocking historical events, of which the Twelfth Amendment is only one. But if the Twelfth Amendment's direct consequences were more limited, they were transformative nonetheless. The Amendment made the President a political actor. It is time to consider what that portends for constitutional law. IV. Structural Reasoning About the Executive Structural changes have interpretive consequences. The Twelfth Amendment changed the available uses of the President's executive power by conferring on the office political authority and altering its relationship to Congress. And this in turn may affect our understanding of executive power. The Twelfth Amendment's renovations carry potential import for a number of separation of powers controversies. Here I focus principally on a paradigmatic one: the President's authority to remove executive APPENDIX - 118 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 22 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 120 of 553 PageID #: 525 THE TRANSFORMATIVE TWELFTH AMENDMENT, 55 Wm. & Mary L. Rev. 1501 branch officers. By constitutionalizing the political presidency, the Twelfth Amendment implies that the President may rightfully claim political control over the executive branch. To exercise political control, he must be able to remove subordinate policymaking officers. This is the argument that can break the removal-debate logjam, and this Part explains it in some detail. Structural arguments of the kind I make here have recently become controversial. And so I begin with a brief word about what *1563 sort of structural reasoning I have in mind, and then offer a brief explanation as to why this type of structural reasoning does not run afoul of John Manning's recent and well-taken critique of purposivist structural interpretation. These necessary clarifications made, I turn to apply structural reasoning to the removal debate. A. Brief Defense of Structural Reasoning Interpretation by structural inference is one of the most venerable methods of constitutional reasoning in American law. 456 Chief Justice John Marshall was its earliest practitioner and perhaps its most skillful. 457 But it was Charles Black who gave the method its modern canonical expression. 458 In distinction from precedent-based reasoning and textual analysis, Black defined structural interpretation as a “method of inference from the structures and relationships created by the constitution in all its parts or in some principal part.” 459 The idea was to ask not only what a specific text meant in itself but also what relationship that text bore to other texts, and what relationships those texts together created among the various branches and entities of government. 460 That last part is central because while it is surely possible to use structural reasoning to analyze the relationship between various clauses in the Constitution in order to fix the meaning of an ambiguous passage, 461 the method's core application involves more. Structural reasoning can and should encompass the relationships between the branches and offices of government that the Constitution creates, as well as those branches' and offices' internal compositions. 462 Put another way, the structure we care about should *1564 include not just grammatical structure but political structure too. Charles Black said as much when he famously argued that the Supreme Court ought to have premised its judgment in Carrington v. Rash 463 on a political structure argument that emphasized political supremacy of the federal government over the state governments. 464 Chief Justice Marshall relied on the same logic of political structure to decide McCulloch v. Maryland. 465 And the modern Supreme Court reasoned from political structure to reach the anti-commandeering principle announced in Printz v. United States. 466 Thus it is quite relevant for the interpretation of the executive Vesting Clause in Article II, Section 1, that the Twelfth Amendment confers on the President a democratic warrant to act politically. This tells us that whatever else it is, the President's “executive power” after 1804 includes a political dimension. That is, the business of administering the laws includes political administration. That fact should weigh heavily when we consider, for example, what the President must be able to do and what sort of control over the executive branch he must be able to exercise in order to “take Care that the Laws be faithfully executed.” 467 It is similarly relevant that the Twelfth Amendment empowered the President to act as a policymaker vis-a-vis Congress, and that as it did so, it removed the Vice-President as an internal political rival, making the Executive as a whole politically homogeneous. 468 These facts too tell us something about what “executive power” means. I will have more to say on all of this momentarily, but the point now is that political structure matters. That is my first claim. My second claim is that reasoning from the political structure created by the Constitution's text does not constitute an objectionable form of generality shifting. John Manning has recently pointed out that some of the Supreme Court's structural reasoning in its *1565 federalism and separation of powers jurisprudence looks suspiciously like the sort of purposivism the Court has rejected as a method of statutory interpretation. 469 In the statutory context, the Court has been keen to emphasize in recent years that no law pursues its ends at all costs, and that the specific means of implementation a statute's drafters select must therefore not be gainsaid by reference to broader statutory purpose. 470 Statutory directives represent bargained-for legislative compromises; to trump them by reference to purpose is to shift statutory meaning to a level of generality higher than and different from what the drafters agreed upon. Manning argues persuasively that the Court's process-based critique of generality shifting for statutory interpretation should apply to constitutional interpretation also. 471 Interpretive inferences based on political structure, however, need not constitute generality shifting of this sort. Indeed, Manning contends that the “most promising[] way to lend determinacy to the Vesting Clauses is to read them in the light of surrounding APPENDIX - 119 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 23 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 121 of 553 PageID #: 526 THE TRANSFORMATIVE TWELFTH AMENDMENT, 55 Wm. & Mary L. Rev. 1501 constitutional terms.” 472 I would add that the Article II Vesting Clause should be read in light of not only surrounding terms but also the political structures that those terms, and the Constitution as a whole, create. To make this move from semantic structure to political structure is not to fall back into purposivism. Put another way, to interpret “executive power” by reference to the structural changes the Twelfth Amendment made to the executive branch internally and the new structural relationship it created between that branch and Congress is not to announce an abstract value, like federalism or separation of powers, that stands free of any particular constitutional provision. 473 Rather, it is to allow the political and *1566 institutional implications of one very specific constitutional provision, the text of the Twelfth Amendment, to inform the meaning of other specific provisions: the Article II, Section 1 Vesting Clause and the presidential powers enumerated in Sections 2 and 3. 474 To that task of structural reasoning, I now turn. B. Application: The Removal Power The removal debate is one badly in need of structural argument. After nearly three decades of renewed and impassioned scholarly attention, the debate is deadlocked along now familiar lines. On the one side are advocates of what has been styled the “unitary Executive,” who contend that as a matter of original meaning, the Constitution gives “all of the executive power to one, and only one, person: the president of the United States.” 475 These “unitarians,” as they are sometimes called, believe the executive power emphatically includes the authority to remove subordinate executive officers, a contention they support by reference to the Constitution's Article II Vesting Clause, 476 as well as to the historical meaning of executive power and early federal practice. 477 On the other side stand the skeptics, who argue variously that the Constitution's textual silence as to presidential removal is authoritative; 478 that the Article II Vesting Clause conveys no substantive authority on the President apart from those powers listed in Sections 2 and 3 (which do not include removal); 479 that the historical meaning of executive power is indeterminate or contrary to the unitarian position; 480 that the *1567 First Congress actually separated substantial portions of the administration from presidential control, 481 never endorsing presidential removal as a constitutional matter; 482 and that a bevy of normative considerations counsel against vesting a power to remove in the President. 483 The stalemate is entrenched, due largely to the profound ambiguity of Article II's text and history. Advocates of presidential removal typically rest their claims on the Vesting Clause, 484 and they have made a strong case that it does more than merely designate the identity of the actor who will exercise the powers enumerated in Sections 2 and 3, but rather conveys some independent substantive authority to administer the laws. 485 But “the executive power” mentioned in the Clause is undefined. As a consequence, insisting that the President alone has authority to remove any officer performing executive responsibilities because the Constitution gives all of the executive power to the President does not get one very far. 486 It only begs the question: what does *1568 “executive power” include? Some unitarians look to the historical practice of the British Crown for the answer and argue that because the Crown held the authority to remove executive officers at will or, perhaps more precisely, to designate the length and type of tenure during which these officers would hold their posts, 487 the Article II “executive power” can be assumed to include the same. 488 Yet as with every argument that looks to English practice as a source of background meaning, this claim presumes that revolutionary-era Americans regarded the English experience as normative. They likely did not-at least, not uniformly. 489 Alternatively, some advocates of removal have pointed to the decision of the First Congress to include in the bill establishing the Department of Foreign Affairs language acknowledging the right of the President to remove the department's secretary. 490 This is the so-called Decision of 1789. 491 But fixing the Decision's meaning is a notoriously complicated endeavor, not least because what is called “the Decision” spans multiple cycles of voting and debate across both Houses. 492 Even the most spirited proponents of this approach must *1569 rely on inferences from scattered statements by the key voters and speculation as to those voters' true motives. 493 In the end, it appears impossible to say with any certainty whether the determinative House members believed the Constitution vested the power of removal in the President. 494 The removal debate is due for a structural turn. Tellingly, unitarian scholars' most powerful point is less an argument from Article II's text and history than an intuition. The intuition is that if the President is in charge of the executive branch, “[i]t would make little sense to force the President to deal with officers who fundamentally disagree with his administrative or political APPENDIX - 120 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 24 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 122 of 553 PageID #: 527 THE TRANSFORMATIVE TWELFTH AMENDMENT, 55 Wm. & Mary L. Rev. 1501 philosophy.” 495 That idea turns on a certain unacknowledged conception of what presidential administration is about. To be specific: The unitarian position assumes presidential administration would be impossible, or nearly so, if the President were not able to maintain political control over the executive branch. Beneath that assumption rests a further one: that what the President does is political, that he is in fact a political actor. As it turns out, the best case for a presidential power of removal comes from the political character the Twelfth Amendment conferred on the presidency. 1. The Core Argument The critical question for determining whether the President has constitutional power to remove executive officials is: What does it mean to administer the laws? This is where the Twelfth Amendment proves enlightening. The structural changes Amendment *1570 made supply definition to the task of law administration and by extension, definition to the content of executive power. 496 Specifically, the Twelfth Amendment tells us that law administration now has political implications, that it is in fact a political task because the presidency is now a political office. 497 By subjecting the Executive to organized political competition, and by connecting it to popular majorities, 498 the Twelfth Amendment authorizes presidential administration according to political principles and for the purpose of advancing a political agenda. 499 The President's post-Twelfth Amendment political role has significant institutional implications. Simply put, in order to impose his political principles on the administration of the laws, the President must be able to control those executive branch subordinates who occupy policy-making positions. Political control is necessary to political administration. If policy-making officials in the executive branch were insulated from the direct management of the President in the vein Alexander Hamilton imagined, for instance with a more or less permanent civil service devising policy and administering the government as figurehead chief executives came and went, 500 the President would be institutionally unable to conform the enforcement of the law to his political priorities. The President as political administrator thus implies a reasonably close integration of the Executive and the administration. This integration would be defeated should the President be unable to remove policy-making subordinates who refuse to comply with his wishes. This point is the true, if unacknowledged, heart of Chief Justice Taft's famous defense of presidential removal power in Myers v. United States. 501 After holding that “[t]he vesting of the executive power in the President was essentially a grant of the power to execute the laws,” 502 Taft went on to note that the President exercises the enforcement authority with the help of numerous subordinates. 503 The President must be able to control *1571 those subordinates in order to control the administration. “[T]o hold otherwise [and permit the Senate a negative on removals] would make it impossible for the President, in case of political or other difference with the Senate or Congress, to take care that the laws be faithfully executed.” 504 Though he barely acknowledged it, Taft's logic turned on the political dimensions of presidential law enforcement. If the President's responsibility were merely to administer laws Congress wrote without regard to political considerations or policy, then there would be nothing untoward in Congress insulating executive officials, including those with appreciable authority like cabinet secretaries, from direct presidential control. 505 The President's job, after all, would be to administer the policy Congress devised. But Taft's reasoning hinged on the claim that Congress is not the only policymaker in the federal government. “The extent of the political responsibility thrust upon the President” is vast, Taft contended. 506 And it was the President's right to “determin[e] the national public interest and [to] direct[] the action to be taken by his executive subordinates to protect it.” 507 The President was entitled to make policy judgments of his own, which meant that in cases of political disagreement with the Senate, or Congress more generally, he must be able to pursue his own political principles and not have Congress's forced upon him. 508 James Madison invoked exactly this logic in 1834 when he defended Andrew Jackson's exercise of the removal power. If the Senate had a share in the power to remove, Madison reasoned, it could “force on the Executive Department a continuance in office, even of Cabinet officers, notwithstanding a change from a personal [and] political harmony with the President, to a state of open hostility towards him.” 509 Taft and Madison's argument *1572 assumed the President's political authority without inquiring as to its source. The Twelfth Amendment is that source. 510 The argument can be extended by reference to changes the Amendment made to the internal composition of the Executive Branch. The text eliminated the Vice-President as an independent political authority and unified the executive department under the political direction of the President. 511 Permitting Congress to place executive officers outside presidential control would APPENDIX - 121 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 25 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 123 of 553 PageID #: 528 THE TRANSFORMATIVE TWELFTH AMENDMENT, 55 Wm. & Mary L. Rev. 1501 reverse this structural change and reintroduce political heterogeneity to the Executive. This political diversification is likely what unitarians have in mind when they argue that denying the President the power to remove would render the Executive less unitary, even though it would still leave the President as the single head of the executive branch. 512 Again, the argument is a structural one about political control and is best made from the Twelfth Amendment. The Amendment provides at least one other reason to conclude that the President has the constitutional authority to remove policy-making executive officials. By virtue of the changes to presidential election, the presidency is now a representative office, and the President's control over the administration is one powerful means by which the people exert control over their government. 513 This reason is all the more compelling in an age when administration accounts for the vast majority of dayto-day governance. Perhaps not surprisingly, it was the populist Jefferson's central justification for presidential control of subordinate officers. 514 The “will of the nation,” he contended, “calls for an administration of government according with the opinions of those elected,” and that meant the President needed authority to remove those persons from whom he “could scarcely expect ... a cordial co-operation [sic].” 515 *1573 The same point also appeared in Myers, though its true significance was obscured. “The President is a representative of the people,” Taft wrote, “just as the members of the Senate and of the House are, and it may be at some times, on some subjects ... [that he] is rather more representative of them all than are the members of either body of the Legislature, whose constituencies are local and not countrywide.” 516 Because the President was elected “with the mandate of the people,” 517 the power of the President to remove was essential to “the plan of government devised by the framers of the Constitution.” 518 Taft was wrong about the Framers-their plan of government did not include a political presidency-but right that presidential removal is, after the Twelfth Amendment, one important way of implementing the people's authority over their government. The argument I have advanced here is structural: in sum, the political character of the presidency and its policy-making authority in relation to Congress make presidential administration a political undertaking, and the President requires the power of removal to vindicate this structurally conferred political role. 519 Moreover, removal power in the hands of a democratic and representative President is an important means by which “We the People” exercise control over the government. 520 There remains the question of precisely which executive officials the President needs to have power to remove. The argument from political structure suggests the class extends to those officials with significant policy-making authority-cabinet heads, principal deputies, and heads of agencies, at least. I turn now to briefly trace how this model might work in practice. 2. Cases and Controversies My intention in this Section is to offer a brief overview of how the political structure argument might play out in four of the Supreme Court's seminal removal cases: Myers v. United States, *1574 Humphrey's Executor v. United States, Bowsher v. Synar, and Morrison v. Olson. In at least one case it suggests a different result; in others it would work a change in the reasoning. I will not attempt to analyze the cases in detail, but only to suggest how the structural argument might affect their resolution. a. Myers v. United States Chief Justice Taft, writing for the Court, concluded that the President enjoyed exclusive constitutional authority to remove executive officers of the United States, and that an 1876 act of Congress requiring Senate approval for removal of postmasters was unconstitutional. 521 Taft's voluminous opinion relied heavily on the constitutional judgment he believed the First Congress had reached in the Decision of 1789. 522 Myers also credited Congress's acquiescence to presidential removal for three-quarters of a century (until the Tenure of Office Act of 1867), and the executive branch's consistent claims that the President possessed removal authority. 523 In addition, Myers held, if somewhat obliquely, 524 that “executive power” inherently included the removal power, both by virtue of historical practice-“[i]n the British system, the Crown, which was the executive, had the power of appointment and removal” 525 -and because without the power to remove, the President could not take care that the laws be faithfully executed. 526 The argument from political structure suggests the Myers conclusion is right, but the reasoning is in need of revision. To the extent Taft's opinion held that the Decision of 1789 represented an authoritative judgment by the First Congress on the APPENDIX - 122 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 26 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 124 of 553 PageID #: 529 THE TRANSFORMATIVE TWELFTH AMENDMENT, 55 Wm. & Mary L. Rev. 1501 removal question, it was likely mistaken. 527 And even if the claim were *1575 historically accurate, it is not clear from an originalist perspective why the views of a body of individuals other than the drafters and ratifiers should count as constitutionally authoritative, nor why the acquiescence of subsequent Presidents and Congresses should settle the question-unless of course these actors' views actually comported with the original meaning. 528 If they did not comport with the original meaning, they would be irrelevant. Alternatively, if they were only one plausible interpretation of a fundamentally ambiguous meaning, they would be not legal interpretations but political constructions, which the judiciary should neither invalidate nor endorse. 529 Myers's reference to English Crown practice was similarly flawed: it is far from clear that the Constitution takes the monarch's prerogatives as a baseline. 530 When the opinion turns to the President's need to control the administration, Myers moves to firmer ground. 531 The structural argument would set this point in its proper context. Because the Constitution's structure makes the President a political actor, Myers should have held that his administration of the laws is a political undertaking in the broadest sense. As the people's representative, the President has the right to exercise independent policy judgment in his execution of the law and to administer the government according to his political principles. He cannot realize these rights without exercising control over policymaking subordinates. As to whether the Portland postmaster at issue in Myers counts as a policy-making official, it is sufficient to note that in 1926, the time the case was decided, regional postmasters were important political appointees with significant administrative responsibilities. 532 This revised reasoning captures Myers's most promising insights about the President's need for political control of his administration and the office's representative character, while grounding those insights firmly in constitutional structure. *1576 b. Humphrey's Executor In Humphrey's Executor v. United States, decided just nine years after Myers, the Supreme Court reversed course and held that Congress may limit the President's removal authority over members of independent agencies and other government officials who are not “purely executive.” 533 The question in the case was whether the Federal Trade Commission's (“FTC”) founding statute, the Federal Trade Commission Act, prevented the President from removing FTC commissioners for any reason other than “inefficiency, neglect of duty, or malfeasance.” 534 The Court famously reasoned that the Commission was “a body of experts” 535 created by Congress to “carry into effect legislative policies embodied in the statute,” 536 that it was “to be non- partisan” 537 and was obliged to “act with entire impartiality,” 538 and therefore could not be an executive agency. 539 Instead, the Court declared the Commission to be “quasi-judicial and quasi-legislative.” 540 The Court's refusal to locate the Commission squarely in any one branch of government has been justly criticized. 541 The Court's claim that the Commission's expert and nonpartisan character entitled it to insulation from executive control is equally problematic. The structural argument would produce a different outcome. The Commission, as the Court admitted, administered “legislative policies”; 542 more precisely, it conducted investigations, made reports, and generally enforced the government's antitrust law. 543 These duties made the Commission a policy-making agency, and constitutional structure therefore instructs that its members must *1577 be subject to presidential control. 544 This same logic applies to all executive branch agencies, whether designated “independent” or not: If the agency implements policy, the President is entitled to control it through the removal power. 545 The only executive agencies to which this conclusion would not apply are those that conduct largely judicial functions and are therefore not, strictly speaking, policy-making entities. 546 c. Bowsher v. Synar Bowsher v. Synar raised the question of whether Congress could invest the Comptroller General with final authority over the federal budget and simultaneously reserve for itself the power to remove the office's occupant. 547 The Court answered in the negative based on the constitutional separation of powers doctrine, which it said prevented Congress from seizing the task of law administration. 548 Stated in this form and at this level of abstraction, the Bowsher judgment comes dangerously close to relying on a separation of powers meta-norm not anchored to any particular text. 549 Justice White dissented based in part on this ground. 550 APPENDIX - 123 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 27 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 125 of 553 PageID #: 530 THE TRANSFORMATIVE TWELFTH AMENDMENT, 55 Wm. & Mary L. Rev. 1501 The structural argument developed here supplies an alternative ground for the decision-namely, that the Gramm-Rudman- Hollings Act attempted to prevent presidential removal of the Comptroller. 551 The Court's findings as to the executive, policymaking nature of the Comptroller's authority were more than enough to sustain the conclusion that the President must be able to direct the Comptroller in order to maintain control of the executive branch. 552 The Court found that the Comptroller General wielded “the ultimate authority *1578 to determine the budget cuts to be made. Indeed, the Comptroller General commands the President himself to carry out, without the slightest variation ... the directive of the Comptroller General as to the budget reductions.” 553 Structure tells us that an officer with this authority must come under the direction of the President. On this reasoning, Congress may well have been entitled to retain power to remove the Comptroller for cause-the office was arguably an agent of Congress housed in the legislative branch 554 -so long as it did not deny the President's power to remove the Comptroller at will. d. Morrison v. Olson Finally we come to Morrison v. Olson, the Court's most recent removal case and one of its most controversial. 555 Morrison concerned the Watergate-era Ethics in Government Act, which permitted the Attorney General to seek the appointment of an independent counsel to investigate alleged misfeasance by high executive branch officials, including the President. 556 Appointment of the independent counsel was vested in a special three-judge subpanel of the U.S. Court of Appeals for the D.C. Circuit. 557 Removal was entrusted to the Attorney General alone and only for cause. 558 A seven-member majority of the Court concluded, over the lone dissent of Justice Scalia, 559 that the Act was constitutional in these particulars because the independent counsel did not interfere with “the functioning of the Executive Branch.” 560 For his part, Justice Scalia contended that prosecution of crimes was the quintessential executive power and was uniformly regarded as such at the time of the founding. 561 Scalia also argued that any derogation of the President's power to remove executive branch officials would *1579 undermine the principle of separated powers, because “all of the executive power” belongs to the President. 562 Structural reasoning based on the Twelfth Amendment suggests the Court's conclusion was likely correct, though not for the reasons it offered. Consider the Court's logic. The majority rightly acknowledged that “the functions performed by the independent counsel are ‘executive’ in the sense that they are law enforcement functions that typically have been undertaken by officials within the Executive Branch.” 563 The Court concluded that this fact did not settle the matter, however. The majority was right about this because, contrary to the claims of Justice Scalia, 564 it does not appear that criminal prosecution has always been regarded as part and parcel of the executive power. Recent scholarship has cast doubt on Scalia's assertion that the Framers never separated prosecution from presidential control-the earliest U.S. attorneys, for instance, were not under the direct control of the President. 565 This being the case, Scalia's argument that to deny the President removal authority over a federal prosecutor is to divide the executive power 566 only begs the question. According to the majority, the pertinent query was whether the President's lack of removal control “unduly interfere[ed] with the role of the Executive Branch.” 567 The Court apparently derived this test from Nixon v. Administrator of General Services, which held that a statute violates the Vesting Clause if it “disrupts the proper balance between the coordinate branches ... [by] prevent[ing] the Executive Branch from accomplishing its constitutionally assigned functions.” 568 The Court was half right. To the extent the Morrison test valorizes interbranch balance as the sum and substance of the *1580 Constitution's separated powers, 569 it turns down a blind alley. This sort of functionalism pays far too little attention to the divisions between the branches explicitly written in the Constitution and gives far too little credence to the Constitution's command that these divisions remain permanent. 570 Nevertheless, the Court was onto something when it looked to the effect that the removal-insulated independent counsel might have on the President's capacity to execute his assigned constitutional role. As we have seen, structural reasoning tells us that the President's constitutional role is political in the broadest sense and that the President thus requires political control of the executive branch. 571 The question the Court should have asked, therefore, is whether preventing presidential removal of the independent counsel interfered with the President's ability to control his branch politically-that is, his ability to direct policy and conform law administration to his political principles. The Court should have APPENDIX - 124 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 28 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 126 of 553 PageID #: 531 THE TRANSFORMATIVE TWELFTH AMENDMENT, 55 Wm. & Mary L. Rev. 1501 asked this question not because the Constitution commands merely functional balance between the branches, but because the Vesting Clause, interpreted in light of constitutional structure, gives the President political control of the administration. 572 An effects test is necessary in Morrison to vindicate the President's political control of the executive branch, because it is not immediately apparent whether the independent counsel counts as policymaker in the relevant sense. If the independent counsel could be easily classed as a policy-making authority, like the Comptroller General in Bowsher, no inquiry as to effects would be necessary. And of course were Justice Scalia correct that criminal prosecution *1581 had always been regarded as an inherent aspect of the executive power, 573 an effects test would be similarly beside the point: the meaning of executive power would not be ambiguous, at least to this case. 574 But in the end, neither the policy-making status of the independent counsel nor the connection between executive power and prosecutorial control is clear. Consequently, the effect of the independent counsel on the President's capacity to exert political control of the executive branch should decide the case. C. Other Applications 1. The Treaty Power The Twelfth Amendment bears on other questions of executive power. For example, it helps explain the Supreme Court's frequently repeated but never adequately justified holding that the President has sole authority to conduct treaty negotiations apart from Senate oversight and its related holding that the President may enter into treaty-like executive agreements with no Senate approval at all. 575 The touchstone for this line of cases is the Court's famous, and famously confused, Depression-era decision, United States v. Curtiss-Wright. In 1934, Congress delegated to President Franklin Roosevelt the authority to prohibit the sale of arms to certain nations in South America. 576 The Court held that this authorization did not constitute an illegal delegation of lawmaking power because the delegation merely vindicated, rather than augmented, the President's independent power over foreign affairs. 577 “It is important to bear in mind that we are here dealing not alone with an authority vested in the President by an exertion of legislative power,” the Court wrote in what is perhaps the decision's key *1582 passage, “but with such an authority plus the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations.” 578 Elaborating on the point, the Court explained that in the “vast external realm” of foreign affairs, “with its important, complicated, delicate and manifold problems, the President alone has the power to speak or listen as a representative of the nation.” 579 From this premise the Court inferred that the President must have the power to negotiate treaties on his own initiative, without senatorial oversight. 580 For one thing, the President, “not Congress, has the better opportunity of knowing the conditions which prevail in foreign countries,” because he enjoyed access to “confidential sources of information” simply not available to the Senate. 581 But the critical point was the President's status as “the sole organ of the nation in its external relations.” 582 Given that station, the power to negotiate with foreign powers was the President's by right. 583 Thus, the Court concluded, “[i]nto the field of negotiation the Senate cannot intrude.” 584 The Court used the same logic to infer presidential authority to negotiate binding executive agreements without Senate approval. In United States v. Belmont, the Court ruled that agreements reached between the Roosevelt Administration and the Soviet Union in 1933 as part of the Administration's diplomatic recognition of the Soviet government empowered federal authorities to recover assets from American companies on the Soviet Union's behalf, even though the agreements had never been ratified by, or even submitted to, the Senate. 585 The Court characterized these executive agreements as incidental to the power of diplomatic recognition. 586 And in the move that decided the case, the Court cast the authority to recognize *1583 foreign nations as an exclusively presidential prerogative. 587 Recapitulating the reasoning of Curtiss-Wright, the Court in Belmont held that “[g]overnmental power over external affairs is not distributed, but is vested exclusively in the national government. And in respect of what was done here, the Executive had authority to speak as the sole organ of that government.” 588 The Court broadened this logic five years later in United States v. Pink, holding that the President's power to negotiate executive APPENDIX - 125 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 29 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 127 of 553 PageID #: 532 THE TRANSFORMATIVE TWELFTH AMENDMENT, 55 Wm. & Mary L. Rev. 1501 agreements stemmed not only from his right to confer diplomatic recognition but also from his authority “to determine the public policy of the United States with respect to” foreign nations, a right that was his to exercise “without consent of the Senate.” 589 As a sheer matter of Article II text and history, these conclusions are hardly obvious. Article II, Section 2 grants the President the power, “by and with the Advice and Consent of the Senate, to make Treaties,” 590 but says nothing to suggest that the Senate's participation should be confined to a ratifying vote taken only after the substantive work of treaty making has finished. And Article II does not so much as contemplate executive agreements. 591 Tellingly, at the Constitutional Convention it was the Senate, not the President, that held the treaty power until the Committee of Detail proposed to divide the treaty authority between the two branches in the Convention's closing month. 592 Even then, many, and perhaps most, delegates anticipated that the Senate would remain the more important and active partner in treaty negotiations. 593 How, then, to make sense of the Court's conclusions? One might look to early executive practice, as courts have often done and as Akhil Amar has recently advocated. 594 But that interpretive strategy, if it can truly be called interpretive, is no more persuasive *1584 in this context than on the removal question. And the Court's own attempted explanation in Curtiss-Wright is infamously convoluted. 595 That opinion claimed that the foreign affairs power belonged indivisibly to the President because the power originated not with the States, but rather was an incident of sovereignty, passing “from the Crown ... to the colonies in their collective and corporate capacity” as a result “of the separation from Great Britain.” 596 This view of sovereignty has been roundly criticized, but in any event it only begs the question; even if the foreign affairs power was one that by its nature inhered only and ever in the national government, why should the Executive be the sole branch and the President the sole officer capable of its exercise? The Court's better answer has nothing to do with sovereignty, and everything to do with the political representation that follows from the Twelfth Amendment. At one point in its opinion, the Court in Curtiss-Wright comments that the President is “a representative of the nation.” 597 It is a tantalizing reference. In context, the language is largely rhetorical flourish, offered to embellish the Court's repeatedly stated and thoroughly conclusory point that the President is the nation's “sole organ” in foreign affairs. 598 But the Twelfth Amendment suggests that this reference to representation may supply a deeper logic for the Court's conclusions. The President is indeed, after the Twelfth Amendment, the nation's representative. He is connected to popular majorities, and thanks to that connection, authorized to act on behalf of the people. Ultimately, the post-Twelfth Amendment President possesses political authority, which is what the Court was gesturing toward, without ever quite grasping, in Curtiss-Wright. The Constitution makes the President the head of state, as well as “Commander in Chief.” 599 Join those constitutional designations with political authority, and the President acquires a strong claim to act as a policymaker in the realm of foreign affairs. That the President is the one and only head of state strongly suggests that a politically empowered Executive should be the principal *1585 policymaker in foreign matters and that he is uniquely empowered to, in the words of United States v. Pink, “determine the public policy of the United States” concerning foreign nations. 600 Once the President is understood in this light-as the nation's political representative-the rest of the Court's inferences seem far more plausible. If head of state status joined to political authority conveys the power to set the nation's foreign policy, then the authority to make treaties is surely an important implement for carrying that foreign policy-making power into effect. To force the President to submit to Senate oversight of treaty-making, to deny him initiative and discretion, would severely hamper his ability to “determine the public policy of the United States” 601 concerning foreign nations in a way that submitting a finalized treaty for ratification would not. Similarly, if the President is, by virtue of being the people's democratically chosen head of state, the sole representative of the nation to the outside world, then the power to recognize foreign governments would seem to be a uniquely presidential power. The ability to conclude bilateral agreements with other governments or to reach agreements that further America's international public policy follows naturally enough. The President's political status supplies the missing link in the Court's treaty-making cases. And that status is a product of the Twelfth Amendment. 2. Directive Authority over Administrative Agencies To take a brief, final example, structural reasoning based on the Twelfth Amendment might also have something to say about the President's directive authority over administrative agencies. The Supreme Court's decisions in A.L.A. Schechter Poultry Corp. v. United States and Panama Refining Co. v. Ryan suggested that delegation of rule-making authority directly to the President violates the Constitution's separated powers, 602 while the Court's subsequent decisions indicate that such delegations APPENDIX - 126 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 30 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 128 of 553 PageID #: 533 THE TRANSFORMATIVE TWELFTH AMENDMENT, 55 Wm. & Mary L. Rev. 1501 to administrative agencies, however broad, do not. 603 From these decisions, many scholars have concluded that presidential direction of *1586 administrative rule-making is unconstitutional, or at least, highly problematic. 604 The structural argument developed here suggests otherwise. If those agencies are within the executive branch 605 and engaged in policy making, presidential direction of their activity violates no constitutional norm because the President is constitutionally entitled to control the political, policy-making activity of the Executive. Or so one might argue. Whether Congress may delegate administrative authority to particular executive branch officers and prevent the President from controlling their decisions, except by removal, is a separate question, though the structural argument may well have something to say on that point also. 606 Conclusion The American presidency was perhaps the Philadelphia Framers' most original composition. My argument here has been that the Twelfth Amendment fundamentally transformed that office and restructured the constitutional order in the process. I have argued that these structural changes have interpretive consequences. By altering the character of the presidency and its relationship to Congress, the Twelfth Amendment changed the meaning of executive power. After the Amendment, administration of the laws became a political task and the President a political actor. This shift, at once constitutional and political, casts new light on the removal debate, on the treaty-making power, and potentially on a series of other executive power questions. Ultimately, my argument is just this: one cannot understand the constitutional presidency and its powers without reckoning with the Twelfth Amendment. Footnotes a1 Associate Professor of Law, University of Missouri School of Law. My thanks to Michael McConnell, John McGinnis, Jack Rakove, Carl Esbeck, Sam Bray, Will Baude, John Inazu, Eugene Volokh, Akhil Amar, and Erin Morrow Hawley for their helpful comments, criticisms, and input at various stages of this project. Thanks also to James Galbraith and Patricia Yang for first-rate research assistance and to Sarah Beason and the editors at the William & Mary Law Review for their excellent work. 1 Typical of this view is Steven G. Calabresi, The President, the Supreme Court, and the Founding Fathers: A Reply to Professor Ackerman, 73 U. Chi. L. Rev. 469, 475-76 (2006). Calabresi concludes the Twelfth Amendment “made one small technical change in the Founders' machinery of government” that had little practical effect. See id. On this point at least, Bruce Ackerman and Calabresi agree. See Bruce Ackerman, The Failure of the Founding Fathers: Jefferson, Marshall, and the Rise of Presidential Democracy 247 (2005) (arguing that the Twelfth Amendment “is the very opposite of a serious attempt” to solve the problems posed by the crisis of 1800). Others have called the Twelfth Amendment a “constitutional stupidity.” See, e.g., Akhil Reed Amar, An Accident Waiting to Happen, in Constitutional Stupidities, Constitutional Tragedies 15, 15-17 (William N. Eskridge, Jr. & Sanford Levinson eds., 1998); see also Sanford Levinson, Framed: America's Fifty-One Constitutions and the Crisis of Governance 178-90 (2012). When they have bothered to pay attention to the Amendment at all, scholars and commentators have generally neglected to investigate what the Amendment's drafters were attempting to do, thereby missing the Amendment's true significance. See, e.g., David P. Currie, The Constitution in Congress: The Jeffersonians 1801-1829, at 40-41, 64 (2001); Garry Wills, “Negro President”: Jefferson and the Slave Power 106-13 (2003)Garry Wills, “Negro President”: Jefferson and the Slave Power 106-13 (2003). 2 Although there have been over 1,200 articles published in academic legal journals analyzing the electoral college in the context of the disputed 2000 presidential election, Journal and Article Search for Presidential Election, Westlaw Next, http://westlawnext.com (searching for “2000 presidential election” and “electoral college”), only two full-length law review articles have addressed themselves to the Twelfth Amendment. The first is Sanford Levinson & Ernest A. Young, Who's Afraid of the Twelfth Amendment?, 29 Fla. St. U. L. Rev. 925, 925-26 (2001). That article is far more interested in Bush v. Gore than in the Amendment itself, however. See id. at 955-56. More recently, David Fontana has noticed the Twelfth Amendment's significance for the modern separation of powers. See David Fontana, The Second American Revolution in the Separation of Powers, 87 Tex. L. Rev. 1409 (2009). Fontana is principally interested in the political homogeneity the Twelfth Amendment helped introduce to the executive branch, in contrast to the heterogeneity typical in many European governments and other “presidentialist” systems. Id. at 1409-10, 1418. This is an important insight. Fontana does not notice, however, that the political homogeneity the Twelfth Amendment helped produce APPENDIX - 127 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 31 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 129 of 553 PageID #: 534 THE TRANSFORMATIVE TWELFTH AMENDMENT, 55 Wm. & Mary L. Rev. 1501 is in fact only one element of the broader structural transformation the text achieved-namely, the conversion of the presidency into a political office. See id. at 1429 (explaining that his conclusion focuses solely on the homogeneity of executive power). Nor does Fontana show any interest in the significance of the Amendment for the meaning and practice of executive power. Id. One scholar who has recognized the connection between the Twelfth Amendment and presidential practice is the political scientist Jeremy Bailey. See Jeremy D. Bailey, Thomas Jefferson and Executive Power 195-224 (2007)Jeremy Bailey. See Jeremy D. Bailey, Thomas Jefferson and Executive Power 195-224 (2007). But Bailey again misses the structural changes the Twelfth Amendment implemented and its central role in the rise of the political presidency. See id. at 220-24 (explaining his research in terms of the politics of character). The Amendment has received some limited scholarly attention in book form. Tadahisa Kuroda has written an admirable account of the Amendment's ratification. See generally Tadahisa Kuroda, The Origins of the Twelfth Amendment: The Electoral College in the Early Republic, 1787-1804 (1994) (examining the inception and history of the electoral college). Lolabel House made an early effort at exploring the Amendment's constitutional implications, particularly as they concern political parties. See generally Lolabel House, A Study of the Twelfth Amendment of the Constitution of the United States (1901) (unpublished Ph.D. dissertation, University of Pennsylvania) (on file with University of Michigan). More recently, Akhil Amar has recognized that the Twelfth Amendment “worked rather large changes in the basic structure of the American presidency and its relation to other parts of the American constitutional order.” Akhil Reed Amar, America's Constitution: A Biography 342 (2005). Amar is mostly interested, however, in the political influence the Amendment conferred on slave states. See id. at 345-47. For his part, Bruce Ackerman understands that the election of 1800 marked a seminal moment in the development of the American presidency, see Ackerman, supra note 1, at 142-62, butgives virtually no attention, and assigns no significance, to the Twelfth Amendment. In short, the Amendment awaits a full-scale analysis of its meaning, its effects, and its radical import. 3 U.S. Const. art. II, § 1. 4 U.S. Const. art. II, §§ 2-3. 5 See, e.g., James Madison, Notes on the Constitutional Convention (June 1, 1787), reprinted in 1 The Records of the Federal Convention of 1787, at 64, 65-67 (Max Farrand ed., 1937). 6 See infra Part I.A-B. 7 The Federalist No. 10, at 133-34 (James Madison) (Benjamin Fletcher Wright ed., 1961). 8 See infra notes 56-61 and accompanying text. 9 See 1 The Records of the Federal Convention of 1787, supra note 5, at 64, 65-67. 10 I use the male pronoun generically here and elsewhere when referring to the Executive. 11 See, e.g., infra notes 152-57 and accompanying text. 12 See, e.g., infra notes 152-57 and accompanying text. 13 See The Federalist No. 68, supra note 7, at 373-74 (Alexander Hamilton). 14 See infra Part IV.C.1. 15 See infra Part III.A.2. 16 See infra Part III.A.1. 17 See infra Part III.B.2. 18 U.S. Const. art. II, § 1. 19 Sections 2 and 3 confer eight or possibly nine specific powers on the Executive, depending on whether one reads Section 3 's “he shall receive Ambassadors and other public Ministers” as a power or a duty. U.S. Const. art. II, §§ 2-3. 20 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring). APPENDIX - 128 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 32 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 130 of 553 PageID #: 535 THE TRANSFORMATIVE TWELFTH AMENDMENT, 55 Wm. & Mary L. Rev. 1501 21 U.S. Const. art. II, § 3. 22 U.S. Const. art. II, § 2, cl. 2. 23 Id. 24 See infra Part IV.B. 25 See infra notes 475-83 and accompanying text. 26 U.S. Const. art. II, § 1. 27 U.S. Const. art. I, § 8, cl. 18. 28 See infra Part IV. 29 See The Federalist No. 10, supra note 7, (James Madison). 30 See infra notes 56-61 and accompanying text. 31 See The Federalist No. 10, supra note 7, (James Madison). 32 See, e.g., infra notes 152-57 and accompanying text. 33 See, e.g., Calabresi, supra note 1, at 479-82. 34 See The Federalist No. 68 (Alexander Hamilton). 35 Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 Colum. L. Rev. 1, 38-39 (1994). 36 This is the claim of Akhil Amar in his recent book, America's Unwritten Constitution: The Precedents and Principles We Live by (2012). Amar makes this (mistaken) claim the centerpiece of his interpretation of Article II. See id. at 307-32. 37 See The Federalist No. 68, supra note 7, at 373-74 (Alexander Hamilton). 38 Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution 55-56 (1996); see also Gordon S. Wood, The Creation of the American Republic, 1776-1787, at 471-74 (1969). 39 The Federalist No. 51, supra note 7, at 355 (James Madison). 40 9 James Madison, Vices of the Political System of the United States, in The Papers of James Madison 352-57 (Robert A. Rutland et al. eds., 1975); Rakove, supra note 38,at 52-53; M. J. C. Vile, Constitutionalismand the Separation of Powers 143-145 (1967); Wood, supra note 38, at 194-96. 41 9 Madison, supra note 40, at 354-57. 42 8 James Madison, Memorial and Remonstrance Against Religious Assessments, reprinted in The Papers of James Madison, supra note 40, at 295-306. 43 See 9 Madison, supra note 40, at 354-57. 44 See The Federalist No. 10, supra note 7, at 133-34 (James Madison). 45 Id. 46 Id. 47 See, e.g.,Rakove, supra note38, at 46-56; Vile,supra note 40,at 153-54. 48 U.S. Const. art. I, § 2, cl. 1. APPENDIX - 129 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 33 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 131 of 553 PageID #: 536 THE TRANSFORMATIVE TWELFTH AMENDMENT, 55 Wm. & Mary L. Rev. 1501 49 Wood, supra note 38, at 499-506. 50 See 1 The Records of the Federal Convention of 1787, supra note 5, at 37; Rakove, supra note 38, at 170-71. 51 See 9 Madison, supra note 40, at 356-57. 52 The Federalist Nos. 10, 51, supra note 7, (James Madison). 53 9 Madison, supra note 40, at 357. 54 See Willmoore Kendall, The Two Majorities, 4 Midwest J. Pol. Sci. 317, 330-31 (1960). 55 See Rakove, supra note 38, at 44-45. 56 9 Madison, supra note 40, at 352. 57 Leonard D. White, The Federalists: A Study in Administrative History 13 (1959). 58 2 1787: Drafting the U.S. Constitution 1226 (Wilbourn E. Benton ed., 1986). The phrase became a favorite of the delegates. See, e.g., id. at 1099 (quoting Edmund Randolph). 59 Id. at 1131. 60 Id. 61 Id. at 1115. 62 See, e.g., Steven G. Calabresi & Christopher S. Yoo, The Unitary Executive: Presidential Power from Washington to Bush 31 (2008). 63 Which is not to say that the Executive was the servant of Congress, per se. The Framers were relatively clear on their desire to give the Executive independence from the legislative branch. See The Federalist No. 71, supra note 7, at 460 (Alexander Hamilton) (“[I]t is certainly desirable that the Executive should be in a situation to dare to act his own opinion with vigor and decision.”). 64 9 Madison, supra note 40, at 385. 65 Rakove, supra note 38, at 256-59 (demonstrating the Framers spent little time debating the proper extent of executive power). 66 Ralph Ketcham, Presidents Above Party: The First American Presidency, 1789-1829, at 67 (1984). 67 See 1 The Records of the Federal Convention of 1787, supra note 5, at 68, 80-81. 