Gohmert et al v. Pence

Filing 33

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

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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

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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.”

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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.

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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

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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

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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.

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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.

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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

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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

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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

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*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.

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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

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*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

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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

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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.

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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

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John Jay.

Virginia- - -

1

*600 Recapitulation of the votes of the Electors.

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Thomas Jefferson

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Aaron Burr-

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John Adams-

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Charles Cotesworth Pinckney
John Jay-

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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

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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

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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.

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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

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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

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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.

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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.

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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

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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

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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--

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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.

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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

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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

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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

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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.”).

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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.

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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,

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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

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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

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“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

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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).

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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.

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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.

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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.

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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

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“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).

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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).

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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,

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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,

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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

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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.

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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

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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.

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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).

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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

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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.

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90 VALR 551
End of Document

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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.

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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,

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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?

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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?

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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

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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

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*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

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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.

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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

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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

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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

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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,

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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

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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

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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.

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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

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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.

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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.

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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?

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• 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

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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

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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

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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

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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.

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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.

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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.

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....
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.

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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.

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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.

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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.

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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.

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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

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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.

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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

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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.

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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.

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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.

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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 &

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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

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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.

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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

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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

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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

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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

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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

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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

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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.

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*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

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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

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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

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*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.

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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

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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

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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.

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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

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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

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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.

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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).

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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).

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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.

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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

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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.

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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.

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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).

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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).

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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

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Works.

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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

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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

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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.

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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?

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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

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*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

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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

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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

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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

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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

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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

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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

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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

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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

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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.

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*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

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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.

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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

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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

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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

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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

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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.

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*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.

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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.

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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.”

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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.,

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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

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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

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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

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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:

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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,

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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

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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.

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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.

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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.

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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.

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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.”).

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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

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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.

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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.).

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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

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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 ....

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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

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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).

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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.

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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.

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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

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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:

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(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

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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

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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.

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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.

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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.

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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

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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

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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

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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

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*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

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*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.

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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

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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

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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

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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

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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

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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

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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.

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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

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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

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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

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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

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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

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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”

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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.

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*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

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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

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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

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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

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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:

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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

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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

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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

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“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

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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 should be per capita.303 Representative Orr, speaking
before the House of Representatives, concurred: “Who was to decide on the validity of the challenged vote? The
two [H]ouses in joint convention by a per capita vote.”304 However, the textual argument against this position is
that the Electoral College Clauses provide that the counting take place “in the Presence of the Senate and House
of Representatives”--not “in the Presence of Senators and Representatives,” suggesting that the counting function
is to be exercised by the Senate and the House of Representatives acting separately in their corporate capacities,
not by Senators and Representatives acting together in a single corporate capacity.

Representative Orr, however, offered one additional structural argument in support of the per capita vote in the joint convention,
an argument that answers Senator King's objection during the Missouri Incident that the power of the Senate would be “lost” in
the joint convention. He pointed out that the “[s]enatorial electors” in the electoral colleges “possess[ed] no power or dignity

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superior to those representing the congressional districts.”305 Given this observation, the per capita vote made perfect sense:
the Senate would have the same power in the joint convention that the senatorial electors had in the electoral colleges.
During the Electoral Count Act debates, Senator Thurman succinctly expressed the unicameralism principle: “The Constitution
is ‘and the votes shall then be counted;’ that is, shall be counted right there, in the presence of the two [H]ouses. That is what
the Constitution requires . . . . They are not to be counted elsewhere. *1728 They are to be counted then and there.”306 Several
years later, Senator George made a particularly compelling structural argument for unicameral action in judging electoral votes.
His argument was that the counting function “is not a legislative function which ought to be considered separately by the two
Houses, but it is rather in the nature of a judicial function,”307 and therefore the two Houses of Congress “should adopt that form
in the performance of that [judicial] duty which would enable us to discharge it.”308 Invoking the image of a court, he stated:
Why, certainly, sir, it would be an anomaly in jurisprudence, it would be an anomaly surely in Anglo-Saxon
jurisprudence, that for the ascertainment of a single fact, the rendering of an operative judgment upon the
ascertainment of a fact should be committed to two separate tribunals, each acting independently of the other,
and each having a veto upon the other. By that sort of tribunal no judicial function has ever been performed. We
require unanimity in juries, that twelve men shall agree to a verdict, but they are one body; they consult and confer
with each other, and they arrive at a conclusion as the result of that conference; but nobody ever proposed to
have two juries to try a case. We have a court sometimes composed of an even number of judges, and the result
may be a division between the judges, and there may be a provision or there may be none, for one or the other
to rule the case; but it has never been that two courts having equal power can be charged with the determination
of the same case.309

Under Senator George's structural analogy, the number of jurors in the single body is precisely equal to the number of electors.
This argument has some intuitive appeal. Indeed, the Democratic House of Representatives in 1884 passed a substitute version of
the Electoral Count Act bill, which provided for the unicameral resolution of issues during the electoral count on a per capita vote
basis, but the Democratic Senate did not agree.310 This is not to say that the unicameralism principle was uncontroversial. During
the Electoral Count Act debates, there were Members of Congress who strongly objected to the unicameralism principle,311
and who believed that the *1729 counting function should be exercised by the two Houses acting separately in their corporate
capacities.312
In sum, the unicameralism principle makes better sense, especially as a matter of immediacy, publicity, and jury-like structure.
As we shall soon see, the unicameralism principle also avoids the presentment problem of the Electoral Count Act.313
2. Where Is the Font of Power?
As we have seen, the Electoral College Clauses are best interpreted as vesting the counting function in the joint convention
and not the President of the Senate. Let us assume for present purposes that Congress may by law bind the joint convention
in counting electoral votes--this assumption, as we shall see, is no small assumption.314 Where is the font of power to pass
the Electoral Count Act? In a Constitution of enumerated and hence limited powers,315 *1730 we must ask ourselves under
what clause or clauses Congress has the express or implied power to pass the Electoral Count Act. A dedicated constitutionalist
cannot escape from asking this most basic question of the Electoral Count Act.
There is, of course, no express power enabling Congress to pass the Electoral Count Act.316 There must therefore be some
implied power enabling Congress to pass the Electoral Count Act; otherwise, it must be unconstitutional. There are only two

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options: the Necessary and Proper Clause317 and the Electoral College Clauses themselves.318 Will either of these clauses bear
the constitutional load?
*1731 a. The Necessary and Proper Clause
The first possible font of congressional power to pass the Electoral Count Act is the Necessary and Proper Clause. The Necessary
and Proper Clause provides that Congress shall have power “[t]o make all Laws which shall be necessary and proper for carrying
into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States,
or in any Department or Officer thereof.”319 Scholars are split as to whether the Necessary and Proper Clause is a font of power
for the Electoral Count Act.320
A careful parsing of the Necessary and Proper Clause reveals that there are three prongs of power. Under the Clause, Congress
has power for carrying into execution (1) “the foregoing Powers,” (2) “all other Powers vested by this Constitution in the
Government of the United States,” and (3) “all other Powers vested by this Constitution . . . in any Department or Officer
thereof.”321 Which of these three prongs of the Necessary and Proper Clause will support Congress's power to enact the Electoral
Count Act?
We begin with the first prong. The phrase “foregoing Powers” obviously refers to the seventeen enumerated powers of Article
I, *1732 section 8,322 and the Electoral College Clauses of the original Constitution are not “foregoing Powers” in any way
given their placement in Article II. The first prong of the Necessary and Proper Clause will not suffice as a font of power for
the Electoral Count Act.
Let us, for the moment, skip over the second prong and consider the third prong. The question is whether Congress (more
precisely, the assemblage of the Senate and House of Representatives for the purposes of the electoral count) is a “Department
[of the United States]” whose members are “Officer[s] [of the United States].”323 The answer to this question is “No.” Congress
is not a “Department” and the Members of Congress are not “Officer[s]” within the meaning of the Necessary and Proper Clause.
It is well settled that the Members of Congress are not “Officers of the United States.”324 The best textual argument for this
proposition is that Members of Congress are not subject to impeachment by the House of Representatives and conviction by the
Senate because they are not “civil Officers of the United States.”325 Furthermore, the Ineligibility Clause of Article I, Section 6
provides that “no Person holding any Office under the United States, shall be a Member of either House during his Continuance
in Office.”326 Thus, *1733 the Members of Congress are not “Officer[s]” within the meaning of the Necessary and Proper
Clause.
The question remains whether Congress is a “Department [of the United States]” within the meaning of the Necessary and
Proper Clause, even if Members of Congress are not “Officer[s] [of the United States]” within the meaning of the same. This is
a trickier question, but not one without an answer. The word “Department” in the Necessary and Proper Clause has a technical,
term of art meaning. It does not refer to the generic legislative, executive, and judicial departments of the United States--as used
in The Federalist327 or in the early United States Reports328--but only refers to the specific executive and judicial departments
of the United States. The Constitution itself suggests as much. The word “Department” does not appear elsewhere in Article
I (which appertains to the legislative department in the colloquial sense) but in the Necessary and Proper Clause; the word
does appear in two other clauses--the Opinion Clause329 and the second part of the Appointments Clause330--which refer to
“executive Departments” and “Heads of Departments” respectively. Nowhere is the word “Department” used in the Constitution
to refer to the legislative, executive, or judicial department in the colloquial sense.

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There are at least a few other considerations which militate against finding that Congress is a “Department” within the meaning
of the Necessary and Proper Clause. First, it would be very strange *1734 (but perhaps not unthinkable) for Members of
Congress not to be “Officer[s],” but for Congress to be a “Department” within the meaning of the Necessary and Proper Clause.
The logical argument is that “If Department, then Officer” is true, then “If not-Officer, then not-Department” is also true. The
Necessary and Proper Clause ostensibly relates to “Officers” who are “Officers of Departments” who are, in turn, “Officers
of Departments of the United States,” or simply “Officers . . . of the United States.” Second, if Congress is a “Department”
within the meaning of the Necessary and Proper Clause, then Congress would be able to legislate with respect to itself on
matters concerning its own powers.331 Such legislation flies in the face of constitutional text. The Rules of Proceedings Clause
makes explicit that “[e]ach House may determine the Rules of its Proceedings.”332 Congress may not therefore enact rules
of proceedings for Congress or each House thereof by statute.333 Such legislation also violates constitutional structure. The
separation of the two Houses of Congress in the exercise of its powers--in a word, bicameralism--is a critical structural feature of
Article I designed to check legislative tyranny.334 Moreover, constitutional structure suggests that Congress may not bind itself
or future Congresses in the exercise of its own powers.335 Third, the prevailing interpretation of the third prong of the Necessary
and Proper Clause appears to be that it only refers to the executive and judicial departments of the United States.336 Thus,
Congress (more precisely, the assemblage of the *1735 Senate and House of Representatives for the purposes of the electoral
count)337 is not a “Department” whose members are “Officers” within the meaning of the Necessary and Proper Clause. The
third prong of the Necessary and Proper Clause also will not suffice as a font of power for the Electoral Count Act.338
Only the second prong of the Necessary and Proper Clause remains: Congress shall have 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.”339 The question is thus whether the counting function is one *1736 of the “Powers vested by this Constitution
in the Government of the United States.”
The textual evidence strongly militates against such a finding. Consider again the text of the Electoral College Clauses: “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.”340 Obviously, the Electoral College Clauses do not employ the word “Power,” unlike two other clauses
outside of Article I, section 8 which do employ the word “Power” with respect to Congress--the Treason Clause and Territories
Clause.341 Moreover, the text and tenor of the Electoral College Clauses suggest duty and not discretion implied by the word
“Power”--hence the use of the word “shall,” and more interestingly, the use of passive voice.
There are, however, several clauses outside of Article I, section 8 where Congress has “Power” in the Article I, section 8 sense
of the word, but which do not employ the word “Power.” But these clauses make clear that Congress has legislative power by
employing the phrase “may by law” or the phrase “shall by law” or their close variants. In the original Constitution, we need only
to look to the Times, Places, and Manner Clause,342 Presidential Succession Clause,343 the second part of the Appointments
Clause,344 the Jury *1737 Trial Clause,345 and the Full Faith and Credit Clause346 as examples of the former; and to the
Census Clause,347 the Congress Meeting Clause,348 and the first part of the Appointments Clause349 as examples of the latter.
But, unlike these several clauses, there is no “may by law” or “shall by law” provision modifying the counting function.350
When the Constitution commits “Power” to Congress outside of Article I, Section 8, it says so. It is more than doubtful that the
seven word phrase “and the votes shall then be counted” is one of the “Powers vested by this Constitution in the Government
of the United States” within the meaning of the Necessary and Proper Clause.351 As *1738 a matter of principled textual
interpretation, the second prong of the Necessary and Proper Clause also will not suffice as a font of power to enact the Electoral
Count Act.

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***
What about the historical interpretation of the Necessary and Proper Clause? To be sure, the questions of whether the counting
function is one of the “Powers vested by this Constitution in the Government of the United States” within the meaning of the
Necessary and Proper Clause and whether the Necessary and Proper Clause is the font of power for congressional regulation
of the electoral count has been the subject of significant debate by Members of Congress. These questions were controversial
from the first.
The Senate of the Sixth Congress first debated these questions in considering the Grand Committee Bill.352 After Federalist
Senator Ross moved to appoint a committee authorized to report a bill, Senator Brown disagreed. He “was of opinion that this
was a subject on which Congress had no right to legislate. When the Constitution undertook to make provisions on a subject,
if they were found incomplete, or defective, they must be remedied by recommending an amendment to the Constitution.”353
Federalist Senator Dexter expressed no doubt that the Necessary and Proper Clause authorized legislation on the subject. “The
law now proposed,” said Dexter, *1739 “appears to be necessary to carry into effect the power of appointing the President; it
is therefore clearly Constitutional.”354 His argument may be that just as certain powers may give rise to implied powers, certain
duties may give rise to implied powers reasonably necessary to give effect to those duties.
Was Senator Dexter correct? Is there a “power of appointing the President” in the Electoral College Clauses? So too Federalist
Senator Livermore “never felt less doubt on any subject that the one now under consideration: the Constitution has given
many directions to the appointment of the President, some of which he read.”355 Unfortunately, the recorded debate does not
indicate what provisions Senator Livermore read--perhaps for good reason. There is nothing in the Electoral College Clauses
that suggests that Congress has any power to regulate the electoral count. Senator Baldwin, who was a Framer at the Philadelphia
Convention, disagreed with the Federalists on virtually every point. In a detailed speech, much of which we shall uncover in the
course of the structural argument, Senator Baldwin stated that the Federalists' efforts to regulate the electoral count “must be
made by proposing an amendment to the Constitution to that effect; and that they could not be made by law, without violating
the Constitution.”356 In other words, there was no express or implied power in the Constitution to regulate the electoral count
by law. Senator Baldwin took particular issue with Senator Dexter's conception of the Necessary and Proper Clause. Senator
Baldwin explained that the Necessary and Proper Clause
speaks of the use of the powers vested by the Constitution--this resolution relates to the formation of a competent
and essential part of the Government itself: that speaks of the movements of the Government after it is organized;
this relates to the organization of the Executive branch, and is therefore clearly a Constitutional work, and to
be done, if at all, in the manner pointed out by the Constitution, by proposing an article of amendment to the
Constitution on that subject.357

Senator Baldwin's statement is a particularly fine textual meditation based on the word “vested” in the Necessary and Proper
Clause. If we look intratextually, we see that the word “vested” appears alongside the word “Power” in each of the Vesting
Clauses of *1740 Articles I, II, and III.358 If the second prong of the Necessary and Proper Clause is a placeholder of sorts for
the legislative, executive, and judicial powers of the United States read as a whole, then the second prong cannot support the
Electoral Count Act. The Electoral College Clauses are not a part of the legislative power or the judicial power, and as Senator
Baldwin keenly observed, they are not a part of (and are antecedent to) the executive power.
The Necessary and Proper Clause resurfaced some twenty years later in the regulation of the electoral count. In December of
1820, approximately two months before the electoral count of 1821, Senator Wilson introduced a resolution entitled, “Attempt
to Remedy the Uncertainty as to Counting the Electoral Vote by Legislation.”359 He discussed the Necessary and Proper Clause
as the font of congressional power to regulate the electoral count and stated that

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Congress has unquestionably the power, under the last clause of the eighth section of the first article of the
Constitution, and he thought they ought to exercise it by vesting the authority to decide upon doubtful, disputed,
or unlawful votes, either in the President of the Senate, the Senate itself, the House of Representatives, or the two
houses conjointly or separately.360

This statement reflects some serious problems with the scope of congressional power to regulate the electoral count under the
Necessary and Proper Clause. Even if Congress may enact counting legislation under the Necessary and Proper Clause vesting
the “counting power” in both Houses of Congress (conjointly or separately), how may Congress vest such power in either House
alone? And how may Congress vest such power in the President of the Senate, possibly expanding the constitutional duties
of the Vice President? The Committee of the Judiciary, which considered Senator Wilson's resolution, seemed to think that
counting legislation was constitutional but merely inexpedient, and hence Senator Wilson's resolution was not acted upon.361
*1741 Little was said about the application of the Necessary and Proper Clause to counting electoral votes in the years
immediately following 1820. Senator Van Buren introduced a bill in the Senate in 1824 that was very similar to the Electoral
Count Act.362 Senator Macon did not think that this bill was necessary or constitutional and argued that “Congress had no power
to legislate upon the subject” of Senator Van Buren's bill.363 This bill passed the Senate but the House never considered it.
During the Wisconsin Incident of 1857, Senator Hunter invoked the Necessary and Proper Clause as the font of power “to
regulate by law the details of the mode in which the votes are to be counted.”364 But Senator Collamer expressed his serious
doubts that Congress could legislate on the Wisconsin problem: “I very much doubt whether the [F]ramers of the Constitution
ever intended to leave the subject of the presidential election to the House of Representatives, or the Senate, or either, or both
of them.”365 This statement echoes Senator Wilson's observations on the scope of congressional power to regulate the electoral
count under the Necessary and Proper Clause.
During the Electoral Count Act debates, the Members of Congress repeatedly pointed to the Necessary and Proper Clause as the
font of power to pass the Electoral Count Act. It does appear that these Members of Congress relied on this clause as the font
of power to pass the Electoral Count Act.366 As Professors Issacharoff, *1742 Karlan, and Pildes conclude, “A majority of
Congress was persuaded by the argument that the Act was permitted under the Necessary and Proper Clause to give substance
to the provisions of the Twelfth Amendment.”367
There were, of course, those who disagreed with this interpretation of the Necessary and Proper Clause. For example,
Representative Browne explicitly denied that the counting function was a “power” in the Article I, Section 8 sense of the word-a point that would implicitly apply to the word “power” in the Necessary and Proper Clause as well:
The [F]ramers of the Constitution withheld from Congress the power to interfere with this count; they withheld
it by not committing the power to do it. When the Constitution confers a power it does so in express words, as
Congress shall have power to borrow money, collect taxes, regulate commerce, coin money, and the like. By no
words, by no implication, has the power been given Congress to settle questions concerning the electoral count.368
*1743 And Senator Wilson made known his belief that “defects in the Constitution of the United States can not
be remedied by acts of Congress.”369 At a minimum, several Members of Congress, including those who voted
for the Electoral Count Act, had significant doubts with respect to its constitutionality.

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The Necessary and Proper Clause is not a font of power for the Electoral Count Act. The counting function is neither one of
the “foregoing Powers,” nor “Powers vested by this Constitution in the Government of the United States,” nor “Powers vested
by this Constitution . . . in any Department or Officer [of the United States]” within the meaning of the Necessary and Proper
Clause. Put differently, congressional regulation of the electoral count, however “necessary,” is not “proper”--and hence not
within Congress's domain or jurisdiction--within the meaning of the Necessary and Proper Clause.370 In case there should be
any doubt on this point, the structural argument makes clear that doubt should be resolved against Congress in the specific
context of presidential election.371 The Electoral Count Act treads on terribly thin textual ground vis-à-vis the Necessary and
Proper Clause, and to the only remaining possible font of implied power, we now turn.
b. The Electoral College Clauses
The second possible font of congressional power to enact the Electoral Count Act is the Electoral College Clauses themselves.
There are at least two historical precedents for this supposition. First, the First Congress encountered the very tricky problem of
specifying the oath or affirmation for state legislators and officers under the *1744 Oath or Affirmation Clause.372 None of the
three prongs of the Necessary and Proper Clause was thought to apply. The Oath or Affirmation Clause is not a foregoing power
or one of the powers vested by the Constitution in the government of the United States, and state legislators and officers are by
definition not officers of the United States. The First Congress simply concluded that the Oath or Affirmation Clause was “selfexecuting,” and prescribed an oath or affirmation for these persons anyway.373 Second, much later, the Supreme Court affirmed
Congress's ability to enact legislation under the Fugitive Slave Clause which appears to be self-executing.374 The rationale for
this decision was that the Fugitive Slave Act is a “direct implementation” of the Fugitive Slave Clause and therefore does not
go beyond the provisions of the clause.375
What does this mean for the Electoral Count Act? Two questions arise: whether some congressional regulation of the electoral
count may be sustained under the Electoral College Clauses and whether the Electoral Count Act may be sustained under the
Electoral College Clauses.376
*1745 Article II, Section 1, Clause 3 and the Twelfth Amendment seem to be at least as self-executing as the Oath or
Affirmation Clause or the Fugitive Slave Clause. Indeed, Article II, Section 1, Clause 3 is by far the longest “clause” in the
original Constitution, containing approximately 290 words, compared to the next longest clause with approximately 165.377
These two clauses look more like technical rules than the open-textured provisions such as the Privileges and Immunities Clause,
Due Process Clause, and Equal Protection Clause of the Fourteenth Amendment.378 These two clauses could hardly be more
prolix for constitutional provisions. Professor Gardner offers the following account:
Presumably, these detailed instructions reflect society's determination that the use of the particular process set
forth will assure a result sufficiently accurate to justify society's consent to the winner . . . . This provision of
the Constitution is unusual: it is rare for the people to dictate in such detail the manner in which they would like
things done. More typical is article I, section 4, governing congressional elections . . . .379

In addition to this point of prolixity, consider also that the Electoral College Clauses, and especially the Twelfth Amendment,
contain no special provision empowering Congress to enforce it by appropriate legislation, in contrast to a host of other (and
admittedly later) amendments to the Constitution.380
Apparently, the Second Congress did not think that Article II, Section 1, Clause 3 was fully self-executing given the regulations
on the manner of certifying and transmitting electoral votes.381 However, it is unclear whether the Second Congress based these
regulations on the implied power of Article II, Section 1, Clause 4 and or of Article II, Section 1, Clause 3. Recall that the draft

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of Article II, Section 1, Clause 4 at the Philadelphia Convention 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 *1746 U--States”382 and that the italicized language was inexplicably dropped.383 To
be sure, regulations on the manner of certifying and transmitting their votes do not support regulations on the electoral count.
The problem of binding future joint conventions aside,384 some congressional regulation of the electoral count may easily be
supported under the Electoral College Clauses. For example, a regulation providing that the joint convention count electoral
votes in the alphabetical order of States in the Union probably would be constitutionally acceptable. The real issue is whether
Congress had the legislative authority to pass the Electoral Count Act in the first place.
The Electoral Count Act goes well beyond the text of the Electoral College Clauses. The Electoral Count Act is by no means
a “direct implementation” of the Electoral College Clauses. During the Electoral Count Act debates, Senator Jones made the
argument from prolixity that Congress did not have the power to legislate:
That [second] article provides the mode and manner of returning and counting that vote. If it was intended that
Congress should exercise authority over this subject by general legislation, why is it that the Constitution, instead
of giving as in other cases a general power to Congress, has anticipated such legislation by a lengthy provision
specifying particularly the manner in which the voice of the electors shall be ascertained? It was not the intention
of the Constitution to leave to Congress the power to determine how the President and Vice-President should be
elected. This is clearly indicated by the express words of the first section of the second article.385

It is more than doubtful that the Electoral Count Act could be sustained as a direct implementation of the Electoral College
Clauses. If the Electoral Count Act passes constitutional muster as a direct implementation of the Electoral College Clauses, it
is most difficult to see what would constitute an indirect--and constitutionally-impermissible--implementation of those clauses.
*1747 c. Textual Arguments from Negative Implication
Two textual arguments from negative implication cast additional doubt upon any font of congressional power for the Electoral
Count Act, and particularly the implied font of congressional power of the Electoral College Clauses itself. When the
Constitution contemplates a legislative role for Congress with respect to the Presidency, it says so--twice.
First, consider Article II, Section 1, Clause 4 which provides that “[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.”386 This
clause contains the sole grant of power to Congress in the Electoral College Clauses. The argument from negative implication
gains momentum when we remember that the Electoral College Clauses were drafted as a whole. Indeed, the original draft of
Article II, Section 1, Clause 4 was a part of Article II, Section 1, Clause 3 which contains the counting function.387 There is
little reason to believe that the omission of any express legislative power in Article II, Section 1, Clause 3 was accidental.
Senator Eaton made much of the negative implication during the Electoral Count Act debates:
Turn over to paragraph 3 of the same section and what do you find there? The only power that Congress has is
here: “The Congress”--may do what? After the state has done its duty, “The Congress may determine”--what?
“The time of choosing the electors and the day on which they shall give their votes; which day shall be the same
throughout the United States.” That is all the power. The very keeping of that power excludes every other idea of
power. Every other idea of power belongs to the states, is in the states.388 *1748 Second, consider the Presidential
Succession Clause of Article II which provides that

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[i]n Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the
Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by
Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President,
declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be
removed, or a President shall be elected.389

This clause too was placed alongside the Electoral College Clauses in the Framers' draft Constitution and was later rearranged
by the Committee of Style.390 There is little reason to believe that the omission of any express legislative power in Article II,
Section 1, Clause 3 was accidental.
The prolix Electoral College Clauses provide that “the Votes shall then be counted”--not, “the Votes shall then be counted as
Congress may by Law have directed.” The Framers could have so provided but they did not.
3. The Intratextual Argument
There is more to the textual argument against the Electoral Count Act than the sparse words of the Electoral College Clauses-much more. An Article II-centric focus on presidential election is too narrow. We can squeeze yet more meaning from the
Electoral College Clauses and Congress's role in presidential election when we consider the text of the Constitution as a coherent
whole. When we do so, we see that Congress has a role in presidential election, but Congress has a role in congressional elections
as well. We may obtain important clues about Congress's role in presidential election by comparing and contrasting it with
Congress's role in congressional elections. This intratextual analysis reveals two arguments that strongly militate against the
constitutionality of the Electoral Count Act. These two arguments relate to two clauses in Article I: the Times, Places, and
Manner Clause and the House Judging Clause.
*1749 a. The Times, Places, and Manner Clause
When the Constitution contemplates a “regulating” role for Congress in elections, it says so. The Times, Places, and Manner
Clause provides that “[t]he Times, Places and Manner of holding Elections for Senators and Representatives shall be prescribed
in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as
to the Places of chusing Senators.”391
The Times, Places, and Manner Clause is the font of significant congressional power over congressional elections--so significant
that Alexander Hamilton devoted three essays of The Federalist to the clause in order to defend it from criticism from AntiFederalists and Federalists alike.392 Indeed, several State ratifying conventions proposed amendments to the Constitution to
amend the Times, Places, and Manner Clause so as to eliminate the proviso empowering Congress to regulate congressional
elections.393
Importantly, no such clause empowering Congress to regulate presidential election appears in Article II. A careful reading of
the Electoral College Clauses reveals an important point. As we have seen, Article II, section 1, clause 4 provides that “[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.”394 This clause supplies the only grant of power to *1750 Congress in presidential
election and the clause empowers Congress only with respect to “Time.” The Constitution itself fixes the “Places” with the
electors “meet[ing] in their respective States.”395 What about “Manner” ? In stark contrast to congressional election, Congress

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has no power with respect to the “Manner” of presidential election. Article II, section 1, clause 2 provides that “[e]ach 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 the Congress.” Interestingly, Alexander Hamilton's private, unadopted
draft of the Constitution provided that “[t]he Legislature shall by permanent laws provide such further regulations as may be
necessary for the more orderly election of the President, not contravening the provisions herein contained,”396 but no such
provision was the subject of recorded debate at the Philadelphia Convention of 1787.
What does the Times, Places, and Manner Clause mean for the Electoral Count Act? The implications of the intratextual
argument are incredibly straightforward. There is little reason to suppose that the word “Manner” in the Times, Places, and
Manner Clause has a substantially different meaning from the word “Manner” in Article II, Section 1, Clause 2.397 Whatever
the scope of Congress's power to prescribe the manner of congressional elections, Congress has no such power in presidential
election.
The marked silence of the founding generation on the issue of presidential election in contrast to congressional election strongly
suggests that they understood presidential election to be free from congressional regulation. Unsurprisingly, the intratextual
argument featured prominently in the constitutional debate over the Grand Committee Bill. In March of 1800, Senator Pinckney
seized the intratextual argument from the Times, Places, and Manner Clause in his lengthy speech against the Grand Committee
Bill. Read carefully his intratextual argument:
Let us for a moment compare [the Times, Places, and Manner Clause] with the directions of the Constitution
*1751 respecting the Electors of a President, and then permit me to call your attention to the remarkable
difference there is between them, and the reasons for this difference.

By the Constitution, Electors of a President are to be chosen in the manner directed by the State Legislatures-that is all that is said. In case the State Legislatures refuse to make these directions there is no power to compel
them; there is not a single word in the Constitution which can, by the most tortured construction, be extended to
give Congress, or any branch or part of our Federal Government, a right to make or alter the State Legislatures'
directions on this subject. The right to make these directions is complete and conclusive, subject to no control or
revision, and placed entirely with them, for the best and most unanswerable reasons.398

Senator Pinckney argued that the Grand Committee Bill was unconstitutional because it was an impermissible congressional
regulation of the manner of presidential election. If Senator Pinckney is correct, it follows that the Electoral Count Act is also
unconstitutional. Senator Pinckney is correct. Congressional regulation of the electoral count is a regulation on the manner of
presidential election. The two key sections of the Electoral Count Act-- 3 U.S.C. § 5 and 3 U.S.C. § 15--regulate the manner
in which the acts of the electors will be given effect.
The intratextual argument also has powerful implications for the question of whether there is a font of power for Congress
to enact the Electoral Count Act. Imagine for a moment that the amendments proposed by several state ratifying conventions
eliminating the proviso of the Times, Places, and Manner Clause empowering Congress to regulate congressional elections399
had been adopted. There would be no question that Congress would then have zero power over the manner of congressional
election. The power to implement this amended Times, Places, and Manner Clause is not a “Power vested in this Constitution in
the Government of the United States” under the Necessary and Proper Clause. In other words, Congress derives its sole power
to regulate congressional elections from the proviso of the Times, Places, and Manner Clause. Congress *1752 may not claim
that the Necessary and Proper Clause is the font of power for regulating the manner of presidential election.

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In sum, the intratextual argument from the Times, Places, and Manner Clause makes clear that Congress has near zero power
over the manner of presidential election and raises serious doubts as to Congress's font of power to enact the Electoral Count Act.
b. The House Judging Clause
When the Constitution contemplates a judging role for each House of Congress in elections, it says so. The House Judging
Clause provides that “[e]ach House shall be the Judge of the Elections, Returns and Qualifications of its own Members.”400 The
House Judging Clause is the font of awesome powers and duties. Under this clause, each House is a judicial tribunal with the
judicial power to investigate the elections of its Members,401 and has the duty to refuse to seat members who are constitutionally
ineligible to the office of Representative or Senator.402
Importantly, no such clause appears in Article II concerning presidential election.403 The negative implication is made more
stark by the fact that the House Judging Clause was considered immediately after the drafting of the Electoral College Clauses at
the Philadelphia Convention of 1787, but no Framer thought to extend the principle of the House Judging Clause to presidential
election.404
What does the House Judging Clause mean for the Electoral Count Act? The negative implication of the House Judging Clause
is that the joint convention does not have the authority to judge the elections, returns, and qualifications of electors. The joint
convention is not a judicial tribunal with the power to investigate the manner of appointment and qualifications of electors, and
may not refuse to count electoral votes contained in authentic electoral certificates for *1753 reasons relating to the manner
of appointment or qualifications of electors.405
These conclusions find support in the purpose of the House Judging Clause. Justice Story, in his Commentaries on the
Constitution of the United States, explained that the power to judge the elections, returns, and qualifications of the members
of each House must be lodged somewhere in order to safeguard the liberties of the people.406 The only question was where to
place such a power. Justice Story concluded that the power is best lodged in the body whose elections, returns and qualifications
are to be judged and not in some other body. “If lodged in any other, than the legislative body itself,” wrote Justice Story,
its independence, its purity, and even its existence and action may be destroyed, or put into imminent danger. No
other body, but itself, can have the same motives to preserve and perpetuate these attributes; no other body can be
so perpetually watchful to guard its own rights and privileges from infringement, to purify and vindicate its own
character, and to preserve the rights, and sustain the free choice of its constituents.407

The House Judging Clause strongly suggests that the power to judge the elections, returns, and qualifications of electors is
committed to the individual electoral colleges who compose their own “Houses,” but we need not decide this in order to conclude
that the power most emphatically does not belong to Congress.408 On Justice *1754 Story's logic, the power, if vested in
Congress, would risk the “independence” and “purity” of the electoral colleges, and “put [them] into imminent danger.” Note
too how the House Judging Clause eschews bicameralism, with each House of Congress acting independently of the other, only
with respect to its own Members.
The intratextual argument from the House Judging Clause enjoys a rich pedigree in the constitutional debates over Congress's
ability to regulate the electoral count. As early as 1800, Senator Baldwin, a Framer at the Philadelphia Convention of 1787,
made precisely this intratextual argument in his speech against the Grand Committee Bill. “[W]hat are the questions which can
arise on the subject intrusted to [electors], to which they are incompetent, or to which Congress is so much more competent?,”
he asked.409 One set of questions were “[t]hose which relate to the elections, returns, and qualifications of their own members,”

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and on this issue he concluded, “[S]hall these be taken away from that body [of electors], and submitted to the superior decision
and control of Congress, without a particle of authority for it from the Constitution?”410 Senator Baldwin clearly invoked the
language of the House Judging Clause to make the intratextual argument, for the phrase “elections, returns and qualifications”
appears but once in the Constitution.
During the electoral count of 1857, Senator Collamer expressed very serious constitutional doubts about whether the two Houses
of Congress could by joint resolution express any opinion that the electoral votes of the State of Wisconsin were null and void
because these votes had been given on a day different from that prescribed by law.411 He “very much doubt[ed] whether the
[F]ramers of the Constitution ever intended to leave the subject of presidential election to the House of Representatives, or the
Senate, or either, or both of them.”412 Evidently pointing to the House Judging Clause, he stated, “The Constitution vested in
each house the power to decide upon the election of its members; it provided carefully that it would not trust to the two houses
to elect a President.”413
In May of 1874, the House Committee on Privileges and Elections employed the intratextual argument in a lengthy report
*1755 supporting a proposed amendment to the Constitution. The proposed amendment provided for the abolition of the
Electoral College mode of presidential election in favor of direct, popular election and empowered Congress “to provide for
holding and conducting elections of President and Vice-President, and to establish tribunals for the decision of such elections
as may be contested.”414 In a section of the report captioned “Congress is not a Canvassing Board,” the report provided in
relevant part:
The proposition that Congress has power to sit as a canvassing board upon the electoral votes of the States,
admitting or rejecting them for reasons of its own, subverts the whole theory by which their appointment was
conferred upon the States; makes Congress the judge of the election and qualifications of President and VicePresident, and, by the operation of the twenty-second joint rule, gives that power to each house separately, as in
case of its own members. There is no such express power given to Congress in the Constitution, nor is it necessary
to carry out any express power therein given, and its exercise would be in direct conflict with the known purpose of
the [F]ramers to make the executive and legislative departments as nearly independent of each other as possible.415

The intratextual argument from the House Judging Clause did not lose any vigor in the Electoral Count Act debates. Senator
Burnside put the intratextual point bluntly, stating that
it was never the intention of the [F]ramers of the Constitution to make Congress the judge of the qualifications
of the electors. If it had been so, the Constitution would have distinctly stated it. It makes each house the judge
of the qualifications of its own members in express terms, but it does not imply even that Congress has any right
to judge of the qualifications of the electors.416