68 See 2 1787: Drafting the U.S. Constitution, supra note 58, at 1095. 69 See id. 70 The Convention voted for legislative election no fewer than three times. William Riker has carefully tabulated and analyzed every vote on the question, as well as the attendant voting cycles. See William H. Riker, The Heresthetics of Constitution-Making: The Presidency in 1787, with Comments on Determinism and Rational Choice, 78 Am. Pol. Sci. Rev. 1 (1984). 71 See id. at 12-13. 72 See id. 73 See id. at 13-14. 74 See generally id. APPENDIX - 130 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 34 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 132 of 553 PageID #: 537 THE TRANSFORMATIVE TWELFTH AMENDMENT, 55 Wm. & Mary L. Rev. 1501 75 See 2 1787: Drafting the U.S. Constitution, supra note 58, at 1110. 76 Id. at 1111. 77 Wilson, Morris, or Carroll, or some combination thereof, moved for popular election on June 2, July 17, and three times on August 24. For an analysis of the votes, see Riker, supra note 70, at 6. 78 Those delegates were Wilson, Morris, Madison, Carroll, Dickinson, Franklin, and possibly King. See id. at 7. 79 Id. 80 2 1787: Drafting the U.S. Constitution, supra note 58, at 1153. 81 Id. 82 James Madison, Notes of the Constitutional Convention (June 1, 1787), reprinted in 2 The Records of the Federal Convention of 1787, supra note 5, at 30. 83 The Federalist No. 68, supra note 7, at 441 (Alexander Hamilton). 84 3 The Founders' Constitution 518 (Phillip B. Kurland & Ralph Lerner eds., 1987). 85 2 1787: Drafting the U.S. Constitution, supra note 58, at 1128. 86 Id. 87 See, e.g., Rakove, supra note 38, at 259-60. Charles Pinckney offered a complementary reason: the national legislature, having written the laws, would know far better than the public what qualities were needed to enforce them. 1 The Records of the Federal Convention of 1787, supra note 5, at 68 (“The National Legislature being most immediately interested in the laws made by themselves, will be most attentive to the choice of a fit man to carry them properly into execution.”). 88 2 The Records of the Federal Convention of 1787, supra note 5, at 31; see also 3 The Founders' Constitution, supra note 84, at 518 (“[I]t will be found impracticable to elect [the President] by the immediate suffrages of the people. Difficulties would arise from the extent and population of the states.”). In addition, there was the ever-lurking sectional divide. If the people did happen to acquire information enough to form a national majority, southern delegates feared that it would be the majority North against the minority South, on the assumption that northerners would always outnumber the free white voters of the southern slave states.See 2 The Records of the Federal Conventionof 1787, supra note 5, at 57; see also Rakove, supra note 38, at 259. 89 James W. Ceaser, Presidential Selection: Theory and Development 75 (1979). 90 Cf. id. 91 Id. 92 1 The Records ofthe Federal Convention of 1787, supra note5, at 68. 93 2 id. at 29. 94 Riker, supra note 70, at 7-14 (providing an overview of the process by which electoral college selection was chosen by the Convention). 95 2 1787: Drafting the U.S. Constitution, supra note 58, at 1126. 96 See Riker, supra note 70, at 7. 97 See Vile, supranote 40, at155-57; Kendall, supranote 54, at331-32. 98 See Riker, supra note 70, at 3-5. APPENDIX - 131 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 35 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 133 of 553 PageID #: 538 THE TRANSFORMATIVE TWELFTH AMENDMENT, 55 Wm. & Mary L. Rev. 1501 99 See id. 100 The roll call votes were 215 and 225. See 2 The Records of the Federal Convention of 1787, supra note 5, at 98, 118. 101 Id. at 401. 102 Roger Sherman, for example, argued that a joint ballot would deprive the “States represented in the Senate of the negative intended them in that house.” Id. And this was indeed likely Rutledge's purpose. See Riker, supra note 70, at 12-13. 103 See 2 The Records of the Federal Convention of 1787, supra note 5, at 399 (providing data on who supported and opposed these options in roll call votes 356 and 361); see also Riker, supra note 70, at 12-13. 104 See 2 The Records of the FederalConvention of 1787, supra note 5, at 473. 105 See Shlomo Slonim, The Electoral College at Philadelphia: The Evolution of an Ad Hoc Congress for the Selection of a President, 73 J. Am. Hist. 35, 51 (1986). 106 2 1787: Drafting the U.S. Constitution, supra note 58, at 1166. 107 Id. 108 Id. 109 Id. 110 Id. 111 See id. at 1167-69. 112 See Riker, supra note 70, at 13. 113 See, e.g., 21787: Drafting the U.S. Constitution, supra note 58, at 1166-69; 2 The Records of the Federal Convention of 1787, supra note 5, at 522-24. 114 See 2 The Records of The FederalConvention of 1787, supra note 5, at 527. 115 3 The Founders' Constitution, supra note 84, at 516. 116 Morris defended the college on these terms. See 2 1787: Drafting the U.S. Constitution, supra note 58, at 1167, 1175-76; Riker, supra note 70, at 13. 117 See Ceaser, supra note 89, at 51. 118 U.S. Const. art. II, § 1, amended by U.S. Const. amend. XII. 119 3 The Founders' Constitution, supra note 84, at 518. 120 The Federalist No. 68, supra note 7, at 441 (Alexander Hamilton). 121 Id. at 440 (emphasis added). 122 Id. at 441. 123 Id. 124 2 1787: Drafting the U.S. Constitution, supra note 58, at 1167 (quoting George Mason). Hamilton was of the same view. See id., at 1176; Rakove, supra note 38, at 265-66. 125 See Ceaser, supra note 89, at 51. APPENDIX - 132 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 36 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 134 of 553 PageID #: 539 THE TRANSFORMATIVE TWELFTH AMENDMENT, 55 Wm. & Mary L. Rev. 1501 126 U.S. Const. art. II, § 1, amended by U.S. Const. amend XII. 127 See Kuroda, supra note 2, at 23. 128 U.S. Const. art. II, § 1, amended by U.S. Const. amend XII. 129 See Kuroda, supranote 2, at 23; Jack N. Rakove, The Political Presidency: Discovery and Intervention, in The Revolution of 1800: Democracy, Race, and the New Republic 38, 50 (James Horn et al. eds., 2002). 130 Rakove, supra note 38, at 266. 131 Letter from George Washington to Catherine Macaulay Graham (Jan. 9, 1790), in 11 The Writings of George Washington 461 (Worthington Chauncey Ford ed., 1891) (emphasis added). 132 See supra notes 29, 44-55 and accompanying text. 133 See supra notes 30-32, 66-74 and accompanying text. 134 See id. 135 2 1787, Drafting the U.S. Constitution, supra note 58, at 1241. Madison repeated this view during the Virginia ratification debates. See 3 The Debates in the Several State Conventions on the Adoption of the Federal Constitution 487, 494 (Jonathan Elliott ed., 2d ed. 1861). 136 2 1787: Drafting the U.S. Constitution, supra note 58, at 1268; 2 The Records of the Federal Convention of 1787, supra note 5, at 541. 137 2 The Documentary History and the Ratification of the Constitution: Ratification of the Constitution by the States, Pennsylvania 452 (John P. Kaminski & Gaspare J. Saladino eds., 2001); see also Martin S. Flaherty, The Most Dangerous Branch, 105 Yale L.J. 1725, 1805 (1996). 138 2 1787, Drafting the U.S. Constitution, supra note 58, at 1262-63(quoting James Wilson); see also Ceaser, supra note 89, at 50 (“The presidency,they thought, could be so constituted as to reach beyond the partial and selfish interests of any group within society and consult the public interest as a whole.”). 139 Patrick Henry, Speeches of Patrick Henry in the Virginia Ratifying Convention, June 9, 1788, in 5 The Complete AntiFederalist 207, 230 para. 5.16.11 (Herbert J. Storing ed., 1981). 140 3 The Founders' Constitution, supra note 84, at 513. 141 Observations Leading to a Fair Examination of the System of Government Proposed by the Late Convention; and to Several Essential and Necessary Alterations in It. In a Number of Letters from Federal Farmer to the Republican, 1787, in 2 The Complete Anti-Federalistsupra note 139, at 214, 237para. 2.8.29 (Herbert J. Storing ed., 1981) (emphasis added). 142 Id. 143 Letters of Centinel, (Oct. 1787), in 2 The Complete Anti-Federalist, supra note 139, at 142 para. 2.7.23 (emphasis added). 144 Id. 145 See Rakove, supra note 38, at 268-79. 146 Ketcham, supra note 66, at 82. Or as Jack Rakove has put it, “The experience and vocabulary of republican politics simply proved inadequate for conceiving the political dimensions of the presidency, and as a result the ratification debates had strikingly little to say about this novel institution.” Rakove, supra note 129, at 39. 147 For instance, he proposed a President for life at the Convention. See 1 The Records of the Federal Convention of 1787, supra note 5, at 292. APPENDIX - 133 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 37 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 135 of 553 PageID #: 540 THE TRANSFORMATIVE TWELFTH AMENDMENT, 55 Wm. & Mary L. Rev. 1501 148 “Energy in the Executive is a leading character in the definition of good government.” The Federalist No. 70, supra note 7, at 451 (Alexander Hamilton); see also The Federalist No. 71, supra note 7, at 460 (Alexander Hamilton) (“[I]t is certainly desirable that the Executive should be in a situation to dare to act his own opinion with vigor and decision.”). 149 The Federalist No. 68, supra note 7, at 443 (Alexander Hamilton). 150 See id. at 440-44. 151 See supra notes 131-38 and accompanying text. 152 The Federalist No. 68, supra note 7, at 443 (Alexander Hamilton). 153 See Jeremy D. Bailey, The New Unitary Executive and Democratic Theory: The Problem of Alexander Hamilton, 102 Am. Pol. Sci. Rev. 453, 459-61 (2008) (discussing Hamilton's view of presidential removal powers). 154 See id. 155 See id. 156 Forrest McDonald, Alexander Hamilton: A Biography 131 (1979); Bailey, supra note 153, at 460. 157 But see Steven G. Calabresi, Some Normative Arguments for the Unitary Executive, 48 Ark. L. Rev. 23, 38 (1994). 158 See supra notes 52-55 and accompanying text. 159 See supra notes 55-61 and accompanying text. 160 See supra notes 66-79 and accompanying text. 161 See supra note 66-79 and accompanying text. 162 John Yoo, The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11, at 71, 96 (2005). 163 U.S. Const. art. II, § 1, cl.1. 164 See Yoo, supra note 162, at 18-19. 165 Calabresi, supra note 1, at479; see also Calabresi & Yoo, supranote 62, at 34-38. 166 See Calabresi & Yoo, supra note 62, at 4-9; see also Steven G. Calabresi, The Vesting Clauses as Power Grants, 88 Nw. U. L. Rev. 1377, 1388 (1994); Steven G. Calabresi & Saikrishna B. Prakash, The President's Power to Execute the Laws, 104 Yale L.J. 541, 570-81 (1994); Steven G. Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105 Harv. L. Rev. 1153, 1178-79, 1182 n.145 (1992). 167 See Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 Colum. L. Rev. 1, 39-41 (1994). 168 Id. 169 See id. at 42. 170 See Calabresi & Rhodes, supra note 166, at 1173. 171 Amar, supra note 2, at 313-14. 172 Id. 173 See Letter from Pierce Butler to Weedon Butler (May 5, 1788), in 3 The Records of the Federal Convention of 1787, supra note 5, at 302. 174 Rakove, supra note 38, at 244. APPENDIX - 134 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 38 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 136 of 553 PageID #: 541 THE TRANSFORMATIVE TWELFTH AMENDMENT, 55 Wm. & Mary L. Rev. 1501 175 See supra notes 65-79 and accompanying text. 176 See The Federalist No. 49, supra note 7, at 349 (James Madison). 177 See infra Part II.A.1. 178 See infra Part II.A.1. 179 See infra Part II.A.1. 180 See infra Part II.A.1. 181 See infra Part II.A.1. 182 See supra notes 65-79 and accompanying text. 183 See infra Part II.A.2. 184 See infra Part II.A.2. 185 See Sean Wilentz, The Rise of American Democracy: Jefferson to Lincoln 43-44 (2005). 186 See id. at 44. 187 See Stanley Elkins & Eric McKitrick, The Age of Federalism 92-194 (1993); Wilentz, supra note 185, at 44. 188 See Wilentz, supra note 185, at 45. 189 See id. 190 See id. at 48. 191 See id. at 47. 192 Id. 193 See id. at 53. 194 Cf. id. at 47. 195 See supra Part I.A. 196 See Ralph Volney Harlow, The History of Legislative Methods in the Period Before 1825, at 141-43 (1917); White, supra note 57, at 56. 197 U.S. Const. art. II, § 2, cl. 2. 198 U.S. Const. art. I, § 7, cl. 2. 199 U.S. Const. art. I, § 8, cl. 11. 200 U.S. Const. art. I, § 8, cl. 12. 201 U.S. Const. art. I, § 8, cl. 14. 202 U.S. Const. art. I, § 8, cl. 15. 203 U.S. Const. art. I, § 8, cl. 16. 204 U.S. Const. art. II, § 2, cl 1. APPENDIX - 135 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 39 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 137 of 553 PageID #: 542 THE TRANSFORMATIVE TWELFTH AMENDMENT, 55 Wm. & Mary L. Rev. 1501 205 206 U.S. Const. art. II, § 3. Justice Jackson made this point in J., concurring). Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, 207 See Charles L. Black, Jr., The Working Balance of the American Political Departments, 1 Hastings Const. L.Q. 13, 17 (1974). 208 See generally The Federalist No. 70, supra note 7, (Alexander Hamilton). 209 Executive councils were a familiar feature in the states, see Rakove, supra note 38, at 269, and the working draftof what became Article II contained one until early September, when it was eliminated in committee, see 2 The Records of the Federal Convention of 1787, supra note 5, at 541-42. 210 See 21787: Drafting the U.S. Constitution, supranote 58, at 1226 (quoting James Wilson); see also id. at 1099 (quoting Edmund Randolph); The Federalist No. 70 (Alexander Hamilton). 211 U.S. Const. art. II, § 2, cl. 1. 212 See Black, supra note 207, at 16-17. 213 See id. 214 See Kendall, supra note 54, at 330-31. 215 These structural features have been thoroughly analyzed in the political science literature. See, e.g., Raymond Tatalovich & Thomas S. Engeman, The Presidency and Political Science: Two Hundred Years of Constitutional Debate 199-201 (2003). 216 See White, supra note 57, at 56. 217 See id. 218 See id. 219 See id. 220 See id. at 57. 221 Id. at 58. 222 Harlow, supra note 196, at 141. 223 See David P. Currie, The Constitution in Congress: The First Congress and the Structure of Government, 1789-1791, 2 U. Chi. L. Sch. Roundtable 161, 190 & n.196 (1995). 224 See, e.g., White, supra note 57, at 58 (describing Hamilton's role as an executive representative in Congress). 225 See Ketcham, supra note 66, at 72. 226 White, supra note 57, at 54-55, 65. There are a few exceptions to Washington's apolitical stance, but their rarity proves the rule. See id. at 57. 227 Bailey, supra note 2, at 136 (citing Fragments of a Draft of the First Inaugural Address, in George Washington Writings 702-16 (John Rhodehannel ed., 1997)). 228 Currie, supra note 223, at 188. 229 See White, supra note 57, at 54-58. APPENDIX - 136 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 40 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 138 of 553 PageID #: 543 THE TRANSFORMATIVE TWELFTH AMENDMENT, 55 Wm. & Mary L. Rev. 1501 230 George C. Edwards III, On Deaf Ears: The Limits of the Bully Pulpit 115 (2003); see also Ketcham, supra note 66, at 89-93. 231 See Edwards, supra note 230,at 115; White, supranote 57, at 54-58. 232 See, e.g., Ketcham, supra note 66, at 91-92. 233 See White, supra note 57, at 69-70. 234 See id. at 69-72. 235 Id. at 73-74. 236 Leonard D. White, The Jeffersonians: A Study in Administrative History 1801-1829, at 46 (1959). 237 Id. 238 Id. at 46-47. 239 After all, Madison was more responsible than anyone for the final shape of the Constitution. See Rakove, supra note 38, at 35-56. 240 See Wilentz, supra note 185, at 48. 241 See Rakove, supra note 129, at 45. 242 See id. 243 See id. at 50-53. 244 See Bailey, supra note 2, at 132-33. 245 Ceaser, supra note 89, at 51. 246 Id. 247 U.S. Const. art. II, § 1, cl. 3, amended by U.S. Const. amend. XII; see Kuroda, supra note 2, at 83-98. 248 Kuroda, supra note 2, at 94-95. 249 Id. 250 See id. at 83. 251 Id. at 93-94. 252 Id. at 88. 253 See, e.g., Rakove, supra note 129, at 50-52. 254 Kuroda, supra note 2, at 87; White, supra note 236, at 53. 255 See,e.g., Kuroda, supra note 2, at87; White, supra note 236, at53. 256 Kuroda, supra note 2, at 87. 257 Id. at 102. 258 Id. at 99. 259 Ackerman, supra note 1, at 55. APPENDIX - 137 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 41 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 139 of 553 PageID #: 544 THE TRANSFORMATIVE TWELFTH AMENDMENT, 55 Wm. & Mary L. Rev. 1501 260 Id. The official counting of those electoral votes in the U.S. Senate was controversial in and of itself-Georgia's four electoral votes were not originally included due to irregularities. See id. at 55-74. 261 See id. at 55. 262 Kuroda, supra note2, at 100; seealso Ackerman, supra note1, at 59. 263 James E. Lewis, Jr., “What Is to Become of Our Government?”: The Revolutionary Potential of the Election of 1800, in The Revolution of 1800: Democracy, Race, and the New Republic, supra note 129, at 3, 9-10. 264 James Roger Sharp, American Politics in The Early Republic: The New Nation in Crisis 268 (1993). 265 Id. at 268-69. 266 Id.; see also Michael A. Bellesiles, “The Soil Will Be Soaked with Blood”: Taking the Revolution of 1800 Seriously, in The Revolution of 1800: Democracy, Race, and the New Republic, supra note 129, at 59, 72. 267 U.S. Const. art. II, § 1, cl.3, amended by U.S. Const. amend. XII. 268 See Rakove, supra note 129, at 30. 269 See Joanne B. Freeman, Corruption and Compromise in the Election of 1800, in The Revolution of 1800: Democracy, Race, and the New Republic, supranote 129, at 87, 105. 270 See, e.g., Ackerman, supra note 1, at 88; see generally Lewis, supra note 263, at 13-21. 271 See Wilentz, supra note 185, at 93-94. 272 Kuroda, supra note 2, at 105. 273 See Bailey, supra note 153, at 464. 274 Kuroda, supra note 2, at149 (describing the Republican party's motivation for creating the Twelfth Amendment). 275 See 33 The Papers of Thomas Jefferson 148-52 (Barbara B. Oberg et al. eds., 2006). 276 Id. at 150-51. 277 Id. at 134 (quoting Margaret Bayard Smith in a newspaper report). 278 Id. at 148. 279 Bailey, supra note 2, at 140-45. 280 See 33 The Papers of Thomas Jefferson, supra note 275, at 150. 281 Id. at 150-51. Jefferson's points effectively repudiated the Alien and Sedition Acts and Hamilton's pro-debt and promanufacturing agenda, even as he praised state governments and called for a return to an agricultural economy. See Bailey, supra note 2, at 144-45. 282 Bailey, supra note 2, at 149 (quoting Alexander Baring); see also id. at 144-45; 33 The Papers of Thomas Jefferson, supra note 275, at 151 (referring to points ten, thirteen, and fourteeen). 283 Bailey, supra note 153, at 464. 284 Id. at 143-45. 285 See 33 The Papers of Thomas Jefferson, supra note 275, at 151 (emphasis added). 286 Id. at 151-52. APPENDIX - 138 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 42 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 140 of 553 PageID #: 545 THE TRANSFORMATIVE TWELFTH AMENDMENT, 55 Wm. & Mary L. Rev. 1501 287 Id. at 152. 288 The Federalist No. 68, supra note 7, at 441 (Alexander Hamilton). 289 SeeKuroda, supra note 2, at 100; Lewis, supra note 263, at 15-16. 290 Ackerman, supra note 1, at 245. 291 See 33 The Papers of Thomas Jefferson, supra note 275, at 150. 292 See Ackerman, supra note 1, at 256. 293 See Bailey, supra note 153, at 464. 294 U.S. Const. art. II, § 1, cl. 3, amended by U.S. Const. amend. XII. 295 See Rakove, supra note 129, at 31. 296 See U.S. Const. amend. XII. 297 Ackerman, supra note 1, at 247. 298 13 Annals of Cong. 372 (1803). 299 Id. at 16-17. 300 Id. at 374. 301 Id. at 515-44. 302 Id. at 21-31. 303 Id. at 80-81. 304 Kuroda, supra note 2, at 140-42. 305 13 Annals of Cong. 699-776 (1803); Kuroda, supra note 2, at 147-48. 306 See Kuroda, supra note 2, at 131. 307 13 Annals of Cong. 16 (1803) (statement of Rep. Clinton); see also Kuroda, supra note 2, at 127-31. 308 Federalist congressmen proposed a designating amendment in 1798. Alexander Hamilton had been a supporter and remained one after the 1800 election. In 1802, he helped convince the New York legislature to adopt a resolution endorsing designation, along with selection of electors by popular voting in congressional districts, which was the method he had favored at the Philadelphia Convention. See Alexander Hamilton, Draft of a Resolution for the Legislature of New York for the Amendment of the Constitution of the United States, January 29, 1802, in 25 The Papers of Alexander Hamilton 512-13 (Harold C. Syrett ed., 1977); see also Kuroda, supra note 2, at 119. 309 See Kuroda, supra note 2, at 136. 310 See id. at 131. 311 See id. at 142. 312 13 Annals of Cong. 119 (1803). 313 See id. at 490. 314 See id. at 372. APPENDIX - 139 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 43 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 141 of 553 PageID #: 546 THE TRANSFORMATIVE TWELFTH AMENDMENT, 55 Wm. & Mary L. Rev. 1501 315 See id. at 490-95. 316 See id. at 490-92. 317 Id. 318 Id. at 491. 319 Id. at 492. 320 See Bailey, supra note 2, at 197-98. 321 See id. at 199. 322 See id. at 198. 323 See id. at 199. 324 See id. 325 See id. at 199-200; Kuroda, supra note 2, at 163. 326 13 Annals of Cong. 131 (1803). 327 See id. 328 See id. at 131-32. 329 Id. at 490 (emphasis added). 330 Id. 331 See Bailey, supra note 2, at 203. 332 13 Annals of Cong. 420-21 (1803). 333 See id. at 422; Kuroda, supra note 2, at 128-30. 334 U.S. Const. art. II, § 1, amended by U.S. Const. amend. XII. 335 See 13 Annals of Cong. 421-22; Kuroda, supra note 2, at 130-31. 336 See 13 Annals of Cong. 423 (1805). 337 Id. 338 Id. 339 See id. 340 See id. at 421. 341 Id. (emphasis added). 342 Id. 343 Id. 344 See id. at 517. 345 See id. at 516-17. APPENDIX - 140 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 44 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 142 of 553 PageID #: 547 THE TRANSFORMATIVE TWELFTH AMENDMENT, 55 Wm. & Mary L. Rev. 1501 346 Id. 347 See id. 348 See, e.g., id. at 520-27. 349 See Kuroda, supra note 2, at 110, 130-31. 350 See 13 Annals of Cong. 518 (1803). 351 Id. at 516, 518. 352 See id. at 518. 353 Id. at 516, 518. 354 Id. (statement of Rep. Griswold). 355 See id. at 533. 356 Id. at 518, 533. 357 See Kuroda, supra note 2, at 131. 358 See Bailey, supra note 2, at 205;Kuroda, supra note 2, at 129-31. 359 See Kuroda, supra note 2, at 136. 360 13 Annals of Cong. 87 (1803). 361 See id. at 87-88. 362 See id. 363 Id. at 122. 364 Id. 365 Id. at 112, 114. 366 Id. at 114-15. 367 Id. at 112. 368 See id. at 124. Debate on this point was quite thorough. See id. at 108-24. 369 See id. at 531-33. 370 Id. at 91; see also id. at 94. 371 See id. at 89-90. 372 See id. 373 Id. at 89. 374 Id. 375 Id. at 90. 376 Id. APPENDIX - 141 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 45 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 143 of 553 PageID #: 548 THE TRANSFORMATIVE TWELFTH AMENDMENT, 55 Wm. & Mary L. Rev. 1501 377 See Ceaser, supra note 89,at 88; Rakove, supra note 129, at39-40. 378 See Fontana, supra note 2, at 1422-23. 379 13 Annals of Cong. 129 (1803). 380 Id. at 190. 381 See id. 382 Id. at 139, 151. 383 Id. at 144. 384 Id. at 206. 385 Though they did resist a Federalist proposal, made for strategic effect, to eliminate the vice-presidency altogether. See Kuroda, supra note 2, at 134. 386 13 Annals of Cong. 180, 183 (1803). 387 Id. at 151-52. 388 Id. at 180, 183. 389 See, e.g., id. at 422-23 (statement of Rep. John Clopton). 390 Kuroda, supra note 2, at 142-43. 391 U.S. Const. amend. XII. 392 Id. 393 See Kuroda, supra note 2, at 148, 151. In this final version, vice-presidential election shifted to the Senate. See id. at 146, 148-49. 394 Id. at 156. 395 Id. at 156-57. 396 Id. at 158-59. 397 Id. at 159-60. 398 See House, supra note 2, at 58, 60-61. In New Hampshire, the legislature actually supported the Amendment. But the New Hampshire governor claimed to have a say in the state's decision and vetoed the Amendment. The legislature protested, but lacked the votes to overturn a veto. New Hampshire was thus considered not to have ratified. See id. at 60-61. 399 Id. at 61. 400 See supra Part III.A. 401 See supra Part III. 402 See Bailey, supra note 2, at 221. 403 Ceaser, supra note 89, at 105. 404 Id. at 121-27. APPENDIX - 142 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 46 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 144 of 553 PageID #: 549 THE TRANSFORMATIVE TWELFTH AMENDMENT, 55 Wm. & Mary L. Rev. 1501 405 11 Annals of Cong. 1289-90 (1802). 406 Akhil Reed Amar & Vik Amar, President Quayle?, 78 Va. L. Rev. 913, 925 n.47 (1992). 407 Ceaser, supra note 89, at 105. 408 Id. 409 Id. at 106. 410 Id. at 105-06, 124-27; Wilentz, supra note 185, at 50. 411 Ceaser, supra note 89, at 20, 103 n.22. 412 Bailey, supra note 2, at 201-11. 413 See First Presidential Messages 19-29 (George N. Otey ed., 2009). 414 Bailey, supra note 2, at 213-15. 415 Id. 416 White, supra note 57, at 59. 417 White, supra note 236, at 32. 418 Id. at 551. 419 Id. at 48-51. 420 Harlow, supra note 196, at 177. 421 White, supra note 236, at 49-53. 422 Id. at 35. Buttressing Pickering's view, historian Sean Wilentz has concluded that “until the abandonment of the embargo in 1809, not a single important pieceof Jeffersonian legislation failed to pass Congress.” Wilentz, supra note 185, at 137. 423 See, e.g., White, supra note 236, at 51-52. 424 Id. at 39. 425 Stephen Skowronek, The Politics Presidents Make 17-32 (1993). 426 White, supra note 236, at 551. 427 White, supra note57, at 257-59. This was a prescription Adams followed in principle, if not always in practice. Id. at 267-68, 277-80. 428 Bailey, supra note 2, at 155, 158. 429 Skowronek, supra note 425, at 72. 430 Letter from Thomas Jefferson to Elias Shipman and Others (July 12, 1801), in 9 The Works of Thomas Jefferson 272 (Paul Leicester Ford ed., 1905). 431 Id. (emphasis omitted). 432 Bailey, supra note 2, at 158-60. 433 Skowronek, supra note 425, at 17-32. APPENDIX - 143 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 47 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 145 of 553 PageID #: 550 THE TRANSFORMATIVE TWELFTH AMENDMENT, 55 Wm. & Mary L. Rev. 1501 434 Id. at 20. 435 Alexis de Tocqueville, Democracy in America 136 (Arthur Goldhammer trans., Penguin 2004) (1835). 436 Letter from Thomas Jefferson to John Taylor (Jan. 6, 1805), in 10 The Works of Thomas Jefferson 125, supra note 430. 437 See Skowronek, supra note 425, at 26, 37, 41, 49. 438 See supra notes 370-85 and accompanying text. 439 U.S. Const. art. I, §§ 2, 3. 440 U.S. Const. art. II, §§ 1, 3. 441 13 Annals of Cong. 89-90 (1803) (statement of Sen. James Hillhouse). 442 Christopher R. Berry & Jacob E. Gersen, The Unbundled Executive, 75 U. Chi. L. Rev. 1385, 1399-1401 (2008); Fontana, supra note 2, at 1417-18. 443 See Fontana, supra note 2, at 1417-19. 444 Id. at 1423-25. 445 See Amar, supra note 1, at 168. 446 See Amar & Amar, supra note 406, at 923-24 (describing the development of the single party ticket for President and Vice-President). 447 Though a few electors ticket split through the early 1800s. See id. at 922-23. 448 Id. at 942-43 & n.85. 449 Fontana, supra note 2, at 1428-29. 450 Id. at 1428. 451 Louis Clinton Hatch, A History of the Vice-Presidency of the United States 71 (Earl L. Shoup ed., 1934). 452 See generally Niall Ferguson, Virtual History: Towards a “Chaotic” Theory of the Past, in Virtual History: Alternatives and Counterfactuals 1, 1-90 (Niall Ferguson ed., 1997) (describing “counterfactual” history). 453 See supra Part III.A. 454 See supra notes 171-75 and accompanying text. 455 See Black, supra note 207, at 17; see also discussion supra Part III.A. 456 John F. Manning, Clear Statement Rules and the Constitution, 110 Colum. L. Rev. 399, 440-43 (2010). 457 Id. at 441 n.206. 458 John Harrison, Review of Structure and Relationship in Constitutional Law, 89 Va. L. Rev. 1779, 1779-80 (2003) (reviewing Charles L. Black, Jr., Structure and Relationship in Constitutional Law (1969)). 459 Black, supra note 458, at 7. 460 Black, supra note 207, at 16-17. 461 Manning, supra note 456, at 439-40; see also Akhil Reed Amar, Intratextualism, 112 Harv. L. Rev. 747, 791-95 (1999). APPENDIX - 144 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 48 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 146 of 553 PageID #: 551 THE TRANSFORMATIVE TWELFTH AMENDMENT, 55 Wm. & Mary L. Rev. 1501 462 See Amar, supra note 461, at 790 (“[T]he most typical forms of structural argument focus not on the words of the Constitution, but rather on the institutional arrangements implied or summoned into existence by the document-the relationship between the Presidency and the Congress, or the balance between the House and the Senate.”). 463 The main issue of the case was whether Texas could forbid active-duty members of the U.S. military from establishing residency to vote in the state. 464 465 466 380 U.S. 89, 89-90 (1965). See Black, supra note 458, at 8, 11-12. 17 U.S. (4 Wheaton) 316, 428 (1819); see Black, supra note 458, at 13-15; see also Amar, supra note 2, at 22-23. 521 U.S. 898, 918-20 (1997). I am indebted to Justice Scalia for this point. 467 U.S. Const. art. II, § 3. 468 See supra Part III. 469 See Manning, supra note456, at 440-43; John F. Manning, Federalism and the Generality Problem in Constitutional Interpretation, 122 Harv. L. Rev. 2003, 2004-08 (2009) [hereinafter Manning, Federalism and the Generality Problem]; John F. Manning, Separation of Powers as Ordinary Interpretation, 124 Harv. L. Rev. 1939, 1942-46 (2011) [hereinafter Manning, Separation of Powers as Ordinary Interpretation]. 470 See, e.g., MCI Telecomms. Corp. v. AT&T Corp., 512 U.S. 218, 231 n.4 (1994) (“[The Court is] bound, not only by the ultimate purposes Congress has selected, but by the means it has deemed appropriate, and prescribed, for the pursuit of those purposes”); (1986) (same). Bd. of Governors of the Fed. Reserve Sys. v. Dimension Fin. Corp., 474 U.S. 361, 374 471 See, e.g., Manning, Federalism andthe Generality Problem, supra note 469, at 2004-06; Manning,Separation of Powers as OrdinaryInterpretation, supra note 469, at 1946-49. 472 Manning, Separation of Powers as Ordinary Interpretation, supra note 469, at 2034. 473 Manning, supra note 456, at 440. 474 See Printz v. United States, 521 U.S. 898, 918-22 (1997) (stating that the Commerce Clause cannot be interpreted to permit the federal government to commandeer state officials to implement its directives because to do so would upset the structural division between federal and state sovereigns). 475 See Calabresi & Yoo, supra note 62, at 3. 476 U.S. Const. art. II § 1. 477 See, e.g., Calabresi & Yoo, supra note 62, at4-9; see also Charles Fried, Order and Law: Arguing the Reagan Revolution, 154-160 (1991); Calabresi & Prakash, supra note 166, at 599; Calabresi & Rhodes, supra note 166, at1161; Currie, supra note 223, at 195-202. 478 A. Michael Froomkin, The Imperial Presidency's New Vestments, 88 Nw. U. L. Rev. 1346, 1373 (1994). 479 Flaherty, supranote 137, at1789; Froomkin, supranote 478, at1365. 480 Flaherty, supra note 137, at 1790; Lessig & Sunstein, supra note167, at 12; Stephen Skowronek, The Conservative Insurgency and Presidential Power: A Developmental Perspective on the Unitary Executive, 122 Harv. L. Rev. 2070, 2078 (2009). 481 Lessig & Sunstein, supra note 167, at 30-33. APPENDIX - 145 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 49 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 147 of 553 PageID #: 552 THE TRANSFORMATIVE TWELFTH AMENDMENT, 55 Wm. & Mary L. Rev. 1501 482 Edward S. Corwin, Tenure of Office and the Removal Power Under the Constitution, 27 Colum. L. Rev. 353, 360-63 (1927). 483 See Flaherty, supra note137, at 1740; Froomkin, supra note478, at 1374. 484 See, e.g., Calabresi & Prakash, supra note 166, at 570-81. The Supreme Court and various scholars have named other textual candidates. In the seminal Myers v. United States, Chief Justice William Howard Taft suggested the President's authority to remove executive subordinates was founded on his obligation to “take Care the Laws be faithfully executed.” 272 U.S. 52, 122 (1926). In 1789, James Madison argued that the power to remove was concomitant with the power to appoint, which Article II conferred on the President. See 11 Debates in the House of Representatives 868 (Charlene Bangs Bickford et al. eds., 1992). But neither of these is particularly plausible as a source of removal authority. The Faithful Execution Clause imposes a duty, rather than conferring power. See Saikrishna Prakash, Removal and Tenure in Office, 92 Va. L. Rev. 1779, 1836-37 (2006). And our Constitution clearly does not make the power to remove incident to the power to appoint. Id. at 1834. As Prakash points out, “numerous entities select various federal officials, with apparently few supposing that the selectors may remove the selected.” Id. For instance, the Electoral College voters may not remove a President; “the people of a congressional district may not recall their representative”; and governors who can “appoint” replacement Senators under Article I, Section 3 have no power to remove them. Id. Prakash also persuasively shows that the appointment-based removal argument relies on assumptions about agency relationships between the President and other officials not warranted in the federal system. Id. at 1834-37. 485 See Calabresi, supra note 166, at 1388; Calabresi & Prakash, supra note 166, at 570-81(1994); Calabresi & Rhodes, supranote 166, at 1178.For the contrary view, see Curtis A. Bradley & Martin S. Flaherty, Executive Power Essentialism and Foreign Affairs, 102 Mich. L. Rev. 545, 551 (2004); Froomkin, supra note 478, at 1363. 486 Calabresi & Prakash, supra note 166, at 595-96. Calabresi and Prakash do not rest on this assertion, but go on to develop an account of executive power and presidential responsibility based on text and history. Id. at 596-97. 487 See Prakash, supra note 484, at 1820. 488 See Yoo, supra note 162, at 45, 65. 489 See Bailey,supra note 153, at 455; JackN. Rakove, Joe the Ploughman Reads the Constitution, or, The Poverty of Public Meaning Originalism, 48 U. San Diego L. Rev. 575, 592-93 (2011). The history of the framing period casts considerable doubt on the idea that the American constitution makers looked to the British experience as a ready model. Id. at 592-93. Historians emphasize that the political and military revolution that began in the mid-1770s was accompanied by an intellectual cataclysm, one that swept away political concepts inherited from the common law in favor of newly forged American variants. Id. at 589. Evidence for how the framers did or did not borrow from the British tradition of royal removal is thin. The Philadelphia debates are silent on this question, as on the content of executive power more generally. Id. at 591-92. The practices of the revolutionary era states are similarly ambiguous: four state constitutions in the revolutionary period referenced some sort of removal power, but three of the four entrusted it to the state executive acting with a council. Prakash, supra note484, at 1822. Only in Maryland couldthe governor alone suspend or remove civil officers. Id. Other state constitutions did not address the subject. Id. at 1822-23. 490 Calabresi & Yoo, supra note 62, at 35. 491 See id. at 10-36; Prakash, supra note 484, at 1827-30. See generally Saikrishna Prakash, New Light on the Decision of 1789, 91 Cornell L. Rev. 1021 (2006) (providing a general discussion of the Decision of 1789). Chief Justice William Howard Taft made the same argument in 492 Myers v. United States, 272 U.S. 52, 174-75 (1926). To simplify, the key question is what motivated a group of fifteen Representatives who voted against removing language from one version of the bill that explicitly grounded the President's removal authority in a delegation from Congress, only to vote in favor of the final version that acknowledged the President's right to remove the Foreign Affairs Secretary but without specifying the source of that authority. The consensus view is that this faction of fifteen believed the Constitution did not unambiguously confer removal authority on the President, but thought the authority could be delegated by act of Congress under the Necessary and Proper Clause. This view was first articulated by Justice Louis Brandeis in dissent in Myers, 272 U.S. at 285 & n.74 (Brandeis, J., dissenting), and since reiterated by Edward Corwin, see Corwin, supra APPENDIX - 146 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 50 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 148 of 553 PageID #: 553 THE TRANSFORMATIVE TWELFTH AMENDMENT, 55 Wm. & Mary L. Rev. 1501 note 482, at 361-62; 1 Corwin on the Constitution 332 (RichardLoss ed., 1981), and David Currie, Currie, supra note 1, at 41 & n.240, among others, see Bradley & Flaherty, supra note 485, at 662. For a detailed discussionof this voting sequence, see Prakash, supranote 491, at 1028-33; see also Corwin, supra note 482, at 360-70. 493 Prakash, supra note 491, at 1052-53, 1060. 494 Id. at 1060-61, 1072-73. For a similar conclusion, see Manning, Separation of Powers as Ordinary Interpretation,supra note 469, at 2030-32 & nn. 452-53. 495 Calabresi & Prakash, supra note 166, at 598. 496 See supra Part III. 497 See id. 498 U.S. Const. amend. XII. 499 See supra Part III. 500 See Bailey, supra note 2, at 170; see also supra notes 118-20 and accompanying text. 501 502 272 U.S. 52, 53 (1926). Id. at 117. 503 Id. (“[T]he President alone and unaided could not execute the laws. He must execute them by the assistance of subordinates.”). 504 Id. at 164 (emphasis added). 505 Bradley & Flaherty, supra note 485, at 546; Froomkin, supra note478, at 1348-49; see also Lessig & Sunstein, supra note 167, at 5-11. 506 507 508 Myers, 272 U.S. at 133. Id. at 134. Id. at 164. 509 Letter from James Madison to John Patton (Mar. 24, 1834), in 9 The Writings of James Madison, 1819-1836, at 534-36 (Gaillard Hunt ed., 1910). 510 Lessig and Sunstein reach a similar conclusion on atextual grounds. The reasoning given here supplies firmer ground than their merely functional and consequentialist logic. See Lessig & Sunstein, supra note 167, at 97-98. 511 See supra notes 370-85 and accompanying text. 512 See Calabresi & Yoo, supra note 62, at 4; Calabresi & Prakash, supra note 166, at 661-65; Calabresi & Rhodes, supra note 166, at 1165-66. 513 Bailey, supra note 2, at 152. 514 Id. at 152-55. 515 Letter from Thomas Jefferson to Elias Shipman, in 9 The Works of Thomas Jefferson, supra note 430, at 270; seealso Bailey, supra note 2, at 163-64. APPENDIX - 147 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 51 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 149 of 553 PageID #: 554 THE TRANSFORMATIVE TWELFTH AMENDMENT, 55 Wm. & Mary L. Rev. 1501 516 Myers v. United States, 272 U.S. 52, 123 (1926). 517 Id. at 123. 518 Id. at 127. 519 See supra notes 495-506 and accompanying text. 520 See supra notes 506-10, 513-19 and accompanying text. 521 Myers, 272 U.S. at 163-64, 176-77. 522 523 Id. at 136. See id. at 136, 174-75. 524 See id. at 136 (“We have devoted much space to this discussion and decision of the question of the Presidential power of removal in the First Congress ... because of our agreement with the reasons upon which it was avowedly based.”). 525 Id. at 118. 526 Id. at 122 (“[W]hen the grant of the executive power is enforced by the express mandate to take care that the laws be faithfully executed, it emphasizes the necessity for including within the executive power as conferred the exclusive power of removal.”). 527 See supra notes 491-94 and accompanying text. 528 See Manning, Separation of Powers as Ordinary Interpretation, supra note 469, at 2029. 529 See Keith E. Whittington, Constitutional Construction: Divided Powers and Constitutional Meaning 154-55 (1999). 530 See supra notes 487-89 and accompanying text. 531 532 See Myers, 272 U.S. at 122. See C. Herman Pritchett, The Postmaster General and Departmental Management, 6 Pub. Admin. Rev. 130, 133-35 (1946) (describing the responsibilities of the Postmaster General around the time of the Myers decision). 533 295 U.S. 602, 627-28, 631-32 (1935). 534 Id. at 619. 535 Id. at 625. 536 Id. at 628. 537 Id. at 624. 538 Id. 539 Id. 540 Id. APPENDIX - 148 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 52 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 150 of 553 PageID #: 555 THE TRANSFORMATIVE TWELFTH AMENDMENT, 55 Wm. & Mary L. Rev. 1501 541 See generally Thomas W. Merrill, The Constitutional Principle of Separation of Powers, 1991 Sup. Ct. Rev. 225, 234 (analyzing the doctrinal approaches to separation of powers and critiquing the Supreme Court's recent decisions in that area). 542 Humphrey's Ex'r, 295 U.S. at 628. 543 Id. 544 See supra Part IV.B.1. 545 See supra Part IV.B.1. 546 The Court reached the same conclusion in Myers. See Myers v. United States, 272 U.S. 52, 135 (1926). Lessig and Sunstein also reach a similar conclusion, althoughon different grounds. See Lessig & Sunstein,supra note 167, at 22-32. 547 478 U.S. 714, 717 (1986). 548 549 Id. at 726. See Manning, Separation of Powers as Ordinary Interpretation, supra note 469, at 1961. 550 551 Bowsher, 478 U.S. at 760 (White, J., dissenting). The statute permitted removal only by congressional resolution, and only for cause. See 552 id. at 717, 728. Id. at 733. 553 Id. 554 Id. at 737 (Stevens, J., concurring). 555 556 557 487 U.S. 654, 685 (1988). Id. at 660-61. Id. at 661 n.3. 558 Id. at 686. 559 Justice Kennedy did not participate. 560 561 562 487 U.S. at 658, 691-93. Id. at 697, 733-34 (Scalia, J., dissenting). Id. at 705 (Scalia, J., dissenting). 563 Id. at 691. 564 Id. at 732-33 (Scalia, J., dissenting). APPENDIX - 149 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 53 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 151 of 553 PageID #: 556 THE TRANSFORMATIVE TWELFTH AMENDMENT, 55 Wm. & Mary L. Rev. 1501 565 See, e.g., Harold J. Krent, Executive Control over Criminal Law Enforcement: Some Lessons from History, 38 Am. U. L. Rev. 275, 290-303 (1989); Lessig & Sunstein, supra note 167, at 15-16. But see Saikrishna Prakash, The Chief Prosecutor, 73 Geo. Wash. L. Rev. 521, 563 (2005). 566 Morrison, 487 U.S. at 732-33 (Scalia, J., dissenting). 567 568 569 Id. at 693. 433 U.S. 425, 443 (1977) (emphasis added). For a perceptive analysis of the Morrison decision, see Lee S. Liberman, Morrison v. Olson: A Formalist Perspective on Why the Court Was Wrong, 38 Am. U. L. Rev. 313, 327-28 (1989). This is the approach, more or less, famously advocated by Peter Strauss. See Peter L. Strauss, Formal and Functional Approaches to Separation-of-Powers Questions-A Foolish Inconsistency?, 72 Cornell L. Rev. 488, 493-94 (1987); Peter L. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 Colum. L. Rev. 573, 575-77 (1984). This functionalist approach was long advocated on the Supreme Court by Justice White, among others. See Bowsher v. Synar, 478 U.S. 714, 759-60 (1986) (White, J., dissenting); (1983) (White, J., dissenting). INS v. Chadha, 462 U.S. 919, 967 570 See, e.g., Manning, Separation of Powers as Ordinary Interpretation, supra note 469, at 1979-80; see also Merrill, supra note 541, at 251. See generally M. Elizabeth Magill, Beyond Powers and Branches in Separation of Powers Law, 150 U. Pa. L. Rev. 603, 604-05 (2001) (critiquing contemporary conceptualizations of separation of powers law and advocating a new interpretation). 571 See supra Part IV.B.1. 572 See supra Part IV.B.1. 573 574 575 Morrison v. Olson, 487 U.S. 654, 732-33 (1988) (Scalia, J., dissenting). John Manning disputes even this point. Manning, Separation of Powers as Ordinary Interpretation, supra note 469, at 1966 n.147 (“Even if prosecution is a quintessentially executive function, that conclusion does not preclude all congressional regulation of the way that function is implemented.”). See, e.g., Dames & Moore v. Regan, 453 U.S. 654, 688 (1981); (1942); United States v. Belmont, 301 U.S. 324, 330-31 (1937); 299 U.S. 304, 318-29 (1936). 576 United States v. Pink, 315 U.S. 203, 229-30 United States v. Curtiss-Wright Export Corp., Curtiss-Wright, 299 U.S. at 311-12. 577 Id. at 321-22. 578 Id. at 319-20. 579 Id. at 319. 580 Id. at 319-21. 581 Id. at 320. 582 Id. at 319 (internal quotations omitted). 583 Id. 584 Id. (emphasis added). APPENDIX - 150 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 54 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 152 of 553 PageID #: 557 THE TRANSFORMATIVE TWELFTH AMENDMENT, 55 Wm. & Mary L. Rev. 1501 585 586 301 U.S. 324, 330-31 (1937). Id. at 330 (“The recognition, establishment of diplomatic relations, the assignment, and agreements with respect thereto, were all parts of one transaction, resulting in an international compact between the two governments.”). 587 Id. 588 Id. 589 315 U.S. 203, 229 (1942); see also Dames & Moore v. Regan, 453. U.S. 654, 682-83 (1981). 590 U.S. Const. art. II, § 2, cl. 2. 591 U.S. Const. art. II. 592 Rakove, supra note 38, at 264-65; 2 The Records of the Federal Convention of 1787, supra note 5, at 493-95. 593 Rakove, supra note 38, at 266; 2 The Records of the Federal convention of 1787, supra note 5, at 540-41, 547-50. 594 Amar, supra note 2, at 309-19. 595 United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 316-20 (1936). 596 Id. at 316. 597 Id. at 319. 598 Id. at 319-20. 599 U.S. Const. art. II, § 2. 600 601 602 603 315 U.S. 203, 229 (1942). Id. 295 U.S. 495 (1935); See, e.g., 293 U.S. 388, 431-33 (1935). Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 486 (2001). 604 For a discussion, see Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2319-31 (2001). 605 And every entity or agency in the government must reside within one branch. See Merrill, supra note 541, at 231. 606 Chief Justice Taft acknowledged this possibility in Myers and deutionally permissible. See 272 U.S. 52, 161 (1926). Myers v. United States, 55 WMMLR 1501 End of Document © 2020 Thomson Reuters. No claim to original U.S. Government Works. APPENDIX - 151 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 55 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 153 of 553 PageID #: 558 SENATE ELECTION OF THE VICE PRESIDENT AND..., 11 U. Pa. J. Const. L.... 11 U. Pa. J. Const. L. 597 University of Pennsylvania Journal of Constitutional Law February, 2009 Article William Josephson a1 Copyright © 2009 by The University of Pennsylvania Journal of Constitutional Law; William Josephson SENATEELECTION OF THE VICE PRESIDENT AND HOUSE OF REPRESENTATIVES ELECTION OF THE PRESIDENT I. II. III. IV. V. TABLE OF CONTENTS INTRODUCTION A. The Twelfth Amendment Procedures B. Presidential and Vice Presidential Terms C. Outline of Article SENATE VICE PRESIDENTIAL ELECTION A. Two Highest Numbers on the List B. By When Must the Senate Vote? C. Absent Senators D. Cloture E. The Vice President as President of the Senate F. Tie Senate Vote G. Which Vice President? HOUSE PRESIDENTIAL ELECTION A. Previous House Presidential Elections 1. 1801 House Election 2. 1825 House Election B. House Presidential Election Precedents and Issues 1. 1801 and 1825 House Presidential Election Rules 2. Analogous House Rules and Precedents a. Executive Sessions and Balloting b. Adjournments c. “Not Exceeding Three” d. Divided e. Majority f. Quorum g. Duration of House Voting 2000 PRESIDENTIAL ELECTION ADOPTION OF HOUSE RULES A. Jurisdiction of Relevant Standing Committees of the House 1. Rules Committee 2. Committee on House Administration 3. Joint Referral B. Authorization and Appointment of Select Committee C. Legislative Commission D. Adoption of House Presidential Election Rules E. Enactment of Legislation Establishing Rules for House Presidential Elections 1. Interplay Between Statutory House Rules and House Adopted Rules 2. “Not Exceeding Three” 598 599 609 612 613 613 614 618 618 618 619 621 623 623 623 625 626 627 632 632 633 633 635 636 637 638 640 646 648 648 649 649 650 650 651 652 653 657 APPENDIX - 152 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 1 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 154 of 553 PageID #: 559 SENATE ELECTION OF THE VICE PRESIDENT AND..., 11 U. Pa. J. Const. L.... VI. 3. Divided SUMMARY OF RECOMMENDATIONS 662 668 *598 I. INTRODUCTION This Article is the third in a study of the United States post-general election presidential and vice presidential electoral process. 1 *599 It examines the final stages of electing a President or Vice President if the Electoral College does not elect one or both. A possible last article in this series may discuss issues considered in the previous two and in this Article in light of the Bush v. Gore litigation, 2 some of the literature it has spawned, and developments subsequent to the first two articles, now a decade old. It may also address issues raised by some of the many proposed Electoral College reforms. A. The Twelfth Amendment Procedures The following briefly summarizes the Twelfth Amendment's procedures for counting votes for the presidency and vice presidency. The Constitution 3 and the Twelfth Amendment provide, with only orthographic variations, that “[t]he President of the Senate *600 shall, in the Presence of the Senate and House of Representatives, open all the Certificates [of the elector votes], and the Votes shall then be counted,” 4 and “[t]he Vice President of the United States shall be President of the Senate .... [except when] he shall exercise the Office of President of the United States.” 5 Many Vice Presidents have performed this function, without mishap or objection, even when they were candidates for President or Vice President. 6 Robert W. Bennett appears concerned about the “awkwardness” of this, and Michael J. Glennon argues that to avoid “massive conflict of interest when the Vice President is also a candidate for President,” the President pro tempore of the Senate should preside. 7 The same point could *601 be made about the Vice President if he were a candidate to succeed himself or about the President pro tempore if he were a presidential or vice presidential candidate. It could also be said about the Vice President presiding over a Senateelection of the Vice President or about the Speaker of the House presiding over the House electing a President if he were a candidate or if it seemed unlikely that either a new President or Vice President would be chosen. But so far, history does not support Professor Bennett's, Professor Glennon's, or Mr. Kesavan's misgivings. When the vice presidency is vacant, whether because the Vice President is acting as President, 8 has resigned, or has died, the President pro tempore of the Senate 9 presides. 10 *602 If, after elector votes are counted, the President of the Senate declares that no presidential candidate has received a majority of those votes, the Twelfth Amendment declares that the presidential election is decided by the House of Representatives from “the persons having the highest numbers not exceeding three on the list of those voted for as President ....” The House must “choose immediately, by ballot, the President.” 11 It votes by state delegations 12 rather than by individual *603 Representatives. Each state has one vote. 13 The Twelfth Amendment provides that an absolute majority, twenty-six of the now fifty states, is required to elect the new President. The Senate enters this picture in two different situations. The Twelfth Amendment provides: And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President. 14 The Twelfth Amendment also immediately thereafter provides: The person having the greatest number of [elector] votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall APPENDIX - 153 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 2 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 155 of 553 PageID #: 560 SENATE ELECTION OF THE VICE PRESIDENT AND..., 11 U. Pa. J. Const. L.... consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. 15 The Representatives in the House are roughly 16 apportioned with respect to the states' populations. But because the House, when *606 electing a President under the Twelfth Amendment, votes by states, the states with smaller populations acquire disproportionate voting power. 17 *607 Consequently, a President could have been elected by the 106th Congress House in 2001 with the support of House delegations from twenty-six of the twenty-eight states whose delegations had fewer than seven Representatives. 18 In that admittedly unlikely event, if all the *608 Representatives from those states were present and voting, a President could be elected by as few as 78 of the 435 Representatives. This could be even fewer if some members of state delegations were not present and voting, and if House rules did not regulate state delegation quorums and majorities. These possibilities exist because (1) as we have seen, the House elects a President by an absolute majority vote of state delegations; (2) under the Twelfth Amendment, a quorum of the House for this purpose consists of “a member or members from two-thirds [i.e., now thirty-four] of the states”; 19 (3) there is no requirement that each state vote on each ballot; and (4) apparently there is not now, as we shall see, a constitutional or other quorum or majority requirement for the vote within each state's House delegation. If only one Representative is present from a state with more than one Representative, he may be able to constitutionally cast that state's vote, as he certainly can in the seven states with only one Representative, unless House rules should regulate state delegation quorums and majorities. Because under the Twelfth Amendment, electors cast separate ballots for President and Vice President, the electors may elect either the President 20 or the Vice President 21 without electing the other, or *609 they may fail to elect both. 22 But since the Twelfth Amendment eliminated Senate voting for Vice President by ballot, each Senator may openly vote for a Vice President if the electors do not choose one. Thus, there is more potential political accountability than when each state's vote for President is determined by its House delegation voting by ballot and each state itself votes by ballot. In any case, because both the House voting for President by states and senatorial voting for Vice President are constitutional and because the Fourteenth Amendment's one-person-one-vote requirement 23 applies to the states and not to the United States, these anti-majoritarian provisions must be accepted unless and until constitutionally amended. B. Presidential and Vice Presidential Terms Necessary background also requires a brief discussion of presidential and vice presidential terms. The Constitution provided two-year terms for Representatives 24 and six-year terms for Senators, 25 and for the Congress to meet once each year on the first Monday in December unless otherwise provided by law. 26 The Constitution provides for the President and Vice President to hold “Office during the Term of four Years.” 27 Because the Framers could not have known if or when the Constitution would be ratified, the Constitution does not provide for a starting date. On September 13, 1788, the Continental Congress, by authority purportedly conferred by the Constitutional Convention, established that the first terms would commence on the first *610 Wednesday in March of 1789, and after the First Congress assembled, a joint committee determined that the terms of the first class of Senators and of all the Representatives commenced on that same day and must necessarily terminate on March 3, 1791. 28 The four-year term of the first President was also determined by the joint committee to have begun on March 4, 1789, even though President Washington did not take the oath of office until April 30, 1789. 29 The Act of March 1, 1789 confirmed this March 4 date. 30 The Twelfth Amendment gave this date constitutional status when it provided, “[a]nd if the House ... shall not choose a President ... before the fourth day of March next following, then the Vice President shall act as President ....” 