So too Senator Edmunds made the intratextual argument, but a considerably more complex one. He pointed to the Vesting
Clause of Article III417 and three clauses of Article I--the House Judging Clause, the House Expulsion Clause,418 and the Senate
Impeachment *1756 Clause419--as the sole grants of “judicial power” to individual Houses of Congress, and concluded that
“no judicial power is invested in either or both Houses of Congress that is not especially named and imputed to them as such
and in such terms.”420
Importantly, as the foregoing statements suggest, the intratextual argument is not just a narrow textual point from negative
implication. The intratextual argument gains its strength from the context of its application. The House Judging Clause merely

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makes explicit an implicit idea that a body has judicial power over the privileges of its own members.421 The important question
for present purposes is whether Congress has judicial power over the privileges of non-member electors, especially in light of
the “known purpose of the [F]ramers to make the executive and legislative departments as nearly independent of each other
as possible.”422
In sum, the intratextual argument from the House Judging Clause strongly suggests that Congress has no judicial power over
the elections, returns, and qualifications of electors.
***
The intratextual arguments from both the Times, Places, and Manner Clause and the House Judging Clause are textual arguments
from negative implication. These two clauses carefully empower Congress and each House of Congress, respectively, in
congressional elections, and the Electoral College Clauses contain no analogues concerning presidential election. As a brute
textual matter, the intratextual argument raises doubt as to Congress's ability to regulate the manner of presidential election and
to judge the elections, returns, and qualifications of electors.
*1757 Of course, textual arguments from negative implication need to be applied sensitively and contextually in order to
avoid wooden readings of the Constitution.423 A sensitive and contextual interpretation of the intratextual argument reveals
a strong case against Congress's ability to regulate the manner of presidential election and to judge the elections, returns, and
qualifications of electors. As a matter of sensitive interpretation, the intratextual arguments from negative implication deserve
special weight given the prolixity of the Electoral College Clauses, relative to other clauses of Article II which mark the grand
contours of executive power, and more importantly, relative to the clauses of Article I which empower Congress in congressional
elections. It hardly seems that the Framers simply forgot to draft clauses in Article II analogous to the Times, Places, and Manner
Clause or the House Judging Clause, or understood Article II impliedly to contain such congressional power over presidential
election.
As a matter of contextual interpretation, we should be especially chary of Congress's role in presidential election. The intratextual
argument deserves special weight in light of the structural features of presidential election, namely the repudiation of Congress
in the process of presidential election.424 As we shall see, the Framers instituted an electoral college mode of presidential
election as a replacement for the election of the President by the Congress. The Elector Incompatibility Clause also expresses
the anti-Congress principle in presidential election by prohibiting Members of Congress from even serving as electors.425 As
Senator Wilson put the point, “When the [F]ramers of the Constitution expressly prohibited Senators and Representatives from
appointment as electors, they clearly indicated their purpose to exclude them from all power in or over the matter of the election
of a President by the electors appointed by the States.”426
*1758 In sum, the intratextual argument, when interpreted sensitively and contextually, strongly militates against the
constitutionality of the Electoral Count Act.
4. Conclusions
Taken together, the textual arguments--traditional and intratextual--expose the unconstitutionality of the Electoral Count Act.
What may seem to be expedient is not necessarily what is constitutional. First and foremost, the textual argument makes clear
that there is no source of power, express or implied, for Congress to pass the Electoral Count Act. A careful analysis of the
Necessary and Proper Clause and the Electoral College Clauses reveals that neither clause supports Congress's power to enact
the Electoral Count Act. In the absence of an implied grant of power to Congress to enact such a statute, the Electoral Count Act
is unconstitutional. Anyone who wishes to argue that the Electoral Count Act is constitutional must grapple with the threshold
question of whether and where Congress has the power under the Constitution to enact such a statute. Other textual arguments

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relate to specific provisions of the Electoral Count Act. The constitutionality of the “Presiding Officer Clause” of 3 U.S.C. §
15 is in serious doubt given conflict-of-interest principles relating to the vice presidency. The constitutionality of 3 U.S.C. § 17
is beyond all serious doubt. This provision, which limits (or purports to limit) the proceedings in each House of Congress in
debating objections to electoral votes, is patently unconstitutional. Other textual arguments are holistic, even quasi-structural.
The nature of the counting function by the counting agent is more “thin” than “thick,” relating more to the ascertainment and
aggregation of electoral votes, than to the judging of electoral votes. The bicameral counting procedure of 3 U.S.C. §15 violates
the unicameralism principle of the Electoral College Clauses. And the intratextual argument from the Times, Places, and Manner
Clause and the House Judging Clause strongly militates against the constitutionality of the Electoral Count Act, at least to the
extent that the counting agent is to judge electoral votes contained in authentic electoral certificates.
These textual arguments must also be considered in light of great care that the Framers took to remove Congress as much
as possible from the business of electing the President. The fact that Congress has thrice failed to pass constitutional
amendments giving Congress “power to provide for holding and conducting the elections of President and Vice President and
to establish tribunals for the *1759 decision of such elections as may be contested”427 is another clue that militates against the
constitutionality of the Electoral Count Act. Moreover, these three attempts at constitutional amendment occurred in the 1880s,
just a few years before Congress passed--with no enabling constitutional amendment--the Electoral Count Act in 1887.
B. The Structural Argument
In addition to textual argument, the interpretivist resolution of the Electoral Count Act is based on a structural argument. The
structural argument illuminates a number of important themes that emerge from the Constitution as a whole.428 In the present
context, the structural argument provides some of the most satisfying arguments that the Electoral Count Act is unconstitutional.
This section proceeds in three sub-sections. The first sub-section presents five principles of presidential election. The second subsection presents two principles of rule-making and law-making. The final sub-section assesses the conclusions of the structural
argument.
1. Five Principles of Presidential Election
a. The Anti-Senate Principle
First and foremost, the Constitution mistrusts the Senate in the process of presidential election. This is the anti-Senate principle
of presidential election. The Electoral Count Act is unconstitutional because the Senate has equal agency with the House of
Representatives in counting electoral votes. As we have seen, in a single return case, the joint convention may not reject electoral
votes without the concurrence of the Senate, and in a multiple return case, the joint convention may not accept electoral votes
without the concurrence of the Senate.429 And as Representative Caldwell explained during the Electoral Count Act debates:
The separate concurrent action of both Houses provided for in the bill preserves the constitutional identity,
rights, and dignity of each. This concession of each House to the other of equal and concurrent power to
decide on informalities and *1760 illegalities appearing on the face of returns, upon objection of a Senator or
Representative, is necessary to the determination of results.430

Whatever may be said about the involvement of both Houses of Congress in the process of counting electoral votes, it is clear
that the Senate as a separate and distinct body is to have no agency in electing the President. The Electoral College Clauses
make clear that the Senate and the House of Representatives are not created equally in the process of presidential election.
Under the original Constitution and the Twelfth Amendment, if the electors shall have failed to make a choice, the House of

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Representatives chooses the President, not the Senate. Under the Twelfth Amendment, if the electors shall have failed to make
a choice, the Senate only chooses the Vice President.431
The logic behind the anti-Senate principle of presidential election is incredibly clear once we consult the entire text of the
Constitution and its legislative history. Under the Constitution, the Senate assumes, in addition to its equal share of the Article
I legislative power, three distinct powers. First, the Senate has judicial power as a court of impeachment for the President, Vice
President, and all civil Officers of the United *1761 States.432 Second, the Senate shares executive-legislative power with the
President in the business of treaty-making.433 Third, the Senate shares executive power with the President in the business of
appointing Officers of the United States.434 It is important to remember that the Committee of Eleven's Report of the Electoral
College Clauses at the Philadelphia Convention provided that, if the electors failed to make a choice, the Senate would elect
the President and the Vice President. The House of Representatives was to have no role whatsoever. The Report provided in
relevant part:
[A]nd 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[] Genl. Government, directed to the President of the
Senate-- The President of the Senate shall in that House open all the certificates; and the votes shall be then &
there counted. The Person having the greatest number of votes shall be the President, if such number be a majority
of that of the electors; and if there be more than one who have such a majority, and have an equal number of votes,
then the Senate shall immediately choose by ballot one of them for President: but if no person have a majority[,]
then from the five highest on the list, the Senate shall choose by ballot the President. And in every case after the
choice of the President, the person having the greatest number of votes shall be vice-president: but if there should
remain two or more who have equal votes, the Senate shall choose from them the vice-president.435

The Framers feared that the totality of these powers was simply too much. They feared that the Senate, already powerful, would
become a dangerous aristocracy, and that the President, already dependent on the Senate in treaty-making and appointments,
would be a mere creature of that body.436 Consequently, on September 6, *1762 1787, on a motion by Roger Sherman, the
Framers rejected the contingent election of the President and Vice President by the Senate, providing instead for the choice by
the House of Representatives.437 This change passed by a vote of ten to one.438
In The Federalist No. 66, Alexander Hamilton explained the logic for this change in the context of the balance of powers between
the House of Representatives and the Senate, carefully struck by the Constitution:
[T]o secure the equilibrium of the national House of Representatives, the plan of the convention has provided
in its favor several important counterpoises to the additional authorities to be conferred upon the Senate. The
exclusive privilege of originating money bills will belong to the House of Representatives. The same house will
possess the sole right of instituting impeachments; is not this a complete counterbalance to that of determining
them? The same house will be the umpire in all elections of the President *1763 which do not unite the suffrages
of a majority of the whole number of electors; a case which it cannot be doubted will sometimes, if not frequently,
happen. The constant possibility of the thing must be a fruitful source of influence to that body.439

As this passage demonstrates, it was simply beyond question at the founding that the Senate as a separate and distinct body
would have any agency in the process of presidential election.440 St. George Tucker, in his canonical “American Blackstone,”
first published in the wake of the constitutional crisis of the presidential election of 1800, summarized the anti-Senate principle
of presidential election thus:

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[The Senate's] exclusion from any participation in the election of a president, is certainly founded upon the wisest
policy: being associated with him in the exercise of his most important powers, and being chosen for a much
longer period than the representatives, the presumption of undue influence, where the contest might be between
a president in office, and any other person, would be altogether unavoidable.441

The anti-Senate principle of presidential election was not lost in the Electoral Count Act debates. Senator Bayard thought
it dispositive in urging the repeal of the Twenty-second Joint Rule.442 “I do not think,” said Bayard, “that anywhere in the
Constitution can be found language in any degree constituting the Senate of the United States a factor or an actor in the election of
the President of the United States.”443 He asked, “But will any Senator show me any clause of the Constitution, any implication
which can be argued from any clause of the Constitution, which gives the Senate one particle of lawful power in controlling the
choice of a President or a Vice-President of the United States?”444 Senator Whyte thought the anti-Senate principle so strong
an objection to the Electoral Count Act that he stated, “I would rather vote for a bill leaving it to the House of Representatives
to interfere than a bill which provided that the *1764 Senate should have anything to do with the election of President of
the United States.”445
The Electoral Count Act, like the Twenty-second Joint Rule, violates the anti-Senate principle of presidential election. The
involvement of the Senate as a separate and distinct body in the process of counting electoral votes runs seriously afoul
of constitutional structure. The equal agency of the Senate with the House of Representatives in the Electoral Count Act
impermissibly infringes upon the constitutional prerogatives of the House of Representatives in “umpir[ing]” presidential
election, and consequently, unduly strengthens the powers of the Senate in presidential election. Moreover, the equal agency of
the Senate violates the Framers' deliberate choice to exclude the Senate altogether from the process of presidential election.
This is not to say that the anti-Senate principle of presidential election requires that Senators must not participate in counting
electoral votes. There is a constitutionally significant difference between the Senate as a separate and distinct body, and Senators
as members of a joint convention of Senators and Representatives, where Representatives greatly outnumber Senators. The
counting function is committed to the joint convention and all questions of the electoral count must be resolved by it on a per
capita basis, not by two separate and distinct legislative bodies.
b. The Anti-Congress Principle
Second, the Constitution mistrusts Congress in the process of presidential election. This is the anti-Congress principle of
presidential election. The joint convention violates the anti-Congress principle to the extent that it rejects electoral votes
contained in authentic electoral certificates as not “regularly given.”446 Two parts of the Electoral College Clauses carefully
reflect the anti-Congress principle of presidential election.
First, the electoral college mode of presidential election itself is an instantiation of the anti-Congress principle. We should
remember that of all the methods to elect the President considered by the Framers the one most emphatically rejected was
election of the President by the legislature.447 The Framers rejected the *1765 parliamentary system for good reason: to create
an independent and firm Executive.448
The Electoral College Clauses further reflect the rejection of the parliamentary system. In the event the electors fail to make
a choice, Congress does nothing in choosing the President or Vice President. In such a case, the House of Representatives
chooses the President and the Senate chooses the Vice President.449 There is no possible instance in which the two Houses

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of Congress act concurrently in choosing the President or Vice President.450 Representative Randolph seized upon this point
during the Missouri Incident:
What was the theory of this Constitution? It is that this House, except upon a certain contingency, has nothing at
all to do with the appointment of President and Vice-President of the United States. What was to be the practice of
the Constitution, as now proposed? That an informal meeting of this and the other house is to usurp the initiative,
the nominative power, with regard to the two first officers of the Government, in despite and contempt of their
decision. Is there to be no limit to the power of Congress? no mound or barrier to stay their usurpation? Why were
the electoral bodies established?451 *1766 Indeed, if we look at the Constitution as a whole, we see that it is a
clause-by-clause rejection of the parliamentary system.452 The clear constitutional baseline is that congressional
election of the President is prohibited. The concurrence of the House of Representatives and the Senate required by
the Electoral Count Act runs afoul of constitutional structure.453 The fact that Congress does not elect the President
or Vice President, however, does not necessarily mean that Congress shall have no role in judging electoral votes.

Second, the Elector Incompatibility Clause provides that “no Senator or Representative, or Person holding an Office of Trust or
Profit under the United States, shall be appointed an Elector.”454 The Elector Incompatibility Clause is a substantial structural
guarantee of independence from Members of Congress. The clause “is a provision which goes . . . to show how extremely
guarded the Constitution is in preventing the members of Congress from having any agency in the election, except merely
in counting the votes.”455 When Members of Congress are prohibited from even giving electoral votes, what gives them the
constitutional authority to judge electoral votes? But again, the fact that Members of Congress are prohibited from even giving
electoral votes does not necessarily mean that Members of Congress shall have no role in judging electoral votes.
*1767 The anti-Congress principle should bear on the overall interpretation of the Electoral Count Act. The anti-Congress
principle stands for the thinnest conception of congressional regulation in counting electoral votes. As Senator Pinckney
explained:
How could [the Framers] 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? Did they not know how
easy it was to raise objections against the votes of particular elections, and that in determining upon these, it
was more than probable, the members would recollect their sides, their favorite candidate, and sometimes their
own interests? Or must they not have supposed, that, in putting the ultimate and final decision of the Electors in
Congress, who were to decide irrevocably and without appeal, they would render the President their creature, and
prevent his assuming and exercising that independence in the performance of his duties upon which the safety
and honor of the Government must forever rest?456

Simply put, the joint convention may not judge the acts of electors--that is, their electoral votes.
c. The Anti-President Principle
Third, the Constitution does not provide any role for the President in the process of presidential election. The Electoral Count
Act, however, did involve the President. The Electoral Count Act is a law, not a rule of proceeding like the Twenty-second
Joint Rule. Laws require bicameralism and presentment to the President, whereas rules (including joint rules) do not.457 The
Electoral Count *1768 Act was presented to and approved by President Cleveland. Is it not absurd to give the President an
agency in counting the electoral votes of her successors? During the Wisconsin Incident of 1857, Senator Pugh objected to a

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mere joint resolution stating that Wisconsin's electoral votes should not have been counted because it would require presentment
to the President. “Now, confessedly,” said Pugh, “the President has nothing to do with counting the votes for his successor.”458
Whether President Cleveland's approval of the Electoral Count Act presents an incurable constitutional problem of the past for
the Electoral Count Act is beyond the scope of the present analysis.
What is important for present purposes, however, is that a law cannot be repealed without presentment to and approval by
the President, or by a two-thirds super-majority of both Houses of Congress. This is a constitutional problem for the Electoral
Count Act because the President has a significant agency in the law of the status quo. During the Electoral Count Act debates,
Senator Hager put this point best:
But, as I said suppose this bill becomes a law signed by the President, how are you to get rid of it in the future?
If it is binding upon the Senate and House that meet next it requires, in order to repeal it, not only the vote of the
Senate and the House, but the approval of the President. Thus the President enters into the consideration, when
the Constitution never contemplated any such thing. It is a duty imposed entirely upon the Senate and House of
Representatives; and if you pass this bill in order that it may be a law it requires the approval of the President,
and hereafter to repeal it and get rid of it also requires the approval of the President, so that a future Senate and a
future House of Representatives may be entirely under the control of the President of the United States. . . . Did the
[F]ramers of the Constitution contemplate any such state of things as that when the twelfth article of amendment
was adopted? It was the intent that the people should control the election of the President, and not the President
of the United States. . . . The President has nothing to do with it.459 *1769 To be sure, the President has an
agency in presidential succession under the Presidential Succession Clause,460 but the President is behind a veil
of ignorance when it comes to presidential succession--unlike presidential election.

d. The Pro-States and Pro-State Legislatures Principle
Fourth, the Constitution trusts the states and state legislatures in the process of presidential election. This is the pro-states and
pro-state legislatures principle of presidential election. This principle makes clear that Congress has no role over some of the
problems of the electoral count.
Let us once again turn to Senator Pinckney's famous speech against the Grand Committee Bill. Invoking the Tenth Amendment,
Senator Pinckney argued that the Grand Committee Bill trampled on the rights of the states: he considered the right of the states
to be free from congressional interference in the election of the President as sacred as the right of the states to be free from
congressional interference in matters of religion and the press.461 Senator Pinckney then observed:
This right of determining on the manner in which the Electors shall vote; the inquiry into the qualifications, and
the guards 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. If it is necessary to have guards against improper elections
of Electors, and to institute tribunals to inquire into their qualifications, with the State Legislatures, and with them
alone, rests the power to institute them, and they must exercise it.462

Nearly three-quarters of a century later, the House Committee on Privileges and Elections in 1874 similarly reported:
*1770 It will thus be seen that the mode of choosing the electors is placed entirely beyond the power and
jurisdiction of the National Government; and whatever disorders, irregularities, or failures in the appointment of

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electors may occur in any of the States, they are entirely without remedy or redress upon the part of the Government
of the United States.463

How did Senator Pinckney and the House Committee on Privileges and Elections reach this conclusion? The italicized words
ought to provide a strong clue. Senator Pinckney expressly invoked the Times, Places, and Manner Clause in his argument
against the Grand Committee Bill,464 and the use of the word “mode” by the House Committee on Privileges and Elections is
merely a synonym for the word “Manner” in the Times, Places, and Manner Clause.
As we saw earlier, the intratextual implications of the Times, Places, and Manner Clause are potentially powerful. In sum, with
respect to presidential election, the Constitution fixes the “Place” (with the electors meeting in their respective states), empowers
Congress to fix the “Time,” and empowers the state legislatures to determine the “Manner.” Unlike Article I, the state legislatures
have the final word on that important subject; Congress has no power to determine on the “Manner” of presidential election.
But what is the breadth of power textually committed to state legislatures in presidential election? Does the word “Manner” in
the Times, Places, and Manner Clause include the power to investigate the qualifications of electors? To determine an answer
to this question, let us begin by looking to The Federalist No. 59 in which Alexander Hamilton brilliantly defends the Times,
Places, and Manner Clause, which was the subject of much criticism by both Federalists and Anti-Federalists alike. Hamilton
correctly notes “that there were only three ways in which this power could have been reasonably modified and disposed: that
it must either have been lodged wholly in the national legislature, or wholly in the State legislatures, or primarily in the latter
and ultimately in the former.”465 Consider Alexander Hamilton's justifications for reposing ultimate power over congressional
elections in Congress:
If the State legislatures were to be invested with an exclusive power of regulating these [House of Representatives]
elections, every period of making them would be a delicate *1771 crisis in the national situation, which might
issue in a dissolution of the Union, if the leaders of a few of the most important States should have entered into
a previous conspiracy to prevent an election.466

Two points should become immediately apparent. First, as the italicized word indicates, Alexander Hamilton read the “Manner”
in the Times, Places, and Manner Clause as a type of regulation by the state legislatures. This ought to come as no surprise
given the text of that clause which provides that “Congress may at any time by Law make or alter such Regulations, except
as to the Places of chusing Senators.”467
Second, what is sauce for the goose is sauce for the gander. Hamilton's defense of the Times, Places, and Manner Clause is no
less applicable to presidential election. When we consult the Electoral College Clauses, we see textually that the “Manner” of
appointing electors is vested wholly in the state legislatures; it is not vested primarily in the state legislatures and ultimately in the
Congress. If Congress had a role in regulating presidential election, Hamilton likely would have said so in The Federalist No. 68.
What does all of this mean for questions of the electoral count? As Senator Pinckney and the House Committee on Privileges and
Elections in 1874 noted, state legislatures might have jurisdiction (perhaps exclusive jurisdiction) to decide on questions with
respect to the validity of an elector's appointment.468 Dean Wroth adopts this view. He has written that “[t]he plain implication
of the original scheme is that the states in their control of the manner of appointment were to provide for the settlement of
whatever controversies might arise. . . . Local authorities would naturally resolve any contest.”469

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The problem with this view is that it reads into the Times, Places, and Manner Clause some judicial power to look into the
qualifications of *1772 an office holder. This would analogously imply that Congress has the judicial power to look into
qualifications of Members of Congress because Congress has the ultimate control over the “Manner” of congressional election.
The problem with this view is that such a power of Congress stands in seemingly direct violation of the power vested in each
House of Congress to judge the qualifications of its members under the House Judging Clause.470
It is also difficult to see how state legislatures (and their tribunals) would have exclusive jurisdiction to settle whatever
controversies might arise in the appointment of electors; the proper appointment of electors is very clearly a federal question
which may be adjudicated by federal courts.
The most important problem, however, is a temporal one. Given the immediacy principle of the Electoral College Clauses,471
there is simply no time to investigate--by the state legislatures and their tribunals or by federal courts--the validity of an elector's
appointment once the electoral votes are being counted. Indeed, the better reading of the Electoral College Clauses may be
that federal courts are vested with the judicial power to inquire into the proper appointment of electors between the “time of
chusing the Electors” and “the Day on which they shall give their Votes.” The problem here is that Members of Congress are
not supposed to know who the electors in each state are in advance of the meeting of the electoral colleges, so that the electors
may be as free and detached as possible. Moreover, Congress could easily make the time of choosing the electors the same day
on which the electors shall give their votes,472 leaving no time for the judicial investigation of electors' appointments.
Finally, in addition to the argument made by Senator Pinckney and the House Committee on Privileges and Elections in 1874,
there is a broader argument that Congress should have no role in regulating presidential election. In reviewing Hamilton's
justification for the Times, Places, and Manner Clause, we see that there could be no analogous “delicate crisis in the national
situation”473 if the state legislatures had the last word on determining “Manner.” This is because our Constitution ensures that
we will never be without a President.
One view is that the Electoral College Clauses were carefully crafted to provide for the election of a President should the states
fail *1773 in performing their constitutional duties. For example, Dean Wroth has written:
The method for electing a President may be contrasted with the provisions for congressional elections. In the
latter instance, as Hamilton pointed out in the Federalist, Congress must have ultimate control over the manner of
election of its own members, lest the states, by refusing to elect Congressmen, cause the whole structure to fall.
In the case of the presidency, since the House was ready to carry out the election if the states failed, congressional
control was not only undesirable but unnecessary.474

Dean Wroth is clearly alluding to the provision of the Electoral College Clauses which empowers the House of Representatives
to choose the President in case of electoral deadlock. While Dean Wroth is correct in his intuition that we will not be without a
President, he is incorrect as a matter of text. The choice of President by the House of Representatives is not unconstrained, but
is limited--to five persons by the original Constitution and now three persons by the Twelfth Amendment. If no states appoint
electors and hence no electors vote, the House of Representatives could not elect a President (nor the Senate a Vice President).
In the case posited by Dean Wroth, however, it may be that under the original Constitution, the Presidential Succession Clause
of Article II would kick in to ensure that we are not without a President.475 This was the view of “Horatius” in a letter to
the Washington Federalist on January 6, 1801--just five weeks before the troublesome election of then Vice-President Thomas
Jefferson by the House of Representatives. In Horatius's view, the case of no election of President and Vice President by the
electors fit squarely within the “removal” provision of the Presidential Succession Clause:

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The words used here [in the Presidential Succession Clause] are comprehensive enough to embrace every vacancy,
and if they are construed not to embrace the case of removal by virtue of the constitutional terms of the offices of
President and Vice-President, they will not embrace the vacancy most probable to happen, while they are admitted
to embrace vacancies that are very improbable.476 *1774 We need not overly concern ourselves with the scope
of “removal” in the Presidential Succession Clause because the Twentieth Amendment removes any ambiguity.477
A critic would argue that this reading of the Presidential Succession Clause does not remove Congress from the
business of electing the President when the states fail to fulfill their constitutional duties. Indeed, the Presidential
Succession Clause explicitly invites Congress to legislate on the subject of presidential succession. However,
under that clause, Congress specifies who shall act as President until a special, intervening presidential election,
and not who is President as under the Electoral College Clauses. Moreover, prospective legislation under the
Presidential Succession Clause--enacted behind a veil of ignorance well before any constitutional crisis--provides
a much more legitimate solution than allowing the House of Representatives to choose the President based on the
circumstances at hand, when party spirit is likely to govern the choice.

e. The Pro-Electors Principle
Fifth, the Constitution trusts electors in the process of presidential election. More precisely, the Constitution trusts electors with
the last word on the persons receiving votes--period. This is the pro-electors principle of presidential election. The Electoral
Count Act is unconstitutional to the extent that the joint convention may reject electoral votes in authentic electoral certificates
as not “regularly given.”478 In other words, the joint convention may not examine the contents of electoral certificates and reject
electoral votes because of the persons receiving votes.
As a structural matter, the electoral colleges constitute a separate and coordinate branch of the Government of the United
States479 (although as an “architextural” matter,480 the electoral colleges occupy textual space in Article II along with the
executive branch of the Government of the United States). What gives Congress or the joint convention the authority to judge
electoral votes?
*1775 The electoral colleges are inferior neither to Congress nor to the joint convention. The numbers suggest as much:
the number of electors is equal to the number of Senators and Representatives.481 As a separate and coordinate branch of
government, the electors should have interpretive authority of the Constitution with respect to the powers committed to them.482
The founding generation understood that electors would be among the most virtuous citizens of the Republic.483 The electors
in the electoral college “houses” do “meet” and deliberate like Members of Congress.484 They probably *1776 enjoy the same
privileges and immunities as Members of Congress, including immunity from arrest and freedom of speech and debate.485
Importantly, the electors also enjoy considerable structural independence from Congress. Electors receive no compensation
from Congress for their federal service, nor has any Congress, to my knowledge, ever compensated electors for such service.486
Electors are also not subject to impeachment by the House of Representative or conviction by the Senate because they are not
“civil Officers of the United States.”487
The structural coordinacy of electors and their structural independence is destroyed if Members of Congress may second-guess
the electors' judgments. Unlike inferior courts whose decisions may be judged by the Supreme Court,488 the electors are not
inferior to the joint convention of Senators and Representatives and may not be judged by them. As Representative Randolph

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put the point in 1821, “[T]he electoral college was as independent of Congress as Congress of them; and we have no right, said
he, to judge of their proceedings.”489
A simple counterfactual underscores the structural principles of coordinacy and independence. Imagine that the Framers gave
Members of Congress, instead of electors, the choice of electing the President and Vice President. Would there be any question
that Members of Congress would have the last word on the persons voted for in the presidential and vice presidential election?
Would the Chief Justice of the United States refuse to administer the presidential oath or affirmation if the Members of Congress
acted unconstitutionally? Would that matter?
*1777 There is considerable historical support for the pro-electors principle of presidential election. Senator Baldwin, in his
remarks against the Grand Committee Bill in January of 1800, succinctly observed
that the Constitution in directing Electors to be appointed throughout the United States equal to the whole number
of the Senators and Representatives in Congress, for the express purpose of entrusting this Constitutional branch of
power to them, had provided for the existence of as respectable a body as Congress, and in whom the Constitution
on this business has more confidence than in Congress.490

Senator Baldwin's statement highlights two important points: in absolute terms, the Constitution trusts electors, and in relative
terms, the Constitution trusts electors more than Members of Congress.
Senator Baldwin then posed a powerful counterfactual: What if the Constitution had provided that the electors meet at some
central location instead of meeting in their respective states?491 The answer was obvious--the electors, not some other body,
would resolve the problems of the electoral count.492 It therefore followed, according to Senator Baldwin, that the joint
convention of Senators and Representatives had no additional power to judge electoral votes just because the electors meet in
their respective states and not at some central location. He stated, “It having been deemed more safe by the Constitution to form
them into different Electoral colleges, to be assembled in the several States, does not at all alter the nature or distinctness of
their powers, or subject them any more to the control of the other departments of the Government.”493 In his closing remarks,
he observed that:
*1778 [A]ll the questions which had been suggested were as safely left to the decision of the assemblies
of Electors as of any body of men that could be devised; and that the members of the Senate and House of
Representatives, when met together in one room, should receive the act of the Electors as they would the act of
any other Constitutional branch of the Government, to judge only of its authentication, and then to proceed to
count the votes, as directed in the second article of the Constitution.494

This statement underscores the critical distinction in the problems of the electoral count. The joint convention of Senators and
Representatives should “judge only of [the] authentication” of the acts of electors (that is, their electoral certificates), but not
judge the acts of electors (that is, their electoral votes).495
Senator Pinckney, in his lengthy speech against the Grand Committee Bill in March of 1800, elaborated on the pro-electors
principle of presidential election in the specific context of the presidential ineligibility problem of the electoral count--that is,
the elector who votes for a President who is not constitutionally qualified. He believed that virtuous electors simply would
not vote for a President of doubtful constitutional qualifications given the “immense power” of the President.496 If they did,
however, he had a forcible answer:

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It is true they, as well as any other Constitutional branch of this Government acting under that instrument, may
be guilty of taking unconstitutional or corrupt steps, but they do it at their peril. Suppose either of the other
branches of the Government, the Executive, or the Judiciary, or even Congress, should be guilty of taking steps
which are unconstitutional, to whom is it submitted, or who has control over it, except by impeachment? The
Constitution seems to have equal confidence in all the branches on their own proper ground, and for either to
arrogate superiority, or a claim to greater confidence, shows them in *1779 particular to be unworthy of it, as
it is in itself directly unconstitutional.497

In sum, in the process of presidential election, the Constitution trusts electors with the last word on the persons receiving votes.
The joint convention does not sit in judgment of the acts of electors--that is, their electoral votes. At a minimum, the point is a
relative one: the Constitution trusts electors more than Members of Congress. It is thus unconstitutional for the joint convention
to reject electoral votes contained in authentic electoral certificates--even when those electoral votes are unconstitutional.
2. Principles of Rule-Making and Law-Making
The Electoral Count Act violates two critical structural principles of our Constitution: the anti-binding principle of rule-making
and the Chadha principle of law-making. These structural arguments create a rather compelling case that the Electoral Count
Act is unconstitutional.
a. The Anti-Binding Principle of Rule-Making
The anti-binding principle of rule-making prevents one Congress from binding another with respect to the rules of
proceedings.498 Moreover, one Congress cannot bind each House of Congress in a current Congress (let alone that of future
Congresses) with respect to the rules of proceedings. Article I, Section 5, Clause 2 expressly reflects this principle by providing
that “[e]ach House may determine *1780 the Rules of its Proceedings.”499 Indeed, as a formal matter, the rules of proceedings
in the House of Representatives expire at the end of the term of each House and are re-enacted by the next House.500 (In contrast,
the rules of proceedings in the Senate do not expire because the Senate is a continuing body.501)
The Electoral Count Act clearly violates the anti-binding principle of rule-making. The Electoral Count Act is a law of
proceeding for the electoral count, not a rule of proceeding like the Twenty-second Joint Rule.502 As such, the Electoral Count
Act *1781 impermissibly binds the actions of future joint conventions. During the Electoral Count Act debates, Members of
Congress naturally recognized that the Electoral Count Act would be used to bind the actions of future joint conventions by
settling questions of counting electoral votes in advance.503 Indeed, in describing Congress's motivation in passing the Electoral
Count Act, Professors Issacharoff, Karlan, and Pildes state that “Congress needed a binding rule, because the previous approach
of counting electoral votes under a joint procedural rule that could be revoked by either house had led to the rule being revoked
whenever one house disapproved of the results it would produce.”504
Two sections of the Electoral Count Act--3 U.S.C. §§ 5 and 15-- impermissibly bind (or purport to bind) the joint convention
in counting electoral votes. The former section, the one at issue in Bush v. Gore, provides:
If any State shall have provided, by laws enacted prior to the day fixed for the appointment of the electors, for its
final determination of any controversy or contest concerning the appointment of all or any of the electors of such
State, by judicial or other methods or procedures, and such determination shall have been made at least six days
before the time fixed for the meeting of the electors, such determination made pursuant to such law so existing

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on said day, and made at least six days prior to said time of meeting of the electors, shall be conclusive, and shall
govern in the counting of the electoral votes as provided in the Constitution, and as hereinafter regulated, so far
as the ascertainment of the electors appointed by such State is concerned.505

The latter section, as we have seen, binds the joint conventions with an intricate set of rules for counting electoral votes.506
This *1782 section binds the joint conventions with even the most minor of rules, including a rule that “certificates and papers
shall be opened, presented, and acted upon in the alphabetical order of the States, beginning with the letter A.”507 Thus, unless
the Electoral Count Act is repealed or amended, future joint conventions could not proceed with counting electoral votes in
reverse alphabetical order of states in the Union without acting illegally.
Two constitutional problems should be apparent. First, Congress might not have the authority to determine the rules of
proceedings for its joint convention. The joint convention is decidedly not Congress, but a distinct parliamentary body
with constitutionally-assigned functions.508 Indeed, under our Constitution, Congress may not even determine the rules of
proceedings of the House of Representatives or the Senate.509 It would seem to follow that the joint convention has the
constitutional prerogative to determine the rules of its proceedings when it meets once every four years. Second, even if
Congress may bind its joint convention, Congress may not bind the joint convention of future Congresses in the exercise of
constitutionally-assigned functions.
The anti-binding principle of rule-making should be a conclusive structural argument that the Electoral Count Act is
unconstitutional. It is a formalist argument, however, and undoubtedly will be criticized as such.
Consider the writings of one of our leading constitutional scholars on the very question of the anti-binding principle, and in
the very context of counting electoral votes. Professor Amar, in an essay on presidential succession originally prepared and
submitted as testimony before the Senate Judiciary Subcommittee on the Constitution on February 2, 1994, recommended that
“Congress should provide by statute that an electoral vote for any person who is dead at the time of the congressional counting
is a valid vote, and will be counted, so long as the death occurred on or after Election Day.”510 Recall the Greeley incident of
1872511--the specific case that *1783 Professor Amar sought to remedy by statute.512 To be sure, Professor Amar defended
his proposal against the formalist argument of the anti-binding principle of rule-making:
Spoilsports might argue that, strictly speaking, any legislation passed today could not conclusively bind a future
result-oriented Congress, which would be free to replace the earlier law after [President-elect] Smith's death
but before the official vote counting in Congress. (One Congress cannot generally bind a successor Congress.)
And worrywarts might fret over whether our proposed legislation should be enacted as a law rather than a
joint or concurrent resolution, since it seeks to regulate how votes will be counted in Congress itself. (Sections
15 through 18 of Title 3, however, do provide a clear precedent for regulating congressional vote-counting by
law.) The spoilsports and worrywarts largely miss the point. The key function of our proposed legislation is to
serve as a precommitment and focal point. With our proposed legislation on the books, it will be much more
difficult, politically, for a future result-oriented Congress to change the rules and discount the votes for Smith.
The principled precedent will be our legislation, not the Greeley affair. Citizens, pundits, reporters, and politicians
will be able to point to the plain language, in black and white, in the United States Code, answering the question
of the hour. Any deviation from this clear focal point will obviously smack of changing the rules in the middle
of the game--indeed, after the game has ended.513