31 Consequently, from 1789 through 1933 presidential, vice presidential, and congressional terms began on March 4. APPENDIX - 154 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 3 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 156 of 553 PageID #: 561 SENATE ELECTION OF THE VICE PRESIDENT AND..., 11 U. Pa. J. Const. L.... Section 1 of the Twentieth Amendment 32 --which was ratified on January 23, 1933, Sections 1 and 2 thereof to take effect on the *611 following October 15--changed the beginning of presidential and vice presidential terms from March 4 to January 20 and the beginning of congressional terms from March 4 to January 3. Section 2 also, in effect, repealed the constitutional December congressional meeting date. This reduced the opportunities for lame duck congresses by providing for a new session of Congress to begin on January 3 of every year unless Congress appoints a different day by law. Thus, generally the first session of each new Congress now commences at noon on January 3 of the year following a general election for President and Vice President, 33 and under present law the House and Senate meet at one o'clock in the afternoon of January 6 34 to count the electoral votes cast for President and Vice President. *612 C. Outline of Article Because little attention has been paid to the issues that may arise if the Senate elects a Vice President, this Article will first discuss that subject. It will discuss, among other issues, by what time, if any, the Senate may or must elect a Vice President, and what the Senate should do if a new President is not elected by the House by noon on January 20. This Article will then discuss House election of the President. It will briefly review what happened in the House presidential elections of 1801 and 1825. (It will not discuss the election of 1877, because the procedure then followed is unlikely ever to be repeated.) 35 It will consider House adoption of rules of procedure or the enactment of legislation to provide such rules. If the House does not elect a President by January 20, it will discuss whether or not the House may or must continue voting for a President or, to put the same issue another way, whether or not the House may or must stop the presidential election process either before, on, or after January 20. *613 II. SENATE VICE PRESIDENTIAL ELECTION The Twelfth Amendment provides with respect to Senateelection of the Vice President: [I]f no person have a majority, then from the two highest numbers on the list, the Senate shall choose the VicePresident; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. 36 The Constitution originally provided that the Senate would, like the House, choose “by Ballot.” The Twelfth Amendment eliminated the ballot requirement. Hence, in 1837, the only time the Senate has elected a Vice President, it acted by roll call vote. 37 A. Two Highest Numbers on the List What if one or more vice presidential candidates are tied for either or both of the “two highest numbers on the list”? 38 This Twelfth Amendment formulation does not, on its face, necessarily take account of that possibility, however unlikely. This is somewhat perplexing, because the Constitution did: “But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President.” 39 The textual issues thus raised are similar to those raised by the Twelfth Amendment's “not exceeding three” formulation for the House choosing a President, except for not impliedly conferring any discretion on the Senate to consider only one *614 candidate. Those issues will be discussed later in this Article. 40 The Senate Rules and other contents of the Senate Manual say nothing about this issue. Arguably, because the clause refers to “numbers” not persons, if more than one candidate ties for the second-highest position, the Senate's choice is not limited to two persons. B. By When Must the Senate Vote? APPENDIX - 155 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 4 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 157 of 553 PageID #: 562 SENATE ELECTION OF THE VICE PRESIDENT AND..., 11 U. Pa. J. Const. L.... Unlike the corresponding provisions for the House election of the President, neither the Constitution nor the Twelfth Amendment provide that the Senate must vote immediately after the President of the Senate declares that the electors have failed to elect a Vice President. Why not? The legislative history of the Twelfth Amendment does not shed any light on the answer to this question, and neither of the two most recent historians of the Amendment mention the issue. 41 The 1803 Senate, whose version of the Amendment was ultimately adopted, 42 may have foreseen prolonged delays in House presidential elections in light of the 1801 experience, which required thirty-six ballots. If so, the Senate's apparent wish to await that outcome is understandable if the Senate majority is to have the opportunity of choosing (or not choosing) a Vice President compatible with the President chosen or, if no President is chosen by the House, of choosing (or not choosing) the Vice President on the ticket that received the most popular votes, or the one the Senate majority decides is most qualified to act as or to be President. 43 *615 As we have seen, under Section 1 of the Twentieth Amendment the incumbent President's and Vice President's terms end at noon on January 20. If the House does not elect a new President by then, will the Senate elect a Vice President before noon on January 20? It should, so that the clause in § 3 of the Twentieth Amendment, “[i]f a President shall not have been chosen before the time fixed for the beginning of his term ... then the Vice President elect shall act as President until a President shall have qualified,” 44 will be meaningful. If the Senate has not elected a Vice President, does § 3 of the Twentieth Amendment apply? Probably not. Section 3 provides, in relevant part: [A]nd the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified. 45 “Qualified” describes the presidential requirements of Article II, Section 1, clause 5: Natural-born citizen, thirty-five years old or older, fourteen years a resident, plus presumably not disabled and having taken the oath prescribed in Article II, Section 1, clause 8. 46 “[E]lect” *616 means that the electors have chosen a President or Vice President. 47 Section 3 does not cover the situation when there is no President elect or Vice President elect. The legislative history supports the inapplicability of this aspect of § 3 of the Twentieth Amendment. The Senate resolution provided *617 that whenever the right to choose a President has devolved upon the House, and the House has not chosen a President before the time fixed for the beginning of his term, then the Vice President shall act as President, “as in the case of the death or other constitutional disability of the President.” But under the corresponding provision of the House amendment (the first clause of the second sentence of § 3), a Vice President only acts as President, not only when the House has failed to choose a President before the time fixed for the beginning of his term, but also in any case where, at that time, the President has failed to qualify for any reason. The conference agreement retained the substance of the House provision with changes in phraseology. 48 The second sentence of § 3 of the Senate resolution gave Congress the power by law to declare what officer shall act as President in a case where the election of the President has devolved upon the House and that of the Vice President has devolved upon the Senate, and neither the President nor the Vice President has been chosen before the time fixed for the beginning of their terms. The officer who acts as President will act only until the House has chosen a President or the Senate has chosen a Vice President. But the corresponding provision of the House amendment (the last clause of the second sentence of § 3) provided only for the case in which neither the President elect nor the Vice President elect have, for any reason, failed to qualify at the time fixed for beginning their terms. It then gives Congress the power by law to declare who shall act as President, or to provide the manner in which a qualified person shall be selected. The person who acts as President is to act only until a President or a Vice President has qualified. If, in such case, the Vice President elect should have qualified before a President has qualified, then, although he would act in place of the person acting under the law of Congress, he would do so only until the House has chosen a President and he has qualified, or until the President elect chosen by the electoral college has qualified. The conference agreement retained the substance of the House provision with changes in phraseology. The Conference Report also seems to assume that the Senate will not elect a Vice President until a time proximate to the expiration of the incumbent President's and Vice President's terms, which as we have seen should, but may not necessarily, be the case. 49 APPENDIX - 156 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 5 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 158 of 553 PageID #: 563 SENATE ELECTION OF THE VICE PRESIDENT AND..., 11 U. Pa. J. Const. L.... *618 C. Absent Senators Under Rule VI of the Senate Rules, no Senator may be absent without leave, and the Sergeant at Arms may be directed to compel the attendance of absent Senators. 50 Under Rule XII, Senators may not decline to vote unless excused by the Senate. 51 D. Cloture The only current procedure for closing debate in the Senate is the cumbersome one set forth in Rule XXII.2, 52 under which, for example, three-fifths of Senators must vote to close debate. Rule XXII.2 applies to “any measure, motion, [or] other matter pending before the Senate.” 53 Although the public reaction to any attempt to delay the Senate's choice of Vice President would undoubtedly be extraordinarily negative, the possibility of filibuster exits. Even though the Senate does not constitutionally have to choose a Vice President immediately, it should amend its rules to ensure that should it ever have to do so, it can do so expeditiously, especially because under Senate Rule VIII all motions to change its standing rules are debatable, 54 and motions to change the rules are also regulated by Rule V. 55 E. The Vice President as President of the Senate We have earlier discussed the issues that may be raised if the Vice President as the constitutional President of the Senate presides over the counting of elector votes. 56 Similar issues could be raised with respect to the Vice President as President of the Senate presiding over its election of a Vice President, especially if he were a candidate to succeed himself. Nothing in the Senate Rules would require the Vice President to recuse himself from presiding, though were he a candidate *619 he might well be well advised to do so. The Senate's rules on excusing from voting 57 and conflict of interest 58 do not apply to the Vice President, except in the latter case to the extent that she or he is the supervisor of assistants who are on the Senate payroll. Of course, in those situations when the vice presidency was vacant, that officer would not be available to break any tied Senate vote for Vice President. 59 Nor would the Vice President be available “when he shall exercise the Office of President.” 60 F. Tie Senate Vote If the Senate is equally divided, can the incumbent Vice President cast the deciding vote in a Senateelection of a Vice President? The answer should be affirmative, because Article I, Section 3, clause 4 of the Constitution appears to admit of no exceptions. However, Lawrence D. Longley and Neal R. Pierce argue that the plain meaning of the Twelfth Amendment's language, “a majority of the whole number [of Senators] shall be necessary to a choice,” precludes the possibility of the Vice President breaking a tie. 61 But this leaves open the possibility that in such a case there would be no way to elect a new Vice President. There is doubt as to whether the Presidential Succession Act, the only possible alternative in that case, is applicable to such a failure to elect, as contrasted with the absence of an elected one. 62 *620 Because public policy abhors a vacancy in office, 63 this issue should be resolved in favor of the Vice President voting, which the majority of analogous Senate precedents support. 64 The Vice President is, after all, the constitutional President of the Senate. *621 G. Which Vice President? We should again remember that until the Twentieth Amendment was adopted in early 1933, the terms of the new President, Vice Presdent, *622 and Congress began on March 4, and if the electors did not elect a President or Vice President, the Lame APPENDIX - 157 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 6 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 159 of 553 PageID #: 564 SENATE ELECTION OF THE VICE PRESIDENT AND..., 11 U. Pa. J. Const. L.... Duck House and Senate, respectively, would do so. 65 Thus, any Senate tie vote would have been broken by the then-incumbent Vice President. She or he might or might not have been of the same political party as the candidates for President and Vice President who received the most popular votes, just as a majority of the Senate (and of the state delegations in the House) might or might not have been. The Twentieth Amendment ensures that, absent a legislative change, 66 the incoming Congress will elect the President or Vice President or both. But because of the constitutional delay between its convening on January 3 and the incoming President's and Vice President's terms commencing at noon on January 20, the incumbent Vice President (who could be the continuing Vice President or the incoming President) might be called upon to break any Senate tie votes for Vice President. Moreover, if only because roughly two-thirds of the Senators will not have been reelected at the same time as the presidential election, those two-thirds of Senators may not reflect the votes of the most current presidential electorate. These possibilities make it more likely that the Senate will choose a new Vice President who was not the popular vote winner, as the House so chose a President in 1825, 67 or who was not of the same political party as the President elected by the electors or by the House. 68 *623 III. HOUSE PRESIDENTIAL ELECTION 69 A. Previous House Presidential Elections A President has been elected by the House twice since the adoption of the Constitution, once in 1801 and again in 1825. 70 1. 1801 House Election The 1801 election was governed by Article II, Section 1 of the Constitution, before the adoptions of the Twelfth, Twentieth, Twenty-third, and Twenty-fifth Amendments discussed above. Therefore, it is not a controlling precedent for the future. Nevertheless, some of what happened is instructive. Prior to the adoption of the Twelfth Amendment in 1804, each presidential elector cast two votes, neither of which was designated for President or Vice President. The candidate receiving the highest number of votes, if that number constituted a majority of the total number of electors, was elected President; the candidate receiving the second highest number of votes was elected Vice President. If no candidate received a majority, the House elected a President from among the five candidates with the highest number of votes, with *624 each state represented in the House casting one vote by ballot. The votes of a majority of the total number of states were necessary for election of a President. In 1800, Thomas Jefferson and Aaron Burr tied for the highest number of elector votes. 71 This triggered Article II, Section 1, clause 3 of the Constitution, “if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President.” 72 For these purposes, a majority is defined as “of the whole Number of Electors appointed.” 73 Article I, Section 4, clause 2 of the Constitution then provided that the Congress should assemble at least once in every year on the first Monday in December unless Congress appointed a different day by law. By law, the electors' votes were then to be counted on the second Wednesday in February. 74 In the House, Representatives belonging to the Federalist Party, which opposed Jefferson's election, sought to embarrass him by voting for Burr, even though he had been the Republican “vice presidential” candidate. 75 Sixteen states were represented in the House, so a majority of nine states' votes was required for election. Consistent with the constitutional command that the “House shall immediately choose,” through six days and thirty-five consecutive secret ballots the House vote was eight states for Jefferson and six states for Burr; two states, Delaware and South Carolina, cast blank ballots; and two states, Maryland and Vermont, were “divided” because each delegation was deadlocked. 76 On the thirty-sixth ballot several Maryland Representatives and one Vermont Representative abstained, as *625 did the Representative from Delaware. 77 Consequently, Jefferson became President, and Burr Vice President. 78 APPENDIX - 158 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 7 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 160 of 553 PageID #: 565 SENATE ELECTION OF THE VICE PRESIDENT AND..., 11 U. Pa. J. Const. L.... 2. 1825 House Election The Twelfth Amendment was proposed by Congress on December 9, 1803 and proclaimed by the Secretary of State on September 25, 1804, having been ratified by the legislatures of three-quarters of the states by July 27, 1804. 79 The Twelfth Amendment made two major changes affecting House election of the President. It required the electors to ballot separately for President and Vice President, and it reduced the number of candidates from whom the House would choose a President from the top five to “not exceeding three.” 80 The *626 Twelfth Amendment thus governed the 1825 House presidential and 1837 Senate vice presidential elections. In 1824, four major presidential candidates came from the party that had dominated national politics since Jefferson's election in 1801. No candidate received an absolute majority of the 261 elector votes, and there were no tied elector votes. 81 On the House's first secret ballot in 1825, enough Representatives who were supporters of Henry Clay (who was not a candidate because he had the fourth (and last) highest number of elector votes (thirty-seven)) 82 voted for the candidate with the second-highest number of the elector votes, John Quincy Adams, who had eighty-four elector votes, and Adams was chosen President. 83 B. House Presidential Election Precedents and Issues Four possible sources of law or rule govern House presidential elections: (1) the Constitution; (2) statutes; 84 (3) the rules of the House; and (4) precedents of the House. These precedents interpret and apply in much the same way that judicial decisions interpret and apply the Constitution, statutes, and regulations. 85 Article I, Section 5, clause 2 of the Constitution provides, “Each House may determine the Rules of its Proceedings ....” 86 One of the *627 first acts of each new House is to adopt a resolution establishing rules for that House, and that resolution generally incorporates by reference all applicable provisions which constituted the Rules of the prior House. 87 1. 1801 and 1825 House Presidential Election Rules The Rules of the House do not contain any provisions for electing a President. In both 1801 and 1825, the Lame Duck Houses adopted rules for each of those presidential elections. It is clear from the House debates concerning the 1825 Rules that they were not expected to bind future Houses faced with the task of choosing a President. 88 They are, nevertheless, relevant, because tradition and precedent are very important to the House in establishing its procedures. 89 The 1801 Rules and 1825 Rules were drafted and reported to the House by committees appointed by the respective Speakers. 90 At that time the Committee on Rules was a select committee authorized at the beginning of each House to report a system of rules for that House. 91 The ad hoc rules adopted by the House to govern its presidential election procedures in 1801 and 1825 were substantially similar. In 1801, doors of the House were closed during balloting except against the officers of the House, 92 but in 1825 Senators were allowed. 93 The *628 Representatives were seated by states. 94 In 1801, the House was not to adjourn. 95 In the 1825 Rules, a motion for adjournment could be made by a state and would be decided by a majority of the states. 96 Ballot boxes were provided for the ballots of each state's delegation 97 and for the ballots of the states. 98 Each state's delegation could appoint tellers to count its ballots, 99 and tellers were appointed to count the states' ballots. 100 In 1801, the House was to “continue to ballot for a President, without interruption by other business, until it shall appear that a President is duly chosen.” 101 The 1825 rule is substantially the same. 102 The Speaker declares the result, and it is communicated to the Senate, the President, 103 and under the 1825 Rules, also to the President-elect. 104 APPENDIX - 159 © 2020 Thomson Reuters. 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The 1825 Rules (1) repeat the Twelfth Amendment's ambiguity in case of tie elector votes, “from the persons having the highest numbers, not exceeding three”; 105 (2) inappropriately repeat the 1801 Rules' appropriate reference to “either ... have a majority,” 106 Jefferson and Burr being the only 1801 candidates and there being three candidates in 1825; and (3) repeat the error by stating the balloting should continue, “in case neither ... shall receive ... a majority ....” 107 Both the 1801 and 1825 rules substantially provide: All questions arising after the balloting commences, requiring the decision of the House, which shall be decided by the House, voting per capita, to be incidental to the power of choosing a President, shall be decided by States without debate; and in case of an equal division of the votes of States, the question shall be lost. 108 *629 The decision of whether or not a question is incidental to the Presidential choice power is decided by a per capita vote. 109 The one important substantive difference between the 1801 and 1825 Rules is that the 1825 Rules provide for the vote of each state to be determined by “a majority of the votes given,” by which it almost certainly meant, as provided almost immediately thereafter, “a majority of the whole number of votes given by such State.” 110 The former formulation could have meant a majority of those present and voting or a majority of a quorum except that the 1825 Rules, like the 1801 Rules, did not contain an explicit state delegation quorum requirement. The latter formulation also is not entirely clear. Does it mean the whole number of votes given to such state, in which case an absolute majority of the total number of Representatives in the state delegation would be required? If so, it would be in line with the Twelfth Amendment's requirement that “a majority of all the states shall be necessary to a choice.” 111 If that is what the latter formulation meant, it would also explain the absence of a quorum requirement. If not, the latter formulation is as, or almost as, ambiguous as the former. Neither the 1801 Rules nor the 1825 Rules provided for a quorum of each state's Representatives. The constitutional provision that “a Majority of each [house] shall constitute a Quorum to do Business” is on its face inapplicable to the determination of a quorum within House state delegations. 112 Arguably, 1825 Rules did not have to contain a quorum provision, if only an absolute majority of Representatives could cast each state's vote. *630 The Twelfth Amendment's quorum provision does contain an ambiguity: “A quorum for this purpose shall consist of a member or members from two-thirds of the states.” 113 Obviously, the presence of one Representative from the oneRepresentative states constitutes a quorum. Does the presence of any member from the more-than-one Representative states constitute a quorum? It does not necessarily follow from the fact that the presence of a single Representative from a oneRepresentative state means that other states constitutionally can be counted as present if only a single Representative is present. 114 The pros and cons of these quorum issues were the subject of the most elaborate discussion in the Frost Memo, 115 and we shall return to them later. 116 The 1825 Rules, like the 1801 Rules, say: [A]nd in case the votes so given shall be divided so that neither [sic] of said persons shall have a majority of the whole number of votes given by such State ... then the word “divided” shall be written on each duplicate. 117 Reference has previously been made several times to the ambiguity introduced by the Twelfth Amendment's provision, “and if no person have such majority [“of the whole number of Electors appointed”], then from the persons having the highest numbers not exceeding three ... the House of Representatives shall choose immediately, by ballot, the President.” 118 The Constitution referred to “the five highest.” 119 The Twelfth Amendment's formulation implies that the House could reduce its choices to two or even one, 120 even though the intent of the Senate, which originated the limit of the House's choice to three, was clearly only to reduce the choices from five. 121 APPENDIX - 160 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 9 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 162 of 553 PageID #: 567 SENATE ELECTION OF THE VICE PRESIDENT AND..., 11 U. Pa. J. Const. L.... There are other difficulties with the “not exceeding three” formulation. What if there were one or more of the three highest? 122 Arguably, *631 because the clause refers to “numbers,” not “Person” as in Article II, Section 1, clause 3 of the Constitution, if more than three have the highest numbers, the House's choice is not limited to three persons. 123 Why these issues were created is particularly difficult to understand, because the Constitution itself foresaw the possibility of ties by providing for two of them. 124 Finally, what if the House does not choose a President by noon on January 20? As we have seen, 125 a Vice President, elected by the electors or, if not, hopefully by the Senate by then, will “act as President” as the Twelfth and Twentieth Amendments provide. The implication is that the House goes on trying to choose a President. This would be consistent with what both the original Constitution and the Twelfth Amendment imply by the use of the phrase “shall choose immediately” and with the 1801 126 and 1825 127 Rules, which both provide that the House does no other business until it elects a President. But if the House is hopelessly deadlocked, a mechanism must be provided for its ending its presidential election. And what if the Senate should fail to choose a Vice President? As we have seen, neither the Twentieth Amendment nor the Presidential Succession Act provides a clear answer. 128 Can any of these issues be resolved short of constitutional amendment? *632 2. Analogous House Rules and Precedents The immediately foregoing discussion raised the following issues: House presidential election executive sessions and state delegation balloting, House adjournments while choosing a President, “not exceeding three,” quorum within House state delegations, divided House state delegations, majority voting within House state delegations, and House continuing to try to choose a President after noon on January 20. Could House rules authoritatively resolve any or all of the issues? a. Executive Sessions and Balloting The “by Ballot” requirement of the Twelfth Amendment (and of the Constitution itself) applies on its face only to the voting of the House state delegations to choose a President. By providing for ballot boxes and ballots for the votes of each state House delegation, the authors of the 1801 and 1825 Rules decided also to shield from public knowledge each Representative's vote. 129 But it does not necessarily follow that each state's House delegation has to vote by ballot, nor that both delegation and state balloting has to take place in a House secret session pursuant to House Rule XXIX. 130 The plain meaning of Rule XXIX applies it to “confidential communications,” but the Rule itself must stand for the proposition that the House determines whether or not it or its Committee of the Whole House on the State of the Union may sit in executive session. 131 House Rule XI(g)(l) regulates when a House committee may go into executive session. 132 House Rules I and IV give the Speaker control of the galleries and the Hall, and Rule V gives him power over the televising and broadcasting of House proceedings. 133 Rule IV deals with who may have access to the Hall and the galleries. 134 Thus, it is clear that the House, like the Senate in its Rules XXIX, XXX, and XXXI, 135 can by rule decide whether or not its proceedings to choose a President should be open or closed. The 1801 and 1825 Rules, though precedents for executive sessions, are not binding on *633 the House. 136 One can be confident that public opinion and the press will want open House sessions. 137 Obviously, this is an appropriate subject for any House presidential election rules. It does not necessarily follow from either the constitutional “by Ballot” requirement or the 1801 and 1825 Rules precedents that House rules should require each Representative to vote in her or his state delegation. However, one can expect substantial political and public pressures on Representatives to vote for President within their state delegations in accordance with their party affiliation, or the popular vote in their respective districts or states or in the nation regardless of their party affiliation or APPENDIX - 161 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 10 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 163 of 553 PageID #: 568 SENATE ELECTION OF THE VICE PRESIDENT AND..., 11 U. Pa. J. Const. L.... even personal conviction. This may cause them to want to adhere to the intra state delegation balloting precedent. Obviously, this also is an appropriate subject for any House presidential election rules. 138 b. Adjournments The House under its rules may regulate adjournments. 139 The provisions of the 1801 and 1825 Rules providing for the House to do no business other than presidential election and regulating motions for adjournment are sensible precedents that should be followed in any House rules. 140 c. “Not Exceeding Three” Could the House, in the case of tied elector votes, consider more than three candidates? As we have argued in the case of the Senate in Part II.A, it could and should, and arguably, it could and should make clear its intention to do so by rule. As we have seen in Part II.A, *634 both the Constitution and the Twelfth Amendment provide for ties in other contexts, and why the Twelfth Amendment did not follow those precedents in this respect is unclear. On the other hand, could the House limit its presidential candidates to two or even one? The answer, in general, should be no in light of the legislative history. 141 However, suppose it became apparent that a presidential candidate was not qualified-- for example, by age, citizenship, or inhabitance 142 --or was incompetent, or had withdrawn or died. In the case of death, no House rule would seem necessarily required because the Representatives presumably would not vote for a dead candidate. But a candidate's lack of qualifications, disability, or withdrawal raise issues that might usefully be regulated by a House rule or by legislation. 143 *635 If the House interpreted “not exceeding three” as equivalent to the three “highest numbers on the list,” as the Twelfth Amendment provides for Vice President and as the Constitution provided for President when the number was “five,” 144 then constitutionally it would not have discretion for deciding that less than three should be candidates for President. While “not exceeding” arguably provides the House discretion to constitutionally consider fewer than three candidates, it provides no criteria, except perhaps in the cases of lack of qualifications, death, disability, or withdrawal. Except in such cases, it is hard to imagine a House of Representatives assuming responsibility for the exercise of such discretion, if any, as “not exceeding three” may confer discretion to reduce the number of presidential candidates or eliminate any tied candidates. Politically, it is easier to envisage the House exercising any such discretion to include all tied candidates, even though that might be contrary to the intent of the Twelfth Amendment's reduction of presidential candidates from five to three and might increase the likelihood of no absolute state majority for President. Moreover, if the House attempted by rule to reduce the number of presidential candidates, a furor would almost certainly result, and as we shall see when we discuss the possibility of a legislative solution, 145 countervailing constitutional issues would be raised, and litigation would almost certainly ensue. d. Divided It seems unlikely that the House would, by rule, provide that a state's vote for President would be deemed cast when there was no majority, however defined, of that state's Representatives. Section 1 of House Rule VIII provides that “[e]very member shall be present within the Hall of the House during its sittings ... and shall vote on each question put.” 146 The precedents of the House are that no member can be forced to vote (or deprived of the right to vote, and members *636 may not vote by proxy). 147 Section 2 of House Rule VIII even regulates pairing. Because no Representative ordinarily can be forced to vote or be deprived of her or his vote, it seems problematic that the House would, by rule, compel members of a state delegation to vote for President or cast its vote for it. In the latter case, what would be the criteria for deciding for which candidate to cast a vote? This issue will be discussed further when the possibility of legislation is discussed. 148 e. Majority APPENDIX - 162 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 11 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 164 of 553 PageID #: 569 SENATE ELECTION OF THE VICE PRESIDENT AND..., 11 U. Pa. J. Const. L.... As we have seen, the 1825 Rules defined “majority” for the purposes of determining each state's vote for President as “a majority of the votes given ... and ... a majority of the whole number of votes given ....” 149 The House Rules contain many provisions defining a majority. Section 11 of House Rule XXXVIII provides: In all cases of ballot a majority of the votes given shall be necessary to an election, and where there shall not be such a majority on the first ballot the ballots shall be repeated until a majority be obtained; and in all balloting blanks shall be rejected and not taken into the count in enumeration of votes or reported by the tellers. 150 The Speaker is elected by a majority, 151 and the House acts by a majority. 152 As we have seen, the Twelfth Amendment says that “a majority of all the states shall be necessary to a choice.” 153 Perhaps in 1825, when presumably attendance at Congress in mid-winter was uncertain, “a majority of the votes given” 154 was a pragmatic choice. But in the twenty-first century a strong argument can be made, consistent with the Twelfth Amendment's majority requirement of the total states' vote, that a majority of the whole number of each state's Representatives, possibly less vacancies, should be necessary to cast that state's vote for President. However, the Frost Memo concludes: This is the single most important question that must be resolved in the Rules. Adopting a plurality requirement could hasten a decision by the *637 House and would be consistent with the current method of selecting electors; however, it will reverse procedures followed in 1801 and 1825 and will undoubtedly lead to a major fight on the floor, particularly if the third candidate has any significant support in the House. Nonetheless, a fight in favor of plurality voting within state delegations could be worth the battle because to require a majority within states would heighten the chance that no one will be elected President and that the country will be governed for four years by a Vice-President selected by the Senate. 155 It seems clear from the context of the Frost Memo and Proposed Rule 5(c) of the proposed rules that Representative Frost drafted 156 that he is not talking about an absolute majority of each House state delegation, although he is aware that the Twelfth Amendment requires such a majority of all the elector votes and of all the House state delegations when they vote for the President. The public policy choices are clear. Requiring a majority of a quorum, a majority of those present, a majority of those present and voting, an absolute majority, or an absolute majority less vacancies within the House state delegations may ensure more authoritative votes for President. On the other hand, a majority of state delegation Representatives present, or a plurality, should make a House election of a President more likely. These issues are clearly appropriate for consideration by House rules. f. Quorum The Constitution provides that “a majority of each [House] shall constitute a quorum to do business,” 157 but on its face, this would not apply to each of the House state delegations voting for President. As we have seen, neither the 1801 nor the 1825 Rules established quorums for each House state delegation. 158 The constitutional authority of the House to “determine the Rules of its Proceedings” appears unlimited. 159 The precedent established by the majoritarian requirement for each state's vote in the 1825 Rules 160 would also seem to support the House's authority by rule to provide a quorum requirement for each state's delegation. By analogy the House Rules *638 contain numerous provisions establishing quorums for its committees. 161 Generally, a quorum is a majority, although in the case of the Committee of the Whole House on the State of the Union, 100 Representatives is sufficient. 162 APPENDIX - 163 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 12 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 165 of 553 PageID #: 570 SENATE ELECTION OF THE VICE PRESIDENT AND..., 11 U. Pa. J. Const. L.... Consistent with the Constitution 163 and the Twelfth Amendment which requires “a quorum ... of a member or members from two-thirds of the States,” 164 presumably so that a House vote for President would more likely be accepted as authoritative, the House should establish a high quorum requirement for each state's delegation voting for President. There should be an exception for the one- and two-Representative state delegations, for which the attendance of all Representatives should be required. What that quorum requirement should be is debatable. As state delegations increase in size, the number of Representatives that would constitute a majority of a quorum does not increase proportionally. For example, only four Representatives would be the usual quorum, and only three the usual majority of a seven-Representative state delegation. But in the case of California, the largest state delegation in 2008 with fifty-five Representatives, a quorum would have twenty-eight Representatives, and a majority of that quorum would be only fifteen Representatives. The higher the quorum requirement, the more likely that a state delegation's vote for President would be accepted as authoritative. Perhaps a quorum should start at two-thirds for the smaller state delegations and increase to three-quarters for the larger. Of course, if the House adopted a Rule that a majority for the purpose of casting each state's vote for president was a majority of all its Representatives, possibly less vacancies, there would be little or no need for a quorum rule. g. Duration of House Voting Let us assume that the House fails to choose a President by noon on January 20. How long must it continue to try, given that under the provisions of the 1801 and 1825 Rules it cannot take up any other business? 165 Because there is no apparent limit on how long the Vice *639 President, assuming there is one, may act as President, 166 the Executive Branch can continue to function. Constitutional officers can be appointed with the advice and consent of the Senate, authorized inferior officers can be appointed, and so forth. 167 But bills for raising revenue, which must originate in the House, 168 could not be considered and passed, nor could bills passed by the Senate be considered by the House. Accordingly, the Frost Memo says that any House rules for a presidential election should “do everything possible to ensure that the House will actually reach a decision and not be deadlocked.” 169 Reason also requires that the House be able to determine that it is deadlocked and cannot comply with the Twelfth Amendment command that it “choose immediately ... [a] President.” 170 Would the House, in making a deadlock decision, vote by states? Presumably yes, if the adjournment voting precedents established by the 1801 and 1825 Rules 171 were followed. If the 1801 and 1825 Rules precedents were followed, the House would determine by a per capita vote that a deadlock vote was incidental to the power of choosing a President. Thus the vote sufficient for such a determination would be the same majority of whole number of states that is required to choose a President under the Twelfth Amendment. This would be consistent with the Twelfth Amendment's public policy in this respect. 172 Again, it would be appropriate for the House to adopt a rule for this contingency. House Rule XIX is a precedent: a motion for the previous question “shall have the effect of cutting off all debate,” 173 *640 although the “question” to which the Rule refers probably is not the question of the House choosing a President. If the House determined that it could not choose a President, can a Vice President, only acting as President under Section 3 of the Twentieth Amendment, nominate a Vice President under Section 2 of the Twenty-fifth Amendment? Probably not. Section 1 of the Amendment applies only to the removal, death, or resignation of the President, and Section 2 applies only to the existence of a vice presidential vacancy. IV. 2000 PRESIDENTIAL ELECTION There are practical consequences for these recommendations with respect to House rules. Let us take the 2000 presidential election as an example and assume that neither Governor Bush nor Vice President Gore had a majority of all the electors' votes. 174 APPENDIX - 164 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 13 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 166 of 553 PageID #: 571 SENATE ELECTION OF THE VICE PRESIDENT AND..., 11 U. Pa. J. Const. L.... The political party composition of state delegations in the first session of the 107th Congress was: 175 STATE REPUBLICANS DEMOCRATS Alabama 5 1 0 Arizona 5 1 Arkansas 1 3 California 20 31 Colorado 4 2 Connecticut 3 3 Delaware 1 Florida 15 8 Georgia 8 VACANCY 2 Alaska INDEPENDENT 3 Hawaii 1 2 Idaho 2 Illinois 10 10 Indiana 6 4 Iowa 4 1 Kansas 3 1 Kentucky 5 1 Louisiana 5 2 Maine Maryland 2 4 Massachusetts 4 10 Michigan 7 9 Minnesota 3 5 Mississippi 2 3 Missouri 5 4 Montana 1 Nebraska 3 Nevada 1 1 APPENDIX - 165 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 14 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 167 of 553 PageID #: 572 SENATE ELECTION OF THE VICE PRESIDENT AND..., 11 U. Pa. J. Const. L.... New Hampshire 2 New Jersey 6 7 New Mexico 2 1 New York 12 19 North Carolina 7 5 North Dakota 1 Ohio 11 8 Oklahoma 5 1 Oregon 1 4 Pennsylvania 11 10 Rhode Island 2 South Carolina 4 2 South Dakota 1 Tennessee 5 4 Texas 13 17 Utah 2 1 Vermont 1 Virginia 7 3 Washington 3 6 West Virginia 1 2 Wisconsin 4 5 Wyoming 1 1 *642 Let us also assume that: (1) each Representative would have voted by party affiliation; (2) all would have been present and voting; (3) the Vermont Independent would have voted for Vice President Gore, because he votes with the Democrats to organize the House; 176 and (4) the evenly divided states would not have cast substantive votes. Governor Bush would have had the votes of twenty-eight House state delegations, an absolute majority, but a majority of only three, and Vice President Gore would have had the votes of eighteen states. Connecticut, Illinois, Maryland, and Nevada would not have voted because their delegations were evenly divided, but this would not have affected the outcome. With respect to the four divided states, only the people of Nevada voted for Governor Bush. If a majority of the Representatives from each of the divided states--Connecticut, Illinois, Maryland, and Nevada--had voted in accordance with their states' popular votes, three states would have been added to the Gore vote and one, Nevada, to the Bush vote. 177 The political party majority of eight House state delegations was different from how the people of those states voted for President. The people of five states whose House delegations had Democratic *643 Party majorities-- Arkansas, Mississippi, North Dakota, Texas, and West Virginia--voted for Governor Bush; the people of three states whose House delegations had Republican Party majorities--Iowa, New Mexico, and Pennsylvania--voted for Vice President Gore. One can imagine the political pressure on each of the Representatives from those states to vote in accordance with their district's 178 or state's popular votes. APPENDIX - 166 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 15 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 168 of 553 PageID #: 573 SENATE ELECTION OF THE VICE PRESIDENT AND..., 11 U. Pa. J. Const. L.... *645 So, if those House state delegations had voted the way the people of their states had voted, Governor Bush would have added the votes of five states and lost the votes of three, and Vice President Gore would have lost the votes of three. Finally, as the table shows, in seven state delegations--Mississippi, Missouri, New Jersey, Pennsylvania, Tennessee, Utah, and West Virginia--only one vote separated the Republican and Democratic Representatives. The people of Missouri, Tennessee, and Utah, states whose House delegations had a Republican majority of one, voted for Governor Bush, and the people of New Jersey, whose House delegation had a Democratic majority of one, voted for Vice President Gore. The West Virginia delegation consisted of two Democrats and one Republican, but its people voted for Governor Bush. The Pennsylvania delegation consisted of 11 Republicans and ten Democrats, but its people voted for Vice President Gore. 179 We can, therefore, conclude that although House election of President Bush in 2000 was likely, House rules establishing both majority and quorum requirements and legislation dealing with the voting of the divided states might have made House choice of a President more authoritative. Had there been a third presidential candidate who won elector votes, the situation would have been more problematic. 180 *646 V. ADOPTION OF HOUSE RULES Even though the electors' votes are not generally counted by Congress until January 6, the popular vote results for President and the likely elector votes are usually known immediately after Election Day in November. The actual results of the elector votes are usually known immediately or soon after the first Monday after the second Wednesday in December. 181 Although under the Twentieth Amendment the term of the outgoing Congress does not expire until noon on January 3 of the next year, Congress usually adjourns sine die, i.e., terminates its session, prior to the November general election. However, the adjournment resolution usually includes a provision permitting the Congress to be recalled prior to January 3, if necessary. 182 Thus, if the presidential election is so close (as it was in 2000) that there is a possibility that the House would choose the President, the Lame Duck House, if still in session or if called into session, could adopt rules to govern the House presidential election. Or the new House could adopt rules or amend any previously adopted rules in the few days between the commencement of a new Congress at noon on January 3 and the counting of elector votes, which usually takes place on January 6. 183 *647 Even if the House had adjourned, the appropriate standing committee or committees could hold hearings on and draft proposed rules. 184 But it would be far better for the House to consider the issues that would be raised by such rules in a detached context. House Resolution 785 185 would have established a Select Committee on Procedures for Election of a President in the House of Representatives. It was introduced by Representative John L. Burton on September 9, 1980, and referred to the Committee on Rules. The Select Committee would have (1) investigated existing statutes, rules, procedures, and precedents relating to election of the President by the House, the extent to which existing law and precedents are appropriate for the present conduct of such elections, and changes which should be made in existing law; and (2) reported to the House concerning its investigation. The resolution would have authorized the Speaker to appoint ten members; the only criterion was that six should be members of the majority party. The committee would have been authorized to hold hearings and otherwise act during any session, recess, or adjournment of the then-present House, its authority to expire on the earlier of (a) thirty days after filing its report with the House or (b) “just prior to noon on January 3, 1981.” 186 This resolution apparently sought to avoid the question of whether it would have had the effect of ousting the jurisdiction of any standing committee by providing that its “report shall be referred to the committee or committees which have jurisdiction over the subject matter thereof.” 187 In 1980, the possibly significant third presidential candidacy of Representative John B. Anderson almost certainly was the impetus for the introduction of this resolution, but nonetheless no further action was taken. 188 Similarly, on June 10, 1992, Representative Pat Roberts submitted a resolution, 189 which was referred to the Committee on House Administration, to establish a panel of constitutional experts to recommend *648 to the House an appropriate process for APPENDIX - 167 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 16 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 169 of 553 PageID #: 574 SENATE ELECTION OF THE VICE PRESIDENT AND..., 11 U. Pa. J. Const. L.... the selection of a President under the Twelfth and Twentieth Amendments. Presumably, Representative Roberts was motivated by the third-party candidacy of Mr. H. Ross Perot, but again no further action was taken. A. Jurisdiction of Relevant Standing Committees of the House Which House committees would have jurisdiction over the drafting of such rules? 1. Rules Committee The Committee on Rules is a Standing Committee of the House with jurisdiction over the “rules and joint rules (other than [those] relating to the Code of Official Conduct) and order of business of the House,” and it is authorized, specifically, “to sit and act whether or not the House is in session.” 190 Its jurisdiction includes orders relating to use of the galleries during the electoral count 191 and special orders providing times and methods for consideration of particular bills and resolutions. 192 Rules were adopted by the Committee on Rules to regulate its own operations and establish two standing subcommittees, the Subcommittee on Legislative and Budget Process and the Subcommittee on Rules and Organization of the House. The latter is responsible, among other things, for “matters ... [concerning] relations between the two Houses of Congress, relations between the Congress and the Judiciary, and internal operations of the House.” 193 The latter subcommittee would seem to have jurisdiction of rules for the House presidential election process, but Rule 5(b)(2) authorizes the Chair of the Committee to retain whole Committee jurisdiction. 194 If, as seems likely, the full Committee considered rules for the House presidential election, it would almost certainly hold hearings on them as *649 the House rules provide, 195 and as the Rules of the Rules Committee also provide. 196 2. Committee on House Administration The House Standing Committee which has legislative jurisdiction over rules for House election of the President is the Committee on House Administration. House Rule X gives this Committee jurisdiction over measures relating to the “election of the President, Vice President ... and Federal elections generally.” 197 The rules adopted by the Committee on House Administration contain no provisions for subcommittees, but Rule 16 authorizes the Chair to appoint appropriate subunits. 198 3. Joint Referral If issues arose as to whether or not both the Committee on Rules and the Committee on House Administration had jurisdiction over any measures or rules regarding the election of the President by the House, the House Rules appear to require the Speaker to refer a matter to all committees with jurisdiction. 199 *650 B. Authorization and Appointment of Select Committee House Rule X, clause 6(e) authorizes the Speaker to appoint select committees ordered by the House from time to time. 200 With the approval of the House, under House Rule X, clause 2(c), he may also appoint special ad hoc committees from the members of committees having jurisdiction over a matter. 201 The Rules Committee's jurisdiction includes resolutions providing for the appointment of special committees. 202 C. Legislative Commission As an alternative to standing committees or special committees of the House, one could imagine establishing a commission by legislative act for the purpose of investigating and reporting to the House the rules and procedures for electing the President. APPENDIX - 168 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 17 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 170 of 553 PageID #: 575 SENATE ELECTION OF THE VICE PRESIDENT AND..., 11 U. Pa. J. Const. L.... Such a body's functions could extend beyond a single Congressional term. 203 Arguably, the report of a presumably highly qualified, independent, bi-partisan commission should have some authority. *651 D. Adoption of House Presidential Election Rules If a resolution containing proposed House presidential election rules were reported from a committee, it may be debated in the House or in the Committee of the Whole. 204 Debates in the House would be under the one-hour rule, which generally permits every one of the 435 members who chooses to speak to do so for not more than one hour but not more than once. 205 More expeditious adoption of House presidential election rules would be facilitated by a special order or rule reported from the Committee on Rules, providing for debate on the proposed rules in the Committee of the Whole House, because in general, debate on amendments to resolutions in that Committee is permitted under the “five-minute rule.” 206 To approve new rules or amend old ones, both the House and the Committee of the Whole require a majority of votes, 207 with a quorum being present. 208 The Committee of the Whole House does not vote on the question of passage of a resolution; it reports the resolution to the House. 209 *652 E. Enactment of Legislation Establishing Rules for House Presidential Elections The House, let alone one whose term is about to end when third-party candidacies or popular vote polls or both make it possible that a President may be chosen by the new House, may wish to establish rules for election of the President which represent a political consensus by engaging the Senate and the President in that effort or some of that effort. 