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Call me a worrywart, but not a spoilsport. Indeed, if we are to “take text and structure seriously” and not follow “free-form”
methods of constitutional interpretation,514 call me a worrywart again. Professor Amar's statement leaves little doubt that
the Electoral Count Act is formally unconstitutional. But does worrywart formalism make the Electoral Count Act any less
unconstitutional? *1784 Is the Electoral Count Act a “law” that only has political but not legal force?
More recently, the anti-binding problem of rule-making is coming to the fore in the burgeoning literature on Bush v. Gore.
Scholars from both sides of the political aisle have taken notice of the point (at least in passing) in their discussions of 3 U.S.C.
§ 5, the so-called “safe harbor” provision. In an article published after the case, Professor Tribe, a member of Vice President
Gore's legal team, states, “There is no constitutionally prescribed method by which one Congress may require a future Congress
to interpret or discharge a constitutional responsibility in any particular way.”515 And in a very brief discussion of 3 U.S.C. §
15, he states, “It is true that even that procedure, untested in the 114 years during which it has been in place, was shadowed by
constitutional doubt over the power of one Congress to bind its successors in such matters.”516
Likewise, in a forthcoming article, Professor Lund, a defender of Bush v. Gore and a proponent of Bush- pere states:
This statute, 3 U.S.C. § 5, purports to bind Congress in exercising its constitutional duty to count electoral votes.
I doubt that this can constitutionally be accomplished by a statute. Each house of Congress has the authority to
determine its own rules of proceeding, and it is far from clear that a statute can override that authority. But even if
3 U.S.C. § 5 is unconstitutional in this sense, that has no bearing on the legal issues that arose in Bush v. Gore.517

Not surprisingly, the anti-binding principle of rule-making featured prominently in the Electoral Count Act debates. Several
Senators made the point that Congress cannot bind the joint convention,518 and that even if Congress could bind its joint *1785
convention, Congress cannot bind future joint conventions. Senator Hager put the latter point best. The counting of electoral
votes was a self-executing constitutional duty, and according to Senator Hager, “[W]e cannot here establish a rule by which
we dictate to another Congress how they shall perform a constitutional duty.”519 He believed that neither the Twenty-second
Joint Rule nor the Electoral Count Act would have “any binding force upon the Congress that must act in this matter under
the Constitution.”520 He colorfully continued:
Can you say, sir, that you may limit your powers or add to them by any legislation here? Can you bind your
successors in any matter of constitutional legislation? Turn to the powers that Congress has. Congress may “lay
and collect taxes, duties, imposts, and excises.” You might just as well undertake to pass a law here pointing out
how Congress shall levy taxes and imposts, as to undertake to regulate them in the performance of a constitutional
duty in regard to this matter. As well might one supreme court undertake to bind their successors as for one
Congress to undertake to bind their successors. It cannot be done either by legislation or by any rule that you
may see fit to adopt. I admit that there is an imperfection in this part of the Constitution as to how the joint body
when assembled together shall proceed to act and determine the result of the election. But as the duty is imposed
upon the Senate and the House of Representatives it is for them and each body that is called upon to act in that
capacity to regulate rules for themselves.521

Thus, the joint convention was to determine the rules of its own proceedings. But Senator Hager advanced a fallback position. He
reluctantly admitted that Congress could regulate the proceedings of its own joint convention by law, but strenuously maintained
that Congress could not regulate the proceedings of future joint conventions. He stated:
*1786 I admit we could pass a law here to regulate the election if we were to act in the matter. If we were to
meet next week to count the electoral vote we could by the concurrence of both houses pass a law to regulate

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our action in the matter; but we cannot, I say, pass a law to regulate the action of a future House or future Senate
when they meet to perform a constitutional duty.522

Senator Hager thus concluded that the Electoral Count Act bill “will be clearly unconstitutional.”523 Other Members of Congress
made similar statements.524
*1787 In sum, the Electoral Count Act violates the anti-binding rule of rule-making because it is a law and not a rule. Ironically,
the Electoral Count Act would be closer to constitutionality if it were a rule like the Twenty-second Joint Rule. If, however, the
Electoral Count Act were repealed and readopted as a joint rule, the constitutional problem would remain whether Congress may
bind the joint convention. Constitutional structure strongly suggests that the joint convention has the constitutional prerogative
of determining the rules of its own proceedings.525
b. The Chadha Principle of Law-Making
The Electoral Count Act's requirement that the two Houses of Congress concur in rejecting electoral votes in the single return
case and to accept electoral votes in the multiple returns case is strange and complicated.526 This requirement is by design-recall that one purpose of the Electoral Count Act was to eliminate the “one House veto” of the Twenty-Second Joint Rule.
Senator Morton, the original sponsor of what was to become the Electoral Count Act, stated,
If we are to have a rule at all, if Congress is to interfere, let it be upon the ground on which a law is passed or a
resolution is passed. It requires the vote of the two houses to pass a law, no matter how small or unimportant that
law may be.527 *1788 Ironically, the concurrence of the two Houses raises significant constitutional problems.
Consider one of the most important structural features of Article I:

Every Order, Resolution, or Vote, to Which the Concurrence of the Senate and House of Representatives may
be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and
before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by
two[-]thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in
the Case of a Bill.528

When the two Houses of Congress concur in rejecting or accepting electoral votes, the vote is not presented to the President-and, as we have seen, for good reason.529 The question is whether this lack of presentment is constitutional.
Scholars who have addressed this presentment problem in the wake of INS v. Chadha530 have doubted the existence of a
presentment problem in the Electoral Count Act because the concurrent action of the two Houses in counting electoral votes is
not legislative in nature.531 Clearly, the counting of the electoral votes is not legislative in nature.532 However, this conclusion
does not dispose *1789 of the Chadha problem. Contrary to what Professor Ross and Mr. Josephson have suggested, the
Presentment Clause is not solely about legislative action.533
The text of the Presentment Clause itself suggests as much. The single exception identified in the clause--“except on a question
of Adjournment”534--is not legislative but procedural in nature. If the Presentment Clause is only about legislative action, why

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does the clause specify this non-legislative exception?535 There are at least two other exceptions to presentment in the nonlegislative context, each with a strong justification. Presentment is not required when Congress proposes amendments to the
Constitution under Article V,536 or when Congress removes an office-holding disability under Section 3 of the Fourteenth
Amendment because, in each case, the two-thirds vote requirement is precisely that needed to override a *1790 presidential
veto under the second part of the Presentment Clause.537 Clearly, the Electoral Count Act lacks this justification: a simple
majority vote of each House is sufficient to reject an electoral vote. Moreover, the Impeachment Clauses furnish an important
background lesson. Impeachment is a paradigmatic non-legislative activity and presentment in case of impeachment would
be silly--much like the case of counting electoral votes. The impeachment powers are finely wrought and intended to avoid
concurrent action of the two Houses: only the House may institute an impeachment;538 only the Senate may try one;539 and a
two-thirds super-majority of Senators is required for a conviction of impeachment.540
This presentment problem was raised at least once during the Electoral Count Act debates as an argument against its
constitutionality. Senator George called the presentment problem a “conclusive objection” to separate action of the two
Houses.541 “[I]t is impossible,” said Senator George, “to escape from the express language of the Constitution that ‘every
order,’ not every bill, not every act, not every statute, but every ‘order,’ every ‘resolution,’ every ‘vote,’ in the language of the
Constitution, to which the concurrence of the two Houses is necessary, shall be presented to the President for his signature.”542
Senator Hoar responded that the Presentment Clause only related to legislative matters.543
*1791 A close reading of Chadha, unavailable of course to the participants in the Electoral Count Act debates, fortifies the
basic argument made by Senator George and casts further doubt upon the constitutionality of the Electoral Count Act. The
Chadha Court carefully explained why the “one-House veto” provision of the Immigration and Nationality Act was subject to
the requirements of bicameralism and presentment in Article I.544 The Court began by noting that “[w]hether actions taken by
either House are, in law and fact, an exercise of legislative power depends not on their form but upon ‘whether they contain
matter which is properly to be regarded as legislative in its character and effect.”545 The Court then described the one-House
veto provision in that case as one that “had the purpose and effect of altering the legal rights, duties and relations of persons,
including the Attorney General, Executive Branch officials and Chadha, all outside the legislative branch,”546 which was the
first of a series of four arguments in the Court's conclusion that the provision was subject to the bicameralism and presentment
requirements of Article I.547
The counting (and not counting) of electoral votes by a simple majority of the two Houses of Congress, acting separately and
concurrently, sounds like an action that has “the purpose and effect of altering the legal rights, duties and relations of persons . . .
outside the legislative branch,”548 if there ever was one. This bicameral procedure in counting electoral votes would therefore
require presentment. Even if the counting of electoral votes is more properly described in the first instance as a “judicial act,”
this conclusion would not be changed under the Chadha Court's conception of legislative power.549 If the Electoral Colleges
Clauses require (or permit) bicameralism but not presentment in counting electoral votes, the Court simply did not mention it.550
*1792 Furthermore, if the two-House veto provision of the Electoral Commission of the Hayes-Tilden Incident of 1877-which enabled the two Houses of Congress to overturn the findings of that commission without presentment--is constitutionally
problematic under Chadha551 as Professor Tribe has recently suggested,552 it would surely seem to follow that the two-House
veto provision of the Electoral Count Act--which enables the two Houses of Congress to overturn the “findings” of electors
without presentment--is equally if not more constitutionally problematic under Chadha.553
We must interpret exceptions to the Presentment Clause faithfully. The word “every” in the Presentment Clause means every
and not some. Under our Constitution, there is no other instance where a simple majority of both Houses of Congress may affect
the legal rights, duties, and relations of persons outside of the legislative branch without presentment to the President. There

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is no textual or structural reason why the counting function of the Electoral College Clauses should constitute an exception to
this important constitutional rule, especially when the stakes are an entire branch of government. The bicameral procedure for
counting electoral votes in the Electoral Count Act is unconstitutional under the Chadha principle of law-making.
There is, however, a solution to the presentment problem in counting electoral votes: the unicameralism principle avoids the
*1793 presentment problem entirely. The Presentment Clause cannot be said to apply to the joint convention of Senators and
Representatives assembled for the purpose of the electoral count, where neither the Senate nor the House of Representatives
acts in their corporate capacity.
3. Conclusions
The structural argument reveals that the Electoral Count Act is unconstitutional, at least it if it is anything more than merely
precatory. As a prima facie matter, the Electoral Count Act, to the extent that it is a law that has legal force, clearly violates
the anti-binding principle of rule-making. This is perhaps the strongest structural argument against the constitutionality of the
Electoral Count Act. In addition, the Electoral Count Act is also unconstitutional in its potential operation in counting electoral
votes. The bicameral procedure of 3 U.S.C. § 15 violates the anti-Senate principle of presidential election, the Chadha principle
of law-making, and the anti-President principle of presidential election. Finally, to the extent that the joint convention rejects
electoral votes contained in authentic electoral certificates as not “regularly given,”554 the Electoral Count Act violates the antiCongress principle of presidential election, the pro-states and pro-state legislatures principle of presidential election, and the
pro-electors principle of presidential election.
III. What Should We Do if Electors Go Bananas?
Assume that the Electoral Count Act is unconstitutional as argued in Part II. What happens if electors go bananas and vote for
Professor Paulsen's dog, Gus, as President?555 What happens if electors go bananas and also vote for Dean Ely's dog, Portland,
as Vice President?556 To make things even worse, suppose there is a case of double (or more) such returns from the same state?
*1794 The Electoral Count Act sounds like a good statutory scheme to deal with these and less preposterous problems,
but needless to say, not every good statutory scheme is a constitutional one.557 An argument that the Electoral Count Act
is unconstitutional may (sadly) not be enough. The critic would argue that we deserve to know what should happen when
inauthentic electoral certificates are transmitted to the seat of government, or when authentic electoral certificates containing
unconstitutional or faithless electoral votes are transmitted to the same. Of course, with or without the Electoral Count Act, the
potential problems of the electoral count remain.
This Part seeks to placate the critic and provide answers to these questions. This Part proceeds in three sections. The first
section addresses the paradigm problems of the electoral count and provides (or at least suggests) answers in the absence of the
Electoral Count Act. As we shall see, the Electoral Count Act is not necessary to address any of the potential problems of the
electoral count that may arise because the Constitution itself (implicitly) provides answers (however undesirable they may be).
The second section argues that the Twentieth Amendment, adopted in 1933, provides a constitutional solution to the thorniest
problem of the electoral count--the problem of presidential or vice presidential ineligibility. Given the Twentieth Amendment,
the Electoral Count Act is not needed to address this potential problem of the electoral count. Finally, the third section considers
where we should go from here in revising the current statutory scheme, assuming that some statutory scheme relating to counting
electoral votes would be constitutional.
*1795 A. Answers to the Paradigm Problems of the Electoral Count

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In Part I, we examined the paradigm problems of the electoral count as experienced in the electoral counts in the history of our
Republic. It is now time to provide (or at least suggest) some answers. The paradigm problems fall easily into two categories:
(1) problems relating to the electoral certificate, and (2) problems relating to the electoral vote. The paradigm problems within
each category are not of equal difficulty. Let us consider the paradigm problems in some rough order of increasing difficulty
within each category.
1. The Problems of the Electoral Certificate
The problems of the electoral certificate share two distinguishing characteristics. First, they are antecedent to the problems of
the electoral vote. Second, they, as a prima facie matter, do not require any knowledge of the persons receiving votes, and may
therefore be resolved without ever looking at the names of the persons receiving votes. In sum, the problems of the electoral
certificate relate to judging the authenticity or validity of the acts of electors, whereas the problems of the electoral vote relate
to judging the acts of electors--that is, their electoral votes.
a. The Unsigned, Uncertified, or Unsealed Electoral Certificate Problem
A first problem of the electoral certificate relates to the three simple elements of the electoral certificate that attest to its
authenticity. Suppose a state should transmit an electoral certificate to the seat of government that is not (i) signed, (ii) certified,
and (iii) sealed. The result would be that the joint convention must not count the electoral votes in this electoral certificate.
The relevant clause of the Twelfth Amendment provides that “[the Electors] shall sign and certify, and transmit sealed to the
seat of government of the United States, directed to the President of the Senate”558 the electoral certificate. Under even the
“thinnest” conception of the counting function, the joint convention must judge the authenticity of the electoral certificate,
distinguishing between what is merely the legal equivalent of a Publishers Clearinghouse sweepstakes entry and what is a bona
fide electoral certificate. Indeed, the word “certify” in the Twelfth Amendment is a signal of *1796 legal significance.559
The rejection of inauthentic electoral certificates preserves authenticity in the process of presidential election. The Electoral
College Clauses contain an authenticity principle for good reason: authenticity is the principal safeguard to the risk of cabal
and corruption in the election of the President.560
b. The Puerto Rico, or Unrepublican State, Electoral Certificate Problem
A second problem of the electoral certificate relates to the authenticity of its sender. Suppose Puerto Rico should transmit an
electoral certificate to the seat of government. Or suppose that an unrepublican State should transmit an electoral certificate to
the seat of government.561 Obviously, the result would be that the joint convention must not count the electoral votes contained
in this electoral certificate.
The Constitution makes clear that only states and the District of Columbia are entitled to appoint electors,562 and are thereby
entitled to transmit electoral certificates. The political branches of the federal government have the right to recognize states
in the Union.563
*1797 We have seen this problem before as well as its resolution. The Thirty-eighth Congress resolved not to count the
electoral votes from eleven Southern States.564 When Congress sent the resolution to President Lincoln for his signature, he
replied in the third person:
The joint resolution entitled “Joint resolution declaring certain States not entitled to representation in the electoral
college” has been signed by the Executive in deference to the view of Congress implied in its passage and
presentation to him. In his own view, however, the two Houses of Congress, convened under the twelfth article of

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the Constitution, have complete power to exclude from counting all electoral votes deemed by them to be illegal;
and it is not competent for the Executive to defeat or obstruct that power by a veto, as would be the case if his
action were at all essential in the matter. He disclaims all right of the Executive to interfere in any way in the matter
of canvassing or counting electoral votes, and he also disclaims that, by signing said resolution, he has expressed
any opinion on the recitals of the preamble or any judgment of his own upon the subject of the resolution.565

President Lincoln's reply suggests that Congress's power not to count electoral votes is quite broad, but we should be careful not
to take it out of context of the Northerners' (Republicans') exclusion of Southern senators, representatives, and electors pursuant
to the Guarantee Clause of Article IV, Section 4.
c. The Number of Electoral Votes Problem
A third problem of the electoral certificate relates to the aggregate number of electoral votes in the electoral certificate. Suppose
a state should transmit an electoral certificate to the seat of government that contains more electoral votes than the number of
electors to which that state is then entitled.566 During the Electoral Count Act debates, Senator Frelinghuysen distinctly noted
this possibility that “[a] State may claim a larger representation than has been assigned her and may appoint more electors than
she is entitled *1798 to, and all their votes may be returned.”567 His answer was clear: “[I]f a State should send as votes a
larger number than it was entitled to . . . it would be a direct violation of the Constitution and an act of revolution for any one to
count them.”568 The result would be that the joint convention must not count the electoral votes in this electoral certificate.569
Translated into a counterfactual: Suppose Florida's electoral certificate on January 6, 2001 contained twenty-six votes instead
of the twenty-five votes to which Florida was then entitled. The State of Florida would be disenfranchised in the presidential
election.
It may be tempting to conclude that the joint convention must exclude one of the twenty-six votes, but which one? Must they
exclude a randomly selected vote? It hardly seems more constitutional to exclude a randomly selected vote than to exclude all
votes. What about a particular vote? In order to exclude a particular vote, the resolution of this problem would require knowledge
of the persons voted for, thereby transforming a problem of the electoral certificate (a problem of judging the authenticity of
the acts of electors) into a problem of the electoral vote (a problem of judging the acts of electors). And which vote would be
excluded? There is no constitutional requirement that all electoral votes in an electoral certificate must be given for the same
person.570 The joint convention may not exclude a particular electoral vote without affirmatively voting against a person voted
for--an action that goes well beyond judging the authenticity of the acts of electors.
*1799 d. The Multiple Electoral Certificates Problem
A fourth problem of the electoral certificate relates to the aggregate number of electoral certificates (returns) from a putative
state. Suppose two or more sets of electors from the same state should transmit an electoral certificate to the seat of government.
Recall the Hayes-Tilden Incident of 1877.571 One and only one of the following two propositions must be true as a matter of
logic: (1) one of the electoral certificates is authentic and all others are not; or (2) none of the electoral certificates are authentic.
Needless to say, the result would be that all of the electoral votes contained in the authentic electoral certificate must be counted
and all of the electoral votes contained in the inauthentic electoral certificates must not be counted.
The multiple returns problem may seem complicated, but it is not analytically different from the Puerto Rico problem of the
electoral certificate. The authentic electoral certificate (if any) is one from the state; the others, insofar as the Constitution is
concerned, are merely legally equivalent to Publishers Clearinghouse sweepstakes entries transmitted to the seat of government

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by non-states. If multiple state authorities should claim to be the lawful authority of a state, the joint convention must choose
which state government is the lawful one, but, importantly, this choice is no more difficult than the choice (previously) made
by each House in deciding to seat Members of Congress from a putative state, or the choice made by the President when she
sends in the troops under the Guarantee Clause to protect one of multiple authorities that request the interposition of military
force.572 Most importantly, the multiple returns problem is one of the electoral certificate and not of the electoral vote and
should be treated as such. The joint convention should be able to determine which electoral certificate contains the legitimate
set of electors without examining the names of the persons receiving votes.
e. The Misdated Electoral Certificate Problem
A fifth problem of the electoral certificate relates to its date. Suppose a state should transmit an electoral certificate to the seat
of government that contains electoral votes given on a day different *1800 from that specified by federal law for the giving
of electoral votes.573 Recall the Wisconsin Incident of 1857574 and the Hawaii Incident of 1961.575 The result would be that
the votes contained in this certificate must not be counted by the joint convention, except perhaps in one narrow circumstance
to be discussed shortly.
Article II, Section 1, Clause 4 provides that “[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.”576 This is a rule, inasmuch as the
Constitution's requirement that the President be thirty-five years of age upon entering office is a rule;577 this is not a standard. It
may be tempting to conclude that the joint convention could exercise discretion as to whether to count electoral votes given on
a day different from that specified by federal law, especially in cases of force majeure such as the Wisconsin Incident of 1857.
Indeed, the Constitution, to the extent that it is to be interpreted against the background of the common law, might recognize an
exception for force majeure.578 This one narrow circumstance aside, however, the language of the Constitution is unmistakably
clear--adherence to the date chosen is mandatory. More importantly, the requirement that electoral votes be given on the same
day throughout the Union is a particularly important part of the authenticity principle of the Electoral College Clauses.579 The
joint convention has the duty to support the *1801 authenticity principle of the Electoral College Clauses, not the power to
exercise its discretion in the matter.
Translated into the past: Wisconsin's electoral votes in 1857 (perhaps) should not have been counted and Hawaii's electoral votes
in 1961 should not have been counted. Translated into a counterfactual: Florida's electoral votes in 2001-- if given on a day other
than December 18, 2000--should not have been counted,580 though Justice Ginsburg in Bush v. Gore implied otherwise.581
*1802 f. The Elector Ineligibility Problem
A sixth problem of the electoral certificate relates to the qualifications of the electors. Suppose that an electoral vote is given
by an elector who is constitutionally ineligible to the office of elector.582 Recall the Postmaster Incident of 1837.583 The result
would be that the votes of an elector who is constitutionally ineligible to hold the office of elector must be counted.
The joint convention may not judge the manner of appointment or qualifications of electors.584 Once the vote of a
constitutionally ineligible elector is transmitted in the electoral certificate, that vote is final and must be counted. A congressional
analogy is illuminating. Imagine that a Representative-elect does not meet the constitutional qualifications prescribed by the
House Qualifications Clause.585 The Representative is seated, performs legislative business, and is only subsequently expelled
from the House. Are the votes of this Representative any less valid?586

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Most importantly, the elector ineligibility problem is impossible to resolve without knowing the persons voted for and the joint
convention may not judge the acts of electors. In particular, the votes of a constitutionally-ineligible elector must be counted
because of the anonymity principle of the Electoral College Clauses.
The Electoral College Clauses protect the anonymity of electors in two important ways: (i) voting in the Electoral Colleges
shall be by ballot, and (ii) the electoral certificate shall contain lists of the *1803 persons voted for, signed and certified by the
electors as a whole.587 The votes of individual electors are not to be known in order to preserve the independence of the electors
and the President. Senator Pinckney put these points brilliantly in the specific context of the elector ineligibility problem:
[H]ow are [sic] Congress . . . to proceed to find how these unduly or disqualified Electors voted, particularly if
they should belong to a State having a number of Electors? As the Constitution directs they are to vote by ballot,
the votes of the election ought to be secret. You have no right to require from an Elector how he voted, nor will
you be able to know for whom he did vote, particularly if in the return from that State different candidates have
been voted for. In this dilemma, I ask, what is to be done? You cannot discover for whom this disqualified or
improperly returned Elector voted; and you would not certainly, in a State having sixteen or twenty-one votes,
reject the whole, because one or two illegal votes have been supposed to be given.588

Of course, it is possible to determine the persons voted for by a constitutionally-ineligible elector in a case of mathematical
certainty--when all of the electoral votes for President or Vice President are given for the same person. But, as we have seen,
there is no constitutional requirement that all electoral votes must be given for the same person.589 A non-constitutional common
practice of “winner-take-all” voting in the electoral colleges that makes mathematical certainty the norm and not the exception
does not change the answer to this constitutional question.
*1804 2. The Problems of the Electoral Vote
The problems of the electoral vote share two distinguishing characteristics: they are problems subsequent to the problems of the
electoral certificate and they require knowledge of the persons for whom the votes are cast. These problems relate to judging
the acts of electors.
a. The Faithless Elector Problem
Suppose that an electoral vote is faithless--that is, in contravention of the known popular vote. Recall the Bailey Incident of
1969.590 The result would be that the votes of faithless electors must be counted.
Again, the joint convention may not judge the acts of electors. Moreover, there is no constitutional requirement of
faithfulness.591 Frankly, it is shameful that 174 Representatives (including future Presidents George H.W. Bush and Gerald
R. Ford) and thirty-three Senators who took an oath or affirmation to support the Constitution voted not to count Dr. Bailey's
faithless vote. The answer to the faithless elector problem does not depend on whether state laws purporting to bind electors to
vote in accordance with the popular vote are constitutional.592 Once the faithless vote is transmitted in the electoral certificate,
that vote is final and must be counted.
*1805 b. The Presidential or Vice Presidential Ineligibility Problem

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Suppose that an electoral vote is for a dead person--that is, in violation of the Presidential or Vice Presidential Eligibility
Clauses.593 Recall the Greeley incident of 1873.594 The result would be that the votes for a dead presidential or vice presidential
candidate must be counted.595
The joint convention may not judge the acts of electors. This answer applies with equal force to the other qualifications of
the Presidential and Vice Presidential Eligibility Clauses--natural born citizen, thirty-five years of age, and fourteen years a
resident within the United States.596 The presidential or vice presidential ineligibility problem is perhaps the thorniest problem
of the electoral count.
c. The Inhabitants of the Same State Problem
Suppose that an elector votes for inhabitants of her state for both President and Vice President--that is, in violation of the Twelfth
Amendment.597 This is the hypothetical Bush-Bentsen problem--recall that Republican Vice President George H.W. Bush and
Democrat Senator Lloyd Bentsen were both inhabitants of the State of Texas in the presidential election of 1988.598 The BushBentsen *1806 problem appears to have actually occurred once in our history--in the presidential election of 1872--but was
discovered too late in the electoral count for any debate.599 During the Wisconsin Incident of 1857, Representative Humphrey
Marshall pointed to the Bush-Bentsen problem as the paradigm case for congressional power to exclude unconstitutional
electoral votes. The Bush-Bentsen problem is undoubtedly the least discussed problem of the electoral count in the Electoral
Count Act debates or in the legal academy, and yet the trickiest problem of all.
There are only four possible answers for the joint convention to deal with the Bush-Bentsen problem during the electoral
count: (1) count both votes, (2) reject both votes, (3) count the vote for President and reject the vote for Vice President, or
(4) count the vote for Vice President and reject the vote for President. It is not at all difficult to winnow the set of answers by
eliminating answer number four--the Office of President is simply more important than the Office of Vice President.600 This
argument, however, would have been impossible before the adoption of the Twelfth Amendment which requires electors to
cast “distinct ballots” for President and Vice President and to prepare “distinct lists” of the persons voted for as President and
Vice President.601 Assuming that the Twelfth Amendment did not expand the range of possible answers to the Bush-Bentsen
problem, we may further winnow the set of answers by eliminating answer number three. This leaves us with the rather *1807
binary choice of counting both electoral votes for Bush and Bentsen or rejecting both electoral votes for Bush and Bentsen.
Which is the correct answer?
The Bush-Bentsen problem is not different in kind than the other two problems of the electoral vote. The joint convention
must count both votes for Bush and Bentsen. The joint convention may not judge the acts of electors--period. There are two
additional points to consider. First, the anonymity principle of the Electoral College Clauses indicates that the Bush-Bentsen
problem is uniquely directed to electors, not to the joint convention.602 It would be impossible for the joint convention to even
detect the Bush-Bentsen problem, except in rarest cases of mathematical certainty. Second, the Presidential and Vice Presidential
Eligibility Clauses do not require that the President and Vice President be inhabitants of different states. The command of the
Electoral College Clauses is violated the moment a Texas elector votes for both Bush and Bentsen, but the Presidential and
Vice Presidential Eligibility Clauses are not violated if Bush becomes President and Bentsen becomes Vice President. We might
therefore think about the Bush-Bentsen problem in a broader context, just as we might think about presidential impeachment
in a broader context.603 The command of the Electoral College Clauses probably was inserted to enhance the legitimacy of
presidential election by lessening the probability that the ultimate choice would be made by the House of Representatives, but
the Framers thought that most presidential elections would be decided by the House anyway.604
*1808 3. Conclusions

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What shall we make of this rearrangement of the deck chairs on the Titanic? The problems of the electoral certificate relate to
judging the authenticity of the acts of electors, whereas the problems of the electoral vote relate to judging the acts of electors.
The Constitution trusts the joint convention to do the former, but not the latter.
The counting function inherently requires some sort of a rule of recognition for deciding what is to be counted and what is
not (this is the “thinnest” conception of judging). The President of the Senate receives a lot of mail, and the joint convention
must be able to decide what mail contains an authentic electoral certificate and must be counted, and what mail contains the
legal equivalent of a Publishers Clearinghouse sweepstakes entry and must be discarded. The Constitution specifies the criteria
for authenticity and trusts the joint convention to judge the authenticity of the acts of electors. Moreover, the problems of
the electoral certificate may be resolved without any knowledge of the persons receiving votes. We should therefore be less
suspicious of undue interference or manipulation by the joint convention because the joint convention could (and should) be
behind a veil of ignorance as to the problems of authenticity of the acts of electors.
The problems of the electoral vote are of a fundamentally different order. The rule of recognition does not address these
problems which require knowledge of the persons voted for in the presidential election in order to be solved. The threat of undue
interference or manipulation by the joint convention is hence more pressing. The Constitution does not trust the joint convention
to judge the acts of electors, but plainly contemplates that the electors shall have the last word on who shall receive votes.
B. The Twentieth Amendment
Although the joint convention may not solve problems of the electoral vote, we are not resigned to the possibility of
unconstitutional Presidents or Vice Presidents (if electors do truly go bananas). It turns out that We the People remedied
(without really knowing it) the thorniest problem of the electoral count--the *1809 presidential or vice presidential ineligibility
problem-- with the adoption of the Twentieth Amendment in 1933. Section 3 of that amendment provides:
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, 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 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.605

Section 3 contains a “textually demonstrable commitment”606 of power to Congress to remedy the situation when electors go
bananas: “Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have
qualified . . . .”607 The text of this section of the Twentieth Amendment does not declare who decides whether the Presidentelect or Vice President-elect have failed to qualify or when they shall have qualified. Constitutional structure strongly suggests
that neither the President nor Congress makes these determinations.608 These determinations seem very much like judicial ones
subject to the province of the judicial department.609 These determinations are surely no less *1810 justiciable than deciding
whether a Representative-elect has met all of the qualifications set forth in Article I, Section 2, Clause 2.610
The Twentieth Amendment provides a constitutional solution to the presidential or vice presidential ineligibility problem of
the electoral vote. The Twentieth Amendment guarantees that we will not be without a constitutionally-qualified President
when electors go bananas.611 What does the Twentieth Amendment mean for the counting of electoral votes? The Twentieth
Amendment “preempts” the joint convention in judging the acts of electors. The joint convention must count electoral votes
contained in authentic electoral certificates.

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There is an important difference between the constitutional solution provided by the Twentieth Amendment and any roughand-ready solution that may be provided by the joint convention. Take a much less silly case than Professor Paulsen's Gus-theDog hypothetical.612 Imagine that in the next presidential election a majority of the whole number of electors appointed vote
for presidential candidate Smith. Smith is exactly thirty-four years of age as of noon on January 20, 2005, the date fixed by the
Constitution for the beginning of the next presidential term,613 and is therefore not constitutionally-qualified to be President.614
If the joint convention rejected these electoral votes for thirty-four year old Smith as not “regularly given,” the joint convention
would trigger a contingency election in the House of Representatives, and Smith would be excluded from the Office of President
for the next four years. But if these unconstitutional electoral votes were counted, then Smith's running-mate (who we will
assume is constitutionally-qualified to be Vice President) would simply act as President, until Smith shall have qualified for the
Office of President on January 20, 2006. To be sure, *1811 this hypothetical situation could never apply to the cases when
electors really go bananas--when they vote for dead persons or law professors' dogs as President or Vice President. The important
point for present purposes is that the joint convention must count electoral votes contained in authentic electoral certificates
because the Twentieth Amendment carefully prescribes the result when the electors shall have made an unconstitutional choice.
C. Revising the Electoral Count Act
Assume that Congress may by law bind the joint convention and future joint conventions in counting electoral votes, and that
Congress has the font of implied power to enact such a law. In other words, assume that some electoral count act is constitutional.
If we are to revise the Electoral Count Act to make it constitutional (and better), what should it look like?615
The Electoral Count Act should be revised in the following ways. First, some Senator or Representative then and there present
at the electoral count shall be the presiding officer of the joint convention, not the Vice President as the President of the Senate.
Second, the quorum for the joint convention shall be two-thirds of the total number of Senators and Representatives, keeping in
spirit with the Constitution's requirement that a quorum in the House of Representatives for choosing the President be a Member
or Members from two-thirds of the states.616 Third, the phrase not “regularly given” shall be narrowly construed only to include
problems of the electoral certificate and to exclude problems of the electoral vote, clarifying that the joint convention may judge
the authenticity of the electors' acts, but not the electors' acts themselves. Fourth, any and all objections in counting electoral
votes shall be addressed by the joint convention voting on a per capita basis, thereby avoiding the presentment problem of the
Electoral Count Act. Fifth, the proceedings of the joint convention shall be public. Sixth, in the event the electors fail to make
a choice for President or Vice President, the choice of the President by the House of *1812 Representatives and the choice of
the Vice President by the Senate shall be made in the presence of the joint convention.
Conclusion
Just because a certain constitutional problem is peculiar and rare is no reason to ignore it--especially when the stakes are an
entire branch of government. To borrow the words of Senator Morton describing the Twenty-second Joint Rule, the Electoral
Count Act is a “a torpedo planted in the straits with which the ship of state may at some time come into fatal collision.”617 When
this happens, it will happen, by definition, at a worse time. We should be thinking about the constitutionality of the Electoral
Count Act now--well in advance of a constitutional crisis--when the political facts of the moment are least likely to distort our
considered legal judgment. Both Houses of Congress should immediately hold hearings on the constitutionality of the Electoral
Count Act and perhaps on the desirability of the electoral college mode of presidential election more generally.
Consider that we came perilously close to facing the constitutionality of 3 U.S.C. § 15 head on just a short while ago. Imagine
the following hypothetical:

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The Supreme Court does not intervene in Bush v. Gore on December 10, 2000 or on December 12, 2000. The recount in Florida
proceeds. A slate of Bush-Cheney electors, appointed by the Florida Legislature on December 12, 2000, gives its votes on
December 18, 2000. This electoral certificate is certified by Florida Secretary of State Katherine Harris. The recount in Florida
proceeds. Vice President Gore and Senator Lieberman are declared the winners of the popular vote for President and Vice
President respectively. A slate of Gore-Lieberman electors, appointed under Florida election law, gives its votes on some day
after December 18, 2000, but before January 6, 2001. And now the important twist--this electoral certificate is also certified
by Florida Secretary of State Katherine Harris.
The joint convention convenes on January 6, 2001 for the purpose of counting the electoral votes. The electoral count proceeds
smoothly until Vice President Gore opens both certificates from the State of Florida and hands them to the teller for reading,
when the joint convention borders on disorder. Objections are made, received, and read before the joint convention by Vice
President Gore. Some objections state that this is a case of single returns, and pointing to *1813 3 U.S.C. § 5, state that the
electoral votes contained in the Bush-Cheney electoral certificate must be counted, unless both Houses concur in rejecting them.
Some objections state that this is a case of single returns, and pointing to the precedent of Hawaii in 1961, state that the electoral
votes contained in the Gore-Lieberman electoral certificate must be counted unless both Houses concur in rejecting them. Some
objections state that this is a case of double returns, and pointing to § 15, state that none of the electoral votes contained in either
the Bush-Cheney or Gore-Lieberman electoral certificates must be counted unless the two Houses concur in accepting one of
them. Both Houses will likely not concur, with the House controlled by the Republicans and the Senate evenly split among
Republicans and Democrats (put aside, for the moment, the legal fiction of Vice President Gore breaking any tie in the Senate
in favor of himself and the Democrats). If none of Florida's electoral votes are counted, the result of the electoral count will
likely be 268 votes for Vice President Gore and Senator Lieberman and 246 votes for Governor Bush and Mr. Cheney. Gore
and Lieberman will not have a majority of the whole number of electors appointed if Florida's twenty-five electors are counted
as properly appointed electors, but will comfortably have more than a majority of the whole number of electors appointed if
Florida's twenty-five electors are not counted. The Senate and House immediately withdraw to decide on the objections not at
all knowing what will happen when they reconvene. What result?
We need not wait for the Supreme Court to decide the constitutionality of the Electoral Count Act in a moment of constitutional
crisis. Members of Congress take an oath or affirmation to support the Constitution. A conscientious legislator should vote
to repeal the Electoral Count Act and a conscientious President should sign such legislation. This will not be enough. The
problems of the electoral count are festering sores in our Constitution. A very conscientious legislator should vote to propose
a constitutional amendment to solve the problems of the electoral count once and for all.