210 Such a House may also consider the fact that the new House, which convenes on January 3, must be present at the counting of the elector votes on January 6 or thereabouts, and then might have to “immediately” proceed to the election of the President. The new House may not be able, and almost certainly will not have time, to thoughtfully consider rules for that election. We have also seen that at least two of the issues raised by the Twelfth Amendment and the 1801 and 1825 Rules--“not exceeding three” and “divided”--may not be able to be resolved by House rules as such. 211 Could they be resolved by law? *653 1. Interplay Between Statutory House Rules and House Adopted Rules Enactment of a statute purporting to establish House presidential election rules or some of them could raise an issue under Article I, Section 5, clause 2 and Article VI, clause 2 of the Constitution. The former provides, “[e]ach House may determine the Rules of its Proceedings,” 212 and the latter provides, “[t]his Constitution, and the Laws of the United States which shall be made in Pursuance thereof ... shall be the supreme Law of the Land.” 213 Jefferson's Manual takes the position that laws affecting rules of House proceedings enacted by a prior Congress are not binding on a subsequent House, but such laws enacted by a present Congress are. 214 The policy basis for this distinction apparently rests on the theory that while a past House may not bind a future House, 215 a present House may bind itself. But there are examples--some provisions of the Electoral Count Act of 1887 216 are possibly some of them, as are the legislative reorganization *655 acts, 217 reorganization acts, 218 “fast track” trade agreement authorizations, 219 and other statutes 220 --that purport to determine rules for at least some Senate or House proceedings. I have not made an exhaustive survey of such statutes. However, the major statutes amending the standing rules of the House (and Senate) explicitly acknowledge the constitutional right of each House to determine the rules for its own proceedings and to change any such rules contained in legislation. 221 Thus, even if a present *657 vote for a statute could be said to have bound itself, logically a subsequent motion in the same House to adopt a rule inconsistent with the law would seem to be as in order, as would a subsequent motion in that House to modify or repeal a rule it had adopted during that session. Such a statute would also be subject to repeal or amendment by the new Congress in the few days between its convening and its required counting of the electors' votes, but such repeal or amendment would be subject to signature, veto, or pocket veto APPENDIX - 169 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 18 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 171 of 553 PageID #: 576 SENATE ELECTION OF THE VICE PRESIDENT AND..., 11 U. Pa. J. Const. L.... by the outgoing President, who will undoubtedly be interested in the House presidential election outcome whether or not he or she is a candidate to succeed him- or herself. Finally, as we have seen, Jefferson's Manual flatly asserts that no statute can preclude a subsequent House or Senate from determining the rules of its own proceedings. 222 If this is so, then these statutory acknowledgments simply state the Constitution-based rule. Nevertheless, the existence of these House (and Senate) rule enactments implies that they serve at least a presumptive purpose. On that assumption, we consider whether legislation could resolve the “not exceeding three” and divided House state delegation issues. 2. “Not Exceeding Three” As we have seen, the legislative history of the Twelfth Amendment decision to change the constitutional formulation “from the five highest on the list” to “the persons having the highest numbers not exceeding three” suggests that it was not intended to confer discretion on the House to choose from fewer than three. 223 Nor did the Twelfth Amendment enactors resolve the issue of elector tie votes among the candidates for President and Vice President, even though the Constitution had provided for the issue. 224 *658 Let us assume that a law was enacted making clear that the House does not have the power to consider fewer than three presidential candidates, assuming at least three receive elector votes, and it and the Senate have the power to consider more than three or two candidates for President or Vice President, respectively, if there are ties among the highest on the list. Nothing in the Constitution, including its amendments, specifically authorizes such an enactment. Nor does anything prohibit it. Would it be constitutional? Analogous authority suggests that it would be. In Ex parte Yarbrough, 225 the Court rejected the proposition “that when a question of the power of Congress arises the advocate of the power must be able to place his finger on words which expressly grant it.” 226 It sustained a prosecution for conspiracy to intimidate a citizen in the exercise of his right to vote for a member of Congress: Because there is no express power to provide for preventing violence exercised on the voter[,] ... no such law can be enacted. It destroys at one blow, in construing the Constitution of the United States, the doctrine universally applied to all instruments of writing, that what is implied is as much a part of the instrument as what is expressed. This principle, in its application to the Constitution of the United States, more than to almost any other writing, is a necessity, by reason of the inherent inability to put into words all derivative powers--a difficulty which the instrument itself recognizes by conferring on Congress the authority to pass all laws necessary and proper to carry into execution the powers expressly granted and all other powers vested in the government or any branch of it by the Constitution. Article I., sec. 8, clause 18. 227 The victim whom the defendants did “beat, bruise, wound, and maltreat” 228 was black, and the Court explicitly invoked the Fifteenth Amendment and Congress's power to enforce it by appropriate legislation. 229 But the Court also held: This new constitutional right was mainly designed for citizens of African descent. The principle, however, that the protection of the exercise of this right is within the power of Congress, is as necessary to the right of *659 other citizens to vote as to the colored citizen, and to the right to vote in general as to the right to be protected against discrimination. The exercise of the right in both instances is guaranteed by the Constitution, and should be kept free and pure by congressional enactments whenever that is necessary. 230 APPENDIX - 170 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 19 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 172 of 553 PageID #: 577 SENATE ELECTION OF THE VICE PRESIDENT AND..., 11 U. Pa. J. Const. L.... These principles for the protection of votes for Congress were extended to the protection of votes for President and Vice President. In Burroughs & Cannon v. United States, 231 the Court rejected the following argument of petitioners: The Constitution confers upon the State the exclusive power of appointing presidential electors ... except the time of choosing them. Having fixed the time, Congress has exhausted all of its power respecting their appointment, save the power to prevent the discriminations forbidden by the Fourteenth, Fifteenth, and Nineteenth Amendments. 232 In upholding conspiracy indictments under the Corrupt Practices Act, 233 The President is vested with the executive power of the nation. The importance of his election and the vital character of its relationship to and effect upon the welfare and safety of the whole people cannot be too strongly stated. To say that Congress is without power to pass appropriate legislation to safeguard such an election from the improper use of money to influence the result is to deny to the nation in a vital particular the power of self protection. Congress, undoubtedly, possesses that power, as it possesses every other power essential to preserve the departments and institutions of the general government from impairment or destruction, whether threatened by force or corruption. 234 The Court concluded: The power of Congress to protect the election of President and Vice President from corruption being clear, the choice of means to that end presents a question primarily addressed to the judgment of Congress. If it can be seen that the means adopted are really calculated to attain the end, ... the closeness of the relationship between the means adopted and the end to be attained, are matters for congressional determination alone. 235 *660 Moreover, should the House decide to consider fewer than three presidential candidates who received the highest elector votes, other than for lack of the constitutional qualifications, or should it or the Senate, respectively, not consider more than three or two qualified presidential or vice presidential candidates because of tie votes, highly undesirable litigation would almost certainly ensue. Alexander Hamilton said flatly, “The qualifications of the persons who may choose or be chosen ... are defined and fixed in the Constitution, and are unalterable by the legislature.” 236 Were the House to reject a constitutionally qualified candidate, it would in effect be impermissibly adding to the presidential or, in the case of the Senate, vice presidential constitutional qualifications. 237 Were either to do so, the candidates rejected would have recourse to the federal judiciary. 238 *661 There are no examples of the House or Senate excluding or considering excluding a presidential or vice presidential candidate who had received the requisite number of elector votes. Nor are there cases raising that issue. But such a person almost certainly has a constitutional right to be considered by the House or Senate. Williams v. Rhodes 239 held that new political parties have a First Amendment right, made applicable to the states by the Fourteenth Amendment, to have the same opportunity to have their presidential electors on the ballot as the established political parties. A presidential or vice presidential candidate who received the requisite number of elector votes would *662 seem to have an even stronger case for inclusion as a candidate in the House's election of a President or the Senate's of a Vice President. 240 APPENDIX - 171 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 20 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 173 of 553 PageID #: 578 SENATE ELECTION OF THE VICE PRESIDENT AND..., 11 U. Pa. J. Const. L.... Thus, the Congress may, and should, consider legislating under the Twelfth Amendment that neither the House nor the Senate has the power to exclude from consideration candidates who receive sufficient elector votes so that they qualify as among the three or two highest, respectively, because of elector vote ties. 3. Divided Let us assume that (1) a House state delegation quorum, if required, was present, or (2) such a House state delegation could not vote, because it could not muster a quorum, if so required, or (3) it could not vote, because it could not muster whatever majority might be required. 241 If so, what would be the rule of decision for the casting of such a vote? Could a statute deem the votes for President cast, or authorize and direct the House Speaker to cast those votes, for a House state delegation that did not vote? *663 Again, not a word in the Constitution authorizes (or prohibits) such a law. But the situation appears to be substantively different from that discussed in the immediately preceding section of this article, “Not Exceeding Three.” There, the issue was protecting candidates' rights to be considered by the House for President if they win sufficient elector votes. House Rule VIII does assert authority to compel members to attend and to vote: 1. Every Member shall be present within the Hall of the House during its sittings, unless excused or necessarily prevented; and shall vote on each question put, unless he has a direct personal or pecuniary interest in the event of such question. 242 Under House Rule XV(2) and (4), absent members may be arrested by the Sergeant-at-Arms. 243 But compelling attendance is not compelling voting. Indeed, under House Rule XV(4) and (5)(a), ordinarily Representatives may vote “Present.” 244 Moreover, the comment to House Rule VIII(1), quoted above, states: It has been found impracticable to enforce the provision requiring every Member to vote (V, 5942-5948), and such question, even if entertained, may not interrupt a pending roll call vote (V, 5947) .... 245 Nevertheless, in accordance with the plain meaning of House Rule VIII(1), quoted immediately above, and consistent with the Other Body's Rules, 246 perhaps a House Rule would be in order that compelled Representatives not only to attend, but to vote at the meetings of their respective state delegations to decide how they should vote for President. But as we shall see in a moment, such a rule, though undoubtedly useful, would not necessarily obviate the need for a law, at least in the case of the thirteen one- and two-Representative House state delegations. *664 Returning to the question of a statute, 247 can a distinction be drawn between compelling a Representative's attendance and voting on a bill, resolution, or motion, and voting for President as part of a state delegation? The difficulty with the former is the absence of any objective criteria to determine how the compelled vote is to be cast. In the case of a Representative's compelled vote as part of her or his House state delegation's vote for President, how the people of that state voted for President could provide a rule for decision, 248 remembering that (1) under the Twelfth Amendment the states vote for President through their electors, who except in the cases of Maine, Nebraska, and faithlessness, vote unanimously; and (2) the House chooses a President by voting by states. If none of the three highest on the list won a state, there would be no decisional rule for that state's House delegation. There is also the, admittedly expedient, argument that neither the people of any state nor that state would want to, or should, be deprived of their House delegation's vote for President because of lack of a quorum or of a majority in its delegation, particularly APPENDIX - 172 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 21 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 174 of 553 PageID #: 579 SENATE ELECTION OF THE VICE PRESIDENT AND..., 11 U. Pa. J. Const. L.... given the Twelfth Amendment quorum requirement of two-thirds of the States, the majority requirement of all the states for the vote, and the possible difficulty of assembling such a majority. It may not be necessary to deal with the issue of compelling individual Representatives to vote. A statute could, in the case of a House state delegation that, for whatever reason, did not cast its vote for President, deem that state's vote cast or authorize and direct the Speaker to cast that state's vote for President in accordance with that state's popular vote, again assuming one of the three highest on the list won it. This argument would seem to be particularly compelling in the case of the vacancy, disability, or absence of a Representative from one or more of the seven one-Representative states or from one or more of the five two-Representative states, the latter of whose delegations consequently would have difficulty assembling either a quorum or a majority or both, if required to do so. If one of the three highest on the list did not win that state's popular vote, then perhaps that state's vote should be cast for the national *665 winner of the popular vote, including the District of Columbia, because under the Twenty-third Amendment it has the number of electors to which it would be entitled if it were a state, even though, as we have seen, the District's delegate has no vote for President in the House, 249 as has been at least once proposed. *668 VI. SUMMARY OF RECOMMENDATIONS The Senate should consider amending its rules to eliminate the possibility of a vice presidential election filibuster. The House should consider whether or not: a. it should meet in Executive Session when it chooses a President; b. the state delegations should vote by ballot; c. there should be majority or quorum rules for voting by the state delegations; d. it should by rule interpret “not exceeding three” to permit it to consider tied candidates and not to reject any candidates, except perhaps in the case of the lack of constitutional qualifications, or if legislation should be enacted to make it clear that that phrase does not confer discretion on the House to reject a presidential candidate, except perhaps in the foregoing cases; e. legislation should be enacted authorizing, for example, the Speaker to cast the votes of divided House state delegations; and if so, should the objective criteria for the casting of such votes be for the state's presidential popular vote winner, the national popular vote winner, or in the present case of Maine and Nebraska, for their winners of their congressional districts; f. what procedure it should follow to determine that it is deadlocked and cannot chose a President; and g. it should amend its rules to make applicable the procedures for invoking the powers of the Sergeant-at-Arms to compel the attendance of absent Representatives when it is choosing a President. APPENDIX - 173 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 22 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 175 of 553 PageID #: 580 SENATE ELECTION OF THE VICE PRESIDENT AND..., 11 U. Pa. J. Const. L.... *669 The Congress should consider legislation eliminating the presidential succession gaps discussed in this Article. As Elizabeth Garrett said: The impetus for the Electoral Count Act was the debacle of the Hayes-Tilden election and the strong desire to avoid designing structures of deliberation and decisionmaking in an ex post way .... 250 We have previously described the legislative process that led to the enactment of the Electoral Count Act in detail. 251 That process lasted more than a year, even though the Congress presumably had benefited from its two previous unsuccessful legislative efforts. The issues raised and discussed in this article are substantial and of extraordinary public importance. The Senate and House of Representatives need to take the time to consider these issues and resolve them by rule wherever possible and by legislation when necessary. Such consideration should not be part of a mad partisan scramble under heavy time pressure to meet the short deadlines between a general election on the first Tuesday after the first Monday in November, the convening of the new Congress on or about January 3, and the beginning of the terms of the new President and Vice President on January 20. 252 Footnotes a1 William Josephson is a retired partner of Fried, Frank, Harris, Shriver & Jacobson, LLP. The views expressed and all errors are his alone. He is most grateful to Beverly J. Ross, Esq., co-author of two prior articles about the so-called Electoral College, infra note 1, for her research and editorial contributions to this Article and to the two prior articles. Gratitude is also expressed to Fried Frank librarians, Margot Gee, Nancy A. Rine, Deena Subar, Sue Ann Orsini, Marcy Cabanas, and Warren Gordon. He is also grateful to his assistant, June M. Little, for research assistance, and to Susan Wilker of the Journal of Constitutional Law for marvelous editing. This article is current as of March 18, 2009. 1 Beverly J. Ross & William Josephson, The Electoral College and the Popular Vote, 12 J.L. & POL'Y 665 (1996) [hereinafter Ross & Josephson, Popular Vote]; William Josephson & Beverly J. Ross, Repairing the Electoral College, 22 J. LEGIS. 145 (1996) [hereinafter Josephson & Ross, Repairing]. The debate over the Electoral College continues. See also Christopher Anglim, A Selective, Annotated Bibliography on the Electoral College: Its Creation, History, and Prospects for Reform, 85 LAW LIBR. J. 297 (1993). CompareGEORGE C. EDWARDS III, WHY THE ELECTORAL COLLEGE IS BAD FOR AMERICA (Yale Univ. Press 2004) withTARA ROSS, ENLIGHTENED DEMOCRACY: THE CASE FOR THE ELECTORAL COLLEGE (World Ahead Publishing 2004). Robert W. Bennett believes the Electoral College can be “tamed.” ROBERT W. BENNETT, TAMING THE ELECTORAL COLLEGE (Stanford Univ. Press 2006). I am most grateful to Professor Bennett for reading and commenting on a draft of this Article. The New York Times has editorially defended, attacked, and advocated ameliorating the College. Compare Editorial, The Case for the Electoral College, N.Y. TIMES, Dec. 19, 2000, at A34, with Editorial, A Really Modest Proposal, N.Y. TIMES, Nov. 6, 2004, at A18, and Editorial, Drop Out of the College, N.Y. TIMES, Mar. 14, 2006, at A26. Most recently, the newspaper has supported the so-called National Popular Vote effort. Editorial, Maryland Takes the Lead, N.Y. TIMES, Apr. 14, 2007, at A14. See infra note 249. Recently, it called for a constitutional amendment abolishing the College without stating what would take its place. Editorial, Flunking the Electoral College, N.Y. TIMES, Nov. 20, 2008, at A42. It referred to the National Popular Vote effort without actually endorsing it. Id. The Times subsequently printed five letters, only one of which supported abolition, and none even referred to National Popular Vote. Letter to the Editor, N.Y. TIMES, Nov. 24, 2008, at A24. Some recent authors' substantive positions on the College seem difficult to ascertain. See, e.g., Michael Herz, How the Electoral College Imitates the World Series, 23 CARDOZO L. REV. 1191 (2002); Note, Rethinking the Electoral College Debate: The Framers, Federalism, and One Person, One Vote, 114 HARV. L. REV. 2526 (2001). Therefore, it seems useful to repeat our comment from Repairing: “[W]e choose to be analysts and improvers ... not defenders or attackers.” Josephson & Ross, Repairing, supra, at 151. APPENDIX - 174 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 23 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 176 of 553 PageID #: 581 SENATE ELECTION OF THE VICE PRESIDENT AND..., 11 U. Pa. J. Const. L.... The legal status of electors, discussed in Josephson & Ross, Repairing, supra, at 152, and in Ross & Josephson, Popular Vote, supra, at notes 250 and 251, and accompanying text, has since been the subject of two articles. Vasan Kesavan, The Very Faithless Elector?, 104 W. VA. L. REV. 123 (2001); John A. Zadrozny, The Myth of Discretion: Why Presidential Electors Do Not Receive First Amendment Protection, 11 COMMLAW CONSPECTUS 165 (2003). 2 E.g., Bush v. Gore, 531 U.S. 98 (2000); Bush v. Palm Beach County Canvassing Bd., 531 U.S. 70 (2000). 3 U.S. CONST. art. II, § 1, cl. 3; see also3 U.S.C. § 15 (2006). Disagreement initially existed as to whether the Vice President counts the electoral votes or only presides over the joint session of Congress and announces the result. SeeJosephson & Ross, Repairing, supra note 1, at 179; Ross & Josephson, Popular Vote, supra note 1, at 705. On September 17, 1787, the Constitutional Convention adopted an implementing resolution that provided in relevant part, “[T]he Senators should appoint a President of the Senate, for the sole Purpose of receiving, opening and counting the Votes for President ....” Constitutional Convention Res. adopted September 17, 1787, reprinted inTHE CONSTITUTION OF THE UNITED STATES OF AMERICA: ANALYSIS AND INTERPRETATION, S. Doc. No. 103-6, 103d Cong., 1st Sess. 21-22 (Johnny H. Killian & George A. Costello eds. 1996), available at http:// www.gpoaccess.gov/constitution/pdf/con044a.pdf (emphasis added) [hereinafter KILLIAN & COSTELLO]. 4 U.S. CONST. art. II, § 1, cl. 3. 5 U.S. CONST. art. I, § 3, cls. 4, 5. 6 John Adams in 1793 and 1797, Thomas Jefferson in 1801, George Clinton in 1809, John C. Calhoun in 1829, Martin Van Buren in 1837, John C. Breckinridge in 1861, Thomas C. Marshall in 1917, Charles Curtis in 1933, John N. Garner in 1937, Richard M. Nixon in 1957 and 1961, Spiro T. Agnew in 1973, Walter F. Mondale in 1981, George H.W. Bush in 1985 and 1989, Daniel Quayle in 1993, Albert Gore, Jr. in 1997 and 2001, and Richard B. Cheney in 2005. WORLD ALMANAC AND BOOK OF FACTS (2005) [hereinafter WORLD ALMANAC 2005]. Vice President Hubert H. Humphrey did not preside in 1969, and Richard B. Russell presided as President pro tempore of the Senate. 115 CONG. REC. 145, 171-72 & 246 (1969); SENATE MANUAL, S. DOC. NO. 106-1, 106th Cong., 1st Sess. 994 (2000) [hereinafter SENATE MANUAL]. Robert W. Bennett speculates that this was because of “conflict.” BENNETT, supra note 1, at 202 n.65. Actually, Vice President Humphrey was in Norway in early January 1969, attending the funeral of former United Nations Secretary General Trygvie Lie as the official representative of the President of the United States. E-mail from Norman Sherman to Toni Nesbit, Assistant to the Honorable Max M. Kampelman (Aug. 4, 2006, 11:13 EST) (on file with author). 7 BENNETT, supra note 1, at 24-25, 29; Michael J. Glennon, Nine Ways to Avoid a Train Wreck: How Title 3 Should Be Changed, 23 CARDOZO L. REV. 1159, 1187-89 (2002). Kesavan describes the conduct of Vice Presidents John Adams and Thomas Jefferson during the counting of elector votes in 1797 and 1801, respectively. Vasan Kesavan, Is the Electoral Count Act Unconstitutional?, 80 N.C. L. REV. 1653, 1656-57 n.3 (2002). He later argues, notwithstanding the language of the Twelfth Amendment, that 3 U.S.C. § 15 may be unconstitutional, because it makes the President of the Senate the presiding officer over the elector vote count. Id. at 1700. It is not clear on what constitutional prohibition he is relying. If he is relying on the absence of specific constitutional authorization for a statute specifying who will preside over the counting, then he must contend, as he tries to do, with the Twelfth Amendment's specific statement, “[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.” Id. at 1696-1701 (alteration in original). Someone needs to preside. If not the Vice President, acting as President of the Senate, then who? See infra notes 34 and 225-35 and accompanying text for arguments that should sustain the constitutionality of 3 U.S.C. § 15 in this respect. Professor Ackerman and Mr. Fontana describe Adams's and Jefferson's actions in far greater length and with impressive historical research. Bruce Ackerman & David Fontana, Thomas Jefferson Counts Himself into the Presidency, 90 VA. L. REV. 551 (2004). They conclude that 3 U.S.C. § 15 is constitutional. Id. at 636 n.239, 640. They also conclude that both Adams and Jefferson acted properly. They dismiss Kesavan's arguments as “a case study on the dangers of a misguided textualism .... [H]is interpretations seem far less plausible than those that Congress has consistently adopted over the course of two centuries.” Id. at 631 n.220. 8 U.S. CONST. art. I, § 3, cl. 4. APPENDIX - 175 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 24 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 177 of 553 PageID #: 582 SENATE ELECTION OF THE VICE PRESIDENT AND..., 11 U. Pa. J. Const. L.... Prior to the adoption of the Twenty-fifth Amendment, the United States had no Vice President when elector votes were to be counted from 1841 to 1845, from 1850 to 1853, from 1865 to 1869, from 1881 to 1885, from 1899 to 1901, from 1923 to 1925, from 1945 to 1949, and from 1963 to 1965 because the Vice Presidents were acting as President. WORLD ALMANAC 2005, supra note 6. Prior to the adoption of the Twenty-fifth Amendment, the United States had had no Vice President due to death at least four times when the elector votes were to be counted: in 1875 (Henry Wilson), 1885 (Thomas A. Hendricks), 1899 (Garret A. Hobart), and 1912 (James S. Sherman). SENATE MANUAL, supra note 6, at 1078, 1082, 1085, 1088. Another source says that this was also true of George Clinton (Apr. 20, 1812), Elbridge Gerry (Nov. 23, 1814), and William R. King (Apr. 18, 1853). WORLD ALMANAC 2005, supra note 6, at 563-64. The Senate Manual does not confirm this, but the World Almanac is confirmed by “Occasions When Vice Presidents Have Voted to Break Tie Votes in the Senate” compiled by the Senate Historical Office from a variety of sources and dated May 2003, which is on file with the author. The United States had no Vice President when elector votes were to be counted only once due to resignation, that of John C. Calhoun in 1832. WORLD ALMANAC 2005, supra note 6, at 579 & n.1. Twice for brief periods since the adoption of the Twenty-fifth Amendment on February 23, 1967, the United States has not had a Vice President: between the resignation of Vice President Spiro T. Agnew on October 10, 1973, and Gerald R. Ford's swearing in as Vice President on December 6, 1973, and between Vice President Ford's swearing in as President on August 9, 1974, and New York Governor Nelson A. Rockefeller's swearing in as Vice President on December 29, 1974. SENATE MANUAL, supra note 6, at 1104 n.1. But on neither occasion was the vice presidency vacant when elector votes were to be counted. 9 U.S. CONST. art. I, § 3, cl. 5. 10 S. Doc. No. 101-25 (1992), reprinted inFLOYD M. RIDDICK & ALAN S. FRUMIN, RIDDICK'S SENATE PROCEDURE: PRECEDENTS AND PRACTICES 1019-24 (Alan S. Frumin ed., rev. ed. 1992), available at http:// www.gpoaccess.gov/riddick/browse.html. Mr. Riddick, the Senate Parliamentarian emeritus, states, “The Vice President or President pro tempore, in such a joint session is the presiding officer ....” Id. at 812. 11 U.S. CONST. amend. XII (emphasis added). When the Twelfth Amendment says “ballot,” it means the identity of each voter is not revealed, i.e., is secret. Josephson & Ross, Repairing, supra note 1, at 172 nn.199-203 and accompanying text; Ross & Josephson, Popular Vote, supra note 1, at 677 n.61 and accompanying text; cf. House Rule XXXVIII, inCONSTITUTION, JEFFERSON'S MANUAL, AND RULES OF THE HOUSE OF REPRESENTATIVES, H.R. Doc. No. 103-342, 103d Cong., 2d Sess. 766 § 934 (1995) (first adopted in 1789) [hereinafter JEFFERSON'S MANUAL]. The ad hoc rules adopted for the House presidential elections of 1801 and 1825 provided for ballot boxes for the ballots of each state's House delegation and for the states' ballots. Rules of the U.S. House of Representatives, 6th Cong., 2d Sess. § 6 (1801), reprinted inMICHAEL J. GLENNON, WHEN NO MAJORITY RULES: THE ELECTORAL COLLEGE AND PRESIDENTIAL SUCCESSION app. D, at 145-47 (Congressional Quarterly Inc. 1992) [hereinafter 1801 Rules]; Rules of the U.S. House of Representatives, 18th Cong., 2d Sess. § 5 (1825) [hereinafter 1825 Rules], reprinted inGLENNON, supra, app. D, at 147-49. Professor Glennon agrees with our opinion that “ballot” means “secret,” id. at 50-51, as does Kesavan in The Very Faithless Elector?, supra note 1, at 138. See alsoLUCIUS WILMERDING, JR., THE ELECTORAL COLLEGE 172, 182-83, 206-07 (1958); Presidential Succession Between the Popular Election and the Inauguration: Hearing Before the Subcomm. on the Constitution of the S. Comm. on the Judiciary, 103d Cong., 2d Sess. 15 n.26 (1994) (statement of Ass't Att'y Gen. of the U.S. Walter Dellinger, Office of Legal Counsel, Justice Dep't) [hereinafter Presidential Succession Hearings]; Kesavan, supra note 7, at 1803 & nn.587, 588; James C. Kirby, Jr., Limitations on the Power of State Legislatures over Presidential Elections, 27 LAW & CONTEMP. PROBS. 495, 506 (1962). In a July 1, 1980 memorandum to the Honorable Richard Bolling of Missouri, Chair of the House Committee on Rules, Representative Martin Frost reviewed the House's precedents and concluded, “It is clear by practice that the House has consistently interpreted ‘by ballot’ in the 12th Amendment to mean secret written ballot.” Memorandum from Congressman Martin Frost, printed in 138 Cong. Rec. 15,690, 15,691, cols. 2 & 3 (1992) [hereinafter Frost Memo]. Representative Frost inserted this memo on June 22, 1992 because in that year there were “three contending candidates for President ....” Id. at 15,690, col. 1. Representative Frost acknowledged that even were “the House to adopt a rule to the contrary in 1981 [i.e., not by ballot] ... this undoubtedly would raise a major furor.” Id. at 15,691, col. 3. The secondary authorities are not unanimous on the issue of secret ballot. See, e.g., ROBERT M. HARDAWAY, THE ELECTORAL COLLEGE AND THE CONSTITUTION: THE CASE FOR PRESERVING FEDERALISM 58 (1994). The Frost Memo argued “for the maximum amount of public scrutiny of the process consistent with the Constitution.” APPENDIX - 176 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 25 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 178 of 553 PageID #: 583 SENATE ELECTION OF THE VICE PRESIDENT AND..., 11 U. Pa. J. Const. L.... Frost Memo, supra, at 15690, col. 1. Professor Bennett thoughtfully discusses the issues in BENNETT, supra note 1, at 104-05. 12 Although under the Twenty-third Amendment, the District of Columbia's three electors vote for President and Vice President, the District was not made a state for purposes of the Twelfth Amendment. Therefore, the District of Columbia's non-voting delegate to the House does not vote for President. The legislative history of the Twenty-third Amendment is clear that this treatment of the District was not an oversight but deliberate: MINIMUM IMPACT; PRESERVATION OF ORIGINAL CONCEPT OF CONSTITUTION The proposed amendment would change the Constitution only to the minimum extent necessary to give the District appropriate participation in national elections. It would not make the District of Columbia a State. It would not give the District of Columbia any other attributes of a State or change the constitutional powers of the Congress to legislate with respect to the District of Columbia and to prescribe its forms of government. It would not authorize the District to have representation in the Senate or the House of Representatives. It would not alter the total number of presidential electors from the States, the total number of Representatives in the House of Representatives, or the apportionment of electors or Representatives among the States. It would, however, perpetuate recognition of the unique status of the District as the seat of Federal Government under the exclusive legislative control of Congress. H.R. REP. NO. 86-1698, at 3 (1960)H.R. REP. NO. 86-1698, at 3 (1960) (emphases added). Nevertheless, the District's three electors are electors, and thus their number adds to the majority of the whole number requirement for elector election of the President and Vice President. 13 U.S. CONST. art. II, § 1, cl. 3, amended byU.S. CONST. amend XII. 14 U.S. CONST. amend. XII, superseded by U.S. CONST. amend. XX, § 3. 15 U.S. CONST. amend. XII. 16 Under the Constitution, “Representatives ... shall be apportioned among the several States ... according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, ... excluding Indians not taxed, three fifths of all other Persons.” U.S. Dep't of Commerce v. Montana, 503 U.S. 442, 444 n.1 (1992) (first two alterations in original) (quoting U.S. CONST. art. I, § 2, cl. 3). Section 2 of the Fourteenth Amendment provides that “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.” Id. at 444 n.1 (quoting U.S. CONST. art. XIV, § 2; see also 2 U.S.C. §§ 2a(a)- 2(c) (2006)(establishing the criteria for allocating the number of Representatives for each state). The U.S. Code forbids the Bureau of the Census's use of “the statistical method known as ‘sampling”’ “for the determination of population for purposes of apportionment of Representatives in Congress among the several States.” 13 U.S.C. § 195 (2006); see also Dep't of Commerce v. U.S. House of Representatives, 525 U.S. 316, 317 (1999) (holding that the Census Act prohibits the use of statistical sampling to determine the population for congressional apportionment purposes). In Utah v. Evans, 536 U.S. 452 (2002), the Court sustained the use of “hot-deck imputation” for apportionment purposes and rejected Utah's claim for an additional Representative, which would have required reducing North Carolina's House representation because the total number of Representatives is statutorily fixed at 435. See Act of Aug. 8, 1911, ch. 5, §§ 1-2, 37 Stat. 13-14. On April 19, 2007, the House passed H.R. 1905, which would permanently increase the number of Representatives to 437 by giving the District of Columbia a Representative and giving Utah an elected-at-large Representative. H.R. 1905, 110th Cong. (1st Sess. 2007). On April 20, the bill was referred to the Senate Committee on Finance. On September 18, 2007, the Senate failed by a vote of fifty-seven to forty-two to close debate on this bill. Ian Urbina, District of Columbia Voting Bill Falls Short in Senate, N.Y. TIMES, Sept. 19, 2007, at A20. S. 150 and H.R. 157, 111th Cong. (1st Sess. 2009), the former of which has already passed the Senate, are in part to the same effect. Because the District of Columbia is not a state, see supra note 12, the principal purpose of these bills raises substantial constitutional issues. See Evan P. Schultz, Text Here to Vote: The Push for D.C. Voting Rights Calls Up the Flaws in Constitutional Interpretation, LEGAL TIMES, Mar. 16, 2009, at 16. Should the House be called upon to choose a President, the number of Representatives in each state's House delegation can obviously affect the vote for President. The Framers thought that a contingent election of the President in the House, instead of in the Senate, would “lessen[] the aristocratic influence of the Senate.” JAMES MADISON, NOTES OF DEBATES IN THE FEDERAL CONVENTION OF 1787, at 592 (Ohio Univ. Press 1966) (quoting Colonel George Mason); see alsoTHE FEDERALIST NOS. 55, 56, 57, at 338-53 (James Madison) (Clinton Rossiter ed., APPENDIX - 177 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 26 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 179 of 553 PageID #: 584 SENATE ELECTION OF THE VICE PRESIDENT AND..., 11 U. Pa. J. Const. L.... 2003) (discussing the difficulty of determining and rationalizing the number of Representatives for each state); cf.THE FEDERALIST NO. 66, at 399-405 (Alexander Hamilton) (Clinton Rossiter ed., 2003) (objecting to the Senate sitting as the court of impeachment since this would consolidate too much power in the Senate). The Framers also thought that the House would elect “the man who in their opinion may be best qualified for the office.” THE FEDERALIST NO. 68, at 412 (Alexander Hamilton) (Clinton Rossiter ed., 2003). Apportionment of House seats and gerrymandering can obviously affect how democratic (with a small “d”) the choice of a President would be for each House state delegation. In 1789, a constitutional amendment for reapportionment was proposed by Congress as part of what later became the Bill of Rights. This amendment was not originally ratified, but it eventually became the Twenty-seventh Amendment. The unratified amendment provided: After the first enumeration required by the first article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred; after which the proportion shall be so regulated by Congress, that there shall be not less than two hundred Representatives, nor more than one Representative for every fifty thousand persons. RICHARD B. BERNSTEIN & JEROME AGEL, AMENDING AMERICA: IF WE LOVE THE CONSTITUTION SO MUCH, WHY DO WE KEEP TRYING TO CHANGE IT?, app. B at 301 (1993); see alsoKILLIAN & COSTELLO, supra note 3, at 47 (explaining the method for electors to vote). For discussions of the second Congress's struggle to apportion the House after the 1790 census, see David P. Currie, The Constitution in Congress: The Second Congress, 1791-1793, 90 NW. U. L. REV. 606, 607-15 (1996), and DAVID P. CURRIE, THE CONSTITUTION IN CONGRESS: THE FEDERALIST PERIOD 1789-1801, at 128-36 (Univ. of Chi. Press 1997) [hereinafter CURRIE, FEDERALIST PERIOD]. The history of Congress's abandoned attempts to statutorily require compact and contiguous congressional districts of equal population is recounted in Wesberry v. Sanders, 376 U.S. 1, 42-45 (1964) (Harlan, J., dissenting). The Supreme Court held that these statutes were not reenacted in Wood v. Broom, 287 U.S. 1 (1932). Gerrymandering affects the House's choosing a President to the extent that it results, state-by-state, in more Representatives from one party than compact, contiguous, and equal population congressional districts might produce. For example, in 2003, Texas redistricted its congressional districts for the 2004 general election, which resulted in Republican candidates winning twenty-one House seats to the Democrats' eleven; prior to 2001, the Democrats had a 17-15 majority in Texas's House delegation. League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 412-13 (2006); accordSTEVE BICKERSTAFF, LINES IN THE SAND: CONGRESSIONAL REDISTRICTING IN TEXAS AND THE DOWNFALL OF TOM DELAY (2007). Texas has voted for the Republican Party candidate for President since 1980. U.S. Census Bureau, Statistical Abstract of the United States: 2000, 274-75 tbls.455 & 456 (120th ed. 2001) (providing information for the years 1980-96); WORLD ALMANAC 2005, supra note 6, at 594 (providing information for the year 2000); U.S. Nat'l Archives & Records Admin., 2004 Presidential Election, Popular Vote Totals (2004), http://www.archives.gov/federal-register/electoral-college/2004/popular_vote.html (providing information for the year 2004). However, in 2004 President Bush's 4,527,000 Texas votes were approximately 61% of the votes cast for major political party presidential candidates. See U.S. Census Bureau, Statistical Abstract of the United States: 2008, tbl.388 (127th ed.). Republicans won 58% of the vote in statewide races against Democrats, League of United Latin Am. Citizens, 548 U.S. at 413, while winning 62.5% of the redistricted House seats, nearly 5% more than their showing in 2004 statewide races.Id. Unfortunately, none of the Supreme Court gerrymandering opinions appear to be aware of this particularly sinister aspect of gerrymandering. David S. Wagner identifies this type of gerrymandering as an issue with respect to congressional district elector appointments using the district systems in Maine and Nebraska as examples. David S. Wagner, The Forgotten Avenue of Reform: The Role of States in Electoral College Reform and the Use of Ballot Initiatives to Effect that Change, 25 REV. LITIG. 575, 585 (2006). For information with respect to Maine and Nebraska's district systems, see infra note 178. House districts seem likely to become more and more gerrymandered until the Supreme Court finally intervenes. See Rachel Morris, The Race to Gerrymander, WASH. MONTHLY, Nov. 2006, at 15 (discussing the problems gerrymandering creates in various states). The voluminous academic literature on gerrymandering also seems to not be aware of its consequences for a House election of a President. E.g., Samuel Issacharoff, Gerrymandering and Political Cartels, 116 HARV. L. REV. 593 (2002) (discussing gerrymandering as a harm); Nathaniel Persily, Reply, In Defense of Foxes Guarding Henhouses: The Case for Judicial Acquiescence to Incumbent-Protecting Gerrymanders, 116 HARV. L. REV. 649 (2002) (identifying incumbent control of redistricting as a means to immunize districts from partisan competition); Samuel Issacharoff, Surreply, Why APPENDIX - 178 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 27 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 180 of 553 PageID #: 585 SENATE ELECTION OF THE VICE PRESIDENT AND..., 11 U. Pa. J. Const. L.... Elections?, 116 HARV. L. REV. 684 (2002) (highlighting the reasons why processes exist as they are despite a lack of textual justification). An interesting note, A New Map: Partisan Gerrymandering as a Federalism Injury, argues “that the Court should therefore abandon its conception of partisan gerrymandering as a species of vote dilution and focus instead on the federalism injury that state legislatures inflict when they interfere with the ability of the ‘People of the several states' to elect their national representatives.” 117 HARV. L. REV. 1196, 1198 (2004). This argument would have been strengthened had the author also considered the consequences of gerrymandering for House elections of a President. California Governor Arnold Schwarzenegger's ballot initiative proposal to shift the power to redraw legislative districts from the State Legislature to a panel of retired judges was defeated. John Broder, Not on Ballot, Schwarzenegger Is Still Rebuked, N.Y. TIMES, Nov. 10, 2005, at A1. Bills have also been introduced in the New York State legislature to authorize or create apportionment commissions. S. 2047, A. 5413, Reg. Sess. (N.Y. 2007). New York State Governor Eliot Spitzer proposed a State constitutional amendment “to emancipate redistricting from partisan gerrymanders.” Letter from Jerry H. Goldfeder, Chair, Comm. on Election Law, Ass'n of the Bar of the City of N.Y., to Eliot Spitzer, Governor of the State of N.Y. (Jan. 7, 2008), available at http://www.nycbar.org/pdf/report/ dpny-22644164-v1-Signed.pdf (supporting and criticizing the proposal). The American Bar Association's House of Delegates, on February 12, 2008, approved a resolution, recommended by two ABA Sections and its Standing Committee on Election Law, urging each state to assign the redistricting process for congressional and legislative districts to independent commissions. Michael Asimow, Section of Administrative Law and Regulatory Practice, Report to ABA House of Delegates (2008), available at http:// www.abanet.org/leadership/2008/ midyear/sum_of_rec_docs/hundredtwoa_102A_ FINAL.doc. 17 CHARLES L. BLACK, JR., A NEW BIRTH OF FREEDOM: HUMAN RIGHTS, NAMED AND UNNAMED 109-10 (1997). According to the 2000 census, the mean population of the states was 5,612,436. WORLD ALMANAC 2005, supra note 6, at 371. Only sixteen states, slightly less than a third, had a higher population than the mean. Id. These states had 322 electoral votes, id. at 592, far more than the 268 required for a majority (the constitutionally required absolute majority of the fifty states), but only 16 votes in a House election of a President. The twelve states with the largest elector votes have an electoral college majority of 271. Id. But these states would have only 12 votes in any House election of a President. At the inception of the United States, the five states--slightly more than a third--with the greatest number of elector votes (Virginia with 12, Massachusetts with 10, Pennsylvania with 10, and Maryland and New York with 8 each) had 48 votes, an electoral college majority. But they had only 5 votes in any House election of a President. Id. at 623. Because in 1787 there was no census, Article I, Section 2, clause 3 of the Constitution apportioned the initial Representatives as indicated by the second column of the following table: STATE REPRESENTATIVES 1790 CENSUS TOTALS POST-1790 CENSUS REPRESENTATIVES New Hampshire 3 141,885 4 Massachusetts 8 378,787 14 Rhode Island 1 68,825 2 Connecticut 5 237,946 7 New York 6 340,120 10 New Jersey 4 184,139 5 Pennsylvania 8 434,373 13 Delaware 1 59,094 1 Maryland 6 319,728 8 APPENDIX - 179 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 28 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 181 of 553 PageID #: 586 SENATE ELECTION OF THE VICE PRESIDENT AND..., 11 U. Pa. J. Const. L.... Virginia 10 747,610 19 North Carolina 5 393,751 10 South Carolina 5 249,000 6 Georgia 3 82,548 2 Totals 65 The source for South Carolina's 1790 Census population is WORLD ALMANAC 2005, supra note 6, at 622 (rounded). Otherwise, the source for the third column is RETURN OF THE WHOLE NUMBER OF PERSONS WITHIN THE SEVERAL DISTRICTS OF THE UNITED STATES 3 (1793) (Act of March 1, 1791). The source for the fourth column is SENATE MANUAL, supra note 6, at 1132-33. The elector votes of the thirteen original states as provided in the Constitution totaled 91. Only 69 votes were counted in the 1788 election: 8 from New York, 7 from North Carolina, 3 from Rhode Island, and 2 from each of Maryland and Virginia not having voted. Id. at 1063. The mean and the median numbers of electors were seven, with a majority at forty-six. Please note in column four the extraordinary increase in Representatives of Massachusetts, New York, North Carolina, Pennsylvania, and Virginia (which included what is now West Virginia, which was not admitted to the Union until 1863) as compared to the 1787 estimate. See Vasan Kesavan & Michael Stokes Paulsen, Is West Virginia Unconstitutional?, 90 CAL. L. REV. 291, 301 (2002) (discussing the admission of West Virginia into the Union). In the 1790 census, Kentucky (73,677), Maine (96,540), Tennessee (36,000 rounded), and Vermont (85,539) were also counted. The source for Kentucky, Maine, and Vermont is RETURN OF THE WHOLE NUMBER OF PERSONS WITHIN THE SEVERAL DISTRICTS OF THE UNITED STATES, supra, at 3. The source for Tennessee is WORLD ALMANAC 2005, supra note 6, at 622. Kentucky had two Representatives, and Tennessee and Vermont one each. SENATE MANUAL, supra note 6, at 1133. 18 One vote from each of the: (1) seven one-Representative states (Alaska, Delaware, Montana, North Dakota, South Dakota, Vermont, and Wyoming); (2) six two-Representative states (Hawaii, Idaho, Maine, Nevada, New Hampshire, and Rhode Island); (3) four three-Representative states (Nebraska, New Mexico, Utah, and West Virginia); (4) two fourRepresentative states (Arkansas and Kansas); (5) three five-Representative states (Iowa, Mississippi, and Oregon); and (6) six six-Representative states (Arizona, Colorado, Connecticut, Kentucky, Oklahoma, and South Carolina). SENATE MANUAL, supra note 6, at 1132-33, col. 22 (providing the 1990 apportionment). However, this possibility is very theoretical. Assuming that: (1) each House state delegation would have cast its ballots along party lines; (2) Connecticut and Nevada would not have voted, having equal numbers of Republicans and Democrats; and (3) the independent Representative from Vermont would have voted for the Democratic Party candidate, since he typically voted with the Democrats to organize the House, see 147 CONG. REC. H3 (daily ed. Jan. 3, 2001), then eight of the foregoing twenty-eight small states (Arkansas, Connecticut, Hawaii, Maine, North Dakota, Oregon, Rhode Island, Vermont, and West Virginia) would have cast their ballots for the Democratic Party candidate. See generallyCONGRESSIONAL YELLOW BOOK (Spring 1999). Thus, in the 106th Congress, the Republicans had a majority in the House delegations of only seventeen of the smaller states. Id. at 928, 929, 934, 936, 940, 944-46, 955, 956, 958, 960, 966, 970, 971, 976, 982. It would have been extremely difficult for any political party to acquire a twenty-six-state majority from only the smallest states. For example, only two of the seven-, eight-, and nine-person House state delegations had Republican majorities in the 106th Congress: Louisiana and Tennessee. Id. at 951, 963. Many of the larger states--California, Massachusetts, Michigan, New York, and Texas--had more Democrat than Republican Representatives, though the balance in some was close (Illinois, New Jersey, and Pennsylvania), and Florida and Ohio had Republican majorities. Id. at 927-82. 19 U.S. CONST. amend. XII (emphasis added). 20 In the election of 1836-37, Martin Van Buren, President Andrew Jackson's second-term Vice President, was elected President with both a popular and an electoral vote majority. SENATE MANUAL, supra note 6, at 1070. But Richard M. Johnson, Van Buren's running mate, received one vote less than a majority of electors. Id. On February 8, 1837, the APPENDIX - 180 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 29 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 182 of 553 PageID #: 587 SENATE ELECTION OF THE VICE PRESIDENT AND..., 11 U. Pa. J. Const. L.... Senate elected Johnson on its first roll call vote by thirty-three to sixteen. 13 REG. DEB. 738-39 (1837). Then-President pro tempore of the Senate, William R. King of Alabama, presided over that vote. Id. at 739 21 In the election of 1824, John C. Calhoun won a majority of the elector votes for Vice President, even though no presidential candidate had an elector majority. SENATE MANUAL, supra note 6, at 1068. Vice President Calhoun was also President Andrew Jackson's first-term Vice President. Id. at 1069. He resigned December 28, 1832, to become a Senator. WORLD ALMANAC 2005, supra note 6, at 579. Thus, he did not preside as Vice President over the counting of the elector votes in 1833, and William R. King did as then-President pro tempore of the Senate. SENATE MANUAL, supra note 6, at 992; 9 REG. DEB. 1722-23 (1833). 22 In the disputed election of 1876, William A. Wheeler was elected Vice President by exactly the same number of elector votes as Rutherford B. Hayes had allegedly garnered for President. SENATE MANUAL, supra note 6, at 1080. 23 Reynolds v. Sims, 377 U.S. 533 (1964); Wesberry v. Sanders, 376 U.S. 1 (1964). 24 U.S. CONST. art. I, § 2, cl. 1. 25 U.S. CONST. art. I, § 3, cl. 1. 26 U.S. CONST. art. I, § 4, cl. 2. 27 U.S. CONST. art. II, § 1, cl. 1. 28 JEFFERSON'S MANUAL, supra note 11, § 6; KILLIAN & COSTELLO, supra note 3, at 425-26. 29 JEFFERSON'S MANUAL, supra note 11, § 150. 30 Josephson & Ross, Repairing, supra note 1, at 175 & nn.222-23; see also Act of March 1, 1792, ch. 8, § 12, 1 Stat. 241 (making March 4 the commencement day for the four-year terms of the President and Vice President). This Act also contains this remarkable section: Sec. 10. And be it further enacted, That whenever the offices of President and Vice President shall both become vacant, the Secretary of State shall forthwith cause a notification thereof to be made to the executive of every state ... specifying that electors of the President of the United States shall be appointed or chosen in the several states within thirty-four days preceding the first Wednesday in December then next ensuing: Provided, There shall be the space of two months between the date of such notification and the said first Wednesday in December .... Id. at 1 Stat. 240-41. The section further provides that if the notices were sent less than two months before such Wednesday and if the presidential terms were not to expire on the third day in March thereafter, then such electors would be chosen in the next year. Id. The history of this special elections provision is discussed in CURRIE, FEDERALIST PERIOD, supra note 16, at 144-46. The Second Congress and President George Washington apparently had no doubt of their constitutional authority to provide for a special presidential election, perhaps resting on the last phrase of Article II, Section 1, clause 6, “or a President shall be elected,” and Article I, Section 8, clause 18, the Necessary and Proper Clause. Hearings on H.R. 10268 & H.R. 11256 Before Committee on Election of the President, Vice President, and Representatives in Congress, 68th Cong., 2d Sess. 18-19 (1925) [hereinafter 1925 House Hearings]. For discussion of the Necessary and Proper Clause as authority for federal legislation with respect to presidential elections, see infra notes 221 & 225-34 and accompanying text. 31 U.S. CONST. amend. XII, superseded byU.S. CONST. amend. XX, as to the reference to the fourth day of March. 32 Section 3 of the Twentieth Amendment also provided: If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, ... then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected .... U.S. CONST. amend. XX, § 3 (emphases added). For a discussion of the inapplicability of this provision to the failure of the House to choose a President and/or the Senate to choose a Vice President, see infra note 40. Section 4 of the Twentieth Amendment provides that: APPENDIX - 181 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 30 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 183 of 553 PageID #: 588 SENATE ELECTION OF THE VICE PRESIDENT AND..., 11 U. Pa. J. Const. L.... The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may chose a Vice President whenever the right of choice shall have devolved upon them. U.S. CONST. amend. XX, § 4 (emphases added). Although hearings were held in 1994, no laws implementing either of these provisions have been enacted. Presidential Succession Hearings, supra note 11 passim. For the possible but doubtful relevance of the Presidential Succession Act, 3 U.S.C. § 19 (2006), see infra note 62 and accompanying text. The combination of sections three and four supersedes the Twelfth Amendment's “if the House of Representatives shall not choose a President ... before the fourth day of March next following, then the Vice President shall act as President ....” U.S. CONST. amend. XX. Thus, the suggestion of Sanford Levinson & Ernest A. Young, Who's Afraid of the Twelfth Amendment?, that “No ... subsequent constitutional provisions have amended the Twelfth Amendment” is not correct. 