Footnotes
a1

Vice President, Francisco Partners. J.D., Yale Law School, 2001; B.A.S., B.S., B.A., University of Pennsylvania, 1995. For their
helpful comments and suggestions, thanks to Bruce Ackerman, Akhil Amar, Robert Bennett, Steven Calabresi, Joel Goldstein, Neal
Katyal, Kumar Kesavan, Jennifer Koester, Michael Paulsen, Nick Rosenkranz, Stephen Siegel, Laurence Tribe, and John Yoo. I also
wish to thank Professor Ellen Peters for supervising the initial drafting of this Article in her federalism seminar at Yale Law School
in the fall of 1999, a year before Bush v. Gore, and the editors of the North Carolina Law Review for their excellent editing. The
author disclaims any prescience in writing about the Electoral Count Act.

1

531 U.S. 98 (2000) (per curiam).

2

See 3 U.S.C. §15 (2000) (“Congress shall be in session on the sixth day of January succeeding every meeting of the electors.”).

3

The presidential election of 1800 and the electoral count of 1801 were truly a constitutional crisis of the first magnitude, leading
to the adoption of the Twelfth Amendment in 1804. The electoral count on February 11, 1801 was inconclusive because there were
two persons who had the requisite majority of the whole number of electors appointed. (The original Constitution did not require or
even permit electors to cast separate votes for President and Vice President). Democrat-Republican and then-Vice President Thomas
Jefferson and Democrat-Republican Aaron Burr each received seventy-three votes; Federalist and then-President John Adams and
Federalist Charles C. Pinckney received sixty-five and sixty-four votes, respectively; Federalist John Jay received one vote.

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The choice of President thus devolved on the House of Representatives. U.S. Const. art. II, §1, cl.3 provides:
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.... But in chusing the President, the Votes shall be taken
by States, the Representation from each State having one Vote....
The House, controlled by Federalists, was forced to choose between Democrat-Republicans Jefferson and Burr. On February 11, the
House balloted nineteen times with no success: each time eight states voted for Jefferson, six for Burr, and two were divided. On
February 12, the House balloted nine times with no success; on February 13, once; February 14, four times; and February 16, once.
On February 17, after another such round, the House chose a President-elect on the thirty-sixth round of balloting: ten states voted for
Jefferson, four for Burr and two did not vote. For the basic facts of the election of 1800 and the electoral count of 1801, see Bernard
A. Weisberger, America Afire: Jefferson, Adams, and the Revolutionary Election of 1800, at 227-77 (2000).
To complicate this saga further, Democrat-Republicans Jefferson and Burr only had a majority of the whole number of electors
appointed because Vice President Jefferson, presiding over the electoral count, decided to count four “improper” votes from the State
of Georgia in favor of Jefferson-Burr. See infra note 230 and accompanying text. Without these votes, Jefferson and Burr would have
had sixty-nine votes each, exactly one half and not a majority of the whole number of electors appointed, and the choice of President
would have devolved on the House of Representatives. But importantly, the original Constitution provided that “if no Person have
a Majority, then from the five highest on the List the said House in like Manner chuse the President.” U.S. Const. art. II, §1, cl.3
(emphasis added). There is little doubt that the Federalist-controlled House would have elected Federalists John Adams and Charles
C. Pinckney as President and Vice President, respectively.
Perhaps most intriguingly, the Federalist-controlled Legislature of Maryland, aware of the popular support for Democrat-Republicans
Jefferson-Burr,
seriously contemplated that the legislature should repeal the law under which the electors were chosen by the people, and should
choose them by the legislature; and this on the avowed ground that it was necessary to defeat the candidate whom it was supposed
that the majority of the people preferred.
House Special Committee, Counting Electoral Votes, H.R. Misc. Doc. No. 44-13, at 443 (1877) [hereinafter Counting Electoral
Votes] (remarks of Sen. Anthony). This should sound familiar. This action was not carried out, but had it been, Maryland's ten
electoral votes would have been given solely to Federalists Adams and Pinckney, instead of having been given equally to Jefferson
and Adams. Adams would have received 70 votes; Pinckney 69 votes; Jefferson 68 votes; Burr 68 votes; and Jay 1 vote. Adams
and Pinckney would have become President and Vice President respectively. According to Senator Anthony, “[T]he election would
have been strictly and unquestionably legal and constitutional.” Id. This point is subject to serious debate today. There may be a
constitutional right to vote for presidential and vice presidential electors, at least in some cases. See U.S. Const. amend. XIV, §2; U.S.
Const. amend. XXIV; Michael C. Dorf, We Need A Constitutional Right To Vote in Presidential Elections (Dec. 13, 2000), at http://
writ.findlaw.com/dorf/20001213.html (on file with the North Carolina Law Review). But see Bush, 531 U.S. at 104 (“The State, of
course, after granting the franchise in the special context of Article II, can take back the power to appoint electors.”) (citation omitted).
The presidential election of 1800 and the electoral count of 1801 is currently the subject of a fascinating, timely, and forthcoming book
by Professor Bruce Ackerman. Bruce Ackerman, America on the Brink: The Constitutional Crisis of the Early Republic (forthcoming
2002) (on file with the North Carolina Law Review). For two rich discussions of the election of 1800, see generally Joanne B.
Freeman, The Election of 1800: A Study in the Logic of Political Change, 108 Yale L.J. 1959 (1999); John J. Janssen, Dualist
Constitutional Theory and the Republican Revolution of 1800, 12 Const. Comment. 381 (1995). For a recent book-length treatment,
see Weisberger, supra.

4

For specific reference to these four questions, see, for example, 10 Annals of Cong. 29 (1800) (remarks of Sen. Ross); id. at 131
(remarks of Sen. Pinckney); id. at 133 (remarks of Sen. Pinckney).

5

Id. at 29.

6

Id. at 132.

7

Thankfully, the problem has been a very small one, with approximately a dozen electors of over 25,000 casting votes in opposition
to the wishes of the voters in the course of 213 years. See Beverly J. Ross & William Josephson, The Electoral College and the
Popular Vote, 12 J.L. & Pol. 665, 667 (1996). There is no consensus on the exact number of faithless electors since the Founding. The
paradigm case is that of Samuel Miles, a Federalist elector from Pennsylvania, who in 1796, just eight years after the adoption of the
Constitution and in the third presidential election, voted for Democrat-Republican Jefferson instead of Federalist Adams. This action
prompted a Federalist voter to exclaim: “Do I chuse Samuel Miles to determine for me whether John Adams or Thomas Jefferson

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shall be President? No! I chuse him to act, not to think.” E. Stanwood, A History of the Presidency 51 (August M. Kelley Publishers
1975) (1928).
The faithless elector problem was of particular concern in the presidential election of 2000: Any two faithless votes by Bush electors
would have thrown the election into the House of Representatives, and any three faithless votes would have thrown the election to
former Vice President Gore. Going into December 18, 2000 (the date specified by federal law for the giving of electoral votes by the
electors), the expected electoral count was 271 votes for Bush and 267 votes for Gore. The final electoral count for President was 271
votes for Bush and 266 votes for Gore. See 147 Cong. Rec. H44 (2001). One Gore-Lieberman elector from the District of Columbia,
protesting the District's lack of statehood, refused to cast her votes for President and Vice President. See Charles Babington, Electors
Reassert Their Role; Bush Wins Vote; Protest Costs Gore, Wash. Post., Dec. 19, 2000, at A1. For additional discussion of the faithless
elector problem, see infra notes 176-191, 590-592 and accompanying text.

8

U.S. Const. amend. XII. The only differences between this text of the Twelfth Amendment and the text of the original Constitution
are in punctuation and capitalization. See 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.”). The Twelfth Amendment overwrote
U.S. Const. art. II, §1, cl.3, but not two other clauses that relate to the Electoral College mode of presidential election, U.S. Const.
art. II, §1, cls.2, 4. For ease of exposition, I will variously refer to these clauses as the “Electoral College Clauses.”

9

As Justice Joseph Story described:
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, or the right of the persons, who gave the votes, or the
manner, or circumstances, in which they ought to be counted. 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.
3 Joseph Story, Commentaries on the Constitution of the United States §1464, at 327 (1833) [hereinafter Story's Commentaries]; see
also 17 Cong. Rec. 815 (1886) (remarks of Sen. Sherman) (discussing specific problems of the electoral count); 18 Cong. Rec. 50-51
(1886) (remarks of Rep. Adams) (same).

10

Akhil Reed Amar, Presidents, Vice Presidents, and Death: Closing the Constitution's Succession Gap, 48 Ark. L. Rev. 215, 217 (1995).

11

Act of Feb. 3, 1887, ch. 90, 24 Stat. 373 (codified as amended at 3 U.S.C. §§5-6,15-18 (2000)).

12

See 3 U.S.C. §15 (2000).

13

See id.

14

Id.

15

Id. §5.

16

Needless to say, this assumes that each of the Justices was doing his or her job, and not violating his or her oath to support the
Constitution, see U.S. Const. art. VI, cl. 3, which is an assumption that may beget controversy, depending on one's jurisprudential
(political?) preferences.

17

See 531 U.S. 98, 153-54 (2000) (Breyer, J., dissenting) (“[T]he Twelfth Amendment commits to Congress the authority and
responsibility to count electoral votes. A federal statute, the Electoral Count Act, enacted after the close 1876 Hayes-Tilden
presidential election, specifies that, after States have tried to resolve disputes (through ‘judicial’ or other means), Congress is the body
primarily authorized to resolve remaining disputes.”); id. at 155 (Breyer, J., dissenting) (“Given this detailed, comprehensive scheme
for counting electoral votes [3 U.S.C. §15], there is no reason to believe that federal law either foresees or requires resolution of such
a political issue by this Court.”). Others have similarly argued that the “political question doctrine,” see, e.g., Baker v. Carr, 369 U.S.
186, 217 (1962), counsels (if not requires) that the Supreme Court should not have entered the fray in the presidential election of
2000. 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, 276-87 (2001); id. at 277 n.433 (citing argument made by Professors Charles Fried and Einer Elhauge in Brief of the Florida
Senate and House of Representatives as Amici Curiae in Support of Neither Party at 7, Bush v. Palm Beach County Canvassing Bd.,
531 U.S. 70 (2000) (No. 00-836)); Rachel E. Barkow, More Supreme than Court? The Fall of the Political Question Doctrine and
the Rise of Judicial Supremacy, 102 Colum. L. Rev. 237, 273-300 (2002). Whether Bush v. Gore presented a non-justiciable political
question is beyond the scope of this Article.

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18

Only a handful of scholars have addressed the constitutionality of the Electoral Count Act since its initial adoption more than one
hundred and twenty years ago. Professor Spear, writing in 1877, concluded that the Electoral Count Act of 1877 was unconstitutional.
See Samuel T. Spear, D.D., Counting the Electoral Votes, 15 Alb. L.J. 156, 156-61 (1877). Professor Burgess, writing in 1888,
concluded that the Electoral Count Act of 1887 was constitutional. See John W. Burgess, The Law of the Electoral Count, 3 Pol.
Sci. Q. 633, 653 (1888). More recently, Professor Ross and Mr. Josephson have apparently concluded that the Electoral Count Act
is constitutional. See Ross & Josephson, supra note 7, at 704-40.
Two other scholars have obliquely addressed the constitutionality of the Electoral Count Act in recent years. Professor Glennon,
in his primer on the Electoral College, somewhat casually concludes that the Electoral Count Act is constitutional. See Michael J.
Glennon, When No Majority Rules: The Electoral College and Presidential Succession 35-43 (1992). Professor Amar, in an article
on presidential succession, assumes that the Electoral Count Act is constitutional in the course of proposing an improvement to the
process of presidential election. He suggests that “Congress should provide by statute that an electoral vote for any person who is
dead at the time of the congressional counting is a valid vote, and will be counted, so long as the death occurred on or after Election
Day.” Amar, supra note 10, at 222.
Most recently, after Bush v. Gore, several commentators have assessed the constitutionality of the Electoral Count Act, but only in
passing. See, e.g., Samuel Issacharoff et al., When Elections Go Bad: The Law of Democracy and the Presidential Election of 2000,
at 98 (2001) (“Questions about the constitutionality of the Electoral Count Act have been raised but never fully addressed.”); Dan T.
Coenen & Edward J. Larson, Congressional Power Over Presidential Elections: Lessons from the Past and Reforms for the Future,
43 Wm. & Mary L. Rev. 851, 860-71, 909-16 (2002) (concluding that the Electoral Count Act is constitutional and that congressional
power to enact such legislation should support national-ballot and voting equipment legislation); Jesse H. Choper, Why the Supreme
Court Should Not Have Decided the Presidential Election of 2000, at 15 (stating that “the Electoral Count Act is not free of certain
ambiguities and possible constitutional problems”) (unpublished manuscript, on file with the North Carolina Law Review), available
at http:// papers.ssrn.com/abstract =281869.

19

For an excellent articulation of this point, see 17 Cong. Rec. 1059 (1886) where Sen. Wilson stated:
Can we conclude that the [F]ramers of our Constitution, when they conferred on the respective Houses of Congress these extraordinary
powers, intended to invest them with the still more extraordinary power of rejecting the votes of electors appointed by the several
States, and thereby creating by themselves and for themselves the contingency which alone gives them the right and power to elect
a President and Vice-President?
See also 18 Cong. Rec. 74 (1886) (remarks of Rep. Baker) (similar).
Early commentators on the Constitution, writing in the wake of the electoral crisis of 1800-01, were quick to point out the evils
of presidential election by the House of Representatives. See, e.g., 1 St. George Tucker, Blackstone's Commentaries with Notes of
Reference to the Constitution and Laws of the Federal Government of the United States and of the Commonwealth of Virginia, app.
at 327 (1803) [hereinafter Tucker's Commentaries]. St. George Tucker stated:
Then, indeed, intrigue and cabal may have their full scope: then, may the existence of the union be put in extreme hazard: then might
a bold and desperate party, having the command of an armed force, and of all the resources of government, attempt to establish
themselves permanently in power, without the future aid of forms, or the control of elections.
Id.; see William Alexander Duer, Course of Lectures on the Constitutional Jurisprudence of the United States 82 (Lenox Hill Pub.
& Dist. Co. 1971) (1843) [hereinafter Duer's Commentaries] (noting that “on one memorable occasion... much riotous and violent
conduct was exhibited in the House of Representatives, when, upon an equality of electoral votes between two of the persons voted
for, the choice devolved upon that body”); 1 James Kent, Commentaries on American Law *279 [hereinafter Kent's Commentaries]
(“All elections by the representative body are peculiarly liable to produce combinations for sinister purposes.”).

20

Kent's Commentaries, supra note 19, at *276.

21

The methodological approach taken in this Article--one that places almost exclusive reliance on constitutional text and structure and
one that may be described as “interpretivist” or “originalist”--may be criticized by some as out of touch with the subject matter. The
arguments run as follows: the electoral college mode of presidential election has worked in ways never contemplated by the Framers
and Ratifiers--with the advent of political parties, not to mention the perfunctory role of electors themselves in presidential election.
Indeed, one might say that the electoral college mode of presidential election has (ironically or not) worked in a way positively
antithetical to the original expectations of the Framers and Ratifiers. Moreover, as we shall see, the constitutional lacunae seem to be
especially large when it comes to the thorny issues of the electoral count--these issues were under-specified from the start. And so the
argument concludes that constitutional meaning should be determined by subsequent practice--what works, or has been accepted as
if valid--more than by constitutional text and structure. Nevertheless, this Article's methodological approach does yield (I submit) a
definitive result as to the constitutionality of the Electoral Count Act. It is rather difficult to see why non-constitutional developments

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in electoral politics relating to presidential election--however stark when compared to the Founding--create congressional power
to regulate the electoral count when none existed. In any case, this Article's methodological approach is far from useless even for
those who choose to ignore its results. See Akhil Reed Amar, A Neo-Federalist View of Article III: Separating the Two Tiers of
Federal Jurisdiction, 65 B.U. L. Rev. 205, 207-08 n.7 (1985) (discussing the value of “interpretivist” methodology whether or not
one subscribes to its results).

22

The vade mecum in the study of the history of the electoral count is a House Special Committee report issued after the Hayes-Tilden
presidential election of 1872. See Counting Electoral Votes, supra note 3; see also 3 Hind's Precedents of the House of Representatives
of the United States 209-67 (Alfred C. Hinds ed., 1907) (discussing the electoral counts of 1789 to 1905). Two scholars have also
nicely summarized the relevant history. See generally C.C. Tansill, Congressional Control of the Electoral System, 34 Yale L.J. 511
(1924-25); L. Kinvin Wroth, Election Contests and the Electoral Vote, 65 Dick. L. Rev. 321 (1961).

23

John Harrison, Nobody for President, 16 J.L. & Pol. 699, 699 (2000).

24

Indeed, Bush v. Gore provides two excellent examples. For references to the Hayes-Tilden Incident of 1877, see infra notes 157-64
and accompanying text. For references to the Hawaii Incident of 1961, see infra notes 165-75 and accompanying text.

25

As of 1886, Senator Sherman observed that “[s]ince [the Founding] there have been eleven cases of disputes as to electoral votes,
and twenty-one objections have been made to the electoral votes of different States, presenting a great variety of questions,” though
he did not elaborate. 17 Cong. Rec. 815 (1886).

26

Act of Mar. 1, 1792, ch. 8, 1 Stat. 239. For the relevant part of the act relating to presidential election, see Counting Electoral Votes,
supra note 3, at 9.

27

U.S. Const. art. II, §1, cl.6 provides:
In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties
of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal,
Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such
Officer shall act accordingly, until the Disability be removed, or a President shall be elected.
With respect to presidential succession, the Act provided that, after the Vice President, the President pro tempore and the Speaker of
the House of Representatives would next be in line to act as President. For a strong and persuasive claim that this mode of presidential
succession is unconstitutional because Members of Congress are not “Officer[s]” within the meaning of the Presidential Succession
Clause, see Akhil Reed Amar & Vikram David Amar, Is the Presidential Succession Law Constitutional?, 48 Stan. L. Rev. 113 (1995).