29 FLA. ST. U. L. REV. 925, 943 n.73 (2001). 33 U.S. CONST. amend. XX, §§ 1-2. 34 3 U.S.C. § 15 (2006). For some reason, a concurrent resolution is adopted implementing the statute. E.g., S. Con. Res. 1, 97th Cong., 1st Sess. (1981). Sometimes the date is changed if January 6 is a Sunday. See infra note 183. The Constitution in Article II, Section 1, clause 4, authorizes Congress to “determine the Time of chusing the Electors, and the Day on which they shall give their Votes.” U.S. CONST. art. II, § 1, cl.4; see 3 U.S.C. §§ 1, 7 (2006) (setting a November date for appointing electors and a December date to give their votes). McPherson v. Blacker, 146 U.S. 1, 41 (1892), held unconstitutional Michigan's legislation that purported to change this date. AccordMaddox v. Bd. of State Canvassers, 149 P.2d 112 (Mont. 1944). The Twelfth Amendment, like clause 3 of Section 1 of Article II of the Constitution, directs that the elector votes be counted in the presence of the Senate and House but does not specify the day on which the counting shall take place. If the Congress can determine the time of choosing electors, the day electors vote, and, at the least, witness the counting of the electors' votes, someone must have the power to determine when the votes will be counted. If not Congress, who? If an explicit constitutional grant of authority is required, Congress's power to set a date for the counting could be based on the second substantive arm of the Necessary and Proper Clause, “other Powers vested by this Constitution in the Government of the United States.” U.S. CONST. art. I, § 8, cl. 18. For a discussion of the issues thus raised, see Josephson & Ross, Repairing, supra note 1, at 176 and Ross & Josephson, Popular Vote, supra note 1, at 713 et seq. But see Kesavan, supra note 7, at 1660-62 (arguing that 3 U.S.C. § 15 is unconstitutional). Nevertheless, as Chief Justice Marshall famously said in McCulloch v. Maryland, even before he reached the Necessary and Proper Clause issues: “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” 17 U.S. (4 Wheat.) 316, 420 (1819). We will return to these issues when we discuss Congress's power to protect the presidential election process. See infra notes 225-35 and accompanying text. 35 For two quite different versions of the events of 1876-77, compare ROY MORRIS, JR., FRAUD OF THE CENTURY: RUTHERFORD B. HAYES, SAMUEL TILDEN, AND THE STOLEN ELECTION PF 1876 (2003), with WILLIAM H. REHNQUIST, CENTENNIAL CRISIS: THE DISPUTED ELECTION OF 1876 (2004), and John Copeland Nagle, How Not to Count Votes, 104 COLUM. L. REV. 1732 (2004) (reviewing both books). President Grant's second-term Vice President, Henry Wilson, died on November 22, 1875. WORLD ALMANAC 2005, supra note 6, at 579 n.6. Therefore, no Vice President presided over the 1877 counting of the elector votes, but Thomas W. Ferry, the President pro tempore of the Senate, did preside. SENATE MANUAL, supra note 6, at 993; accord 5 Cong. Rec. 1195 (Feb. 1, 1877), 1703 (Feb. 20, 1877), 1888 (col. 1) (Feb. 24, 1877); see supra note 10. 36 U.S. CONST. amend. XII (emphasis added). Rule VI of the Senate Rules provides in subsection 1 that a “quorum shall consist of a majority of the Senators duly chosen and sworn.” SENATE MANUAL, supra note 6, at 5. But the Twelfth Amendment's two-thirds of the whole number quorum requirement obviously overrides that, at least for purposes of the Senate vote for Vice President. Subsection 2 of Senate Rule VI says, “No Senator shall absent himself from the service of the Senate without leave.” SENATE MANUAL, supra note 6, at 5. Subsection 4 authorizes the Sergeant at Arms to request, “when necessary, APPENDIX - 182 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 31 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 184 of 553 PageID #: 589 SENATE ELECTION OF THE VICE PRESIDENT AND..., 11 U. Pa. J. Const. L.... to compel the attendance of the absent Senators.” Id.; see also S. Doc. No. 101-25 (1992), reprinted inRIDDICK & FRUMIN, RIDDICK'S SENATE PROCEDURE, supra note 10, at 275-81 (discussing Senate precedents). 37 See supra note 20. This precedent also supports Michael J. Glennon's argument that, unlike the House presidential election proceedings in 1801 and 1825, which were held in executive session, see infra notes 92 and 93 and accompanying text, the Senate vice presidential election proceedings should be open. MICHAEL J. GLENNON, WHEN NO MAJORITY RULES: THE ELECTORAL COLLEGE AND PRESIDENTIAL SUCCESSION 57 (1992). Senate Rule XXI does provide for sessions with closed doors. SENATE MANUAL, supra note 6, at 20; seeRIDDICK & FRUMIN, RIDDICK'S SENATE PROCEDURE, supra note 10, at 275-81. 38 U.S. CONST. amend. XII. 39 U.S. CONST. art. II, § 1, cl. 3 (emphasis added). 40 See infra Parts III.B.2.c & V.E.2. What if one of the two vice presidential candidates lacks the constitutional qualifications or has withdrawn, died, or become incompetent? The House Report on what became the Twentieth Amendment expressed the opinion that the Senate, like the House, could not vote for a dead person but did not express an opinion as to any of the other issues. H.R. REP. No. 72-345H.R. REP. No. 72-345, at 6, 7 (1932). See also generally Ross & Josephson, Popular Vote, supra note 1, passim (discussing whether or not Congress could refuse to count elector votes for a dead candidate). Arguably, the same considerations apply to Senators' votes for a deceased vice presidential candidate. See infra notes 142 and 143 and accompanying text. 41 DAVID P. CURRIE, THE CONSTITUTION IN CONGRESS: THE JEFFERSONIANS 1801-1829, at 39-54 (2001); TADAHISA KURODA, THE ORIGINS OF THE TWELFTH AMENDMENT: THE ELECTORAL COLLEGE IN THE EARLY REPUBLIC, 1787-1804 (1994). 42 KURODA, supra note 41, at chs. 13 & 14. 43 CURRIE, supra note 41, at 49-51. In an October 29, 1924 radio address, the then-Clerk of the House of Representatives, William Tyler Page, said: One of the purposes of the twelfth amendment in conferring upon the Senate the power to elect a Vice President was to avoid, if possible, an interregnum in Government, which would certainly occur, however brief it might be, if the Senate postponed the election of a Vice President until the House failed to elect a President. 1925 House Hearings, supra note 30, at 11-12 (emphasis added); cf. Laurence H. Tribe & Thomas M. Rollins, Deadlock: What Happens if Nobody Wins, ATLANTIC MONTHLY, Oct. 1980, at 49-50, 60-61 (digital ed. Part I at 1 & Part II at 6), available at http:// www.theatlantic.com/issues/80oct/deadlock.htm (speculating that the Senate would elect Walter Mondale as Acting President if the 1980 presidential election had been thrown into the House). 44 U.S. CONST. amend. XX, § 3. 45 Id. (emphasis added). 46 JEFFERSON'S MANUAL, supra note 11, § 154; KILLIAN & COSTELLO, supra note 3, at 433-34; KURODA, supra note 42, at 79-80; JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES §§ 757-59 (1987) (1833); Bruce G. Peabody & Scott E. Gant, The Twice and Future President: Constitutional Interstices and the Twenty-Second Amendment, 83 MINN. L. REV. 565, 619 (1999); cf. Kesavan, supra note 1, at 126-27. The qualifications for Vice President are the same as those for President by virtue of the last sentence of the Twelfth Amendment. The state cases supporting this construction of “qualified” are exemplified by Toy v. Voelker, 262 N.W. 881, 885-86 (Mich. 1935). To these qualifications should be added the Twenty-second Amendment, prohibiting a President or Vice President from serving more than two terms, U.S. CONST. amend. XXII, § 1, and § 3 of the Fourteenth Amendment, barring anyone who has “engaged in insurrection or rebellion ... or given aid or comfort to the enemies ....” Id. at amend. XIV, § 3. But see, in the case of the Twenty-second Amendment, Peabody & Gant, supra, passim (arguing that the Twenty-second Amendment only applies to election, not service). The Twelfth Amendment requirement that no elector can vote for a President and Vice President who are inhabitants of the same state does not itself appear to have been construed. U.S. CONST. amend. XII. But the use of “inhabitant” does not only relate to presidential and vice presidential qualifications. The Constitution also provides that a Senator and/or APPENDIX - 183 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 32 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 185 of 553 PageID #: 590 SENATE ELECTION OF THE VICE PRESIDENT AND..., 11 U. Pa. J. Const. L.... Representative must, “when elected, be an Inhabitant of that State for which he shall be chosen.” Id. at art. I, § 3, cl. 3; id. at art. I, § 2, cl. 2 (the Representative formulation is “in which,” not “for which”). The Constitutional Convention history Schaefer v. Townsend, 215 F.3d 1031, 1036-37 (9th Cir. 2000), cert. denied, 532 U.S. 904 (2001). is discussed in This discussion was relied on in Jones v. Bush, which rejected a claim that the Texas electors should be enjoined from voting because both presidential candidate Governor George W. Bush and Vice Presidential candidate Richard B. Cheney were inhabitants of Texas. 122 F. Supp. 2d 713 (N.D. Tex. 2000), aff'd without opinion, 244 F.3d 134 (5th Cir. 2000), cert. denied, 531 U.S. 1062 (2001). Sanford Levinson--one of the counsel for plaintiffs in Jones v. Bush--and Ernest A. Young asked, “Does the Habitation Clause serve any worthwhile values?” Levinson & Young, supra note 32, at 950-54; see also James C. Ho, Much Ado About Nothing: Dick Cheney and the Twelfth Amendment, 5 TEX. REV. L. & POL. 227 (2000). For a contrarian argument that the states may be able to add to the constitutional qualifications of Senators and U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995) (holding that states could Representatives--notwithstanding not impose term limits for members of Congress)--see John C. Eastman, Open to Merit of Every Description? An Historical Assessment of the Constitution's Qualifications Clauses, 73 DENV. U. L. REV. 89 (1995). However, he does not seem to understand that his opinions, if accepted, would also imply that the states could add to the constitutional qualifications for President and Vice President, which seems highly unlikely. A United States District Court ruled that Senator John McCain, born in the then-Panama Canal Zone, is a “natural born Citizen.” Robinson v. Bowen, 567 F. Supp. 2d 1144 (N.D. Cal. 2008). The history supporting this interpretation is in KILLIAN & COSTELLO, supra note 2. A similar suit was dismissed for lack of standing. Hollander v. McCain, 566 F. Supp. 2d 63 (D.N.H. 2008); see also Ted J. Chiappari & Angelo A. Paparelli, Natural-Born Citizenship: McCain OK for Presidency?, N.Y. L.J., Aug. 22, 2008, at 3. In Berg v. Obama, a United States District Court denied plaintiff's motion for a temporary restraining order in an action alleging that then-Senator Barack Obama had lost his United States citizenship, and on October 24, 2008, the Court dismissed the complaint, largely for lack of standing. 574 F. Supp. 2d 509 (E.D. Pa. 2008); see also Ted J. Chiappari & Angelo A. Paparelli, President-Elect Obama, Dual Citizenship and the Constitution, N.Y. L.J., Dec. 30, 2008, at 3. Minor party candidates who were under thirty-five years of age have been held in unreported cases to be ineligible to be on presidential ballots. See, e.g., McCain Wins Ballot Access Lawsuit, BALLOT ACCESS NEWS (Richard Winger, S.F., Cal), Oct. 1, 2008, http://www.ballot-access.org/2008/100108.html#5 (describing two such unreported cases, Jenness v. Brown, (D. Ohio 1972) and Cleaver v. Jordan, (Cal. 1968), cert. denied, 393 U.S. 810 (1968)). 47 H.R. REP. NO. 72-345, at 6 (1932)H.R. REP. NO. 72-345, at 6 (1932) (Committee on Election of President, Vice President, or Representatives in Congress on S.J. Res. 14 which, as amended, became the Twentieth Amendment); Presidential Succession Hearings, supra note 11, at 7, 9 (testimony of Ass't Att'y Gen. Walter Dellinger); id. at 11 (statement of Ass't Att'y Gen. Walter Dellinger); id. at 41 (testimony of Akhil Reed Amar); Josephson & Ross, Repairing, supra note 1, at 189 n.329. 48 H.R. REP. NO. 72-633H.R. REP. NO. 72-633, 3-4 (1932) (Conf. Rep.), reprinted in 75 CONG. REC. 5026-27 (daily ed. Mar. 1, 1932). 49 Id. at 5027, para. 4 (statement of the House Managers). 50 SENATE MANUAL, supra note 6, at 5; seeRIDDICK & FRUMIN, RIDDICK'S SENATE PROCEDURE, supra note 10, at 214-24 (detailing the Senate's right to compel attendance). 51 SENATE MANUAL, supra note 6, at 10; seeRIDDICK & FRUMIN, RIDDICK'S SENATE PROCEDURE, supra note 10, at 968 (describing Senate “pairing” as an opportunity for absent Senators to express their positions). 52 SENATE MANUAL, supra note 6, at 20-22; seeRIDDICK & FRUMIN, RIDDICK'S SENATE PROCEDURE, supra note 10, at 282-334 (detailing Senate cloture procedure). 53 SENATE MANUAL, supra note 6, at 20-22. 54 SENATE MANUAL, supra note 6, at 8. APPENDIX - 184 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 33 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 186 of 553 PageID #: 591 SENATE ELECTION OF THE VICE PRESIDENT AND..., 11 U. Pa. J. Const. L.... 55 Id. at 5. In 1992, Senator David Pryor expressed concern at the possibility of a filibuster with respect to any Senate vice presidential elections. 138 CONG. REC. 11872 (daily ed. May 20, 1992). 56 See supra notes 6 and 7 and accompanying text. 57 SENATE MANUAL, supra note 6, at 10 § 12.2 (Rule XII.2). 58 Id. at 67-71 (Rule XXXVII). 59 “The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.” U.S. CONST. art. I, § 3, cl. 4. 60 U.S. CONST. art. I, § 3, cl. 5. 61 LAWRENCE D. LONGLEY & NEAL R. PEIRCE, THE ELECTORAL COLLEGE PRIMER 2000, at 13 (Yale Univ. Press 1999) (1996). Professor Robert W. Bennett agrees. BENNETT, supra note 1, at 20 nn.39-40 & 94; E-mail from Robert Bennett, Professor, to William Josephson (Apr. 10, 2008, 12:59 EST) (on file with author). Kesavan also argues against the Vice President having such a vote because she or he is not a Senator. She or he could be conflicted, and the vice presidential election is not legislation. Kesavan, supra note 7, at 1710 n.246. However, Kesavan appears to be unaware of the Senate's precedents for vice presidential voting. See infra note 64 and accompanying text. 62 On its face, 3 U.S.C. § 19 was meant to provide for the removal, death, resignation, or inability of either or both a duly elected and qualified President and Vice President. This is consistent with Article II, Section 1, clause 6 of the Constitution, as well as the Act of March 1792, ch. 8, § 9, 1 Stat. 240 (1792), and the Succession Act of 1866. 3 U.S.C. § 19 (2006). The Clerk of the House of Representatives also addressed this concern in 1925. 1925 House Hearings, supra note 30, at 16-18 (Radio Address of William Tyler Page). The Act provides for the succession to the Presidency of, in order, the Speaker of the House, the President pro tempore of the Senate, the Secretary of State, and then other cabinet members in order of the creation of each department. 3 U.S.C. § 19(a)(1), (b), (d)(1) (2006). Very substantial doubt has been raised as to the constitutionality of this statute, insofar as it provides for the succession of the House Speaker or of the President pro tempore of the Senate. Akhil Reed Amar & Vickram David Amar, Is the Presidential Succession Law Constitutional?, 48 STAN. L. REV. 113 (1995); Scott E. Gant & Bruce G. Peabody, Musings on a Constitutional Mystery: Missing Presidents and “Headless Monsters”?, 14 CONST. COMMENT. 83, 87 (1997); Howard M. Wasserman, Structural Principles and Presidential Succession, 90 KY. L.J. 345 (2001-02). But see John F. Manning, Not Proved: Some Lingering Questions About Legislative Succession to the Presidency, 48 STAN. L. REV. 141 (1995); cf. Thomas H. Neale, Election of the President and Vice President by Congress: Contingent Election, CRS [Cong. Res. Service] Report for Congress 5-6 (Order Code RS20300 Jan. 17, 2001). Nevertheless, the doubts the Amar brothers have raised were also raised in the congressional debates on the 1792 Act, CURRIE, FEDERALIST PERIOD, supra note 16, at 139-44, and thereafter. 1925 House Hearings, supra note 30, at 19-20. To some extent, 3 U.S.C § 19 has been displaced by the Twenty-fifth Amendment, which provides in Section 1 that “[i]n case of the removal of the President from office or of his death or resignation, the Vice President shall become President.” U.S. CONST. amend. XXV, § 2. Article II, Section 1, clause 6 of the Constitution had said only that “the Powers and Duties of the said Office [of President] ... shall Devolve on the Vice President.” However, in 1841 Vice President Tyler took the position that he was President, and this precedent was thereafter followed and has now been confirmed by the Twenty-fifth Amendment. KILLIAN & COSTELLO, supra note 3, at 435. Those editors' suggestion that the Tyler precedent was supported by the last phrase of the clause, “or a President shall be elected,” seems incorrect, because the phrase relates only to the absence of “both” the President and Vice President. A better, but not completely compelling, argument could be based on Article I, Section 3, clause 5, which makes it clear that a Vice President, exercising the Office of President, cannot also continue to be President of the Senate, presumably because of separation of powers policies. Section 2 of the Twenty-fifth Amendment provides that when there is a vacancy in the vice presidency, the President shall nominate a Vice President. U.S. CONST. amend. XXV, § 1. Sections 1 and 2 together make it unlikely, but not impossible, that both offices could be simultaneously vacant.Id. §§ 1, 2. APPENDIX - 185 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 34 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 187 of 553 PageID #: 592 SENATE ELECTION OF THE VICE PRESIDENT AND..., 11 U. Pa. J. Const. L.... In any case, the Succession Act does not clearly apply to a failure by the House to elect a President or the Senate a Vice President by the time the new terms of those officers begin. See supra note 23; CURRIE, FEDERALIST PERIOD, supra note 7, at 294 & n.474. But cf.BENNETT, supra note 1, at 81. Neither does the Twenty-fifth Amendment. See infra notes 169-73 and accompanying text. 63 63C AM. JUR. 2DPublic Officers and Employees §§ 121, 149-50 (1997). George Ticknor Curtis agrees: The principal office of the executive department was thus provided for; but the ultimate choice of the Vice President remained to be regulated .... In the first place, it was apparent that the executive would be a branch of the government that ought never to be vacant. 2 GEORGE TICKNOR CURTIS, HISTORY OF THE ORIGIN, FORMATION, AND ADOPTION OF THE CONSTITUTION OF THE UNITED STATES 395 (1863). 64 JEFFERSON'S MANUAL, supra note 11, § 36 (cmt.) states: The right of the Vice President to vote has been construed to extend to questions relating to the organization of the Senate (V, 5975), as the election of officers of the Senate (V, 5972-5974), or a decision on the title of a claimant to a seat (V, 5976, 5977). The citations are to ASHER C. HINDS, HINDS' PRECEDENTS OF THE HOUSE OF REPRESENTATIVES OF THE UNITED STATES (1907) [hereinafter HINDS' PRECEDENTS]; JEFFERSON'S MANUAL, supra note 11, at 17. In recognition of the fact that after noon on January 20, 2001, Vice President Richard B. Cheney could have broken 50-50 tie votes for the organization of the Senate, 147 CONG. REC. 532-42, 548 (daily ed. Jan. 22, 2001), the Democratic and Republican Leaders of the Senate negotiated and agreed upon, and the Senate adopted, Senate Resolution 8, 107th Cong., 1st Sess. (2001). Accordingly, the senior Democratic Senator and the Democratic Leader acted as President pro tempore and Majority Leader, respectively, from January 3, 2001, until noon on January 20, 2001, and thereafter the senior Republican Senator and the Republican Leader acted as President pro tempore and Majority Leader. Shortly thereafter, however, Senator Jim Jeffords decided to become an independent and to vote with Democratic Party Senators to reorganize the Senate. See Wasserman, supra note 62, at 404 n.251. According to the former Senate Historian, Richard A. Baker, on December 14, 1829, Vice President John C. Calhoun broke a tie vote for Senate Chaplain. Memorandum from Richard A. Baker to William Josephson (July 25, 2002) (on file with author). On January 13 and 25, 1832, Vice President Calhoun voted against the nomination of Martin Van Buren as Minister to Great Britain. GEORGE H. HAYNES, THE SENATE OF THE UNITED STATES: ITS HISTORY AND PRACTICE 234-35 (1960). On November 28, 1877, Vice President William H. Wheeler broke a tie on a motion to consider a Senate committee report with respect to a contested election. Id. at 236-37. Vice President Millard Fillmore also broke a tie for Senate Chaplain on January 9, 1850. Id. at 236; see United States Senate, Senate Chaplain, http:// www.senate.gov/artandhistory/history/common/briefing/Senate_Chaplain.htm (last visited Feb. 28, 2008). On July 18, 1789, Vice President John Adams cast his first Senate vote to break a tie in favor of the President's power to remove without consulting the Senate an officer to whose appointment the Senate had given its advice and consent. Henry Barrett Learned, Casting Votes of the Vice-Presidents, 1789-1915, 20 AM. HIST. REV. 571, 574 (1915). The Senate debate on the Twelfth Amendment apparently assumed that if there was a Vice President, he would break any tie. 13 ANNALS OF CONG. 106 (1803); CURRIE, supra note 41, at 52. James C. Ho, Sanford Levinson, Ernest A. Young, and William P. Marshall each support this opinion. Ho, supra note 46, at 239 n.47; Levinson & Young, supra note 32, at 934 n.37 (option (1) of three options); William P. Marshall, The Supreme Court, Bush v. Gore, and Rough Justice, 29 FLA. ST. U. L. REV. 787, 798 & n.61 (2001). Michael J. Glennon also seems to support this opinion in Nine Ways to Avoid a Train Wreck: How Title 3 Should Be Changed, supra note 7, at 1188-89. As Hamilton observed in the first of the two justifications he offered for the vice presidency: One is that to secure at all times the possibility of a definitive resolution of the body [the Senate], it is necessary that the President should have only a casting vote. THE FEDERALIST NO. 68, at 413 (Alexander Hamilton) (Clinton Rossiter ed., 1961) (emphasis added). See generallyRIDDICK & FRUMIN, RIDDICK'S SENATE PROCEDURE, supra note 10, at 1124-26. 65 Josephson & Ross, Repairing, supra note 1, at 175. 66 Id. at 176-77. 67 SENATE MANUAL, supra note 6, at 1068. APPENDIX - 186 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 35 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 188 of 553 PageID #: 593 SENATE ELECTION OF THE VICE PRESIDENT AND..., 11 U. Pa. J. Const. L.... 68 The latter possibility was foreseen by Robert M. Hardaway in THE ELECTORAL COLLEGE AND THE CONSTITUTION: THE CASE FOR PRESERVING FEDERALISM, supra note 11, at 62, and by Robert W. Bennett in BENNETT, supra note 1, at 72. All of these possibilities were foreseen by Michael J. Glennon, GLENNON, supra note 37, at 56-57. They were also foreseen during the Twelfth Amendment debates, during which at least one Representative argued that it was better to make the wrong person President than to not have one. CURRIE, supra note 41, at 51 n.98. 69 American historians do not seem to have paid much attention to the variety and difficulty of the issues raised by House election of the President. For example, a standard history of the House barely mentions the subject, and does not discuss either the procedures or the issues raised by presidential voting by House state delegations. SeeGEORGE B. GALLOWAY, THE HISTORY OF THE HOUSE OF REPRESENTATIVES 7, 285 (Stanley Wise ed., 2d rev. ed. 1976) (1961); see generallyROBERT V. REMINI, THE HOUSE: THE HISTORY OF THE HOUSE OF REPRESENTATIVES (2006); CHARLES G. ROSE, HISTORY OF THE UNITED STATES HOUSE OF REPRESENTATIVES, 1789-94, H.R. DOC. NO. 103-324, 103d Cong., 2d Sess. (1994). Under the original constitutional arrangement in which electors did not vote separately for President and Vice President, “It was rather expected that in the great majority of cases--‘nineteen times in twenty,’ one of the delegates said--there would be several candidates and that the selection from those candidates would fall to the .... House of Representatives ....” MAX FARRAND, THE FATHERS OF THE CONSTITUTION: A CHRONICLE OF THE ESTABLISHMENT OF THE UNION 137 (1921). House presidential election has probably attracted more criticism than any other aspect of the Electoral College system. But as Professor Wechsler observed: “[S]ince the House vote by states on failure of an electoral majority is probably unchangeable alone, that feature of the system will probably remain as well, despite the weight and historicity of the objections to it.” Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 COLUM. L. REV. 543, 557 (1954). 70 In 1877, technically, the electors elected the President and the Vice President. As I have said, 1877 should not be regarded as precedential. See supra notes 22 and 35 and accompanying text; Josephson & Ross, Repairing, supra note 1, at 156-57. 71 The electoral votes were 73 out of 138 for each Jefferson and Burr, 65 for Adams, 64 for Charles C. Pinkney, and one for John Jay. SENATE MANUAL, supra note 6, at 1064; ELECTION OF THE PRESIDENT OF THE UNITED STATES BY THE HOUSE OF REPRESENTATIVES, S. Doc. No. 227, 68th Cong., 2d Sess. 31, 33, 35 (1925) [hereinafter 1925 Senate Document]; 10 ANNALS OF CONG. 744 (1801). 72 U.S. CONST. art. II, § 1, cl. 3. 73 Id. 74 Act of Mar. 1, 1792, ch. 8, § 5, 1 Stat. 240. 75 CURRIE, FEDERALIST PERIOD, supra note 16, at 292-93. That Lame Duck House of Representatives contained 106 members, of whom 58 were Federalists and 48 were Republicans. All were present but two, one who had died and one who was ill. 1925 Senate Document, supra note 71, at 31; see also Bruce Ackerman & David Fontana, Thomas Jefferson Counts Himself into the Presidency, 90 VA. L. REV. 551, 618-20 (2004). 76 CURRIE, FEDERALIST PERIOD, supra note 16, at 293; 5 HINDS' PRECEDENTS, supra note 64, § 6008 n.4. (1907). 77 CURRIE, FEDERALIST PERIOD, supra note 16, at 293. 1925 Senate Document, supra note 71, at 36-37, attributes the breaking of the deadlock only to Maryland. The current House historian states that the South Carolina House delegation also chose not to vote. REMINI, supra note 69, at 72. Jill Lepore, in Party Time: Smear Tactics, Skulduggery, and the Début of American Democracy, NEW YORKER, Sept. 17, 2007, at 94, reviews EDWARD J. LARSON, A MAGNIFICENT CATASTROPHE: THE TUMULTUOUS ELECTION OF 1800, AMERICA'S FIRST PRESIDENTIAL CAMPAIGN (2008), a history of the 1800 presidential election. According to Professor Lepore, Phil Lampi estimates that “around a hundred and fifty-one thousand Americans cast votes for Republicans [in that election], compared with a hundred and thirty-nine thousand for Federalists. To the extent that this serves as a proxy for a popular vote, we now know that Jefferson won.” Lepore, supra, at 97. The American Antiquarian Society in Worcester, Massachusetts has been digitizing Mr. Lampi's work, and “A New Nation Votes: American Election Returns, 1787-1825” will be made available online. Id. APPENDIX - 187 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 36 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 189 of 553 PageID #: 594 SENATE ELECTION OF THE VICE PRESIDENT AND..., 11 U. Pa. J. Const. L.... 78 Article II, Section 1, clause 3 of the Constitution provided, “In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President.” Under the first sentence, Burr, not chosen President, would be Vice President. If (1) Jefferson and Burr had tied for greatest number of votes, but neither had had an absolute majority; (2) five candidates had been before the House; and (3) the House had chosen Adams, Pinkney, or Jay as President, then neither Jefferson nor Burr would automatically have become Vice President. Under the second sentence quoted above, the Vice President would have been chosen from between them by the Senate by ballot. 79 KILLIAN & COSTELLO, supra note 3, at 28 n.4. The Twelfth Amendment's provision that “no person constitutionally ineligible to the office of President shall be eligible to that of Vice President of the United States” also filled a small but important constitutional gap. Article II, Section 1, clause 5 provided only for the eligibility of the President, but because prior to the Twelfth Amendment the electors were only voting for President, this was not an oversight. 80 Thus introducing an unnecessary ambiguity, futilely noted along with other ambiguities in House debate at the time. SeeKURODA, supra note 41, at 147-48. The House did not attempt to fix the Senate version, at least in part because that would have meant further Senate action, risking inaction. See 13 ANNALS OF CONG. 679 (1803); KURODA, supra note 41, at 145. 81 The candidate with the highest number of elector votes for President was Andrew Jackson with ninety-nine. SENATE MANUAL, supra note 6, at 1068. 82 Id. 83 Id. John C. Calhoun became Vice President, because he had more than an absolute majority, 182, of elector votes for that office. Id. Adams appointed Clay his Secretary of State. Josephson & Ross, Repairing, supra note 1, at 158. 84 However, no statutes appear to apply. 85 1 HINDS' PRECEDENTS, supra note 64, §§ 187, 210; 5 HINDS' PRECEDENTS, supra note 64, §§ 6002, 6743-65; DESCHLER'S PRECEDENTS OF THE HOUSE OF REPRESENTATIVES, H.R. DOC. NO. 94-661, §§ 10.1, 10.2, 10.3 (1976) [hereinafter DESCHLER'S PRECEDENTS]. Before the House so acts, it is operating under the Constitution, statutes and the “common law” of parliamentary procedure. JEFFERSON'S MANUAL, supra note 11, § 60; 5 HINDS' PRECEDENTS, supra note 64, §§ 6758-60; 8 CANNON'S PRECEDENTS OF THE HOUSE OF REPRESENTATIVES § 3384 (1936) [hereinafter CANNON'S PRECEDENTS]. In matters requiring concurrent actions, the House and Senate had jointly adopted rules until 1876. JEFFERSON'S MANUAL, supra note 11, § 61. No House rule or precedent can bind a subsequent House. SeeJEFFERSON'S MANUAL, supra note 11, § 59. Each newly elected House of Representatives adopts its own rules. Id. § 388. As a continuing body, because two-thirds of Senators serve through each Congress, the Senate's rules remain in effect unless and until changed. Rule V.2, Standing Rules of the Senate, inSENATE MANUAL, supra note 6, at 5; v. Daugherty, 273 U.S. 135, 181-82 (1927). McGrain 86 U.S. CONST. art. I, § 5, cl. 2. 87 E.g., H.R. Res. 5, 95th Cong., 1st Sess. (1977). 88 1 REG. DEB. 445-46 (1825). Thus, it is not clear to what weight the 1801 and 1825 Rules would be entitled, even if they were part of general parliamentary law, which they probably are not. Longley and Peirce assert that the “rules ... adopted by the House of Representatives on February 7, 1825, for the election of a president ... following the presidential election of 1824 .... would be the governing precedent if the House should again be called upon to elect a president, though the House might alter the rules at any time.” LONGLEY & PEIRCE, supra note 61, at 206 (emphasis added). Their apparent implication that the 1825 Rules would govern unless the House acted otherwise seems inconsistent with the legislative history cited immediately above and the “common law” with respect to House rules. See supra note 85; but see Frost Memo, supra note 11, at 15690, col. 3. 89 7 CANNON'S PRECEDENTS, supra note 85, § 1029 (“The procedure of the House is governed in some instances by the practice of the House rather than by express rules.”). APPENDIX - 188 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 37 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 190 of 553 PageID #: 595 SENATE ELECTION OF THE VICE PRESIDENT AND..., 11 U. Pa. J. Const. L.... 90 10 ANNALS OF CONG. 987 (1801); 1925 Senate Document, supra note 74, at 65. Each committee was composed of one Representative from each state, the rules were debated in Committee of the Whole, and then adopted by per capita votes. Frost Memo, supra note 11, at 15690, col. 3; 3 HINDS' PRECEDENTS, supra note 64, §§ 1982, 1984. 91 4 HINDS' PRECEDENTS, supra note 64, § 4321. 92 1801 Rules, supra note 11, § 5. 93 1825 Rules, supra note 11, § 3. The 1801 Rules provided for a seat for the President or President of the Senate, 1801 Rules, supra note 11, § 2, but not apparently during balloting. 1801 Rules, supra note 11, § 5. The 1825 Rules did not provide for such a seat. 94 1801 Rules, supra note 11, § 6; 1825 Rules, supra note 11, § 5, cl. 1. 95 1801 Rules, supra note 11, § 4. 96 1825 Rules, supra note 11, § 4. 97 1801 Rules, supra note 11, § 6; 1825 Rules, supra note 11, § 5, cl. 2. The Frost Memo incorrectly says that in 1801 no ballot boxes were provided for the ballots of the Representatives of each state. Frost Memo, supra note 11, at 15690, col. 3. 98 1801 Rules, supra note 11, § 6; 1825 Rules, supra note 11, § 5, cls. 5 & 6. 99 1801 Rules, supra note 11, § 6; 1825 Rules, supra note 11, § 5, cl. 3. 100 1801 Rules, supra note 11, § 6; 1825 Rules, supra note 11, § 5, cls. 7, 8 & 9. 101 1801 Rules, supra note 11, § 3. 102 1825 Rules, supra note 11, § 2. 103 1801 Rules, supra note 11, § 7. 104 1825 Rules, supra note 11, § 8. 105 Id., § 2. 106 1801 Rules, supra note 11, § 7; 1825 Rules, supra note 11, § 7 (emphasis added). 107 1825 Rules, supra note 11, § 2 (emphasis added). 108 1825 Rules, supra note 11, § 6 (1801 Rules, supra note 11, § 8 contains slightly different phrasing). 109 1801 Rules, supra note 11, § 8. 110 1825 Rules, supra note 11, § 5, cl. 4. A memorandum (on file with the author) dated June 10, 1980, from the Congressional Research Service to a recipient whose identity is crossed out, states that in 1801, “in actual fact a majority decision determined each state's result ....,” citing 2 JOHN BACH MCMASTER, A HISTORY OF THE PEOPLE OF THE UNITED STATES FROM THE REVOLUTION TO THE CIVIL WAR 1790-1803, at 523 (1924). The memorandum does not explicitly address the issue of a majority of the whole number, a majority of those present, or a majority of a quorum, although the implication is for the latter. Neither does Thomas H. Neale in Election of the President and Vice President by Congress: Contingent Election, supra note 62, address this issue. 111 U.S. CONST. amend. XII, § 1, cl. 3. 112 U.S. CONST. art. I, § 5, cl. 1. In a June 7, 1986, interview with the then-House Parliamentarian, the late Mr. William Haynes Brown, and Mr. Peter Robinson, a member of his staff, Beverly J. Ross, Esq. and the author, Messrs. Brown and Robinson indicated that APPENDIX - 189 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 38 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 191 of 553 PageID #: 596 SENATE ELECTION OF THE VICE PRESIDENT AND..., 11 U. Pa. J. Const. L.... the House would likely follow its usual majority of a quorum principle with respect to House state delegations voting. Memorandum from Beverly J. Ross, Esq., to Elia Fischer, Esq. and author (June 19, 1992) (on file with author) [hereinafter Brown Memorandum]. 113 U.S. CONST. amend. XII, § 1, cl. 3 (emphasis added). 114 See infra Parts III.B.2.e. & V.D. 115 Frost Memo, supra note 11, at 15692, cols. 2 & 3. 116 See infra Parts III.B.2.e, III.B.2.f & V.D. 117 1825 Rules, supra note 11, § 5, cl. 4; 1801 Rules, supra note 11, § 6. The Frost Memo incorrectly states, “[t]he 1825 rules were more explicit on these points.” Frost Memo, supra note 11, at 15690, col. 3. 118 U.S. CONST. amend. XII (emphasis added). 119 U.S. CONST. art. II, § 1, cl. 3. 120 The history of this phrase is well recounted in CURRIE, supra note 41, at 49 n.77. 121 Id. at 49. Excerpts from the debates on this issue are set forth at length in 1925 Senate Document, supra note 71, passim. 122 The issue would arise with respect to the vice presidency only if there was a tie for second, because under the Twelfth Amendment the choice is made only “from the two highest numbers on the list ....” U.S. CONST. amend. XII. 123 13 ANNALS OF CONG. 671, 677-78, 680, 725, 736, 771 (1803). John O. McGinnis suggests that had the House had to choose the President in 2000, it could have considered Ralph Nader and Patrick J. Buchanan as tied third-highest with zero elector votes. John O. McGinnis, Popular Sovereignty and the Electoral College, 29 FLA. ST. U. L. REV. 995, 999 n.18 (2001). He seems unaware that twelve other individuals also received a total of 613,051 votes for President, 2000 Presidential Election: Popular Vote Totals, http:// www.archives.gov/federal-register/electoral-college/2000/popular_vote.html (last visited Nov. 10, 2008), and no elector votes, not counting write-in votes (20,938) and “None of These Candidates (Nevada)” (3,315). WORLD ALMANAC 2005, supra note 6, at 595. The far better view is that candidates must receive at least one elector vote in order to be considered by the House. 124 U.S. CONST. art. II, § 1, cl. 3 (“[A]nd if there be more than one who have such Majority, and have an equal Number of Votes .... But if there should remain two or more who have equal Votes, the Senate shall chuse from them ....”). 125 See supra Part II.B. H.R. Res. 10268, 68th Cong., 2d Sess. (1924), in 1925 House Hearings, supra note 30, at 1, could have filled the gap, as would have section three of the Senate Resolution with respect to what became the Twentieth Amendment, if either had been adopted. 126 1801 Rules, supra note 11, § 3. 127 1825 Rules, supra note 11, § 2. 128 See supra notes 32 and 62 and accompanying text. 129 See supra notes 97 and 98; Frost Memo, supra note 11, at 15691, cols. 1, 2 & 3. 130 JEFFERSON'S MANUAL, supra note 11, § 914. 131 Id. (cmt.). 132 Id. § 708. 133 Id. §§ 623, 682 & 684. 134 Id. §§ 677, 682. APPENDIX - 190 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 39 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 192 of 553 PageID #: 597 SENATE ELECTION OF THE VICE PRESIDENT AND..., 11 U. Pa. J. Const. L.... 135 SENATE MANUAL, supra note 6, at 52-55. 136 See supra note 85; 3 HINDS' PRECEDENTS, supra note 64, § 1984 (“In the election of President by the House in 1825 there was a strong but not prevailing sentiment that the galleries should not be closed.”). 137 Frost Memo, supra note 11, at 15691, col. 1. The memorandum also argues that the ballots of each state should be made public, although it is less clear about the ballots of each Representative. Id. at cols. 1, 2 & 3. 138 In 1992, Representative James Sensenbrenner, until recently Chair of the House Judiciary Committee, introduced a resolution to amend the House Rules to require that the votes of individual Representatives be recorded in open session when the House is choosing a President. H.R. Res. 472, 102d Cong., 2d Sess. (1992). It was referred to the Rules Committee, and no further action was taken. 139 JEFFERSON'S MANUAL, supra note 11, § 773, cl. 4. 140 1801 Rules, supra note 11, § 4; 1825 Rules, supra note 11, § 4. The Frost Memo repeatedly emphasizes the urgency of a prompt House presidential election. Frost Memo, supra note 11, passim. 141 The Senate did not consider the possibility. KURODA, supra note 41, at 136-38. The House ignored the issue, even though it was raised by Representative Simeon Baldwin. Id. at 147-48. 142 U.S. CONST. art. II, § 1, cl. 5; see supra note 46.. In Popular Vote, we discussed in various places and at length whether or not Congress could refuse to count “unconstitutional” elector votes or elector votes for dead candidates. Ross & Josephson, Popular Vote, supra note 1, passim. Arguably, the same considerations apply to Representatives' votes for President. 143 Congress did not count three 1872 Georgia elector votes for the late Horace Greeley. The subject is discussed in Ross & Josephson, Popular Vote, supra note 1, at 706-14, and in Kesavan, supra note 1, at 123. James S. Sherman was elected Vice President for the thirty-first term, 1909-13, with President William Howard Taft. He died on October 30, 1912, just before the general election contested by President Taft and former President Theodore Roosevelt and won by Woodrow Wilson and his vice presidential running mate, Thomas R. Marshall. No elector votes were cast for Sherman, but the Senate Manual notes, “After the election, [Nicholas M. Butler of New York] was selected to receive the electoral votes of the States of Utah and Vermont owing to the death of James S. Sherman.” SENATE MANUAL, supra note 6, at 1089 (emphasis added). Those states were the only states whose electors voted for President Taft. Id. Thus, the issue of elector voting for a dead vice presidential candidate did not arise. The House Report on what became the Twentieth Amendment expressed the opinion that if a presidential candidate dies after the electors vote but before their votes are counted, the votes must be counted by Congress. H.R. REP. NO. 72-345, at 5 (1932)H.R. REP. NO. 72-345, at 5 (1932). It also expressed the opinion that if the election were thrown into the House and if the deceased's number was one of the three highest on the list, a state delegation vote cast for a dead man could not legally be counted. Id. at 6. It did not deal with the question of whether or not a fourth person who had received the next highest elector votes could then be considered. Its analysis was similar on the effect of the death of one of the two highest on the list for a Senateelection of a Vice President. Id. at 7. Legislation, at least in the case of death, was supported by then-Assistant Attorney General, later Solicitor General, Walter Dellinger, who agreed with the 1873 precedent that elector votes for a dead person should not be counted by Congress. Presidential Succession Hearings, supra note 11 at 17. However, Akhil Reed Amar and Walter Berns argued that elector votes for a dead person should be counted so that the deceased's vice presidential running mate could become President. Presidential Succession Hearings, supra note 11, at 23-25, 29. This opinion is also expressed in Akhil Reed Amar, Presidents, Vice Presidents, and Death: Closing the Constitution's Succession Gap, 48 ARK. L. REV. 215, 224-25 (1994). Neither Professor Amar nor Professor Berns expressed that opinion in the context of the House of Representatives choosing a President, which did not arise in the course of the aforementioned hearings. 144 U.S. CONST. art. II, § 1, cl. 3. 145 See infra Part V.E.3. 146 JEFFERSON'S MANUAL, supra note 11, § 656. 147 Id. § 658 (cmt.). APPENDIX - 191 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 40 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 193 of 553 PageID #: 598 SENATE ELECTION OF THE VICE PRESIDENT AND..., 11 U. Pa. J. Const. L.... 148 See infra Part V.E.3. 149 1825 Rules, supra note 11, § 5, cl. 4; see supra note 110 and accompanying text. 150 JEFFERSON'S MANUAL, supra note 11, § 934. 151 Id. § 312 (cmt.). 152 Id. § 508. 153 U.S. CONST. amend. XII (emphasis added). 154 1825 Rules, supra note 11, § 5, cl. 4. 155 Frost Memo, supra note 11, at 15692, col. 3 (emphasis added). 156 See id. at 15695, col. 1 (“The candidate receiving a plurality of the vote in each state caucus shall be awarded that state's vote.” (emphasis added)). 157 U.S. CONST. art. I, § 5, cl. 1. 158 See supra notes 112 and 114 and accompanying text. A quorum is also not required by the rules proposed by the Frost Memo, supra note 11. 159 U.S. CONST. art. I, § 5, cl. 2. 160 1825 Rules § 5, cl. 4. 161 JEFFERSON'S MANUAL, supra note 11, §§ 52, 53, 329, 343, 409, 709, 713c. 162 House Rule XVIII.6, inJEFFERSON'S MANUAL, supra note 11, § 982. 163 U.S. CONST. art. II, § 1, cl. 3. 164 Id.amend. XII (emphasis added). 165 See supra notes 101 & 102. 166 U.S. CONST. amend. XII; U.S. CONST. amend. XX, § 3. 167 U.S. CONST. art II, § 2, cl. 2. 168 U.S. CONST. art. I, § 7, cl. 1. 169 Frost Memo, supra note 11, at 15690, col. 1. 170 U.S. CONST. amend. XII (emphasis added). 171 See supra notes 95 & 96 and accompanying text. The Frost Memo's Proposed Rules for Election of the President in the House of Representatives (1981) are in accord. Frost Memo, supra note 11, at 15694, col. 3 (containing rule 4 of Proposed Rules). 172 Rule 6 of the Frost Memo's Proposed Rules for Election of the President in the House of Representatives (1981) provides that such questions should be decided by the states without debate. It does not say by a majority of all the states. Frost Memo, supra note 11, at 15695, col. 1. 173 JEFFERSON'S MANUAL, supra note 11, § 804. In 1992 Senator David Pryor suggested if (1) the 1992 presidential election were to be thrown into the House, (2) the House deadlocked, (3) the Senate failed to elect a Vice President by January 20, and (4) by implication the Speaker of the House elected on January 3 from among its Representatives did not wish to become President, assuming he APPENDIX - 192 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 41 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 194 of 553 PageID #: 599 SENATE ELECTION OF THE VICE PRESIDENT AND..., 11 U. Pa. J. Const. L.... constitutionally could, see supra note 62, that Speaker could resign, the House could by majority vote elect from the presidential candidates a non-member Speaker who could resign as Speaker on accession to the presidency (and, it could be added that if no Vice President had been elected, appoint one subject to congressional approval under the Twentyfifth Amendment). 138 CONG. REC. S8330 (daily ed. June 17, 1992). 174 The 2000 elector votes were 271 for Governor Bush, 266 for Vice President Gore. One elector from the District of Columbia cast blank ballots for President and Vice President, 147 CONG. REC. 164 (daily ed. Jan. 20, 2001) (corrected proceedings of Saturday, Jan. 6, 2001). This would be an apparent violation of her pledge. D.C. CODE § 1-1001.08(g) (2) (2005). Presumably, they would have been cast for the Democratic Party candidates who carried the District of Columbia, but the result would not have changed. 175 CONGRESSIONAL YELLOW BOOKpassim (Spring 2001). Lawrence D. Longley and Neal R. Peirce similarly analyzed the 1948 presidential election. LONGLEY & PEIRCE, supra note 61, at 42-45. The then-Clerk of the House similarly analyzed the 1920 presidential election. 1925 House Hearings, supra note 30, at 15-16. One national election, even a midterm election, can dramatically change the results. While the 2004 presidential election left the House state delegations's political compositions as they were in 2000, the 2006 midterm election resulted in ten additional House delegations with Democratic Party majorities: Colorado, Connecticut, Indiana, Iowa, Minnesota (was tied), New Hampshire, North Carolina, Pennsylvania, Vermont (had an independent who voted with the Democrats to organize the House), and Wisconsin (was tied). Two state House delegations, Arizona and Kansas, moved from Republican Party majorities to tied. CONGRESSIONAL DIRECTORY FOR THE 110TH CONGRESS 9-13, 102-05 (2007), available at http://www.gpoaccess.gov/cdirectory/browse-cd-07.html [hereinafter CONGRESSIONAL DIRECTORY]. 176 See supra note 18. The Republicans then had a majority of seven Representatives in the eleven-Representative Virginia delegation, so it probably would not have mattered how its Independent, Virgil Goode, Jr., would have voted. He voted that year for the Republican candidate for Speaker. 147 CONG. REC. 21 (daily ed. Jan. 3, 2001). He was elected to the 110th and 111th Congresses as a Republican. CONGRESSIONAL DIRECTORY, supra note 175, at 271. 177 WORLD ALMANAC 2005, supra note 6, at 595. 178 It would be beyond the scope of this study to determine how each Representative's district voted. Each state's popular vote would seem more relevant than the popular vote of any congressional district within a state. Under the Constitution and the Twelfth Amendment, the states' electors and the House state delegations vote to choose the President. This was the general idea of H.R.J. Res. 28, 108th Cong., 1st Sess. § 4 (2003). It was referred to the House Judiciary Committee's Subcommittee on the Constitution, and no further action was taken. Thomas H. Neale, CONGRESSIONAL RESEARCH SERVICE, THE ELECTORAL COLLEGE: REFORM PROPOSALS IN THE 108TH CONGRESS 6 (2005). There may be an exception to this preference in any state which might apportion elector votes by congressional districts, such as Maine and Nebraska currently do. ME. REV. STAT. ANN. tit. 21-A, §§ 802 & 805.2 (1993); 3 NEB. REV. STAT. § 32-714 (2004). Then-Senator Obama carried the second congressional district of Nebraska, whose elector will presumably vote for him. Susan Saulny, Glory for Democrats, Riding on a Single Vote, N.Y. TIMES, Nov. 12, 2008, at A16. However, on August 1, 1980, Representative Robert E. Bauman, with seven cosponsors, introduced a resolution to express the “sense of the House” that each Representative should vote in any House presidential election for the candidate “who receives a majority or plurality of the popular votes cast in the individual Member's district.” H.R. Res. 760, 96th Cong., 2d Sess. (1980). It was referred to the Committee on House Administration, which took no action. But see Gary Lee, Foley Opposes Formula for Presidential Voting: If House Must Decide, Members Should ‘Look at Circumstances' at the Time, Speaker Says, WASH. POST, June 15, 1992, at A7 (“Some Democratic Party Leaders believe that if the presidential election is volleyed to the House, members should be required to vote for the presidential candidate representing the party popularly supported by voters in their districts.”). Laurence A. Tribe and Thomas M. Rollins discuss these and other possibilities in Tribe & Rollins, supra note 43, at 58-60 (digital ed. at 3-7). Then-House Speaker Thomas S. Foley said in a June 14, 1992 interview that anticipated the three-way presidential race in 1992: It shouldn't be said in advance by members of Congress that their vote [for President in the House] is going to be pledged on some kind of formula, which may, at the time the vote is cast, seem wrong to them--wrong from the standpoint of the country, wrong from the standpoint of giving the president-elect legitimacy of office .... APPENDIX - 193 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 42 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 195 of 553 PageID #: 600 SENATE ELECTION OF THE VICE PRESIDENT AND..., 11 U. Pa. J. Const. L.... Suppose [the lawmaker's] district cast its vote for the candidate that ran third in both the electoral vote and the popular vote of the country. Suppose one of the candidates has a majority of the popular vote and a majority of the electoral vote as well. I think it would be difficult to explain any other vote but support for that candidate. Lee, supra, at A7; accord, Paul Gewirtz, House Party, NEW REPUBLIC, July 27, 1992, at 38 (“[W]hen the House last picked the president in the 1824 election, its rules required a state delegation to decide by majority vote, with no vote to be cast if no majority was obtained.” (citations omitted)). Both Hendrik Hertzberg and Jennifer Steinhauer reported that California, by popular initiative rather than state legislative action, and North Carolina were considering apportioning their electors' votes by congressional districts, although the North Carolina legislature tabled the measure. Hendrik Hertzberg, Comment, Votescam, THE NEW YORKER, Aug. 6, 2007, at 21-22; Jennifer Steinhauer, Frustrated, States Try to Change the Way Presidents Are Elected, N.Y. TIMES, Aug. 11, 2007, at A1. Such an initiative would be of doubtful constitutionality. In the first 2000 Supreme Court presidential election decision, Bush v. Palm Beach County Canvassing Board, 531 U.S. 70 (2000), the unanimous Court said per curiam that the Florida Supreme Court had relied on the Florida Constitution in construing the Florida Election Code. Id. at 77-78. It vacated and remanded in part because “we are unclear as to the extent to which the Florida Supreme Court saw the Florida Constitution as circumscribing the legislature's authority under Art. II, § 1, cl. 2.” Id. at 78. Actually, the Florida Supreme Court cited three times Article I, Section one of the Florida Constitution's Declaration of Rights, Palm Beach County Canvassing Board v. Harris, 772 So.2d 1220, 1230, 1236 & 1239 (Fla. 2000) (“All political power is inherent in the people.”), and Article VI, section one, id. at 1230 (“Registration and elections shall ... be regulated by law.”). If the Court was concerned that these provisions of the Florida Constitution were adopted by some means other than legislative enactment and, although it is awfully hard substantively to see how, that they in some way fettered the Florida Legislature's plenary United States constitutional authority to determine the manner by McPherson v. Blacker, 146 U.S. 1 (1892), its concern seems to have been which electors may be appointed, see unwarranted. The Florida Constitution's Declaration of Rights, an expression of public policy at that, as well as the entire Constitution, like a statute, had in fact been adopted in its entirety by the Florida Legislature. 25 FLA. STAT. 665 (1970). Nevertheless, from the Court's concern it would seem to follow that no provision of an initiative could, by itself, affect the California Legislature's decision that the State's presidential electors shall be appointed winner-take-all. CAL. ELEC. CODE § 6906 (West 1994). Terrance Sandalow, dean emeritus of the University of Michigan Law School, agrees. Terrance Sandalow, Letter to the Editor, Graduating from the Electoral College, N.Y. TIMES, Aug. 27, 2007, at A16 (“The proposed initiative to amend the California Constitution ... is ... plainly unconstitutional as a matter of federal constitutional law.”). According to Bob Herbert, so does Harvard Law School Professor Laurence A. Tribe. Bob Herbert, In 2008, Bush v. Gore Redux?, N.Y. TIMES, Sept. 22, 2007, at A15 (“In Mr. Tribe's view, the ‘one and only way’ for California to change the manner in which its electoral votes are apportioned is through an act of the State Legislature.”). David Gringer discusses the issues, but seems unaware of the aforesaid holding in Bush v. Palm Beach County Canvassing Board, 531 U.S. at 77, in David Gringer, Why the National Popular Vote Plan Is the Wrong Way to Abolish the Electoral College, 108 COLUM. L. REV. 182, 225-26 (2008). The development of elector unit rule voting is discussed in Matthew J. Festa, Note, The Origins and Constitutionality of State Unit Voting in the Electoral College, 54 VAND. L. REV. 2099 (2001). Without considering any of the legal issues discussed above, The New York Times has editorially opposed the California Initiative while at the same time reiterating its support for the National Popular Vote effort as an alternative to the California initiative. See supra note 1 and infra note 249. Such an initiative, which would raise legal issues about its effectiveness, is similar, if not identical, to those described above. Editorial, Stacking the Electoral Deck, N.Y. TIMES, Aug. 22, 2007, at A18. But cf. Jennifer Steinhauer, Leader Quits Ballot Effort by G.O.P. in California, N.Y. TIMES, Sept. 29, 2007, at A8; Electoral Revision Misses June Ballot, N.Y. TIMES, Dec. 7, 2007, at A28. Such an alternative which could raise legal issues about its effectiveness is similar, if not identical, to those described in the paragraph above. The issues raised by an unsuccessful Colorado initiative that would have divided its elector votes in proportion to its popular votes are thoughtfully discussed in David S. Wagner, Note, The Forgotten Avenue of Reform: The Role of States in Electoral College Reform and the Use of Ballot Initiatives to Effect that Change, 25 REV. LITIG. 575 (2006). However, Wagner appears not to have focused on the significance of the Supreme Court's first 2000 presidential election opinion discussed above. Neither has Stanley Chang. Stanley Chang, Note, Recent Development: Updating the Electoral College: The National Popular Vote Legislation, 44 HARV. J. ON LEGIS. 205, 214-15 (2007). Supporters of such initiatives have argued, unpersuasively, that a vote of the people is an act of the legislature, as the Colorado initiative purported to provide. BENNETT, supra note 1, at 52, 214 n.32. For a comprehensive study of the history and law of APPENDIX - 194 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 43 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 196 of 553 PageID #: 601 SENATE ELECTION OF THE VICE PRESIDENT AND..., 11 U. Pa. J. Const. L.... initiatives, see John Gildersleeve, Editing Direct Democracy: Does Limiting the Subject Matter of Ballot Initiatives Offend the First Amendment?, 107 COLUM. L. REV. 1437 (2007). 179 WORLD ALMANAC 2005, supra note 6, at 595. 180 In the twentieth century, more than two presidential candidates have won elector votes in 1912, 1924, 1948, 1960, 1968, 1972, 1976, and 1988. WORLD ALMANAC 2005, supra note 6, at 594. However, only in 1912, 1924, 1948, 1960, and 1968 did a third presidential candidate receive more than one elector vote. Id. Nevertheless, if any of those elections had been thrown into the House because no candidate had an absolute majority of elector votes, such a third presidential candidate would have been one of the three whom the House could have chosen as President. Moreover, if there had been more than one such presidential candidate and if they had tied elector votes, the issues raised by “not exceeding three” might also have arisen. Assuming that in the 2000 presidential election the voters for third party candidate, Patrick J. Buchanan, would have voted for Governor George W. Bush and those who voted for Ralph Nader would have voted for Vice President Al Gore, Florida's and New Hampshire's electors would have voted for Vice President Gore, instead of Governor Bush. WORLD ALMANAC 2005, supra note 6, at 595. Voters in Iowa, New Mexico, Oregon, and Wisconsin narrowly voted for Vice President Gore. Id. Even if the Buchanan votes had been added to Governor Bush's totals, the addition of the Nader votes to Vice President Gore's would have confirmed his winning of these states' elector votes. Id. In 2002, two groups created separate vote-swapping websites under which Buchanan or Nader voters in “swing” states could agree with Bush or Gore voters, respectively, in “safe” states to vote for Bush or Gore, as the case may have been, in return for safe state voters voting for Buchanan or Nader. See Porter v. Bowen, 496 F.3d 1009, 1012-13 (9th Cir. 2007). The California Secretary of State's successful effort to close these sites was held to violate the First Amendment. Id. at 1027. 181 3 U.S.C. § 7 (2006). 182 E.g., H.R. Con. Res. 531, 108th Cong., 2d Sess. (2004). Also, the President “may, on extraordinary Occasions, convene both Houses, or either of them ....” U.S. CONST. art. II, § 3, cl. 1. 183 See3 U.S.C. § 15 (2006). In 1996, Congress extended the date to January 9, 1997. Act of Oct. 11, 1996, § 2, Pub. L. No. 104-296, 110 Stat. 3558. In 1988, it advanced the date to January 4, 1989. Act of Nov. 9, 1988, Pub. L. No. 100-646, 102 Stat. 3341. And in 1984 the date was extended to January 7, 1985. Act of Oct. 9, 1984, Pub. L. No. 98-456, 98 Stat. 1748. 184 House Rule XI, cl. 2(m)(1)(A), inJEFFERSON'S MANUAL, supra note 11, § 718. This is a relatively new change in the House Rules. Id. § 589 (cmt.). Such hearings could not be held during joint sessions. House Rule XI, cl. 2(i), inJEFFERSON'S MANUAL, supra note 11, § 710. JEFFERSON'S MANUAL section LI asserts that, constitutionally, congressional committee jurisdiction ends when the constitutional term ends. JEFFERSON'S MANUAL, supra note 11, § 589; 4 HINDS' PRECEDENTS, supra note 64, § 4545. 185 H.R. Res. 785, 96th Cong., 2d Sess. (1980). 186 Id. § 5(c). 187 Id. § 6(c). 188 WORLD ALMANAC 2005, supra note 6, at 593. 189 H.R. Res. 478, 102d Cong., 2d Sess. (1992) 190 House Rule X, cl. 1(m), inJEFFERSON'S MANUAL, supra note 11, § 682a. 191 4 HINDS' PRECEDENTS, supra note 64, § 4327; JEFFERSON'S MANUAL, supra note 11, § 220. 192 4 HINDS' PRECEDENTS, supra note 64, § 4326. See generallySTANLEY BACH & STEVEN S. SMITH, MANAGING UNCERTAINTY IN THE HOUSE OF REPRESENTATIVES: ADAPTATION AND INNOVATION IN SPECIAL RULES (1988); Gerald B.H. Solomon & Donald R. Wolfensberger, The Decline of Deliberative Democracy in the House and Proposals for Reform, 31 HARV. J. ON LEGIS. 321 (1994). APPENDIX - 195 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 44 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 197 of 553 PageID #: 602 SENATE ELECTION OF THE VICE PRESIDENT AND..., 11 U. Pa. J. Const. L.... 193 RULES OF THE COMMITTEE ON RULES, Rule 5(a)(1)(B), 109th Cong. 154 (1st Sess. 2005), available at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi? dbname=109_cong_house_committee_prints&docid=f:22112.pdf [hereinafter HOUSE COMMITTEES RULES]. 194 Id. at Rule 5(b)(2). 195 See generally House Rule XI, cl. 2(g)(2), inJEFFERSON'S MANUAL, supra note 11, § 708. 196 See generallyHOUSE COMMITTEES RULES, supra note 193, Rule 3 at 152-54. 197 House Rule X, cl. 1(h)(12), inJEFFERSON'S MANUAL, supra note 11, § 677a. This jurisdiction was exercised prior to the 1947 reorganization of the Congress by the Committee on Election of President, Vice President, and Representatives in Congress. Id. at §§ 677a & 677e (cmts.); see 4 HINDS' PRECEDENTS, supra note 64, §§ 4299-304; 7 CANNON'S PRECEDENTS, supra note 85, § § 2023-28. Then-House Parliamentarian Brown indicated that a meeting to elect a President is a constitutional function of the House over which the Committee on House Administration would assert jurisdiction. Brown Memorandum, supra note 112, at 2. 198 Rule 16 of the Rules of the Committee on House Administration, inHOUSE COMMITTEES RULES, supra note 193, at 115. 199 House Rule X provides in Clause 1: “[A]ll bills, resolutions, and other matters relating to subjects within the jurisdiction of any standing committees as listed in this clause shall ... be referred to those committees ....” JEFFERSON'S MANUAL, supra note 11, § 699 (emphases added). Clause 5 states in relevant part: (a) Each bill, resolution, or other matter which relates to a subject listed under any standing committee named in clause 1 shall be referred by the Speaker in accordance with the provisions of this clause. (b) Every referral of any matter under paragraph (a) shall be made in such manner as to assure to the maximum extent feasible that each committee which has jurisdiction under clause 1 over the subject matter of any provision thereof will have responsibility for considering such provision and reporting to the House with respect thereto. Id. § 700. House Rule X clause 5(c) provides: In carrying out paragraphs (a) and (b) with respect to any matter, the Speaker shall designate a committee of primary jurisdiction; but also may refer the matter to one or more additional committees, for consideration in sequence (subject to appropriate time limitations), either on its initial referral or after the matter has been reported by the committee of primary jurisdiction; or may refer portions of the matter to one or more additional committees (reflecting different subjects and jurisdictions) for the consideration only of designated portions .... Id. 200 Id. at § 701e. Then-House Parliamentarian Brown thought there was a good possibility that the Speaker would choose to appoint a balanced bipartisan committee rather than refer the special rules matter to one or more of the politically imbalanced standing committees. He referred to “the tradition of greater consultation with the minority party in times of crisis.” Brown Memorandum, supra note 112, at 3. Whether or not such a tradition survives is another question. See generally Charles Babington, Scorched-Earth Politics: How Can Shutting Congressional Democrats Out of Legislation Be Good Government?, WASH. POST NAT'L WKLY. ED., Jan. 5-11, 2004, at 22; Editorial, Time Out--How House Republicans Stopped the Clock to Avert Embarrassment, SYRACUSE POSTSTANDARD, Apr. 3, 2004, at A6; Ronald Goldfarb, The End of Civility?, WASH. LAWYER, Feb. 2004, at 30. 201 JEFFERSON'S MANUAL, supra note 11, § 700. 202 7 CANNON'S PRECEDENTS, supra note 85, § 2049. 203 JEFFERSON'S MANUAL, supra note 11, § 589 (cmt.). The Commission on Administrative Review in the House of Representatives was established by H.R. Res. 1368, 94th Cong., 2d Sess. (1976). The Legislative Branch Appropriation Act, Pub. L. No. 94-440, § 101, 90 Stat. 1439, 1448 (1976), enacted “permanent law” with respect to the Commission. The Commission submitted its final report to, and terminated during, the 95th Congress on December 31, 1977. APPENDIX - 196 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 45 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 198 of 553 PageID #: 603 SENATE ELECTION OF THE VICE PRESIDENT AND..., 11 U. Pa. J. Const. L.... 204 “Committee of the Whole,” as used in the text, refers to “the Committee of the Whole House on the state of the Union” and not to “the Committee of the Whole House which considers private [bills]” only. House Rule XXIII, inJEFFERSON'S MANUAL, supra note 11, § 869; cf. id. § 752. 205 House Rule XIV, cls. 2 & 6, inJEFFERSON'S MANUAL, supra note 11, §§ 758, 762. 206 House Rule XXIII, cl. 5(a), inJEFFERSON'S MANUAL, supra note 11, § 870; DESCHLER'S PRECEDENTS, supra note 85, § 5.6; 4 HINDS' PRECEDENTS, supra note 64, § 4916. This rule permits five minutes of debate by an amendment's proponent, five minutes from one opponent, and five minutes on each of a limited number of pro forma amendments. House Rule XXIII, cl. 5(a), inJEFFERSON'S MANUAL, supra note 11, § 870, which are devices for extending debate. Id. § 873a. A resolution establishing presidential election rules could be reported to the Committee of the Whole under an open rule, i.e., a special order reported by the Rules Committee and adopted by the House permitting amendments to the resolution, a closed rule precluding any amendments, or a partially closed rule, i.e., one which restricts the number of amendments and substantive alterations which may be offered. See, e.g., DESCHLER'S PRECEDENTS, supra note 85, § 5.6. 207 JEFFERSON'S MANUALsupra note 11, § 508; cf. House Rule XXIII, inJEFFERSON'S MANUAL, supra note 11, § 877. 208 A quorum of the House is a majority of its members. U.S. CONST. art. I, § 5, cl. 1; United States v. Ballin, 144 U.S. 1, 6 (1892). A quorum in the Committee of the Whole House on the State of the Union is one hundred members. House Rule XXIII 2(a), inJEFFERSON'S MANUAL, supra note 11, § 863. 209 Cf. House Rule XXIII 7, inJEFFERSON'S MANUAL, supra note 11, § 875. After the Committee of the Whole rises and its chair reports to the Speaker, the House must approve each amendment reported by the Committee of the Whole, and the resolution or bill itself may then be open to amendment by members of the House, 8 CANNON'S PRECEDENTS, supra note 85, § 2419, unless limited by special order. 210 The 38th Congress in 1865 adopted the Twenty-second Joint Rule, which provided that questions about counting certified elector votes would be decided by separate concurring votes of each House. However, they relied on a separate joint resolution not to count elector votes from Louisiana and Tennessee, submitted to President Lincoln who approved it, though he subsequently disclaimed “all right of the Executive to interfere in any way in the matter of canvassing or counting electoral votes ....” COUNTING ELECTORAL VOTES, H.R. MISC. DOC. NO. 13, at 229-30 (1876); See L. Kinvin Wroth, Election Contests and the Electoral Vote, 65 DICK. L. REV. 321, 328-29 n.34 (1961). A joint resolution “is a bill so far as the processes of the Congress in relation to it are concerned. With the exception of joint resolutions proposing amendments to the Constitution, all these resolutions are sent to the President for approval and have the full force of law.” JEFFERSON'S MANUAL, supra note 11, § 397 (citations omitted). Seth Barrett Tillman, A Textualist Defense of Article I, Section 7, Clause 3: Why Hollingsworth v. Virginia was Rightly Decided, and Why INS v. Chadha was Wrongly Reasoned, 83 TEX. L. REV. 1265 (2005), discusses the constitutional amendment exception. Despite this exception, President Lincoln “[a]pproved” the Joint Resolution that proposed what became the Thirteenth Amendment. George P. Fletcher, Introduction, Lincoln and the Thirteenth Amendment, ORG. OF AM. HISTORIANS MAG. OF HIST., Jan. 2007, at 52, 54-55. The 1877 Electoral Commission was created by the Act of Jan. 29, 1877, 19 Stat. 227. See Samuel T. Spear, Counting the Electoral Votes, 15 ALB. L. J. 156, 159 (1877)Counting the Electoral Votes, 15 ALB. L. J. 156, 159 (1877). Indeed, President Ulysses S. Grant also called for a legislative solution. 5 CONG. REC. 24 (1877); see Stephen A. Siegel, The Conscientious Congressman's Guide to the Electoral Count Act of 1887, 56 FLA. L. REV. 541, 585 n.276 (2004). Of course, the Electoral Count Act of 1887 was enacted. Act of Feb. 3, 1887, ch. 90, 24 Stat. 373 (codified at U.S.C. §§ 5- 3 7, 15-18 (2006)). 211 See supra Parts III.C.2.c-d. 212 U.S. CONST. art. I, § 5, cl. 2. 213 Id. at art. VI. APPENDIX - 197 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 46 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 199 of 553 PageID #: 604 SENATE ELECTION OF THE VICE PRESIDENT AND..., 11 U. Pa. J. Const. L.... 214 JEFFERSON'S MANUAL, supra note 11, §§ 59-60. It is not clear that Stephen A. Siegel has made this distinction in Siegel, supra note 210, at 546. 215 See supra note 85. 216 Act of Feb. 3, 1887, 24 Stat. 373 (codified at 3 U.S.C. §§ 2, 5- 7, 15-18 (2006)). For examples, the provision in 3 U.S.C. § 15 that two tellers shall be appointed by the House to make a list of the electors' votes, or the provision in 3 U.S.C. § 16 that if the counting of elector votes shall not have been completed before the fifth calendar day after the first joint session for that purpose, no recess may be taken by the House. “It may be noted that, in the 91st Congress, a law specifying that the counting of electoral votes for President and Vice President should be conducted in a joint session was made a joint rule of the two Houses by its incorporation by reference in a concurrent resolution.” DESCHLER'S PRECEDENTS, supra note 85, § 5.3. For a lengthy analysis of the Electoral Count Act, see Ross & Josephson, Popular Vote, supra note 1, at 704-40. In light of the presidential election of 2000, the year 2000 Supreme Court cases-- Bush v. Palm Beach County Canvassing Bush v. Gore, 531 U.S. 98 (2000)--and the subsequent literature, another look needs to Bd., 531 U.S. 70 (2000) and be taken at all aspects of the Act. See Richard D. Friedman, Trying to Make Peace with Bush v. Gore, 29 FLA. ST. U. L. REV. 811, 860-67 (2001); Glennon, supra note 7; Kesavan, supra note 7; Eric Schickler et al., Safe at Any Speed: Legislative Intent, the Electoral Count Act of 1887, and Bush v. Gore, 16 J.L.& POL. 717 (2000); Siegel, supra note 210. Such a look is beyond the scope of this article, but those Supreme Court justices who referred to the right of the Florida State Legislature to appoint electors, see Bush v. Gore, 531 U.S. at 104, appear not to have considered the substantive implications of the beginning phrase of 3 U.S.C. § 5: “If any State shall have provided, by laws enacted prior to the day fixed for the appointment of the electors ... such determination ... shall govern.” 3 U.S.C. § 5 (2006) (emphasis added). But Justice Rehnquist's concurrence in Bush does touch upon the implications. Bush, 531 U.S. at 113. Nor did they apparently consider the implication of “on a subsequent day” in 3 U.S.C. § 2. These statutes were first enacted as part of the 1887 Electoral Count Act as one of a comprehensive series of elector vote counting rules, presumably pursuant to Congress's power and duty to count the elector votes. U.S. CONST. art. II, § 2, cl. 3; U.S. CONST. amend. XII. Moreover, the main holding in McPherson v. Blacker, 146 U.S. 1 (1892), which the Supreme Court cited in Bush, 531 U.S. at 104, stands only for the proposition that neither the Constitution nor the Fourteenth Amendment prohibit McPherson, a state legislature from changing the way electors are appointed prior to the day of their appointment. 146 U.S. at 38-39. It is not in the authority of a state legislature to change the method of appointment thereafter. Indeed, Professor Friedman has argued that had the Florida legislature purported to do so, its effort would have violated Section 1, clause 4 of Article II of the Constitution, “[t]he Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States,” and the Fourteenth Amendment's Due Process Clause. Friedman, supra, at 817-23, 817 n.19, 838-40, 839 n.104 (citing Roe v. Alabama, 43 F.3d 574, 580 (11th Cir. 1995) for the latter proposition, but not citing its complicated subsequent history, e.g., Roe v. Alabama by and Through Evans, 52 F.3d 300 (11th Cir. 1995); Roe v. Alabama, 68 F.3d 404 (11th Cir. 1995), cert. denied sub nom. Davis v. Alabama, 516 U.S. 908 (1995)). Professor Friedman also argues that 3 U.S.C. § 2 “cannot reasonably be understood to have meant that if the state holds an election on Election Day ... then the Legislature may step in and choose a slate of electors without regard to what happened on Election Day.” Id. at 816. Kirby, supra note 11, at 497 n.24, makes the same point. Cf.BENNETTsupra note 1, at 51 n.31. Chang, supra note 178, at 228, seems unaware that the Florida Legislature was apparently prepared to cast its elector votes regardless of the outcome of any recount. “Whenever any State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such manner as the legislature of such State may direct” (emphasis added). 3 U.S.C. § 2 (2006). But if Congress may determine the time of choosing electors, which unlike the day they vote need not be uniform throughout the United States, may it not determine the times, unless the use of “time” in the singular is substantive? On the other hand, in 3 U.S.C. § 2 Congress was not determining another time, but seemingly delegating its authority to do so to the state legislatures. This does raise issues about its constitutionality. Some states constitutionally prohibit retroactive state laws. See 2 NORMAN J. SINGER, STATUTES AND STATUTORY CONSTRUCTION § 41:3, at 383-84 & n.9 (6th ed. 2001). Florida is not one of them, except as we shall see, infra, with respect to certain criminal statutes, but retroactivity is justiciable otherwise. E.g., Old Port Cove Holdings v. Old Port Cove Condominium Ass'n One, 986 So. 2d 1279 (Fla. 2008) (holding that a statute relating to the rule APPENDIX - 198 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 47 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 200 of 553 PageID #: 605 SENATE ELECTION OF THE VICE PRESIDENT AND..., 11 U. Pa. J. Const. L.... against perpetuities is not retroactive); Florida Hospital Waterman v. Buster, 984 So. 2d 478 (Fla. 2008) (allowing a retroactive ballot initiative amending Florida Constitution); Smiley v. Florida, 966 So. 2d 330 (Fla. 2007) (allowing retroactive application of statute abrogating common law duty to retreat violates the Florida Constitution Article X, Section 9, which provides, “Repeal or amendment of a criminal statute shall not affect prosecution or punishment for any crime previously committed”). There is also the U.S. Constitution's ex post facto law prohibition in Article 10, Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 Section 10. U.S. CONST. art. 1, § 10. That was very early construed in (1798), perhaps wrongly, seeLAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 10-2 (2d ed. 1988), to apply only to criminalization of what previously was not criminal. Also, query whether a state legislature's act with respect to appointing electors would be a law for either of these purposes. For examples, Article III, Section 8(a) of the Florida Constitution requires gubernatorial approval of a bill passed by the legislature before it “shall become a law.” FLA. STAT. ANN. § 677 (1970). So does Article 4, Section 7 of the New York Constitution. Perhaps a better argument against post-presidential popular election state legislative appointment of electors would be based on the Privileges and Immunities Clause of the Fourteenth Amendment. SeeU.S. CONST. amend XIV, § 1. Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 78-79 (1873), there are “Incentives Despite its emasculation in the for Bringing the Privileges or Immunities Clause to Life.” TRIBE, supra, at 1312; see Tony Mauro, Shotgun Wedding: Liberals. Teamup with NRA in Gun Case, LEGAL TIMES, Feb. 23, 2009, at 1. The right to vote for national officers was one of the privileges and immunities listed in Twining v. New Jersey, 211 U.S. 78, 97 (1908). In Oregon v. Mitchell, 400 U.S. 112, 138-41 (1970), Justice William O. Douglas, concurring and dissenting in part, advanced a citation-packed equal protection argument, stating that the right to vote “is a civil right of the highest order.” Id. at 139. He presumably would have disagreed with the first sentence of this quotation from the per curiam opinion in Bush v. Gore: The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the electoral college .... History has now favored the voter, and in each of the several States the citizens themselves vote for Presidential electors. When the state legislature vests the right to vote for President in its people, the right to vote as the legislature has prescribed is fundamental .... 531 U.S. at 104. The Court was laying the basis for its own equal protection argument and, in the next breath, quoted an 1874 Senate Report whose substantive relevance is questionable that asserted that state legislatures can resume the power. Id. Nevertheless, the Court's ultimate recognition of this fundamental right may have implications for its future protection. See generallyTRIBE, supra, at §§ 7-5 & 7-6 and authorities cited throughout. 217 E.g., Legislative Reorganization Act of 1970, Pub. L. 91-510, 84 Stat. 1140; Legislative Reorganization Act of 1946, Pub. L. 601, 60 Stat. 812. The Legislative Reorganization Act of 1946 purports to amend House Rules X and XII to establish procedures for standing committees, and to provide for hearings and reports of the House Appropriations Committee. Id. §§ 133, 139. 218 E.g., Reorganization Act of 1977, Pub. L. 95-17, 91 Stat. 29. Section 908 of the Reorganization Act of 1977 (codified at 5 U.S.C. § 908 (2006)), is substantively the same as Section 101 of the Legislative Reorganization Act of 1946. See infra note 221. 219 Section 1103(d) of the Omnibus Trade and Competitiveness Act of 1988, Pub. L. 100-418, 102 Stat. 1131-32 (codified at 19 U.S.C. § 2903 (2006)), is substantially the same as section 101 of the Legislative Reorganization Act of 1946. 220 E.g., Honest Leadership and Open Government Act of 2007, Pub. L. 110-81, 121 Stat. 735.Section 306, 121 Stat. 754, and Section 555, 121 Stat. 774, are substantially the same as Section 101 of the Legislation Reorganization Act of 1946. The former Act's extensive changes to the Senate and House Rules are described in Nicholas G. Karambelas, The Honest Leadership and Open Government Act of 2007, WASH. LAWYER, Dec. 2007, at 31. 221 Section 101 of the Legislative Reorganization Act of 1946 provides: The following sections of [the Title 1--Changes in Rules of Senate and House] are enacted by the Congress: APPENDIX - 199 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 48 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 201 of 553 PageID #: 606 SENATE ELECTION OF THE VICE PRESIDENT AND..., 11 U. Pa. J. Const. L.... (a) As an exercise of the rule-making power of the Senate and the House of Representatives, respectively, and as such they shall be considered as part of the rules of each House, respectively, or of that House to which they specifically apply; and such rules shall supersede other rules only to the extent that they are inconsistent therewith; and (b) With full recognition of the constitutional right of either House to change such rules (so far as relating to the procedure in such House) at any time, in the same manner and to the same extent as in the case of any other rule of such House. § 101, 60 Stat. at 814. Similar provisions with respect to the House were enacted in §§ 101(2), 241(2), and 251(2) of the Legislative Reorganization Act of 1970, 84 Stat. 1143, 1172-73. Twenty-six years ago, the House Rules Committee said: To the extent that the House chooses to enact any rule into law, it places itself in the constitutionally unacceptable position of requiring the consent of the other body and of the President to directly modify or repeal that rule. Since the enactment of the Congressional Budget and Impoundment Act of 1974 (Public Law 93-344) statutory adoption of rules has become increasingly common, but traditionally such rules carry a disclaimer relating to the rulemaking power of each House similar to the one contained in that Act (§ 904). The committee has previously reported to the House (H. Rept. 97-809, Part 2)H. Rept. 97-809, Part 2) that it views the authority of each House to “determine the rules of its proceedings” to be constitutionally grounded and considers the power of each House to modify rules it has chosen to enact in statutory form to be unaffected by whether that statute carries such a disclaimer. Nevertheless, the language is customary and the committee believes that unnecessary doubts are invited by proposing rules in statutory form, particularly in the absence of such a disclaimer. H.R. REP. NO. 98-257H.R. REP. NO. 98-257, 98th Cong., 1st Sess. pt. 3, at 5 (1983). In Jeffrey A. Meyer, Congressional Control of Foreign Assistance, 13 YALE J. INT'L L. 69, 98 n.140 (1988), the author provides a description of the above report, supplemented by an abbreviated quotation, and raises a concern that the inclusion of House rules in a statute might waive the House's unilateral right to change them. The concern is not warranted by the above complete text of the pertinent paragraphs of the report, which acknowledges that disclaimers are effective to obviate any such concerns. The Federal Contested Election Act, 2 U.S.C. §§ 381-96 (2006), applies only to an election “to choose a Representative in, or Delegate or Resident Commissioner to, the Congress.” Id. § 381. Many, if not most, of its provisions could have been adopted as House rules. The Senate has no such rules, whereas the House has had statutory contest procedures as early as the Fifth Congress in 1798. S. REP. NO. 91-546, 91st Cong., 1st Sess. at 1 (1969). Indeed, presumably in deference to the House, the Senate Report substantially excerpted H.R. REP. NO. 91-569H.R. REP. NO. 91-569, 91st Cong. 1st Sess., at 2-3 (1969). The Act does not contain any acknowledgement of the House's right by unilateral action to change those provisions that could have been adopted by a House Rule. Professor Lawson writes: Thus, a literal reading of the Sweeping Clause [the Necessary and Proper Clause] does not include the power to implement the various functions conferred on the individual houses of Congress. There is some reason, however, to avoid this literal reading. The Sweeping Clause speaks of powers “vested by this Constitution in the Government of the United States.” There are, strictly speaking, no such powers. The Constitution does not ever grant powers to the “Government of the United States” as a unitary entity; all powers are granted to specific federal institutions, such as Congress, the House, the Senate, the President, the Vice President, the Chief Justice, and the federal courts. The best reading of the Sweeping Clause is thus to treat the phrase “the Government of the United States” as meaning “principal institutions of the Government of the United States,” which would certainly include the constitutionally created House and Senate. On this understanding, Congress could, by statute, implement the various powers granted to the individual houses. Gary Lawson, Burning Down the House (and Senate): A Presentment Requirement for Legislative Subpoenas Under the Orders, Resolutions, and Votes Clause, 83 TEX. L. REV. 1373, 1386 (2005); cf. Gary Lawson & Patricia B. Granger, The “Proper” Scope of Federal Power: A Jurisdictional Interpretation of the Sweeping Clause, 43 DUKE L.J. 267 (1993). For discussion of the Necessary and Proper Clause as authority for federal legislation with respect to presidential elections, see infra notes 225-35 and accompanying text. 222 See supra note 214. 223 See supra note 80. 224 “[I]f there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; ... But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President.” U.S. CONST. art. II, § 1, cl. 3 (emphases added). 225 110 U.S. 651, 658 (1884); accord Ex parte Siebold, 100 U.S. 371 (1879). See Kucinich v. Texas Democratic Party, No. 08-5038, 2009 U.S. App. LEXIS 6084, at 11 (5th Cir. Mar. 24, 2009) (upholding presidential primary candidate APPENDIX - 200 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 49 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 202 of 553 PageID #: 607 SENATE ELECTION OF THE VICE PRESIDENT AND..., 11 U. Pa. J. Const. L.... Ray v. Blair, 343 U.S. 214, 230 (1952) (5-2 decision) (holding that an oath to support party's presidential candidate); elector pledge to vote for party's presidential candidate not unconstitutional). 226 Yarbrough, 110 U.S. at 658. 227 Id. 228 Id. at 656. 229 Id. at 664. 230 Id. at 665. 231 290 U.S. 534 (1934). 232 Id. at 536. 233 234 Act of Feb. 28, 1925, ch. 368, tit. III, 43 Stat. 1070 (codified at 2 U.S.C. §§ 241Communications Reform Act, Pub. L. 92-225, § 405, 86 Stat. 20 (1972). 48 (2006)), repealed by Campaign Burroughs, 290 U.S. at 545. The Court discussed and quoted with approval Ex parte Yarbrough, 110 U.S. 651, 651 (1884). Burroughs, 290 U.S. at 545-47;cf. Oregon v. Mitchell, 400 U.S. 112, 139 & n.5 (1970) (Douglas, J., concurring and dissenting) (quoting Ex parte Yarbrough). 235 Burroughs, 290 U.S. at 547-48 (citing Stephenson v. Binford, 287 U.S. 251, 272 (1932)); TRIBE, supra note 216, §13-10 (“Although the Constitution does not explicitly concede Congress dominion over the qualifications of voters in presidential and vice presidential elections, the Court has nonetheless ruled that Congress possesses the same powers over such elections that it enjoys with respect to congressional elections.” (footnote omitted)); see also Dan T. Coenen & Edward J. Larson, Congressional Power Over Presidential Elections: Lessons Learned from the Past and Reforms for the Future, 43 WM. & MARY L. REV. 851, 887-908 (2002) (describing the implied congressional power to regulate presidential elections); cf. Kirby, supra note 11, at 499-500 (“[N]o congressional exercise of [the fourteenth, fifteenth, and nineteenth amendments] has yet directly conflicted with state regulation of appointment of presidential electors.”). For a most thoughtful discussion of the Necessary and Proper Clause, see Randy E. Barnett, Necessary and Proper, 44 UCLA L. REV. 745 (1997). 236 THE FEDERALIST NO. 60, at 369 (Alexander Hamilton) (Clinton Rossiter ed., 1961). Although not completely clear, the context suggests that Hamilton was talking about the qualifications of Representatives. U.S. CONST. art. I, § 2, cl. 2. His view was upheld in Powell v. McCormack, 395 U.S. 486, 550 (1969), which held that when “judging the qualifications of its members Congress is limited to the standing qualifications prescribed in the Constitution.” The same reasoning should apply to the qualifications for President and Vice President. U.S. CONST. art II, § 1, cl. 5; U.S. CONST. amend. XII. The only Federalist discussion of the President's constitutional qualifications appears to be in THE FEDERALIST NO. 64 (John Jay), supra, at 391, but in the context of the treaty power. 237 In distinguishing between (1) the House's purported general power by majority vote to exclude a newly elected Representative--which the Court rejected--and (2) the House's constitutional power to expel a Representative by a twothirds vote, U.S. CONST. art. I, § 5, cl. 2, Powell indicated that in the former case the House was impermissibly trying to add to the Constitution's qualifications for Representative. 395 U.S. at 537-40;see also U.S. CONST. art. I, § 2, cl. 2; Powell, 395 U.S. at 551 (Douglas J., concurring) (“Up to now the understanding has been quite clear to the effect that [Congress's] authority [to deviate from or alter the qualifications for membership as a Representative] does not exist.”). 238 In United States v. Smith, 286 U.S. 6 (1932), Justice Brandeis held: As to the construction to be given to the rules affects persons other than members of the Senate, the question presented is of necessity a judicial one. Smith asserts that he was duly appointed to office, in the manner prescribed by the Constitution. The Senate disputes the claim. In deciding the issue, the Court must give great weight to the Senate's APPENDIX - 201 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 50 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 203 of 553 PageID #: 608 SENATE ELECTION OF THE VICE PRESIDENT AND..., 11 U. Pa. J. Const. L.... present construction of its own rules; but so far, at least, as that construction was arrived at subsequent to the events in controversy, we are not concluded by it. Id. at 33 (citation omitted); accord Powell, 395 U.S. at 512-16 (concluding that the Court has jurisdiction to entertain suits regarding the seating of Congressmen); DESCHLER'S PRECEDENTS, supra note 85, § 5.4 (acknowledging the Court's decisions as its jurisdiction and the justiciability of the House's unsuccessful effort to exclude Representative Powell). 239 393 U.S. 23 (1968); id. at 38-39 (Douglas, J., concurring); id. at 41 (Harlan, J., concurring). Despite the uncertainty expressed in BENNETT, supra note 1, at 128-29, the rule of Williams v. Rhodes appears to retain its vitality. Anderson v. Celebrezze, 460 U.S. 780, 805-06 (1983) (holding that Ohio's filing deadline for independent candidates for the office of President of the United States could not be justified by the state's asserted interest in protecting political stability); Lee v. Keith, 463 F.3d 763, 765 (7th Cir. 2006) (holding that Illinois state election regulations operated unconstitutionally to burden the freedom of political association guaranteed by the First and Fourteenth Amendments); Libertarian Party of Ohio v. Blackwell, 462 F.3d 579, 582 (6th Cir. 2006) (using the analytical framework set forth in Anderson v. Celebrezze, 460 U.S. 780, to invalidate particular Ohio election regulations); Duke v. Smith, 13 F.3d 388, 392 (11th Cir. 1994) (finding that the Presidential Candidate Selection Committee violated the plaintiff's First and Fourteenth Amendment rights by excluding the candidate from the Presidential Primary Ballot); Duke v. Cleland, 5 F.3d 1399, 1405 (11th Cir. 1993) (quoting approvingly the analytical framework posited in Anderson, 460 U.S. 780);Nader 2000 Primary Comm., Inc. v. Hechler, 112 F. Supp. 2d 575, 580 (S.D.W.Va. 2000) (ordering Secretary of State to certify plaintiffs as third-party nominees for the offices of President and Vice President); Nader 2000 Primary Comm., Inc. v. Hazeltine, 110 F. Supp. 2d 1201, 1209 (D.S.D. 2000) (declaring a South Dakota election statute unconstitutional as applied to the supporters of and independent candidates for President of the United States); Campbell v. Hull, 73 F. Supp. 2d 1081, 1094 (D. Ariz. 1999) (enjoining defendant from enforcing section of election law that required signors of nomination petition not be members of qualified political parties); Duke v. Connell, 790 F. Supp. 50, 51 (D.R.I. 1992) (granting plaintiff's order compelling Secretary of State to place his name on the ballot as a candidate); Buchanan v. Secretary of State, 616 N.W.2d 162 (Mich. 2000) (denying otherwise legitimate third-party presidential and vice presidential candidates claim for relief due to mootness); Robert Yablon, Comment, Validation Procedures and the Burden of Ballot Access Regulations, 115 YALE L.J. 1833 (2006) (detailing the efforts of third-party candidates in challenging state ballot access laws during the 2004 presidential campaign). 240 Nevertheless, one of the options for the Proposed Rules for the Election of the President By the House of Representatives (1981) would have eliminated any third candidate if no candidate had received a majority of the states on the first ballot. Frost Memo, supra note 11, at 15695, col. 1 (Option A: Rule 5(f)). No consideration was apparently given to an elector tie vote or to the possibility that there could be more than three candidates because of elector vote ties. 241 The issues discussed in this section are unlikely to arise in any Senate vote for Vice President. As we have seen, under the Twelfth Amendment, “a majority of the whole number [of Senators] shall be necessary to a choice.” U.S. CONST. amend. XII. Thus, the Senators vote individually and not by state delegations. Moreover, the Senate Rules appear to be stricter than the House's about Senators voting. Unlike, as we shall see, in the House Rules, they contain no provision for voting “present.” Moreover, under Senate Rule 12.1: When the yeas and nays are ordered, the names of Senators shall be called alphabetically; and each Senator shall, without debate, declare his assent or dissent to the question, unless excused by the Senate .... SENATE MANUAL, supra note 6, at 12. Senate Rule 12.2 provides: When a Senator declines to vote on the call of his name, he shall be required to assign his reasons therefor, and having assigned them, the Presiding Officer shall submit the question to the Senate: “Shall the Senator for the reasons assigned by him, be excused from voting?” which shall be decided without debate .... Id. Senate Rule 12.3 provides that a Senator “may decline to vote ... on any matter when he believes that his voting on such a matter would be a conflict of interest.” Id. It is difficult to imagine what might be such a conflict in a vote to choose a Vice President unless the Senator or a close family member were a candidate. Unlike Section 2 of House Rule VIII, which regulates pairing, JEFFERSON'S MANUAL, supra note 11, § 660a, pairing in the Senate is informal. RIDDICK & FRUMIN, RIDDICK'S SENATE PROCEDURE, supra note10, at 968-70. APPENDIX - 202 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 51 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 204 of 553 PageID #: 609 SENATE ELECTION OF THE VICE PRESIDENT AND..., 11 U. Pa. J. Const. L.... 242 JEFFERSON'S MANUAL, supra note 11, §§ 656-57. 243 Id. §§ 768-70. The context is the absence of a House quorum upon a call of the House. Any House rules for presidential elections should probably make explicit the procedures for invoking the powers of the House Sergeant-at-Arms for compelling in that situation the attendance of absent Representatives. 244 Id. §§ 773 & 774. 245 Id. § 672 (citations are to HINDS' PRECEDENTS, supra note 64). 246 See supra note 241. 247 House Rule X, cl. 1 (j)(11) gives the Committee on the Judiciary legislative jurisdiction with respect to “attendance of members ....” JEFFERSON'S MANUAL, supra note 11, § 679a (citing 4 HIND'S PRECEDENTS, supra note 64, § 4077 and 6 HIND'S PRECEDENTS, supra § 65. However, a statute that in addition compelled voting for President might also come within the jurisdiction of the Committee on House Administration. See supra note 197. 248 See supra note 178. 249 On June 3, 1980, Representative Joel Pritchard of Washington introduced a sense of the House resolution that “the Members should choose as President the person having the greatest number of popular votes in the November 1980 election of a President.” H.R. Res. 694, 96th Cong., 2d Sess. (1980). It was referred to the Committee on House Administration, which took no action. This is consistent with the argument of BENNETT, supra note 1. Akhil Reed Amar and Vikram David Amar argue that state legislators are free to name their electors in accordance with the winner of the national popular vote or to direct that its electors be bound or pledged to vote in accordance with the direct popular national presidential vote. Akil Reed Amar & Vikram David Amar, How to Achieve Director National Election of the President Without Amending the Constitution: Part Three of a Three-part Series on the 2000 Election and the Electoral College, FIND LAW'S WRIT, Dec. 28, 2001, http:// writ.news.findlaw.com/amar/20011228.html. This may not be correct, because it does not seem to take into account several provisions of the Fourteenth Amendment. See Coenen & Larson, supra note 235, at 885-87 (arguing that Section 5 of the Fourteenth Amendment would not permit Congress to take such action); Friedman, supra note 216, at 824-26 (discussing the invalidation of the Florida Supreme Court's manual recount order in Bush v. Gore on Fourteenth Amendment grounds); Kirby, supra note 249, at 496 (discussing Fourteenth Amendment limitations upon state legislatures that have directed that presidential electors be appointed by popular election); Peter M. Shane, Disappearing Democracy: How Bush v. Gore Undermined the Federal Right to Vote for Presidential Electors, 29 FLA. ST. U. L. REV. 535, 537-38 (2001). But see Wechsler, supra note 69, at 549 (suggesting that Section 2 of the Fourteenth Amendment “has proved unworkable in practice”). Neither does it take 42 U.S.C. §§ 1973a(c), 1973c (2006), where account of 2 U.S.C. § 6 (2006) or the Voting Rights Act of 1965, applicable. National Popular Vote was also supported by Michael Waldman, Majority Rule at Last: How to Dump the Electoral College Without Changing the Constitution, WASH. MONTHLY, Apr. 2008, at 18, but he seems unaware of its flaws as discussed infra. The California Legislature passed Assembly 2948 (Cal. 2006), which would have awarded that state's elector votes to the winner of the National Popular Vote. Rick Lyman, Innovator Devises End Run Around Electoral College, N.Y. TIMES, Sept. 22, 2006, at A18. Governor Arnold Schwarzenegger vetoed this bill on September 30, 2006 stating that, “I cannot support [increasing California's relevancy in presidential campaigns] by giving all our electoral votes to the candidate that a majority of Californians did not support.” Veto message from Arnold Schwarzenneger, Governor of California, to Members of the California State Assembly (on file with author); see Veto in California on Electoral College, N.Y. TIMES, Oct. 3, 2006, at A17. The California Senate passed National Popular Vote in summer 2007, National Popular Vote Bills, BALLOT ACCESS NEWS (Richard Winger, San Francisco, CA), July 1, 2007, http://www.ballot-access.org/2007/070107.html#9. The California Assembly did the same on June 30, 2008, but the Governor was expected to veto it, having vetoed the same bill in 2006. National Popular Vote Plan Bills, BALLOT ACCESS NEWS, Aug. 1, 2008, http://www.ballotaccess.org/2008/080108.html #4. Efforts to bypass this veto by initiative seem to have faltered and would probably have been unconstitutional. See supra note 178. The Maryland Legislature passed H.R. 148, “Presidential Elections--Agreement Among the States to Elect the President by National Popular Vote” (2007), available at. http://mlis.state.md.us/2007RS/bills/hb/hb0148t.pdf, and the Senate Bill 634, available at http:// mlis.state.md.us/2007RS/bills/sb/sb0634t.pdf. On April 10, 2007, Governor Martin T. O'Malley signed the Act. The New York Times editorially supported Maryland's action. Editorial, Maryland Takes the Lead, N.Y. APPENDIX - 203 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 52 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 205 of 553 PageID #: 610 SENATE ELECTION OF THE VICE PRESIDENT AND..., 11 U. Pa. J. Const. L.... TIMES, Apr. 14, 2007, at A14. The Maryland statute is also discussed this in Jon S. Cardin, The National Popular Vote, WASH. LAWYER, Dec. 2007, at 36. But see William Josephson, Letters to the Editor, Voting Reform: Another Remedy, WASH. LAWYER, Dec. 2007, at 5. The June 1 edition of Ballot Access News reported that a Colorado House of Representatives committee killed a National Popular Vote bill. Anti-Electoral College Bills, BALLOT ACCESS NEWS (Richard Winger, San Francisco, CA), July 1, 2006, http://www.ballotaccess.org/2006/060106.html#7. In 2007 the Arkansas House and the Colorado Senate voted for the National Popular Vote initiative, as did a North Carolina Senate committee. See Margaret Lillard, N.C. Senate Panel OKs Presidential Popular Vote Plan, ASSOCIATED PRESS, May 7, 2007. The Hawaii Governor vetoed a National Popular Vote bill, SB 2898, on April 22, 2008, National Popular Vote Bills, BALLOT ACCESS NEWS (Richard Winger, San Francisco, CA), May 1, 2008, http://www.ballotaccess.org/2008/050108.html#7, but the Legislature overrode it on May 1, Legislative Vote, National Popular Vote, BALLOT ACCESS NEWS, June 1, 2008, Vol. 1, at 2. Montana and North Dakota have rejected National Popular Vote. Brian Charlton, Hawaii House Avoids Override Vote on Electoral College Bill, SEATTLE POST-INTELLIGENCERRR, May 3, 2008. On January 13, 2008, New Jersey enacted National Popular Vote in Pub. L. 2007, s.334. See E-mail from Abbe Gluck, Esq., Special Counsel to New Jersey Att'y Gen., to Devi Kawalek and William Josephson (March 11, 2008 11:17 EST) (on file with author). Ballot Access News reports that the Washington State Senate passed a National Popular Vote bill on January 12, and on January 29, the West Virginia bill died in committee. National Popular Vote Plan Bills, BALLOT ACCESS NEWS (Richard Winger, San Francisco, CA), Mar. 1, 2008, http:// www.ballotaccess.org/2008/030108.html#5. The Illinois Governor signed HB 1685, a National Popular Vote bill, into law on April 7, 2008. National Popular Vote Bills, BALLOT ACCESS NEWS (Richard Winger, San Francisco, CA), May 1, 2008, http://www.ballot-access.org/2008/050108.html#7. The Vermont Governor vetoed a National Popular Vote bill on May 16, 2008. Legislative News, BALLOT ACCESS NEWS (Richard Winger, San Francisco, CA), June 1, 2008, http:// www.ballot-access.org/2008/060108.html#4. On May 27, 2008, the Rhode Island Legislature passed one, id., but the Governor vetoed it. National Popular Vote Plan Bills, BALLOT ACCESS NEWS (Richard Winger, San Francisco, CA), Aug. 1, 2008, http://www.ballot-access.org/2008/080108.html#4. The Massachusetts Legislation passed HB 678, but adjourned on August 1, 2008, without voting to send the bill to the Governor. National Popular Vote Plan Bills, BALLOT ACCESS NEWS (Richard Winger, San Francisco, CA), Sept. 1, 2008, http://www.ballotaccess.org/2008/090108.html#2. The Maryland legislation provides for electors to be nominated by political parties and for “a vote for the candidates for the President and Vice President of a political party shall be considered to be and counted as a vote for each of the presidential electors of the political party nominated ....” H.R. 148, 424th Leg. (Md. 2007). These electors, who may have been elected to vote for Maryland's popular vote winner, are then purportedly required to “cast their votes for the candidates for President and Vice President who received a plurality of the votes cast in [the State of Maryland] the National Popular Vote Total ....” Id. However, it is not clear that a state's law that purports to bind its electors even in accordance with its own popular vote Opinion of the Justices No. 87, 34 is constitutional. See Ray v. Blair, 343 U.S. 214, 231 (1952) (5-2 decision); So. 2d 598 (Ala. 1948); Ross & Josephson, Popular Vote, supra note 1, at 694-98. Compare Amar, supra note 143, at 219, 230, with Akhil Reed Amar & Vik Amar, President Quayle?, 78 VA. L. REV. 913, 944 n.88 (1992), and Vikram David Amar, The People Made Me Do It: Can the People of the States Instruct and Coerce Their State Legislatures in the Article V Constitutional Amendment Process?, 41 WM. & MARY L. REV. 1037, 1089 n.233 (2000). A fortiori, it is not clear that a law requiring electors to vote otherwise would be valid. Stanley Chang seems unaware of the issues raised by efforts to bind elector votes. Chang, supra note 178, at 213. David Gringer is aware of the issues, but appears to dismiss them. Gringer, supra note 178, at 187 & n.33. No National Popular Vote elector voting enforcement mechanism is provided. The argument that electors have constitutional discretion has never been authoritatively rejected. Congress has always counted the votes of so-called faithless electors, including in 1969 when the issue was extensively debated in the Senate. See Ross & Josephson, Popular Vote, supra note 1, at 730-37. The Maryland statute purports to enter Maryland into an agreement among the states to elect the President by National Popular Vote. Under the U.S. Constitution, interstate compacts generally have to be approved by Congress. U.S. CONST. art. I, § 10, cl. 3. This agreement does not so provide. Chang, supra note 178, at 213, states, “The constitutionality of the NPV interstate compact has not been definitively established,” but discusses only the arguments for its constitutionality. See Virginia v. Tennessee, 148 U.S. 503, 524 (1893) (stating that Congress need not consent to states' agreements making minor adjustments to boundaries). Gringer thinks that the constitutional difficulties can be avoided if Congress approves a National Popular Vote interstate compact, apparently even if it is signed by fewer than the three quarters of the states required to ratify a constitutional amendment. Gringer, supra note 178, at 226-27; seeU.S. CONST. art. V. APPENDIX - 204 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 53 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 206 of 553 PageID #: 611 SENATE ELECTION OF THE VICE PRESIDENT AND..., 11 U. Pa. J. Const. L.... Article 4 of the purported agreement says that any member state may withdraw but not if it does so “six months or less before the end of a President's term ....” Because the Constitution in Article II, Section 1, clause 2 gives each state legislature seemingly plenary power to determine how that state's electors shall be appointed, it is not clear that the power to withdraw could be so limited. McPherson v. Blacker, 146 U.S. 1, 35 (1892). Indeed, as we have seen, there is a dictum in the per curiam opinion in Bush v. Gore that implies that a state legislature can cast elector votes even after electors have been chosen by a state's popular vote. 531 U.S. 98, 104 (2000). This dictum also may call into question the constitutionality of that section of the Electoral Count Act of 1887, codified in 3 U.S.C. § 5, that purports to say that a state cannot change its rules in mid-election. See supra note 216. What if another state, a party to the agreement, breaks it? Can its agreement be enforced? If so, by whom? Where? Again, no enforcement mechanism is provided. In a close election, the popular vote totals in many states may be disputed. What if these disputes remain unresolved by the time the states' electors are to meet to cast their votes? By the Twenty-third Amendment, the District of Columbia was given three presidential elector votes. But the legislative history is crystal clear the Congress did not intend for the District to be considered a state for any purpose. See supra note 12. Moreover, Congress did not bind the District's electors, though it did permit them to pledge their votes. D.C. CODE ANN. § 1-1001.08(g) (2008); Ross & Josephson, Popular Vote, supra note 1, at 697-98. Yet, provision is made in the purported agreement for the District to join it. This is another issue of which Chang, supra note 178, at 212, seems to be unaware. Plurality is the winning standard under the purported agreement. Many commentators believe that if National Popular Vote became the standard, there would be many more candidates and reduced pluralities. Most popular vote proposals, therefore, have required a plurality of at least forty percent. Lincoln's and Clinton's first-term percentages were just under and just over forty percent, respectively, though each won comfortable elector vote majorities. SeeWORLD ALMANAC 2005, supra note 6, at 594. Because, as we have seen, the Constitution gives only the states' legislatures the power to appoint electors, the purported agreement's provision that the winning popular vote candidate can appoint electors under certain circumstances is of doubtful constitutionality. U.S. CONST. art. II, § 1, cl. 2. Gringer, supra note 178, at 183, 187-219, 227-29, adds to the foregoing arguments against National Popular Vote arguments that it would violate sections two and five of the 1965 Voting Rights Act, as amended, 42 U.S.C. § § 1973, 1973c (2006). Because in the overwhelming number of presidential elections the popular vote winner has also won a comfortable elector majority, the National Popular Vote proposal would make more sense if it were limited to (1) elections in which no presidential candidate has an elector majority, thus avoiding presidential elections by the gerrymandered House or (2) to that case and to the case in which the National Popular Vote winner also has a substantial plurality. Also, the purported agreement among the states does not appear to serve any useful purpose. Taming the Electoral College contains the best case for National Popular Vote. BENNETT, supra note 1. Professor Bennett and I believe that it might be possible to draft a National Popular Vote proposal that avoids at least some of the above flaws. 250 Elizabeth Garrett, Institutional Lessons from the 2000 Presidential Election, 29 FLA. ST. U. L. REV. 975, 986 (2001). 251 Ross & Josephson, Popular Vote, supra note1, at 722-24. 252 Editorial, If the House Picks the President, N.Y. TIMES, June 11, 1992, at A22. A somewhat related issue also cries for congressional action: the possibility that a catastrophe might befall the House that coincides with House election of a President. The Constitution provides differently for the filling of Senate and House vacancies. Under the Seventeenth Amendment, “the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.” U.S. CONST. amend. XVII. However, with respect to the House, “When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.” U.S. CONST. art. I, § 2, cl. 4. The amendment of 2 U.S.C. § 8 in 2005, Act of Aug. 2, 2005, Pub. L. 109-55, § 301, 19 Stat. 508, § 8 simply provided that “the time for holding elections ... to fill a vacancy ... may be prescribed by the laws of the several States ....” (emphases added). As amended, 2 U.S.C. § 8(b) provides that when the Speaker of the House “announces that vacancies in the representation from the States in the House exceed 100[,]” “extraordinary circumstances” have occurred. The executive authority of the APPENDIX - 205 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 54 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 207 of 553 PageID #: 612 SENATE ELECTION OF THE VICE PRESIDENT AND..., 11 U. Pa. J. Const. L.... respective states “shall” issue writs of election to take place generally not later than forty-nine days after the Speaker's announcement. The political parties are to nominate candidates not later than ten days after the Speaker's announcement, unless the state provides for primaries or other methods of nomination. The flaws in these provisions include the absence of any requirement that the Speaker make the announcement and the assumption that there will be a Speaker who can do so. Obviously, should the extraordinary circumstances occur during the time the House is to elect a President, whether or not it will be reconstituted in time depends on how the states' executives decide to implement the “not later than 49 days” requirement. Presumably, if the Senate needs to be reconstituted, the states' executives will do so in time for the Senate to elect a Vice President who can then act as President. See supra Part II. For a discussion of the legal issues, see Paul Taylor, Alternatives to a Constitutional Amendment: How Congress May Provide for the Quick, Temporary Filling of House Member Seats in Emergencies by Statute, 10 J. L. & Pol'y 373 (2002). For a discussion of the politics of the enactment of Public Law 109-55, see Avi Klein, Death Wish: If terrorists attack Congress, America could have no legislative branch. House Republicans are fine with that, WASH. MONTHLY, Nov. 2006, at 19. 11 UPAJCL 597 End of Document © 2020 Thomson Reuters. No claim to original U.S. Government Works. APPENDIX - 206 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 55 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 208 of 553 PageID #: 613 IS THE ELECTORAL COUNT ACT UNCONSTITUTIONAL?, 80 N.C. L. Rev. 1653 80 N.C. L. Rev. 1653 North Carolina Law Review June, 2002 Article Vasan Kesavana1 Copyright © 2002 North Carolina Law Review Association; Vasan Kesavan IS THE ELECTORAL COUNT ACT UNCONSTITUTIONAL? This Article takes on one of the most unasked questions of Bush v. Gore-- whether the Electoral Count Act, the federal statutory scheme at issue in that case, is constitutional. Enacted in 1887 and hardly discussed for the past 114 years, the Electoral Count Act sets forth complicated regulations for counting (and not counting) electoral votes. This Article argues that Section 15 of Title 3 of the United States Code, the heart of the Electoral Count Act, is unconstitutional. Since 1800, Congress has attempted to enact legislation regulating the electoral count, finally succeeding in 1887. This Article traces these principal congressional efforts to regulate the electoral count and the surrounding constitutional text and structure to show why the Electoral Count Act is unconstitutional. The Electoral Count Act may seem like a good statutory scheme to deal with the problems of the electoral count, but not every good statutory scheme is a constitutional one. Some problems may only be remedied by constitutional amendment, not by statute. Anyone who wishes to argue that the Electoral Count Act is constitutional bears a very high burden of proof. Introduction I. The History of the Electoral Count A. Congressional Efforts to Regulate Presidential Election and the Electoral Count 1. Act of March 1, 1792 2. The Grand Committee Bill of 1800 3. The Twenty-second Joint Rule of 1865 4. The Electoral Count Act of 1887 B. The Problems of the Electoral Count 1. The Massachusetts Incident of 1809 2. The Indiana Incident of 1817 3. The Missouri Incident of 1821 4. The Postmaster and Michigan Incidents of 1837 5. The Wisconsin Incident of 1857 6. The Greeley Incident and the Other Incidents of 1873 7. The Hayes-Tilden Incident of 1877 8. The Hawaii Incident of 1961 9. The Bailey Incident of 1969 II. The Argument Against the Constitutionality of the Electoral Count Act A. The Textual Argument 1. Some Basics: Who, What, When, and Where? a. Who Is the Presiding Officer of the Electoral Count? b. Who Opens the Electoral Certificates and Counts the Electoral Votes? c. What Is Counting and What Is To Be Counted? d. When Is the Counting Done? e. Where Is the Counting Done? 2. Where Is the Font of Power? a. The Necessary and Proper Clause b. The Electoral College Clauses 1655 1663 1664 1664 1669 1675 1677 1678 1679 1680 1681 1683 1685 1687 1688 1691 1692 1694 1696 1696 1696 1701 1711 1717 1720 1729 1731 1743 APPENDIX - 207 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 1 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 209 of 553 PageID #: 614 IS THE ELECTORAL COUNT ACT UNCONSTITUTIONAL?, 80 N.C. L. Rev. 1653 c. Textual Arguments from Negative Implication 3. The Intratextual Argument a. The Times, Places, and Manner Clause b. The House Judging Clause 4. Conclusions B. The Structural Argument 1. Five Principles of Presidential Election a. The Anti-Senate Principle b. The Anti-Congress Principle c. The Anti-President Principle d. The Pro-States and Pro-State Legislatures Principle e. The Pro-Electors Principle 2. Principles of Rule-Making and Law-Making a. The Anti-Binding Principle of Rule-Making b. The Chadha Principle of Law-Making 3. Conclusions III. What Should We Do If Electors Go Bananas? A. Answers to the Paradigm Problems of the Electoral Count 1. The Problems of the Electoral Certificate a. The Unsigned, Uncertified, or Unsealed Electoral Certificate Problem b. The Puerto Rico, or Unrepublican State, Electoral Certificate Problem c. The Number of Electoral Votes Problem d. The Multiple Electoral Certificates Problem e. The Misdated Electoral Certificate Problem f. The Elector Ineligibility Problem 2. The Problems of the Electoral Vote a. The Faithless Elector Problem b. The Presidential or Vice Presidential Ineligibility Problem c. The Inhabitants of the Same State Problem 3. Conclusions B. The Twentieth Amendment C. Revising the Electoral Count Act Conclusion 1747 1748 1749 1752 1758 1759 1759 1759 1764 1767 1769 1774 1779 1779 1787 1793 1793 1795 1795 1795 1796 1797 1799 1799 1802 1804 1804 1805 1805 1808 1808 1811 1812 *1655 Introduction Bush v. Gore1 is history. We all have plenty to think about. So here are four questions that are well worth considering before Election Day 2004, or at least January 6, 2005, the date specified by federal law for counting electoral votes.2 What if an elector votes for a presidential or vice presidential candidate who is not a natural born citizen, at least thirty-five years of age, and who has not been a resident of the United States long enough? What if an elector who is constitutionally ineligible to be an elector votes? What if an elector votes for inhabitants of her state for both President and Vice President? What if two sets of electors from the same state both claim that they are the lawfully appointed electors of the state? *1656 The first three of these questions might seem downright outlandish, and prior to the presidential election of 2000, the fourth was too. Now is a good time to remember that these four questions were not at all outlandish in the spring of 1800 when America faced her first electoral crisis of “Jefferson v. Adams.”3 These four *1657 questions were the paradigm problems of the electoral count debated in the Sixth Congress.4 Federalist Senator Ross of Pennsylvania firmly stated that “such cases might happen and were very likely to happen.”5 Democrat-Republican Senator Pinckney of South Carolina, more sanguine, stated that these cases “may not happen once in a century.”6 In addition to these four problems of the electoral count, a fifth problem has proved much more likely throughout history: What if an elector is “faithless” and votes for a President or Vice President in contravention of the popular vote?7 APPENDIX - 208 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 2 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 210 of 553 PageID #: 615 IS THE ELECTORAL COUNT ACT UNCONSTITUTIONAL?, 80 N.C. L. Rev. 1653 *1658 What does the Constitution say about these potential problems? The relevant text of the Constitution simply 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.”8 It ought to be obvious that the Constitution does not provide any answers to these tricky problems of the electoral count.9 The Framers and Ratifiers simply did not contemplate the possibilities of unconstitutional or faithless electoral votes. The critical question is whether we can fix the casus omissus of the Constitution short of constitutional amendment. The counting of the electoral votes is no trivial matter. It is the critical step in the election of the President and Vice President. As one leading scholar has stated, it seems to be “the magic, formal moment of vesting in which the winning candidate is elected as ‘President.”’10 Some might quibble with this formalist point, but at the founding, when there were no telegraphs, telephones, or television, and when electoral *1659 votes were more secret, there was no way of knowing the identity of the winning candidates until the electoral votes were formally counted. Recent history should be a powerful reminder of the significance of the electoral count. One key lesson of the presidential election of 2000 is that the President-elect is not elected by “We the People” on election day, or even by the electors on the day they cast their votes, but by the joint convention of the Senate and House of Representatives on the day the electoral votes are formally counted. The counting function appears to be a ministerial duty of tabulation imposed by the Constitution because each of the electoral colleges meet in their respective states instead of at some central location. Conventional wisdom holds that the joint convention of the Senate and House of Representatives does the counting, and not the President of the Senate, but this is not at all clear from the text of the Electoral College Clauses. But does the counting function subsume the power not to count? What about unconstitutional votes? What about faithless votes? As is now somewhat well known, Congress has answered the question whether the counting function subsumes the power not to count affirmatively. The relevant statute is the Electoral Count Act of 1887,11 presently codified at 3 U.S.C. §§ 5-6, 15-18. The heart of the Electoral Count Act is undisputedly 3 U.S.C. § 15, a complicated provision that sets forth rules for counting (and not counting) electoral votes. In a nutshell, this section provides that in a case of single returns, the joint convention may only reject electoral votes that are not “regularly given” if both Houses of Congress concur.12 In a case of multiple returns from the same state, this section provides that the joint convention may only accept electoral votes as “regularly given” if both Houses of Congress concur (with a few important wrinkles to be discussed later).13 The meaning of the phrase “regularly given”14 in § 15 is far from clear. The precedents of the electoral count, however, strongly suggest that the joint convention will not count unconstitutional votes, and possibly not faithless votes either. While 3 U.S.C. § 15 sets forth the rules for counting (and not counting) electoral votes, 3 U.S.C. § 5, the specific federal statutory provision at issue in Bush v. Gore, sets forth the so-called “safe *1660 harbor” provision for counting electoral votes with respect to a state's determination of any controversy or contest concerning the appointment of its electors.15 Bush v. Gore indicates that there must be nine votes on the Supreme Court for the proposition that 3 U.S.C. § 5 is constitutional. Although neither party briefed or argued the constitutionality of this provision of the Electoral Count Act, each of the Justices must have reached an independent, antecedent determination that 3 U.S.C. § 5 passes constitutional muster.16 Curiously, Bush v. Gore, for all that it did address regarding presidential election, did not address the heart of the Electoral Count Act-- 3 U.S.C. § 15. Only Justice Breyer, with Justices Stevens and Ginsburg concurring, even mentioned this key section, and he did so approvingly.17 The prevailing wisdom, in the Supreme Court and elsewhere, is that the Electoral Count Act is constitutional.18 *1661 Yet there has been virtually no scrutiny of this conventional wisdom in the wake of Bush v. Gore. One of the most unasked questions regarding the presidential election of 2000 is whether the federal statutory scheme at issue in that case is constitutional. APPENDIX - 209 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 3 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 211 of 553 PageID #: 616 IS THE ELECTORAL COUNT ACT UNCONSTITUTIONAL?, 80 N.C. L. Rev. 1653 This Article argues that the Electoral Count Act, specifically 3 U.S.C. § 15, is unconstitutional. The Electoral Count Act violates the text and structure of the Constitution in multiple ways. For example, where is the font of express or implied power to pass the Electoral Count Act? Where does Congress have the power to regulate the manner of presidential election? Where do the Electoral College Clauses provide for bicameralism in counting electoral votes? What gives the 49th Congress the authority to bind future Congresses and joint conventions in counting electoral votes? More generally: What gives the joint convention the power to judge the validity of electoral votes? The counting function seems to be arithmetic and ministerial. If the joint convention could judge electoral votes, it could reject enough votes to thwart the electors' will or trigger a contingency election for President in the House of Representatives and for Vice President in the Senate, thereby arrogating to the two Houses of Congress the power to appoint the Nation's two highest executive officers.19 The tight margin of the *1662 presidential election of 2000--in both the popular vote and electoral vote--demonstrates that these possibilities are not necessarily remote. In a close presidential election, every electoral vote counts. As Chancellor Kent put the point in his treatise on the Constitution first published over 175 years ago, “In the case of questionable votes, and a closely contested election, this [counting] power may be all-important.”20 As bizarre as it may seem, the joint convention must count the electoral votes-- including unconstitutional or faithless votes. As unfortunate as it may be, a solution to the problem of unconstitutional or faithless electoral votes requires constitutional amendment. The constitutional infirmities of the electoral count are yet additional reasons to scrap the Electoral College mode of presidential election altogether. This Article proceeds in three parts. Part I presents the history of the electoral count, addressing the principal congressional efforts to regulate presidential election and the electoral count, and the actual problems of the electoral counts from the Founding to today. Part II contains the constitutional argument against the constitutionality of Electoral Count Act and sets forth “interpretivist” arguments from constitutional text and structure.21 Part III considers *1663 what should happen if the Electoral Count Act is unconstitutional, and electors go bananas and cast unconstitutional or faithless votes. This Part suggests answers to the paradigm problems of the electoral count and considers where we should go from here. I. The History of the Electoral Count The history of the electoral count is woefully understudied.22 This is especially problematic because “[d]isputes concerning presidential electors and their votes are more common than one may think.”23 Although the electoral count's history does not directly (or necessarily) bear on the constitutionality of the Electoral Count Act, it is worth studying for at least a few reasons. First, there is much we can learn about our electoral past. Given the risk that history might repeat itself, the history of the electoral count furnishes important precedent for future electoral disputes, in much the same way as cases furnish precedent for future cases.24 Second, participants in the Electoral Count Act debates referred to the history of the electoral *1664 count in debating the constitutionality of the Electoral Count Act. A familiarity with the history of the electoral count better informs these legislative debates. Third, participants in the Electoral Count Act debates referred to the history of the electoral count-and specifically the actual problems of the electoral count--in debating the necessity and expediency of the Electoral Count Act. A critical examination of this history better affords a basis to assess whether the Electoral Count Act is necessary and expedient to address these historical problems and whether there may be other non-statutory solutions. This Part seeks to fill this void in scholarship and proceeds in two sections. The first section summarizes four principal congressional efforts-- three successful, one not--to regulate presidential election and the electoral count, including the Act of 1792, the Grand Committee Bill, the Twenty-second Joint Rule, and finally the Electoral Count Act. The second section summarizes the actual problems of the electoral count. In the course of fifty-four electoral counts in the history of the Republic, there have been only a dozen or so problems of the electoral count, most of which occurred in the nineteenth-century.25 A. Congressional Efforts to Regulate Presidential Election and the Electoral Count APPENDIX - 210 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 4 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 212 of 553 PageID #: 617 IS THE ELECTORAL COUNT ACT UNCONSTITUTIONAL?, 80 N.C. L. Rev. 1653 1. Act of March 1, 1792 On March 1, 1792, the Second Congress passed “An Act relative to the election of a President and Vice-President of the United States and declaring the officer who shall act as President in case of vacancies in the offices both of President and VicePresident.”26 The Act thus regulated presidential election and presidential succession, the latter pursuant to Article II, Section 1, Clause 6.27 *1665 The Act did a number of things with respect to presidential election. Sections 1 and 2 of the Act, pursuant to Article II, Section 1, Clause 4,28 established the time of choosing the electors by the States as thirty-four days before their meeting, and the day on which the electors were to give their votes as the first Wednesday in December of each presidential election year.29 Section 1 also clarified Article II, Section 1, Clause 230 by providing that each state shall appoint a number of electors equal to the number of Senators and Representatives to which the state is entitled at the time when the President and Vice President to be chosen would come into office.31 Section 2 also clarified Article II, Section 2, Clause 332 by specifying the manner of certifying and transmitting the electoral certificates to the President of the Senate. It provided that the electors in each state shall make and sign three electoral certificates--one to be sent by messenger appointed by a majority of the electors, a second by post to the President of the Senate, and the third to be delivered to the judge of the district in which the electors in each state *1666 shall assemble.33 Section 3 further specified the manner of certifying and transmitting the electoral certificates, but well beyond the text of Article II, Section 2, Clause 3. It provided that the executive authority of each State shall cause three lists of the names of the electors of such State to be made and certified and to be delivered to the electors on or before the said first Wednesday in December; and the said electors shall annex one of the said lists to each of the lists of their votes.34 These provisions of sections 2 and 3 are noteworthy because the Electoral College Clauses do not expressly grant Congress the power to specify the manner of certifying or transmitting the electoral certificates. Interestingly, a draft of Article II, Section 1, Clause 4 at the Philadelphia Convention of 1787 provided that “[t]he Legislature may determine the time of choosing the Electors, and of their giving their votes; and the manner of certifying and transmitting their votes--But the election shall be on the same day throughout the U--States.”35 The italicized language was inexplicably dropped by the time the Framers referred the draft Constitution to the Committee of Style and Arrangement.36 It is a slippery exercise to infer the meaning of this clause from language rejected in predecessor drafts. Perhaps the Framers intended to deny Congress the power to legislate on the manner of certification and transmission of electoral votes. Or perhaps the Framers intended that Congress could enact *1667 these sections either pursuant to Article II, Section 1, Clause 4 itself or pursuant to the Necessary and Proper Clause.37 In any case, it is difficult to see how section 3 and its modern codification at 3 U.S.C. § 6 are constitutional, strictly speaking. When section 3 of the Act of 1792 was read in the House of Representatives, Representative Niles, joined by Representative Hillhouse, objected to it on constitutional grounds, questioning Congress's ability to impose duties on the executive authority of each state and calling the section “degrading to the Executives of the several States.”38 Speaker Sedgwick responded that “if Congress were not authorized to call on the Executives of the several States, he could not conceive what description of persons they were empowered to call upon,”39 and Representative Niles's motion to strike the clause was negatived. Democrat-Republican Senator Charles Pinckney, a Framer and leading delegate to the South Carolina ratifying convention, probably would have agreed with Representative Niles's constitutional objection. In a speech before the Senate in March of APPENDIX - 211 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 5 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 213 of 553 PageID #: 618 IS THE ELECTORAL COUNT ACT UNCONSTITUTIONAL?, 80 N.C. L. Rev. 1653 1800, Senator Pinckney observed that the Act of 1792 may “in one or two particulars of no importance” go “farther than the Constitution warrants,” though he did not identify any particular sections.40 In modern constitutional parlance, the duties imposed on State Executives by section 3 of the Act of 1792 and 3 U.S.C. § 6, do not seem quite like “purely ministerial reporting requirements,”41 but those who have a broader view of “executive commandeering” are unlikely to question seriously the constitutionality of section 3 of the Act of 1792 and 3 U.S.C. § 6.42 Other provisions of the Act of 1792 are much less questionable. Section 4 provided that if the electoral certificate of a state shall not have been received at the Seat of Government by the first Wednesday in January, then the Secretary of State shall send a special messenger to the district judge of the State who held one of the three electoral *1668 certificates.43 Section 5 provided that Congress shall be in session on the second Wednesday in February for the purpose of opening the electoral certificates and counting the electoral votes.44 Section 6 provided that if the President of the Senate were absent when the electoral certificates arrived, they would be given to the Secretary of State for safekeeping, to be delivered as soon as practicable to the President of the Senate. Section 7 provided for the compensation of messengers who would carry one of the three electoral certificates from each of the states to the Seat of Government at the rate of twenty-five cents a mile. Section 8 prescribed a $1,000 penalty (no small sum in those days) for messengers who failed to perform the service.45 Whatever we think about the constitutionality of section 3 of the Act of 1792, the Act did not in any way assert any congressional control over the electoral count itself. As one early scholar of the Electoral Count Act noted, “There is no attempt here, legislatively, to interpret the Constitution, or devise any counting machinery other than that which appears on its face, or establish any rule for its action. *1669 It was assumed that the Constitution interprets itself, and executes itself by its own provisions.”46 2. The Grand Committee Bill of 1800 In early 1800, the Federalist-controlled Sixth Congress attempted to regulate the electoral count.47 The impetus for the regulation was plainly corrupt: The upcoming presidential election between President and Federalist John Adams and Vice President and Democrat-Republican Thomas Jefferson commanded the nation's attention, and the Federalist-controlled Congress desired to deal Vice President Jefferson's electoral chances a “crippling blow.”48 Historian John Bach McMaster explained that [t]he leaders of the [Federalist] party were determined that, if the presidential election could not be carried by fair means, it should by foul. Adams's electors might be defeated in the Legislatures and at the poles [sic], but the votes of the Jefferson electors should, if possible, be thrown out by Congress. With this for its purpose, an electoral-count bill appeared in the Senate.49 On January 23, 1800, Federalist Senator James Ross moved “[t]hat a committee be appointed to consider whether any, and what, provisions ought to be made by law for deciding disputed elections of President and Vice President of the United *1670 States, and for determining the legality or illegality of the votes given for those officers in the different States” and that the committee be authorized to report a bill.50 This motion was the subject of significant debate, much of which we shall uncover in Part II. On February 14, 1800, Senator Ross reported “A bill prescribing the mode of deciding disputed elections of President and Vice-President of the United States.”51 This bill is commonly known as the “Grand Committee” Bill.52 As its shorthand name suggests, this bill featured the appointment of a “Grand Committee” on the day before the second Wednesday in February. This Committee would have thirteen members: six Representatives chosen by ballot in the House, six Senators chosen by ballot in the Senate, and the Chief Justice of the United States who was to act as chairman (if the Chief APPENDIX - 212 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 6 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 214 of 553 PageID #: 619 IS THE ELECTORAL COUNT ACT UNCONSTITUTIONAL?, 80 N.C. L. Rev. 1653 Justice were absent then the next most senior Justice would attend).53 This committee was to have power to examine, and finally to decide, all disputes relating to the election of President and Vice President including the: power to inquire, examine, decide, and report upon the constitutional qualifications of the persons voted for as President and Vice-President of the United States; upon the constitutional qualifications of the electors appointed by the different States, and whether their appointment was authorized by the State Legislature or not; upon all petitions and exceptions against corrupt, illegal conduct of the electors, or force, menaces, or improper means used to influence their votes; or against the truth of their returns, or the time, place or manner of giving their votes.54 *1671 The committee was “to sit with closed doors.” It was to have the “power to send for persons, papers, and records to compel the attendance of witnesses,”55 and its report was to be made “on the first day of March next after their appointment.” This report was to be “a final and conclusive determination of the admissibility or inadmissibility of the votes given by the electors for President and Vice-President of the United States.”56 Republican Senator Charles Pinckney delivered a “closely reasoned attack”57 on the Grand Committee Bill, which occupies some twenty-one pages in the Annals of Congress.58 It is not surprising that Senator Pinckney led the effort in the Senate against the Grand Committee Bill. Some historians place him as the campaign manager in South Carolina for Democrat-Republican and Vice President Thomas Jefferson, who had everything to lose with the passage of the Grand Committee Bill. In his introductory remarks, Senator Pinckney described the Grand Committee Bill as more dangerous than the Alien and Sedition Acts of 1798 because, unlike the latter, the former was perpetual.59 Relying on his experience as a Framer and a leading delegate at the South Carolina ratifying convention, Senator Pinckney forcefully articulated his principal objection to the bill: Knowing that it was the intention of the Constitution to make the President completely independent of the Federal *1672 Legislatures, I well remember it was the object, as it is at present not only the spirit but the letter of that instrument, to give to Congress no interference in, or control over the election of a President. It is made their duty to count over the votes in a convention of both Houses, and for the President of the Senate to declare who has the majority of the votes of the Electors so transmitted. It never was intended, nor could it have been safe, in the Constitution, to have given to Congress thus assembled in convention, the right to object to any vote, or even to question whether they were constitutionally or properly given. . . . To give to Congress, even when assembled in convention, a right to reject or admit the votes of States, would have been so gross and dangerous an absurdity, as the [F]ramers of the Constitution never could have been guilty of. How could they expect, that in deciding on the election of a President, particularly where such election was strongly contested, that party spirit would not prevail, and govern every decision?60 According to Senator Pinckney, the animating principle of the Electoral College Clauses was to remove Congress from the business of electing the President as much as possible. Despite Senator Pinckney's strong and well reasoned objections, many of which we shall uncover in Part II, in the course of the argument against the constitutionality of the Electoral Count Act, the Senate passed the Grand Committee Bill by a “strict party vote”61 of sixteen to twelve on March 28, 1800.62 Three days later the bill reached the House. In the House, Federalist Representative John Marshall--soon to be Chief Justice Marshall--broke with his party, and much to the Federalists' dismay, lobbied very hard against the Grand Committee Bill.63 He was *1673 appointed chairman of a select committee to redraft the bill. Marshall reported the Senate bill in the House of Representatives on April 25, 1800 with significant amendments.64 Under the amended bill, the committee's report was not to be the final and conclusive determination on the electoral votes. Instead, this determination would devolve upon the two Houses APPENDIX - 213 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 7 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 215 of 553 PageID #: 620 IS THE ELECTORAL COUNT ACT UNCONSTITUTIONAL?, 80 N.C. L. Rev. 1653 after receiving the committee's report. The House bill provided that, upon objection to any elector's vote in a joint meeting of the two Houses, the vote was to be counted unless the two Houses, meeting separately, concurred in rejecting it. Indeed, as we shall see, the Electoral Count Act bears significant resemblance to this amended bill.65 These amendments “gutted” the Grand Committee Bill.66 The Senate considered this amended bill on May 8, 1800, and rejected the House amendments by a “strict party vote.”67 The Senate then passed an amendment striking out the word “rejecting” and inserting the word “admitting.” The effect of this change was to create a “one-House veto” over electoral votes. When the two Houses could not agree on the amended bills, the bill died.68 According to John Marshall scholar Albert J. Beveridge, if Marshall had not waged his campaign against the Grand Committee Bill, the election of Thomas Jefferson would have been impossible.69 It is extremely difficult to see how the original Grand Committee Bill was constitutional.70 In addition to the constitutional argument that will be explored in detail in Part II, there are at least four additional attacks on this bill. First, what gives Congress the *1674 authority to delegate the counting function to a committee, if Congress has counting authority at all?71 Second, what gives Congress the authority to take the Chief Justice (or other Justices) away from her judicial duties?72 Third, what gives Congress the authority to delay the counting of the electoral votes in violation of the immediacy principle of the Electoral College Clauses?73 Fourth, what gives Congress the authority to secretly count electoral votes in violation of the publicity principle of the Electoral College Clauses?74 In sum, one should seriously doubt the constitutionality of the Grand Committee Bill. It is far from clear that Representative John Marshall's amendments removed the multiple constitutional infirmities. Arguably, the failure of the Second Congress to address congressional regulation of the electoral count after significant constitutional debate suggests the unconstitutionality of the Grand Committee Bill; Senator Pinckney certainly thought so.75 *1675 3. The Twenty-second Joint Rule of 1865 The third principal congressional effort to regulate the electoral count came sixty-five years later in 1865.76 On January 30, 1865, the House of Representatives passed a resolution now commonly referred to as the “Twenty-second Joint Rule.” A few days later, on February 6, 1865, after minor amendment, the Senate passed the House resolution. Sparsely attended Houses of Congress passed the Twenty-Second Joint Rule with no debate.77 As Dean Wroth has observed, it was “a political measure, passed and used by Republican majorities of both Houses to assure control over the votes of the recently rebellious southern states.”78 The purpose of the Twenty-Second Joint Rule was thus to exclude the electoral votes of putative states as needed, not to exclude the electoral votes of electors. It provided in relevant part: If, upon the reading of any such certificate by the tellers, any question shall arise in regard to counting the votes therein certified, the same, having been stated by the Presiding Officer, shall be submitted, first by the President of the Senate to that body, and then by the Speaker to the House of Representatives, and no question shall be decided affirmatively, and no vote objected to shall be counted, except by the concurrent votes of the two houses, said votes of the two houses to be reported to and declared by the Presiding Officer, and upon any such question there shall be no debate; and any other question pertinent to the object for which the two houses are assembled may be submitted and determined in like manner.79 *1676 As the text of the Joint Rule indicates, “no vote objected to shall be counted, except by the concurrent votes of the two houses.” Any Member of Congress could object to an electoral vote for any reason, and each House was to have a “one-House veto” as to which votes were to be counted.80 Thus, each House could, by rejecting enough votes, trigger a contingency election in the House APPENDIX - 214 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 8 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 216 of 553 PageID #: 621 IS THE ELECTORAL COUNT ACT UNCONSTITUTIONAL?, 80 N.C. L. Rev. 1653 of Representatives for the President and in the Senate for the Vice-President.81 As we shall see shortly, even the Electoral Count Act does not go this far. A report by the House Committee on Privileges and Elections in 1874 called the Twenty-Second Joint Rule “the most dangerous contrivance to the peace of the nation that has ever been invented by Congress.”82 Indeed, the consensus view during the Electoral Count Act debates was that the Twenty-Second Joint Rule was unconstitutional.83 Unsurprisingly, scholars who have studied the *1677 Rule have identified it as the apex of congressional control over the electoral count.84 Simply put, the Twenty-second Joint Rule was unconstitutional.85 4. The Electoral Count Act of 1887 The legislative history of the Electoral Count Act of 1887 is complex, and much of this history has been well catalogued elsewhere.86 The heart of the Electoral Count Act is currently codified at 3 U.S.C. § 15, titled “Counting electoral votes in Congress.”87 This section sets forth a complicated set of provisions for counting electoral votes. Two noticeable differences exist between the Electoral Count Act and the Twenty-second Joint Rule. First, the Electoral Count Act is a law and not a joint rule. Second, the Electoral Count Act does not have the “one-House veto” provision of the Twentysecond Joint Rule. It is not clear that these two significant changes cure the constitutional infirmities of the Twenty-second Joint Rule. Charting the basic workings of the Electoral Count Act is a good place to begin. The Act provides for the reading of the electoral votes by state and the objection to an electoral vote. Unlike its predecessors, the Electoral Count Act requires an objection to an electoral vote to have the signature of at least one Senator and at least one Representative.88 After all the objections to the electoral votes from a state have been received and read, the Senate and the House of Representatives withdraw for separate deliberations. *1678 Unless there is a case of “double returns,” the applicable provision is as follows: [N]o 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.89 In the case of “double returns” with “more than one return or paper purporting to be a return from a State,”90 the applicable statutory provision is considerably more complex. The joint convention first looks to see if the state has determined the controversy, and if it has, that determination is binding.91 If, however, there should be multiple state authorities which claim to have decided the controversy, then the two Houses of Congress, acting separately, must decide concurrently which set to count. If the two Houses disagree, then the Electoral Count Act provides that “the votes of the electors whose appointment shall have been certified by the executive of the state, under the seal thereof, shall be counted.”92 The Electoral Count Act does not address what happens if the same executive authority certifies different electors or if multiple executive authorities certify different electors. B. The Problems of the Electoral Count APPENDIX - 215 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 9 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 217 of 553 PageID #: 622 IS THE ELECTORAL COUNT ACT UNCONSTITUTIONAL?, 80 N.C. L. Rev. 1653 Fortunately, Senator Ross's doomsday prediction in the Sixth Congress that the thorny problems of the electoral count “might happen, and were very likely to happen”93 has not been borne out in *1679 the course of two hundred and thirteen years of the Republic. There have been a dozen or so problems of the electoral count and consequent challenges to electoral votes, almost all of which occurred in the nineteenth-century. This section summarizes the historical problems of the electoral count. 1. The Massachusetts Incident of 1809 The first congressional objection to the votes of electors occurred in the electoral count of 1809.94 On December 26, 1808, Representative Barker introduced a memorial from some disgruntled inhabitants of Hanover, Massachusetts that the appointment of Massachusetts electors was “irregular and unconstitutional”95 relative to the Massachusetts Constitution, and praying that Congress look into the matter during the electoral count. When a resolution was called to appoint a committee of the House to investigate, Representative Randolph spoke in very strong terms against it: He said it appeared to him that, under color of redress of grievances, the resolution might go in a very alarming and dangerous manner to enlarge the sphere of action of the General Government at the expense of the dearest rights of the States. In what manner, asked he, is the General Government constituted? We, as one of the branches of the Legislature, are unquestionably the judges of our own qualifications and returns. The Senate, the other branch of the Legislature, is in like manner the judge without appeal of the qualifications of its own members. But with respect to the appointment of President on whom is that authority devolved in the first instance? On the electors, who are to all intents and purposes, according to my apprehension, as much the judges of their own qualifications as we are of ours . . . .96 Representative Rowan also spoke strongly against the resolution. He thought that “Congress did not possess a superintending power over the acts of the States in general cases” and doubted that Congress had any power in this case; he recommended that the petitions of the Massachusetts citizens not be placed on the files of the House “because they related to a subject on which the House had no power to legislate.”97 The resolution passed nevertheless, but *1680 there is no record that anything further was done. No one objected during the electoral count, and all Massachusetts electoral votes were counted. 2. The Indiana Incident of 1817 The second congressional objection to the votes of electors occurred in the electoral count of 1817.98 On February 11, 1817, the two Houses gathered in the House of Representatives. During the electoral count, Representative Taylor, “compelled” to speak “by his sense of duty,”99 objected to the counting of the electoral votes from Indiana because the Indiana electors were elected before Indiana joined the Union. The Speaker of the House interrupted him and stated that, when assembled in joint convention, the two Houses “could consider no proposition, nor perform any business not prescribed by the Constitution.”100 Accordingly, the Senate withdrew to its chamber by their unanimous consent. Representative Taylor then repeated his argument that, because the Indiana electors were chosen before Indiana was admitted into the Union, “the votes of that State were no more entitled to be counted than if they had been received from Missouri or any other Territory of the United States.”101 In his view, the votes of the Indiana electors were “illegal.”102 Although Representative Taylor did not refer to it, the improper appointment of the Indiana electors was in violation of section 1 of the Act of 1792. However, the votes of Indiana's electors were cast after Indiana was admitted into the Union. Indiana was admitted into the Union as the nineteenth State effective December 11, 1816. This date was after the date set by Congress for the meeting of the electoral colleges but before the date set by Congress for the electoral count. APPENDIX - 216 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 10 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 218 of 553 PageID #: 623 IS THE ELECTORAL COUNT ACT UNCONSTITUTIONAL?, 80 N.C. L. Rev. 1653 Representative Cady countered. He thought that the matter had been settled by the admission of Senators and Representatives from Indiana to their seats, and that it was too late on that account to question her right to participate in the election of President; and that from the moment the constitution of the State was assented to, she *1681 was entitled to all the privileges of an independent member of the Union.103 A joint resolution to settle the question was indefinitely postponed by the House of Representatives.104 The Senate re-entered the House Chamber and the electoral count resumed. According to the record of congressional debate, “[n]o one appeared to question the power of Congress to reject the vote of Indiana if that State was not a State in the Union at the time the electoral votes were cast.”105 In the end, the votes of Indiana's three electors were counted. 3. The Missouri Incident of 1821 The third congressional objection to the votes of electors occurred in the electoral count of 1821.106 In early February of 1821, Congress passed a resolution appointing a joint committee “to ascertain and report a mode of examining the votes for President and Vice-President of the United States, and of notifying the persons elected of their election.”107 On February 13, 1821, the Senate resolved that if any objection was made to the electoral votes of Missouri and if the result of the electoral count did not turn on counting or omitting the Missouri votes, then the President of the Senate would announce the winners of the presidential and vice presidential electoral vote, plus a conditional tally--that is to say, if Missouri's votes were counted, the tally would be x; if Missouri's votes were not counted, the tally would be y. In the Senate, a “long debate” took place on this resolution and four Senators strongly opposed it “principally for the reason that it was not competent in the Senate to decide such a question in anticipation.”108 When the resolution was read in the House of Representatives, Representative Randolph stated he would rather have seen no votes counted at all than a “special verdict” announced: *1682 He could not recognize in this house or the other house, singly or conjointly, the power to decide on the votes of any State. . . . He maintained that the electoral college was as independent of Congress as Congress of them; and we have no right, said he, to judge of their proceedings. . . . Suppose a case, in which some gentlemen of one house or the other should choose to turn up his nose at the vote of some State, and say that if it be so and so, such a person is elected; and if so and so, what-you-call-'im is elected--did not everybody see the absurdity of such a proposition?109 Representative Floyd also objected to the special verdict. He stated, If they had any power over the votes of Missouri at all, it was when her votes were first received; but no such power existed. He protested against this assumption of authority on the part of Congress, and wished to show his disapprobation of the resolution in the strongest manner.110 Representative Rhea agreed, finding that the Constitution was not designed to be expedient and that “it was not in the power of this House, or of both Houses, by resolution, to remedy a defect in the Constitution.”111 APPENDIX - 217 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 11 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 219 of 553 PageID #: 624 IS THE ELECTORAL COUNT ACT UNCONSTITUTIONAL?, 80 N.C. L. Rev. 1653 Soon afterwards, during the electoral count, Senator Livermore objected to the electoral votes from Missouri because Missouri was not a State of the Union. He was right. Missouri was admitted into the Union as the twenty-fourth State effective August 10, 1821. In the House, Representative Floyd submitted a resolution “[t]hat Missouri is one of the States of this Union, and her votes for President and Vice-President of the United States ought to be received and counted.”112 After extended comments by Representatives Randolph and Archer against the resolution on the ground that it was not within the power of the House, a motion to table the resolution passed, and the Senate reassembled in the House Chamber for the electoral count.113 The President of the Senate proceeded to announce the result of the vote conditionally, as provided in the Senate resolution: The whole number of electors appointed by the several States was 235. One elector in each of the States of Pennsylvania, Tennessee, and Mississippi having died before the meeting of the electoral college of which he was a *1683 member, made the whole number of votes actually cast 232, including the vote of Missouri, of which 117 make a majority; or, excluding the vote of Missouri, 229, of which 115 make a majority; but in either event James Monroe is elected President, and Daniel D. Tompkins, Vice-President.114 When Representative Floyd asked the President of the Senate if Missouri's votes were in fact counted, the joint convention broke into disorder. Representative Randolph tried to speak but was pronounced out of order by the Speaker of the House. The President of the Senate concluded and the Senate withdrew to its Chamber.115 Thereafter, Representative Randolph introduced two resolutions in the House declaring that the electoral count was illegal. The first resolution provided that the electoral votes of Missouri were counted. The second resolution provided [t]hat the whole number of electors appointed, and of votes given for President and Vice-President, has not been agreeably announced by the presiding officer of the Senate and House of Representatives, agreeably to the provision of the Constitution of the United States, and that therefore the proceeding has been irregular and illegal.116 As he was putting his resolutions into writing, the House voted to adjourn and did not act upon either resolution.117 4. The Postmaster and Michigan Incidents of 1837 The fourth congressional objection to the votes of electors occurred during the electoral count of 1837.118 The electoral count of 1837 actually involved two separate incidents: the Postmaster Incident and the Michigan Incident. In late January of 1837, the Senate and the House of Representatives resolved to appoint a joint committee “to ascertain and report a mode of examining the votes of President and Vice President of the United States, and of notifying *1684 the persons of their election.”119 Senator Grundy, who was one of three Senators on the joint committee, reported to the Senate on February 4, 1837 that some electors may have been constitutionally ineligible to be electors because “no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an elector.”120 He reported that Isaac Waldron, an elector from New Hampshire, was the “president of a deposit-bank at Portsmouth, and was appointed and acting as pension-agent, without compensation, under the authority of the United States” and the two North Carolina electors held the “offices of deputy postmasters under the General Government.”121 In addition, the appointment of three other electors (from New Hampshire, Connecticut, and North Carolina, respectively) was in question.122 The Committee concluded that the Electoral Incompatibility APPENDIX - 218 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 12 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 220 of 553 PageID #: 625 IS THE ELECTORAL COUNT ACT UNCONSTITUTIONAL?, 80 N.C. L. Rev. 1653 Clause “excludes and disqualifies deputy postmasters from the appointment of electors; and the disqualification relates to the time of the appointments, and that a resignation of the office of deputy postmaster after his appointment as elector would not entitle him to vote as elector under the Constitution.”123 The Senate took no further action on the issue. Debate in the House of Representatives was minimal. One Representative pointed out that all of these electors probably resigned from their offices before the day on which they cast their votes,124 but was quickly corrected by another who noted that the ineligibility under the Electoral Incompatibility Clause extended to the time of the appointment.125 These issues were not raised during the electoral count, and all of these electoral votes were counted. The Michigan Incident was similar to the Indiana and Missouri Incidents. Michigan was admitted into the Union as the twentysixth State effective January 26, 1837. This date was after the date Congress set for the meeting of the Electoral Colleges, but before the date Congress set for the counting of electoral votes. On February 4, 1837, the Senate proposed a resolution to count Michigan's electoral votes in the same manner as Missouri's. Senator Norvell objected to *1685 this resolution, arguing that the Michigan question was exactly the same as that of the Indiana Incident.126 Senator Calhoun also opposed the resolution, stating that “Michigan was a State de facto at the time she formed her constitution; and if her electors were not legally appointed, neither were her Senators, who were admitted upon this floor.”127 The Senate adopted this resolution by a vote of thirty-four to nine.128 The House adopted the same resolution on February 6, 1837, although Representative Crary of Michigan also “thought the position of his State was analogous to that of Indiana, and that her vote should be received and counted.”129 On February 8, 1837, the President of the Senate announced the result of the electoral count in the same way as in the Missouri Incident. Martin Van Buren of New York was declared the President-elect.130 If Michigan's votes were counted, he had 170; if not, he had 167 votes. In either event, Martin Van Buren had a majority of the whole number of electors appointed. However, a different situation presented itself in the case of the Vice President-elect. Richard M. Johnson of Kentucky had the most electoral votes. If Michigan's votes were counted, he had 147 votes; if not, he had 144 votes. In either event, he did not have the requisite majority to be the Vice President-elect, and thus, the choice devolved upon the Senate.131 The Senate elected Johnson as Vice President. 5. The Wisconsin Incident of 1857 The fifth congressional objection to the votes of electors occurred during the electoral count of 1857.132 In the election of 1856, the five electors of the State of Wisconsin did not cast their votes on the day prescribed by federal law because of a snowstorm.133 The President of the Senate counted Wisconsin's electoral votes over the objections of both Representatives and Senators assembled in *1686 convention.134 When Representative Lechter objected to Wisconsin's electoral votes and moved to exclude them, the presiding officer (the President of the Senate) simply stated that no debate was in order when the votes were being read by the tellers or even after they were finished.135 When Senator Crittenden then asked the presiding officer, “Do I understand the Chair to decide that Congress, in no form, has power to decide upon the validity or invalidity of a vote?,”136 the presiding officer replied that it was his constitutional duty to announce the result of the electoral count and that “[w]hat further action may be taken, if any further action should be taken, will devolve upon the properly-constituted authorities of the country-the Senate or House of Representatives, as the case may be.”137 While the final result did not turn on the decision to count Wisconsin's electoral votes, several Members of Congress were concerned that the decision to count Wisconsin's electoral votes would set a dangerous precedent.138 According to Senator Pugh, unlike the Missouri Incident which was “never likely to happen again,” the Wisconsin Incident “may occur one hundred APPENDIX - 219 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 13 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 221 of 553 PageID #: 626 IS THE ELECTORAL COUNT ACT UNCONSTITUTIONAL?, 80 N.C. L. Rev. 1653 times again, if the Government should stand that many years.”139 Senator Crittenden made the point that the electoral votes of Wisconsin were not really “votes” at all, by stating: “Here is a vote tendered us from a State given on another day. We call it a vote in common parlance; but in the constitutional sense is it a vote at all? Is it not merely null? Unquestionably, it seems to me, it is null and void.”140 This statement attracted considerable support. Almost every Member of Congress who spoke on the subject agreed that the votes of Wisconsin should not have been counted.141 *1687 Ultimately, resolutions were introduced in each House of Congress that Wisconsin's electoral votes were null and void and ought not to have been included in the electoral count, but these resolutions failed.142 6. The Greeley Incident and the Other Incidents of 1873 The sixth congressional objection to the votes of electors occurred during the electoral count of 1873.143 In the election of 1872, three Georgia electors cast votes for Horace Greeley of New York. Greeley had died after the November popular election but before the electors met in the electoral colleges. These three electors voted for Greeley anyway, feeling bound by the wishes of their constituents. Senator Hoar objected to these three votes and stated that they could not be counted because Greeley was not a “person” within the meaning of the Constitution when the electors voted.144 Representative Banks objected on the basis that “we have no power to decide on the eligibility of any man voted for for President.”145 The question of whether to count these votes was a very close one. The House voted 101 to 99 (with forty not voting) not to count the Greeley votes.146 The Senate voted forty-four to nineteen to count them.147 Because the two Houses did not concur, the Greeley votes were not counted pursuant to the Twenty-second Joint Rule.148 The electoral count of 1873 presented at least three other important challenges to electoral votes. First, two objections were made to Mississippi's electoral votes. The Mississippi electors did not certify that they voted by ballot.149 One of the electors from that state, A.T. Morgan, was absent and the electors appointed an alternate, J.J. Spellman. Spellman's appointment was not signed by the Governor of Mississippi as required by the laws of that state.150 The House and the Senate voted to count all Mississippi electoral votes, including Spellman's.151 *1688 Second, Senator Morton objected to Georgia's votes for a different reason. Apparently two votes were cast for Charles J. Jenkins of Georgia for President, and five votes for Alfred H. Colquitt of Georgia for Vice President.152 This vote distribution revealed a mathematical certainty: at least one of the electors from that State had violated the constitutional requirement that he vote for at least one person who is not an inhabitant of his State.153 Because the objection was made after the electoral votes from Georgia were read, the Chair decided that it came too late and no decision was made on this objection.154 Third, two objections were made to Texas's electoral votes. The executive authority of Texas had failed to certify that its electors were properly appointed. Moreover, four of the electors (less than a majority of those elected) themselves appointed four persons to take the place of four elected, but absent, electors.155 Nonetheless, both the House and the Senate voted to count all of Texas's electoral votes.156 7. The Hayes-Tilden Incident of 1877 The seventh and most important objection to the votes of electors occurred during the electoral count of 1877--the “never again” incident that directly led to the passage of the Electoral Count Act roughly a decade later. Undoubtedly, the electoral count of 1877 is the most objectionable electoral count in history, having been described by one of our leading scholars as “the most violent, fraudridden, and tumultuous in history.”157 APPENDIX - 220 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 14 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 222 of 553 PageID #: 627 IS THE ELECTORAL COUNT ACT UNCONSTITUTIONAL?, 80 N.C. L. Rev. 1653 In 1876, Democrat Samuel J. Tilden squeaked out a majority of the total number of popular votes for President, defeating Republican Rutherford B. Hayes by just 250,000 votes.158 Hayes, however, *1689 claimed a one-vote majority of the electoral votes with 185 votes to Tilden's 184. The problem was that rival Republican and Democratic state governments in three states-Florida, Louisiana, and South Carolina--each had sent rival electoral certificates to Congress, presenting the standard case of “double returns” from these states.159 After mediation failed, Congress created an “Electoral Commission” to resolve the disputed double returns from these states.160 This Commission was to consist of fifteen persons: five Senators, five Representatives, and five Justices of the Supreme Court. As ought to be apparent, the Commission has some very eerie similarities to the Grand Committee of 1800. The plan was to appoint seven Republicans and seven Democrats; the fifteenth person would be a Justice of the Supreme Court picked by the other four “partisan” Justices. Justice David Davis, an Independent, initially received the nod to be this fifteenth person, but he declined the offer after the Illinois Legislature appointed him to fill a vacancy in the Senate. Justice Joseph P. Bradley, a Republican, then received the thankless job. *1690 Interestingly, the Commission was to have “the same powers, if any, now possessed . . . by the two Houses.”161 The Commission was only to have jurisdiction over the cases of double returns; objections to electoral votes in cases of single returns would be handled as later provided by the Electoral Count Act (the two Houses, meeting separately, would need to concur to reject a vote). The decisions of the Commission, like that of the Grand Committee, were to be final, but with one exception: the two Houses could overturn the decision of the Commission if they so concurred.162 Given the political composition of the Commission, it is not surprising that the Commission secured a victory for Hayes. In each case of double returns, the Commission voted eight to seven to count the votes of the Republican electors by a strict party vote, with Justice Bradley casting the decisive vote in each case. This perceived partisanship had huge political costs. The Democrats controlled the House of Representatives and threatened a filibuster to delay the counting of electoral votes. A constitutional crisis loomed: if no President was elected by March 4, 1877, then the Presidential Succession Clause might kick in.163 The famous “Compromise of 1877,” announced on March 1, 1877, served to avert this crisis. Southern Democrats would proceed with the formal counting of the electoral votes, allowing Republican Hayes to be elected President, but would extract several substantial concessions from him. Among other things, congressional Republicans, speaking for Hayes, agreed to cease federal military support for the Reconstruction governments of the South, sealing the end of Reconstruction. The upshot of the Hayes-Tilden Incident is that Hayes became President although he was the clear loser in the popular vote and the likely loser of the electoral vote.164 *1691 8. The Hawaii Incident of 1961 The eighth congressional objection to the votes of electors occurred during the electoral count of 1961.165 This incident, involving the validity of the electoral certificate(s) of Hawaii, was the most significant problem of the electoral count of the twentieth century, and the one most relevant given recent history. The initial election results in Hawaii showed Republicans Richard M. Nixon and Henry Cabot Lodge as the winners of the popular vote for President and Vice President. A slate of Nixon-Lodge electors was appointed on November 16, 1960, certified by the acting Governor of Hawaii on November 28, 1960. A recount was ordered to begin on December 13, 1960. On December 19, 1960, a slate of Nixon-Lodge electors cast their votes for President and Vice President.166 This electoral certificate was previously certified by the Acting Governor of Hawaii.167 However, on December 19, 1960, a slate of Kennedy-Johnson electors also cast their votes for President and Vice President, without any previous certification from the executive authority APPENDIX - 221 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 15 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 223 of 553 PageID #: 628 IS THE ELECTORAL COUNT ACT UNCONSTITUTIONAL?, 80 N.C. L. Rev. 1653 of Hawaii.168 On December 30, 1960, the Circuit Court of the First Judicial Circuit of the State of Hawaii determined that the Kennedy-Johnson electors won the popular vote in Hawaii.169 A few days later, on January 4, 1961, the newly-elected Governor of Hawaii certified the electoral certificate of the Kennedy-Johnson electors.170 The Administrator of General Services received this certification on January 6, 1961--the day of the electoral count. During the electoral count, President of the Senate Richard Nixon stated that “[t]he Chair has received three certificates from persons claiming to be the duly appointed electors from the State of Hawaii.”171 These three certificates were (1) the NixonLodge electoral certificate of December 19, 1960, certified by the executive authority of Hawaii as of November 28, 1960; (2) the Kennedy-Johnson electoral certificate of December 19, 1960; and (3) the Kennedy-Johnson electoral certificate of December 19, 1960, certified by the newly-elected executive authority of Hawaii as of January 4, 1961.172 After these three electoral certificates were opened and read, *1692 Nixon stated that “[t]he Chair has knowledge, and is convinced that he is supported by the facts” that the third electoral certificate “properly and legally portrays the facts” with respect to the popular election in Hawaii.173 Accordingly, he stated that [i]n order not to delay the further count of the electoral vote here, the Chair, without the intent of establishing a precedent, suggests that the electors named in the certificate of the Governor of Hawaii dated January 4, 1961, be considered as the lawful electors from the State of Hawaii.174 No one objected and all three of Hawaii's electoral votes were counted.175 9. The Bailey Incident of 1969 The ninth and most recent congressional objection to the votes of electors occurred during the electoral count of 1969.176 It was well known before the joint convention convened for the purposes of the electoral count that Dr. Lloyd W. Bailey, a Republican elector from North Carolina, had been “faithless” in giving his two electoral votes--instead of following the popular vote for Richard M. Nixon for President and Spiro Agnew as Vice President, Dr. Bailey voted for George C. Wallace for President and Curtis Lemay as Vice President. The Governor of North Carolina certified the state's electoral certificate with knowledge of Dr. Bailey's faithlessness. A few days before the electoral count, some Senators, led by Senator Muskie (who was then running for Vice President), introduced a memorandum in the Senate recommending that Dr. Bailey's vote be rejected, and that it be recast in accordance with the popular vote in North Carolina.177 This memorandum announced the authors' intention to object to the vote of North Carolina on January 6, 1969.178 During the electoral count on January 6, 1969, Representative O'Hara objected to the electoral votes of North *1693 Carolina and presented a written objection signed by him and Senator Muskie in which thirty-seven Representatives and six Senators joined.179 The objection proposed simply that Dr. Bailey's vote be rejected (and not recast in accordance with the popular vote in North Carolina).180 The debate in each House of Congress was extensive, with over forty Representatives and over twenty-five Senators speaking on the objection. The House of Representatives debated the objection for a full two hours--the maximum time allowed by the Electoral Count Act. The rationale in the House for sustaining the objection and rejecting Dr. Bailey's vote was mixed. Some Representatives argued that only Congress could check faithless electors.181 Representative Edmondson stated that the “power of Congress to count the electoral vote” is “the only constitutional power specifically granted to anybody [sic] or agent to protect the electoral system against arbitrary or unlawful action to thwart the popular will of the people of the States in electing the President of the United States.”182 Other Representatives argued that Dr. Bailey's faithless vote was not “regularly given” APPENDIX - 222 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 16 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 224 of 553 PageID #: 629 IS THE ELECTORAL COUNT ACT UNCONSTITUTIONAL?, 80 N.C. L. Rev. 1653 within the meaning of the Electoral Count Act.183 Yet others rested their justification to sustain the objection on more lofty constitutional arguments of “one man, one vote”184 and “justice.”185 The Representatives who spoke against the objection were more unified. They argued that Congress had no power not to count Dr. Bailey's faithless vote because that power was not within the meaning of the Electoral Count Act,186 or because Congress had no such power under the Constitution.187 Representative Rarick put the latter point best: *1694 Under the Constitution and our oath of office we, as Congressmen, are not election supervisors nor given discretion to recompute the vote received from a sovereign state. The Constitution clearly proscribes our duty as “to count the electoral votes,” the ministerial function of a central collecting agency and a tabulating point.188 Ultimately, the House of Representatives voted to reject the objection, but not by an overwhelming margin. The vote was 170 to 228, with thirty-two not voting and four not yet sworn.189 Among the Representatives voting for the objection were future Presidents George H.W. Bush and Gerald R. Ford.190 The Senate debate was similar but briefer. Ultimately, the Senate also voted to reject the objection not by an overwhelming margin. The vote was thirty-three to fifty-eight, with seven not voting and two live pair.191 Because both Houses of Congress did not vote to sustain the objection and reject Dr. Bailey's vote, the vote was counted. II. The Argument Against the Constitutionality of the Electoral Count Act In Part I, we examined the principal congressional efforts to regulate the electoral count. The fact that Congress did not pass the Electoral Count Act until 1887, and only after several failed attempts to enact legislation regulating the counting of electoral votes is (perhaps surprisingly) of minimal consequence in assessing the constitutionality of the Electoral Count Act.192 The better clue relates *1695 not to timing, but to tone. As we saw somewhat in Part I and as we shall see in more detail in this Part, the constitutionality of legislation regulating the counting of electoral votes was controversial from the start. In particular, the constitutionality of the Electoral Count Act was considered and debated by several Congresses that considered such legislation in the Reconstruction Era. This level of extended debate should raise a red flag as to the possible unconstitutionality of the Electoral Count Act. An ‘interpretivist‘ resolution of the constitutionality of the Electoral Count Act must, however, be based on arguments from constitutional text and structure. This Part sets forth these two arguments. The textual argument carefully parses the words of the Electoral College Clauses, and shows how the Electoral Count Act clashes with the Constitution. In addition, the textual argument, unlike conventional ‘clause-bound‘ textual arguments, examines the text of the Constitution as a coherent whole, invoking a host of other clauses, in order to squeeze yet additional meaning from the Electoral College Clauses, and shed additional light on the unconstitutionality of the Electoral Count Act. The structural argument identifies a number of structural principles of the Constitution that relate to presidential election and to legislation, and shows how the Electoral Count Act violates these principles. Anyone who wishes to argue that the Electoral Count Act is constitutional bears a high burden of proof, in light of the arguments presented, and in light of the asymmetry of constitutional proofs. In order to prove that a statute is unconstitutional, one need only find one reason why a statute is unconstitutional, whereas in order to prove that a statute is constitutional, one must defend a statute against all possible constitutional attacks and find that there is no possible reason why a statute is unconstitutional.193 There is more than one reason why the Electoral Count Act is unconstitutional. APPENDIX - 223 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 17 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 225 of 553 PageID #: 630 IS THE ELECTORAL COUNT ACT UNCONSTITUTIONAL?, 80 N.C. L. Rev. 1653 *1696 A. The Textual Argument 1. Some Basics: Who, What, When, and Where? The relevant clause of the Twelfth Amendment provides that “[t]he President of the Senate shall, in the presence of the Senate and *1697 House of Representatives, open all the certificates and the votes shall then be counted.”194 Careful parsing of these twenty-seven words yields surprisingly rich clues into the mode and manner of the electoral count. These words and the rest of the Twelfth Amendment (and their counterparts in the original Constitution) are, not surprisingly, woefully understudied.195 As Professors Levinson and Young recently put it, “[t]he Twelfth Amendment is a Rodney Dangerfield of the Constitution: it gets no respect.”196 At the same time, these words of the Twelfth Amendment are incredibly important in assessing the constitutionality of the Electoral Count Act: the Constitution is supreme to conflicting federal statutory law.197 In order to determine whether the Electoral Count Act is constitutionally permissible, we must examine the Constitution itself. This sub-section addresses the following five basic questions relating to counting electoral votes: (1) Who is the presiding officer of the electoral count? (2) Who opens the electoral certificates and counts the electoral votes? (3) What is counting and what is to be counted? (4) When is the counting done? (5) Where is the counting done? a. Who Is the Presiding Officer of the Electoral Count? The relevant clause of the Twelfth 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.”198 This clause does not explicitly answer the question of who is the presiding officer during the electoral count.199 Because the President of the Senate is the only named individual in the clause, it may be tempting to conclude that the President of the Senate is the presiding officer of the electoral count, but this is far from clear. There are three possibilities with respect to the President of the Senate: (1) the President of the Senate shall be the presiding officer of the electoral count; (2) the President of the Senate may be the presiding officer of the electoral count; and (3) the President of the Senate shall not be the presiding officer of the electoral count. As a textual matter, nothing in the clause suggests that the President of the Senate shall be the presiding officer of the electoral count.200 As a structural matter, the President of the Senate is the presiding officer of the Senate, not the presiding officer of the joint convention of Senators and Representatives (or the joint assemblage of the Senate and House of Representatives), which needless to say is not the Senate. It seems only logical that there must be a presiding officer of the electoral count. Every parliamentary body needs a presiding officer in order to function smoothly.201 What then is the answer to the constitutional question? If historical practice is any guide, the President of the Senate or the President pro tempore shall be (or at least may be) the presiding officer of the electoral count. One of these two officers has been the presiding officer of every electoral count since the beginning of the Republic--before and after the adoption of the Electoral Count Act. Not surprisingly, 3 U.S.C. § 15 provides that Congress shall be in session on the sixth day of January succeeding every meeting of the electors. The Senate and House of Representatives shall meet in the Hall of the House of Representatives at the hour of 1 o'clock in the *1698 afternoon on that day, and the President of the Senate shall be their presiding officer.202 This unbroken historical practice is entitled to great weight in constitutional interpretation.203 This is not to say, however, that historical practice necessarily settles the meaning of the Electoral College Clauses. The text of the Constitution is the first-best and hence authoritative source of constitutional meaning, not extra-textual sources of constitutional APPENDIX - 224 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 18 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 226 of 553 PageID #: 631 IS THE ELECTORAL COUNT ACT UNCONSTITUTIONAL?, 80 N.C. L. Rev. 1653 meaning. To the extent that the text of the Constitution is clear, it may not be trumped by extra-textual history. The Electoral College Clauses are not quite as ambiguous as they may appear when we read the Constitution as a coherent whole. Although it may seem bizarre, it may be downright unconstitutional for the President of the Senate to be the presiding officer of the electoral count upon a closer reading of the text of the Constitution.204 No less than the Office of President of the United States is at stake during the electoral count. Likewise, no less than the Office of President of the United States is at stake during presidential impeachment. Yet, with respect to the latter, the Senate Impeachment Clause carefully provides that “[w]hen the President of the United States is tried, the Chief Justice shall preside,” not the President of the Senate.205 Should the electoral count be any different when no less may be at stake? The Senate Impeachment Clause demonstrates that the Framers were quite sensitive to the obvious conflict of interest problem when they focused on it.206 To be sure, the Framers did not focus on the *1699 similar but less obvious conflict of interest problem when drafting the Electoral College Clauses. But the Framers did seem to understand and appreciate the general conflict-of-interest problem. When the Framers discussed direct presidential election by Congress, they considered and agreed to a joint ballot procedure that would require a majority of Senators and Representatives who are present considered together, in lieu of one that would require the concurrence of the two Houses of Congress voting separately.207 James Wilson, supporting the joint ballot procedure, suggested that the Senate might have a conflict of interest problem, remarking that “as the President of the Senate was to be the President of the U--S. that Body in cases of vacancy might have an interest in throwing dilatory obstacles in the way, if its separate concurrence should be required.”208 If this interest were true of the Senate, it would be particularly true of the Vice President. More generally, the founders likely understood that the Vice President would oftentimes be a candidate for President or Vice President in the next election. During the Electoral Count Act debates, Senator Hoar, discussing the mood at the founding, stated: The President of the Senate would almost always be and would be expected to be one of the chief candidates for the presidential office. He would have been one of the two principal candidates four years before, and it was the fashion of those days very much more than of these to continue the same person in public trusts and in political candidacy, and several times in our history the Vice-President of the United States has succeeded to the Presidency, Adams to Washington, Jefferson to Adams, Van Buren to Jackson.209 Even if the Framers and Ratifiers of the original Constitution did not understand that the Vice President would be a candidate for President or Vice President in the next election, the Framers and Ratifiers of the Twelfth Amendment--which overwrote the relevant *1700 provision of the original Constitution--understood the conflict-of-interest problem well, especially given the imbroglio of the electoral count of 1801 where Vice President and presidential candidate Thomas Jefferson not only presided over the electoral count but also assumed the counting function.210 It is thus possible to say that the conflict-of-interest principle applies to the Twelfth Amendment if not to the original Constitution. There is no evidence from the Electoral College Clauses that the President of the Senate shall be the presiding officer of the electoral count. In the absence of such evidence, the Senate Impeachment Clause supplies a strong argument that the President of the Senate shall not be the presiding officer of the electoral count. The difference--and perhaps the constitutionally significant difference--between presidential impeachment and counting electoral votes may be that the Vice President necessarily has a conflict of interest in the former because the Vice President is to act as President,211 whereas the Vice President does not necessarily have a conflict of interest in the latter because the Vice President may or may not be a candidate in the next presidential or vice presidential election. Nevertheless, the better reading of the Electoral College Clauses, when read in light of the Senate Impeachment Clause and of conflict-of-interest principles generally, is that the Vice President, the President of APPENDIX - 225 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 19 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 227 of 553 PageID #: 632 IS THE ELECTORAL COUNT ACT UNCONSTITUTIONAL?, 80 N.C. L. Rev. 1653 the Senate, shall not be the presiding officer of the electoral count.212 The Electoral Count Act may be unconstitutional for this reason alone.213 *1701 If the President of the Senate shall not be the presiding officer of the electoral count, who then is the presiding officer? The answer to this question is simpler than it appears: One of the Senators and Representatives then and there present at the electoral count. Each parliamentary body has, almost by definition, the right to choose its presiding officer and other officers from one of its own, at least in the absence of any explicit declaration to the contrary.214 Whether Congress may exercise this choice on behalf of the joint convention of Senators and Representatives is an entirely different question, and one to be discussed later.215 b. Who Opens the Electoral Certificates and Counts the Electoral Votes? With respect to who does the opening of electoral certificates and the counting of electoral votes, the relevant clause of the Twelfth 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.”216 The critical question to ask is whether the counting function belongs to the President of the Senate or to the Senate and House of Representatives. The interpretive stakes are high: If the counting function belongs to the President of the Senate, the Electoral Count Act is unconstitutional because it vests the counting function in the two Houses of Congress, and under the Constitution, Congress may not strip the President of the Senate of her constitutional duty.217 *1702 We begin with the first part of the clause: “The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates.”218 It is clear that the opening of the certificates function belongs to the Vice President, who is the President of the Senate.219 The Constitution provides no wiggle room: the President of the Senate shall open all the certificates, not some.220 *1703 The counting function is, however, noticeably ambiguous: “[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.” There are two plausible readings of this oddly phrased text employing the passive voice.221 The counting function may be read as one vested in the President of the Senate, or jointly in the Senate and House of Representatives.222 If the President of the Senate is to count the votes, the clause easily could have been written to provide that “[t]he President of the Senate shall . . . open all the certificates and *1704 shall then count the votes.”223 If the Senate and House of Representatives are to count the votes, the clause easily could have been written to provide 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 by the Senate and House of Representatives.”224 The text does not equally support these two plausible readings once we escape a narrow “clause-bound” interpretivism. When read in light of the conflict-of-interest principle of the Senate Impeachment Clause, the better answer (again, but by no means an unassailable one) is that the counting function of the Electoral College Clauses is vested in the Senate and House of Representatives, not the President of the Senate. To be sure, the Constitution does not explicitly address how the Senate and House of Representatives is to exercise the counting function--by the two Houses acting separately *1705 in their corporate capacities, or by the two Houses acting conjointly as one “House” of Senators and Representatives.225 In addition, when we consider early state constitutions,226 we see that early state constitutions did not vest the counting of electoral votes in any one person.227 *1706 The history, however, undercuts these fundamental textual and structural considerations. The Framers clearly thought that the counting function was vested in the President of the Senate alone. In a unanimous resolution attached to the final APPENDIX - 226 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 20 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 228 of 553 PageID #: 633 IS THE ELECTORAL COUNT ACT UNCONSTITUTIONAL?, 80 N.C. L. Rev. 1653 Constitution, the Framers described the procedures for electing the first Chief Executive, recommending in relevant part “that the Senators should appoint a President of the Senate, for the sole Purpose of receiving, opening and counting the Votes for President.”228 The records of the First Congress confirm this construction. On April 6, 1789, Senator John Langdon was elected as President of the Senate “for the sole purpose of opening and counting the votes for President of the United States.”229 This early practice should be of limited precedential value, however, because they relate to the creation of the Government of the United States before a President and Vice President were ever elected. The dangers of this initial construction soon appeared when Presidents of the Senate were also candidates for President or Vice President. In the electoral count of 1797, President of the Senate John Adams purportedly counted “improper votes” from Vermont, *1707 and in the electoral count of 1801, President of the Senate Thomas Jefferson purportedly counted dubious electoral votes from Georgia.230 By 1800, some members of the Senate of the Sixth Congress interpreted the counting language as vesting the counting function in the “members composing” the Senate and the House of Representatives,231 and to the extent there is any difference, Senator Pinckney interpreted the counting language as vesting the counting function in “Congress.”232 The Twelfth Amendment, adopted in 1804, did not resolve the textual ambiguity between the first two readings of the counting function. In fact, it contains language identical to that found in Article II, Section 1, Clause 3. However, as Dean Wroth has suggested, it is arguable that, with the later precedents, the Twelfth Amendment changed the original understanding of the counting function, shifting this function from the President of the Senate to the Senate and House of Representatives.233 But early commentators on *1708 the Constitution, such as Chancellor James Kent and Professor William Duer, writing in the wake of the Twelfth Amendment, thought that the counting function still belonged to the President of the Senate.234 The Wisconsin Incident of 1857235 probably stands as a paradigm case in support of the proposition that the counting function belongs to the Senate and House of Representatives and not to the President of the Senate. During the Wisconsin Incident, Senator Pugh noted the obvious conflict-of-interest problem if the President of the Senate had sole responsibility for counting, calling it a “power higher than the veto.”236 During the Electoral Count Act debates, Senator Bayard keenly observed that the President of the Senate “cannot even count” the electoral votes; that “[h]e cannot even inspect them, except in the incidental and casual manner that is implied by the fact that his hand shall open the sealed envelope which contains the list of the electoral vote.”237 Representative Caldwell recalled the President of the Senate's unsuccessful attempts to assume the counting function in the Wisconsin Incident of 1857 and the Hayes-Tilden Incident of 1877,238 and described the primary purpose of the Electoral Count Act as “decid[ing], first, that the power to count the vote is not in the President of the Senate.”239 *1709 The best interpretation as a matter of text and the better interpretation as a matter of history is that the counting function is vested in the Senate and House of Representatives. This does not answer, however, whether the counting function is delegable. The relevant text of the Constitution is best read to exclude counting by unnamed agents, notwithstanding general constitutional limits to the delegation of powers. The consensus view of the Members of Congress during the Electoral Count Act debates was that the counting function is not delegable.240 Moreover, the related textual considerations of the “when” and “where” of counting electoral votes strongly militate against the delegation of the counting function to unnamed agents-including coordinate branches of government such as the federal judiciary.241 A final consideration is whether the President of the Senate has a vote in the counting function when questions arise. Although the counting of electoral votes takes place in the presence of the President of the Senate, the President of the Senate participates no more in the counting function than she participates in trial of impeachment--in neither case does the Vice President have a vote.242 The Constitution carefully circumscribes the participation of the Vice President in the business of the Senate: “The Vice President of the United States shall be President of the Senate, but shall have no Vote, *1710 unless they be equally divided.”243 The joint convention of the Senate and House of Representatives--assembled for the purpose of the electoral count--is most APPENDIX - 227 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 21 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 229 of 553 PageID #: 634 IS THE ELECTORAL COUNT ACT UNCONSTITUTIONAL?, 80 N.C. L. Rev. 1653 decidedly not the Senate. To be sure, the Electoral Count Act provides that, upon any objection to an electoral vote, the Senate shall separately withdraw to consider the objection.244 Notwithstanding constitutional objections to this bicameralism,245 neither textual nor structural reasons suggest that the President of the Senate's tie-breaking vote in the Article I business of the Senate applies to any Article II business of the Senate in counting electoral votes.246 *1711 c. What Is Counting and What Is To Be Counted? Two significant and interrelated questions remain. First, what is counting? Second, what is to be counted? Again, the relevant constitutional text 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.”247 As has been documented extensively, the word “shall” is a word of obligation.248 *1712 The Electoral College Clauses do not say “and the Votes may then be counted.” Ardent textualists will readily notice two points. First, what is the significance of the difference between “Certificates” and “Votes” ? The Constitution says that only the “Votes” are to be counted. Second, what is the significance of the word “all” and its selective use and seeming disuse? The Constitution says that “all” of the certificates are to be opened but does not say that “all” of the votes shall then be counted. Are these subtle textual distinctions a grant of power to the counting agent not to count all votes? The ultimate question is whether counting is, on balance, a ministerial or judicial act. If counting is a ministerial act, it is one of ascertainment and aggregation--Congress is simply a “central collecting agency” and a “tabulating point.”249 This view has some support in the purpose of the Electoral College Clauses. There would be no need for Congress to aggregate electoral votes if the electors met at some central location, but it was precisely to avoid the potential for cabal and corruption that the Electoral Colleges Clauses provide that the electors should meet in their respective states.250 We shall call this the “thin” conception of the counting function.251 *1713 If counting is a judicial act, then Congress sits as a court of sorts--a “court of last resort”252--checking the actions of electors in the electoral colleges. We shall call this the “thick” conception of the counting function. As Professor Spear nicely summarized, counting, “in so far as it is a mere enumeration and aggregation of units, is a purely ministerial act; but, in so far as it involves any judgment as to what votes shall be counted, it is a judicial, or, at least, quasi judicial act.”253 Clearly, there is no clean break between the “thin” and “thick” conceptions of the counting function. Even the “thin” conception requires some ascertainment of what is to be counted.254 The debates over the drafting of the Electoral College Clauses at the Philadelphia Convention of 1787 suggest that the Framers had the ascertainment issue in mind. The Framers rejected a proposal by James Madison and Hugh Williamson to insert the phrase “who shall have balloted” after the word “Electors.” The purpose of this proposal was “so that the non voting electors not being counted might not increase the number necessary as a majority of the whole--to decide the choice without the agency of the Senate.”255 John Dickinson successfully moved to insert after “Electors” the word “appointed.” Thus, under the Electoral College Clauses, the requisite number of electoral votes needed for victory is “a Majority of the whole Number of Electors appointed.”256 This drafting history suggests that the Framers considered the possibility that there might not be a “vote”--but only if an elector shall not have balloted. They did not consider the possibility that an electoral vote might be unconstitutional. While silence is difficult to interpret, the Framers' *1714 probable conception of the counting function was more “thin” than “thick.” Members of Congress have debated the nature of the counting function intensely over the past 210 years. The issue was first debated during the Missouri Incident. Representative Clay stated his belief that counting necessarily involved judging: APPENDIX - 228 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 22 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 230 of 553 PageID #: 635 IS THE ELECTORAL COUNT ACT UNCONSTITUTIONAL?, 80 N.C. L. Rev. 1653 In a case of votes coming forward which could not be counted, the Constitution was silent; but, fortunately, the end in that case carried with it the means. The two Houses were called on to enumerate the votes for President and Vice-President; of course they were called on to decide what are votes.257 This was a fairly “thick” conception of the counting function. Representative Randolph disagreed. “‘Your office,’ said he, ‘in regard to the electoral vote is merely ministerial. It is to count the votes, and you undertake to reject votes.”’258 Representative Archer, responding to Representative Randolph's argument, thought that counting could not exist without judging: He was a little surprised . . . that the House had no power to pass any judgment on any return. He always thought that, wherever was lodged the power to receive a return, there was also a power to pass judgment on the validity of that return. Suppose any Territory not within the limits of the United States at the time, Florida, for example, to send votes here for electors; was there no authority by which these votes could be rejected? Suppose a State entitled to twenty-seven votes should send thirty-seven votes, would any gentlemen contend that there was no power in this House to judge of the proper number?259 This is not necessarily a “thick” conception of counting at all; as we shall see, many of Representative Archer's concerns come before Congress meets for the purpose of the electoral count. For instance, *1715 prior to the electoral count, each House of Congress would have resolved whether or not to recognize Florida as a member of the Union in considering whether to seat any of Florida's Senators or Representatives. During the Wisconsin Incident, Representative Marshall also advocated a “thick” conception of the counting function. He bluntly asked, “What is to count? What faculty does it involve? I say not only the faculty of enumerating, but the faculty of judging whether it is a vote or not.”260 In a speech directed to the President of the Senate during the electoral count, Representative Marshall sought to justify his conception of the counting function upon the textual distinction between the word “Certificates” and the word “Votes”: Whether that is a vote or not must depend upon the determination of this convention, and if you will regard the verbiage of the Constitution, you will find that your function goes no further than to open the certificates. The language of the Constitution is that “the President of the Senate, in the presence of the House of Representatives, shall open all the certificates,” and then the phraseology changes, and proceeds, “and the votes shall be counted,” not by you, but by us; and whenever a vote is challenged, this is the time, and this the only place, where a determination can be formed whether it is a vote.261 This argument does not withstand a close examination of the Electoral College Clauses. The Constitution employs the word “Certificates” instead of “Votes” for a simple reason. Each of the Electoral Colleges sends a “List” (now two lists with the adoption of the Twelfth Amendment)--which contains the “Votes” of the electors--to the President of the Senate. The Constitution requires that each “List” be signed and certified by the electors in each State; when the “List” is so signed and certified, it becomes a “Certificate.” Thus, the contradistinction between “Certificates” and “Votes” is of little interpretive value. Other Members of Congress agreed with Representative Marshall. For example, Representative Orr asked, “Does not the requisition to be present at the counting necessarily carry the right to *1716 determine what votes offered are legal, and what votes may be void, as an inseparable incident to the power of counting?”262 He concluded that the “Constitution makes us the APPENDIX - 229 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 23 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 231 of 553 PageID #: 636 IS THE ELECTORAL COUNT ACT UNCONSTITUTIONAL?, 80 N.C. L. Rev. 1653 managers or canvassers to count the electoral votes, and in doing so gives us the power to say whether a vote presented is or is not legal.”263 Those who advocated a “thin” conception of the counting function were in the minority. Senator Toucey put the point best in his statement that “[t]he whole proceeding of counting is based on the idea merely of disclosing to the public in a safe, authentic way, the actual state of the vote; and when that is ascertained truly, the President who is chosen by that vote is President, let Congress do what it may.”264 Finally, the nature of the counting function occupied a prominent position in the debates over the Electoral Count Act. The positions taken are well summarized by the statements of Senator Edmunds, who supported the Electoral Count Act, and Senator Bayard, who opposed it. Senator Edmunds was of the view that a vote must mean a legal vote, a vote which is in accordance with the provisions of the Constitution of the United States and in accordance with the laws which have existed for so many years respecting the method by which and the time within which the vote of each State is to be expressed and returned.265 Senator Bayard pointed out the implications of Senator Edmunds's view. He asked: Were the two houses of Congress ever intended to become the judges of the electoral vote of the people of this country? Apparently by the Constitution their duties would seem to be of a ministerial character only. They were to stand by and witness the counting, and their presence in that way as witnesses was supposed to be a security. Now you change this from a merely ministerial power into a judicial power of the very gravest and most important character. Is there a warrant for that in the Constitution of the United States?266 *1717 In sum, there is considerable historical support for both the “thin” and “thick” conceptions of the counting function. An answer to the scope of Congress's counting power is informed by the “when” and “where” of counting, issues which we shall take up next. d. When Is the Counting Done? The Electoral College Clauses contain an immediacy principle and for good reason. The relevant text of the Constitution provides that once the President of the Senate has opened all of the Certificates, “the votes shall then be counted.”267 This is the immediacy principle of the Electoral College Clauses. Another part of this clause reinforces this immediacy principle. In case of electoral deadlock, the House of Representatives is to “immediately” choose the next President from those on the list.268 The word “immediately” has special significance in the Electoral College Clauses.269 According to Senator Pinckney, the word “immediately” in this Clause means “instantly, and on the spot, without leaving the House in which they are then assembled, and without adjournment.”270 He explained that the word was inserted to guard against the possibility of domestic intrigue and foreign influence at the Seat of Government of the United States: [T]he election by the House of Representatives taking place immediately after the votes have been opened and counted, that body would go to the election free and uninfluenced [by leaders of domestic intrigue and foreign emissaries], as they ought. And is not this, sir, safer; is it not better than that the smallest delay should take place in determining it? . . . [I]t will be less dangerous to the public interest, that even one who may not be the most qualified of the five, should be elected, than that Congress should adjourn to deliberate on it, and thus expose themselves, and the best interests of their constituents, to the secret and artful attacks that will be made on their integrity.271 *1718 At the Philadelphia Convention of 1787, James Wilson echoed Senator Pinckney's observation and his APPENDIX - 230 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 24 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 232 of 553 PageID #: 637 IS THE ELECTORAL COUNT ACT UNCONSTITUTIONAL?, 80 N.C. L. Rev. 1653 underlying rationale. He noted that “if the election be made as it ought as soon as the votes of the electors are opened & it is known that no one has a majority of the whole, there can be little danger of corruption.”272 In a letter to the Washington Federalist, “Horatius” advised that [t]he choice is required to be immediately made, in order that the result may be declared in the presence of the Senate, and to prevent the possibility of intrigue and corruption. The choice must be therefore made before the house adjourns or disperses, and after the convention of the Senate and House of Representatives terminates, the house cannot at a future day act upon this subject.273 *1719 The immediacy principle implies that the counting agent may not delay in counting the electoral votes. The “then” requirement militates against the deliberative aspects of counting and the judging of the electoral votes. After all, judicial determinations take time. The Electoral Count Act does not violate the immediacy principle. 3 U.S.C. § 17 puts strict time limits on the electoral count: when the two Houses separate to debate an objection to an electoral vote, each Member of each House may only speak once on the objection for a maximum of five minutes, and total debate in each House is limited to two hours.274 Although this provision does not violate the immediacy principle, it is patently unconstitutional--Congress may not bind by statute either House in the rules of its proceedings.275 As we shall see next, the “then” requirement also has *1720 an implication for where the counting (and any potential judging) of electoral votes takes place. e. Where Is the Counting Done? The Electoral College Clauses provide that the lists of electoral votes from the several states are to be “directed to the President of the Senate”276 and 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.”277 These clauses are the font of two mutually reinforcing “where” principles: the publicity principle and the unicameralism principle. The publicity principle is easy to identify. The President of the Senate is not supposed to open all of the certificates behind closed doors, but is only to do so “in the presence of the Senate and House of Representatives.”278 Although this phrase does not necessarily modify the subsequent vote counting phrase as a grammatical matter, the Constitution almost certainly requires that the counting of the votes take place in an equally public manner.279 Moreover, there is an *1721 excellent functional reason why the Senate and the House of Representatives are required to be present for the electoral count: if there should be no winner under the electoral college mode of presidential and vice presidential election, the duty of choosing the President devolves upon the House of Representatives, and the duty of choosing the Vice President devolves upon the Senate.280 Under the publicity principle, the secret proceeding contemplated by the Grand Committee Bill would have been grossly unconstitutional.281 During the Wisconsin Incident of 1857, Senator Thompson thought the idea of the publicity principle “was that we were not to go into executive session, nor, by some secret cabal or clandestine arrangement, get together here and have a coup d'etat, and make a President.”282 Thus, the elections of 1801 and 1825, in which the House of Representatives chose the President in closed-door proceedings, were also grossly unconstitutional.283 *1722 The publicity principle probably extends to the choosing of a President and a Vice President in case of electoral deadlock as well. Although the Constitution does not explicitly specify, it probably requires that the House of Representatives APPENDIX - 231 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 25 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 233 of 553 PageID #: 638 IS THE ELECTORAL COUNT ACT UNCONSTITUTIONAL?, 80 N.C. L. Rev. 1653 “immediately” choose the President in the presence of the Senate,284 and that the Senate “immediately” choose the Vice President in the presence of the House.285 This mode of presidential and vice presidential selection maximizes legitimacy. The question is what the publicity principle implies for the judging of electoral votes. A narrow view of the publicity principle is that the Members of Congress come together to ensure the proper aggregation of the electoral votes. During the Wisconsin Incident of 1857, Representative Orr urged a broader view, arguing that the publicity principle is the font of congressional power to reject “illegal” electoral votes: Suppose the result of the election would depend on the vote of [Wisconsin]: how would it be possible to declare who was elected until it had been decided whether or not that vote was to be received? Who is to decide that? The Constitution and the laws require that the two houses shall *1723 meet in joint convention, and that the votes of the electors of the several States shall be opened and counted before them. This, in my judgment, confers upon them the power to determine whether a vote be valid or invalid. Otherwise it is a mere farce if they are called on only to witness the counting. The counting might just as well be done by the Vice-President or the President of the Senate, without the presence of the two houses. But it is to guard against an illegal vote being counted that the two houses are required to be assembled together.286 This brings us to the second “where” principle: unicameralism. The Constitution requires that the two Houses of Congress come together for the purpose of opening all the electoral certificates and counting the electoral votes. This practice has been followed for all of our electoral count history. In the first and second presidential elections, the Senate and the House of Representatives assembled in the Senate Chamber for the opening and counting of the electoral votes, and in all subsequent elections, the Senate and the House have assembled in the House Chamber.287 The unicameralism principle suggests that any power to judge electoral votes is vested in the one body which is present when the electoral certificates are opened and when the electoral votes are counted288 and is to be resolved on a per capita vote basis.289 The *1724 Electoral Count Act violates the unicameralism principle because it provides that, upon objection to an electoral vote in the joint assembly, the two Houses of Congress shall separate and independently decide on the legality of that electoral vote,290 thereby giving equal weight to the decision of the Senate and House of Representatives. One implication of the unicameralism (“where”) principle and the immediacy (“when”) principle is that the resolution of any electoral count questions cannot be vested in any judicial tribunal. Senator Morton put this point nicely in debates over the Electoral Count Act: Then and there. You cannot refer to any other tribunal; you cannot get the case before the Supreme Court of the United States or before any special court to be created for that purpose. These votes are then to be opened, and then and there they are to be counted.291 The secret drafting history of the Constitution suggests the unicameralism principle. When the Committee of Eleven proposed the electoral college mode of presidential election, the draft provided that, “The President of the Senate shall in that House open all the certificates; and the votes shall be then & there counted” by the Senate.292 This clause was later amended to include the phrase “in the presence of the Senate and House of Representatives” and the “& there” language was dropped.293 However, there is very little reason to suppose that the counting was not to occur in that single body of Senators and Representatives.294 *1725 There is ample historical support for the unicameralism principle. In the Sixth Congress, Representative and Framer Albert Gallatin moved to amend the Grand Committee Bill to provide that any decision on the legality of an electoral vote APPENDIX - 232 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 26 Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 234 of 553 PageID #: 639 IS THE ELECTORAL COUNT ACT UNCONSTITUTIONAL?, 80 N.C. L. Rev. 1653 would be made by a majority of the Members of Congress then present at the electoral count.295 After a long debate, this motion fell just two votes shy of passing.296 Senator Baldwin, in his remarks on January 23, 1800, recognized that the Senators and Representatives would “me [e]t together in one room” to receive the electoral votes and “to judge only of its authentication.”297 Senator Pinckney, in his remarks on March 28, 1800, also recognized the unicameralism principle, but nevertheless argued that Congress had no power to reject electoral votes.298 Other senators also supported the unicameralism principle. The preamble of their proposed alternative to the Grand Committee Bill provided that the Senators and Representatives assembled for the purpose of the electoral count form a single tribunal, with the number of Senators and Representatives from each state equal to the number of electors from each state.299 *1726 In later years, those who have supported congressional control over electoral votes have voiced the unicameralism objection to the Electoral Count Act. For example, during the Missouri Incident, Representative Archer, emphasizing the “then” immediacy requirement of the electoral count, stated: He was opposed to this House undertaking to proceed in any manner as to the legality of the electoral votes. He could recognize no power in the House of Representatives on this subject separate from the Senate. . . . Does it not follow that the votes must be counted in the presence of the two Houses? For what purposes do they assemble together unless it be to determine on the legality of the votes. If not for this purpose, the joint meeting is for form and show and nothing else. We must, in my apprehension, determine the question in joint meeting, and in no other way.300 However, Senator Rufus King disagreed, stating that he was “opposed to the settlement of any litigated question in joint meeting, where the Senate, as a body, would be lost; and argued that whenever any such should arise, it would be always proper that the two Houses should separate.”301 During the Wisconsin Incident, Senator Pugh made a strong argument in favor of the unicameralism principle. He believed that the joint convention was the proper forum to settle the Wisconsin problem because: The whole number of Senators and Representatives taken together is equal to the whole number of electors in all the colleges. It is exactly the same body of men in number, equal to all of them. All the States, if they had voted there yesterday through their Senators and Representatives, would have exercised the precise power which they exercised in the election of President.302 *1727 Even if the joint convention was a single tribunal--a court of last resort, according to Senator Pugh--the question remained as to how the voting should take place within the joint convention. Senator Pugh stated his belief that the voting shou