28

See U.S. Const. art. II, §1, cl.4 (“The 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.”).

29

For the modern codification, see 3 U.S.C. §1 (2000) (“The electors of President and Vice President shall be appointed, in each State,
on the Tuesday next after the first Monday in November, in every fourth year succeeding every election of a President and Vice
President.”); id. §7 (“The electors of President and Vice President of each State shall meet and give their votes on the first Monday
after the second Wednesday in December next following their appointment at such place in each State as the legislature of such State
shall direct.”).

30

U.S. Const. art. II, §1, cl.2 provides:
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 the Congress: but no Senator or Representative, or Person holding
an Office of Trust or Profit under the United States, shall be appointed an Elector.

31

A proviso to section 1 provided: “That where no apportionment of Representatives shall have been made after any enumeration,
at the time of choosing electors, then the number of electors shall be according to the existing apportionment of Senators and
Representatives.” For the modern codification, see 3 U.S.C. §3.

32

See U.S. Const. art. II, §2, cl.3 (“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.”).

33

For the modern codification, see 3 U.S.C. §11 and 3 U.S.C. §9, which provides:

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The electors shall make and sign six certificates of all the votes given by them, each of which certificates shall contain two distinct
lists, one of the votes for President and the other of the votes for Vice President, and shall annex to each of the certificates one of the
lists of the electors which shall have been furnished to them by direction of the executive of the State.

34

For the modern codification, see 3 U.S.C. §6.

35

See 2 The Records of the Federal Convention of 1787, at 529 (Max Farrand ed., 1911) [hereinafter Farrand] (emphasis added); see
also David P. Currie, The Constitution in Congress: The Second Congress, 1791-1793, 90 Nw. U. L. Rev. 606, 617-18 (1996) (noting
this point). Alexander Hamilton's draft of the Constitution contained a broader grant of law-making power. See 3 Farrand, supra, at
624 (“The Legislature shall by permanent laws provide such further regulations as may be necessary for the more orderly election
of the President, not contravening the provisions herein contained.”).

36

Contrary to Professor Currie's view, see Currie, supra note 35, at 617-18, this language was not dropped by the Committee of Style,
but was dropped by the Framers themselves. See 2 Farrand, supra note 35, at 573 (draft Constitution referred to Committee of Style
and Arrangement) (“The Legislature may determine the time of chusing the Electors and of their giving their votes--But the election
shall be on the same day throughout the United States.”).

37

These two possible fonts of power for the Electoral Count Act are discussed in Part II.A.2 infra.

38

3 Annals of Cong. 279 (1791).

39

Id. at 279.

40

10 Annals of Cong. 134 (1800).

41

See Printz v. United States, 521 U.S. 898, 936 (1997) (O'Connor, J., concurring) (suggesting that “purely ministerial reporting
requirements imposed by Congress on state and local authorities” may be constitutionally valid).

42

See, e.g., id. at 939 (Stevens, J., dissenting); id. at 970-71 (Souter, J., dissenting); id. at 976-77 (Breyer, J., dissenting); Saikrishna
Bangalore Prakash, Field Office Federalism, 79 Va. L. Rev. 1957, 1990-2007 (1993) (presenting extensive early historical evidence
of “executive commandeering”).

43

The modern codification provides:
When no certificate of vote and list mentioned in sections 9 and 11 of this title from any State shall have been received by the President
of the Senate or by the Archivist of the United States by the fourth Wednesday in December, after the meeting of the electors shall
have been held, the President of the Senate or, if he be absent from the seat of government, the Archivist of the United States shall
request, by the most expeditious method available, the secretary of state of the State to send up the certificate and list lodged with
him by the electors of such State; and it shall be his duty upon receipt of such request immediately to transmit same by registered
mail to the President of the Senate at the seat of government.
3 U.S.C. §12 (2000). Additionally:
When no certificates of votes from any State shall have been received at the seat of government on the fourth Wednesday in December,
after the meeting of the electors shall have been held, the President of the Senate or, if he be absent from the seat of government, the
Archivist of the United States shall send a special messenger to the district judge in whose custody one certificate of votes from that
State has been lodged, and such judge shall forthwith transmit that list by the hand of such messenger to the seat of government.
Id. §13.

44

For the modern codification, see 3 U.S.C. §15 (“Congress shall be in session on the sixth day of January succeeding every meeting
of the electors.”).

45

For the modern codification (with the same $1,000 penalty), see 3 U.S.C. §14 (“Every person who, having been appointed, pursuant
to section 13 of this title, to deliver the certificates of the votes of the electors to the President of the Senate, and having accepted
such appointment, shall neglect to perform the services required from him, shall forfeit the sum of $1,000.”).

46

Spear, supra note 18, at 158.

47

For an easily accessible account of this history, see David P. Currie, The Constitution in Congress: The Federalist Period, 1789-1801,
at 288-291 (1997).

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48

Jean Edward Smith, John Marshall: Definer of a Nation 263 (1996).

49

2 John Bach McMaster, A History of the People of the United States: From the Revolution to the Civil War 462 (1928); see id.
at 463 (“The purpose of this shameful bill was plain to all.”); see also 2 Albert J. Beveridge, The Life of John Marshall 452-53
(1916) (describing Federalist effort to regulate electoral count as “in reality a high-handed attempt to control the [coming] presidential
election, regardless of the votes of the people”); Wroth, supra note 22, at 326 & n.24 (describing Federalist effort to regulate electoral
count as “a last ditch effort to stem the tide of Jeffersonian Republicanism”).

50

6 Annals of Cong. 29 (1800).

51

Counting Electoral Votes, supra note 3, at 16.

52

Historian Albert Beveridge writes that the bill was “aimed particularly at the anticipated Republican presidential majority in
Pennsylvania which had just elected a Republican Governor over the Federalist candidate.” 2 Beveridge, supra note 49, at 463. It
should come as no surprise that the losing Federalist candidate was Senator Ross of Pennsylvania, the principal proponent of the
Grand Committee Bill.

53

The idea for a committee of thirteen may have its roots in a proposal by Elbridge Gerry at the Philadelphia Convention of 1787
who proposed that, in case of electoral deadlock, “the eventual election should be made by six Senators and seven Representatives
chosen by joint ballot of both Houses.” 2 Farrand, supra note 35, at 514. This proposal failed by a vote of two to eight. Id.
Note that Gerry's proposal decidedly favors the House of Representatives--the People's branch of the national legislature--both in
committee representation and committee election given the joint ballot procedure. Under a joint ballot, the Members of the House of
Representatives, at the founding, would be entitled to sixty-five of ninety-one votes. For a mathematical depiction of Gerry's thinking,
see id. at 99 (proposing the selection of President by a randomly chosen subset of members of Congress taken together).

54

Counting Electoral Votes, supra note 3, at 18. The one exception to this grant of power was that
no petition, or exception, shall be granted, allowed, or considered by the sitting grand committee which has for its object to dispute,
draw into question the number of votes given for an elector in any of the States, or the fact whether an elector was chosen by a
majority of votes in his State or district.”
Id. In other words, the Grand Committee was not to judge the elections or returns of the electors.

55

Id. at 17.

56

Id. at 18.

57

Tansill, supra note 22, at 517.

58

See 10 Annals of Cong. 126-46 (1800). In his remarks opposing the Grand Committee Bill, Senator Pinckney described it thus:
[W]hat is the mode [of electing President] proposed by this bill? That the Senate and House of Representatives of the United States
shall each of them elect six members, who with a chairman, to be appointed by the latter from a nomination of the former, would
form a grand committee who should, sitting with closed doors, have a right to examine all the votes given by the Electors in the
several States for President and Vice President, and all the memorials and petitions respecting them; and have power finally to decide
respecting them, and to declare what votes of different States shall be rejected, and what admitted; and, in short, that this committee,
thus chosen, and sitting with closed doors, shall possess complete, uncontrollable, and irrevocable power to decree, without appeal
from their decision, who has been returned, and who shall be proclaimed President of the United States.
Id. at 129. Professor Ross and Mr. Josephson suggest that, given the length of Senator Pinckney's speech, it was not extemporaneous.
See Ross & Josephson, supra note 7, at 711 n.252.

59

10 Annals of Cong. 126. Recall that the Alien and Sedition Acts were set to expire on June 25, 1800 and March 3, 1801 respectively.
See Alien Act of June 25, 1798 §6, 1 Stat. 570, 572; Sedition Act of July 14, 1798 §4, 1 Stat. 596, 597.

60

10 Annals of Cong. 130. Senator Pinckney also observed that the Framers “well knew, that to give to the members of Congress a
right to give votes in this election, or to decide upon them when given, was to destroy the independence of the Executive and make
him the creature of the Legislature.” Id. at 131. The potential for party spirit in Congress to dominate the choice of President was well
recognized. In the Second Congress, Speaker of the House Sedgwick “descanted on the pernicious consequences which might result
from the collision of parties, and the working of passions in the breasts of men whose ardor would probably be excited to the greatest

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degree” if the House of Representatives were to choose the President. 3 Annals of Cong. 278 (1791). During the Wisconsin Incident
of 1857, Senator Collamer made similar remarks. See Counting Electoral Votes, supra note 3, at 132-33 (remarks of Sen. Collamer).

61

2 Beveridge, supra note 49, at 454.

62

10 Annals of Cong. 146.

63

See 2 Beveridge, supra note 49, at 455. (“In these cloak-room talks, Marshall, to the intense disgust and anger of the Federalist
leaders, was outspoken against this attempt to seize the Presidency under the forms of a National law.”); Smith, supra note 48, at 264
(“Marshall worked the cloakrooms and corridors assiduously, voicing his objections and lining up the opposition vote.”).

64

See Counting Electoral Votes, supra note 3, at 23-26.

65

See Part I.A.4 infra.

66

Smith, supra note 48, at 264.

67

2 Beveridge, supra note 49, at 456.

68

See Wroth, supra note 22, 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.”).

69

2 Beveridge, supra note 49, at 456. Thomas Jefferson, for his part, was less than fully appreciative of John Marshall's efforts,
suggesting that the Marshall amendments did not make the Grand Committee Bill constitutional. In a private letter, he wrote:
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 [H]ouses of [C]ongress; but to stand good
if not rejected by a concurrent vote. You will readily estimate the amount of this sort of controul.
Id. (quoting Letter from Thomas Jefferson, to Robert Livingston (Apr. 30, 1800)).

70

The amended Grand Committee Bill largely parallels the Electoral Count Act. See Part I.A.4 infra.

71

Apparently, John Marshall also questioned Congress's ability to delegate authority to the Grand Committee. 2 Beveridge, supra note
49, at 457 (citing Letter from Speaker Sedgwick, to Sen. Rufus King (May 11, 1800)).

72

The Constitution carefully circumscribes the Chief Justice's judicial duties under Article III, with one exception. See 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....”).
It might be argued that the Chief Justice's role in the Grand Committee is quasi-judicial and that the foregoing clause invites the
Chief Justice to play a special role with respect to the Presidency. For an expression of this claim, see Amar, supra note 10, at 223
n.16. Notably, however, the Framers rejected other non-judicial roles for the Chief Justice and other Justices of the Supreme Court.
See, e.g., 2 Farrand, supra note 35, at 75, 298 (rejecting participation in “[r]evisionary power” or veto power); id. at 342 (rejecting
participation in “Council of State” or Privy Council).

73

See text accompanying infra notes 267-74.

74

See text accompanying infra notes 276-86.

75

Senator Pinckney remarked:
Were not the then Executive, and a number of the members of both Houses, members of the Convention which framed the Constitution;
and if it intended to give to Congress, or to authorize them to delegate to a committee of their body, powers contemplated by this
bill, could the Congress or the President of 1792, have been so extremely uninformed, and indeed ignorant of its meaning and of
their duty, as not to have known it?
10 Annals of Cong. 136 (1800). However, it must be noted that, during the debate over the Act of 1792, Speaker of the House
Sedgwick did mention the possibility of a “contested election” and “left it to the consideration of the Committee” to address the
solution. See 3 Annals of Cong. 279 (1791).

76

Three other interim and unsuccessful congressional efforts to regulate the electoral count deserve brief mention. First, on December
12, 1820, Senator Wilson submitted a resolution entitled Attempt to Remedy the Uncertainty as to Counting the Electoral Vote by

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Legislation. See Counting Electoral Votes, supra note 3, at 48. Second, on March 4, 1824, Senator Van Buren--soon to be President
Van Buren in 1837--reported a bill similar to Representative John Marshall's Grand Committee Bill. This bill passed the Senate on
April 19, 1824, but died without having been considered by the House of Representatives. See id. at 57-60; see also Spear, supra note
18, at 158 (describing the historical background); Wroth, supra note 22, at 327 (same). Third, on May 10, 1828, Representative Wilde
moved a resolution entitled “A Proposition to Inquire into the Legality of the Certificates of the Votes of the Previous Presidential
Election.” Counting Electoral Votes, supra note 3, at 63-65.

77

See Spear, supra note 18, at 158; Wroth, supra note 22, at 328 n.33.

78

Wroth, supra note 22, at 328; see also Tansill, supra note 22, at 522 (“[T]he occasion for this assertion of jurisdiction was the breach
between the Executive and Congress relative to the reconstruction of the southern states.”).

79

Counting Electoral Votes, supra note 3, at 148 (House version); see also Tansill, supra note 22, at 523 (describing the surrounding
history); Wroth, supra note 22, at 328 (citing same passage).

80

Sen. Morton offered an analysis:
Under the rule as it now exists, when the votes for President and Vice-President are counted, any formal objection, no matter how
trifling or insufficient or even contemptible in its character, has the effect to separate the two houses, and they are to vote upon this
objection, and unless both houses concur in voting it down the electoral vote of that State is lost. In that way, by the dissent of either
house, any State may be disfranchised; the vote of the State of New York or of Indiana may be rejected by the most foolish and trivial
objection unless both houses shall concur in voting down that objection. The vote of every State may be rejected in this way.
Counting Electoral Votes, supra note 3, at 444.

81

A report by the Committee on Privileges and Elections in 1874 stated: “Here is a powerful temptation to the House of Representatives
by non-concurrence to throw the election into its own body, and thus, perhaps, secure the election of a candidate who may have been
overwhelmingly beaten at the polls.” Counting Electoral Votes, supra note 3, at 417.

82

Id.

83

See, e.g., id. at 444 (remarks of Sen. Morton) (“[T]he existence of this rule imperils the peace of the nation and subjects the Government
to great danger.... It requires no argument, therefore, to prove the absurdity, the unconstitutionality, and the danger of this rule.”);
id. (remarks of Sen. Bayard) (“I have for a long time been of opinion that the constitutionality of this rule altogether may well be
doubted.”); id. at 472 (remarks of Sen. Bayard) (“That such a rule was without constitutional warrant, I cannot doubt; and I do not
think I am going too far when I say that the unconstitutionality of that rule is generally admitted.”); id. at 526 (remarks of Sen. Morton)
(“It was absurd, wickedly and dangerously unconstitutional.”); id. at 540 (remarks of Sen. Maxey) (“It is a blot upon the mode and
manner of counting the votes of the electoral college. It gives to either [H]ouse of Congress the right to stab to the death a sovereign
State of this Union.”). Sen. Bayard remarked:
Then, under the maleficent working of a rule adopted without regard to the Constitution, under the assumption of powers utterly
unwarranted by the two [H]ouses of Congress, there came the assumption of a veto power by either branch of Congress, in silence,
without debate, without reason, to throw out the electoral vote and disfranchise one or more communities at will.
Id. at 665.

84

See Tansill, supra note 22, at 522 (“In 1865, the climax of congressional control [over the electoral vote] was reached,....”); Wroth,
supra note 22, at 328 (“Congress asserted total power over the electoral vote with the adoption of the Twenty-second Joint Rule in
1865.”).

85

The “one-House veto” of the Twenty-second Joint Rule bears a remarkable resemblance to the scheme held unconstitutional in INS
v. Chadha, 462 U.S. 919, 959 (1983) (holding a “one-House veto” provision unconstitutional).

86

In a nutshell, the precursor bill to the Electoral Count Act was introduced in the Republican Senate in May 1878. “Spurred by two
close presidential elections, the Senate repassed the bill three times in the next decade, but each time could not win the agreement of
the House.” Wroth, supra note 22, at 334 (footnotes omitted). The two Houses of Congress finally agreed in 1887, after “the passions
of Reconstruction had cooled.” Id. For a comprehensive summary of the legislative history of the Electoral Count Act, see Ross &
Josephson, supra note 7, at 722-30, and Wroth, supra note 22, at 334-35.

87

3 U.S.C §15 (2000).

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88

Id. (“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.”).

89

Id. (emphasis added). Note that the referred to section 6, 3 U.S.C. §6 (2000), is the modern codification of section 3 of the Act of 1792.

90

3 U.S.C. §15.

91

Id. §5 (“Determination of controversy as to appointment of electors”) provides:
If any State shall have provided, by laws enacted prior to the day fixed for the appointment of the electors, for its final determination
of any controversy or contest concerning the appointment of all or any of the electors of such State, by judicial or other methods
or procedures, and such determination shall have been made at least six days before the time fixed for the meeting of the electors,
such determination made pursuant to such law so existing on said day, and made at least six days prior to said time of meeting of the
electors, shall be conclusive, and shall govern in the counting of the electoral votes as provided in the Constitution, and as hereinafter
regulated, so far as the ascertainment of the electors appointed by such State is concerned.

92

Id. §15.

93

6 Annals of Cong. 29 (1800); Counting Electoral Votes, supra note 3, at 16.

94

Counting Electoral Votes, supra note 3, at 37-42.

95

Id. at 37-38.

96

Id. at 38.

97

Id. at 39.

98

See id. at 44-47.

99

Id. at 46.

100

Id.

101

Id. at 47.

102

Id.

103

Id.

104

Id. When Representative Sharp offered the joint resolution, Representative Bassett objected, stating that the resolution should not be
joint because a joint resolution might establish a precedent which would “deprive [the] House of one of its powers, by permitting the
Senate to participate in this question.” Id. at 47. There is no record of any Representative supporting this erroneous view. There is no
textual reason to conclude that the House has judicial power during the electoral count but that the Senate does not, or vice versa.

105

Id.

106

See id. at 48-56.

107

Id. at 48 (Senate Resolution); id. at 51 (House Resolution).

108

Id. at 49.

109

Id. at 51.

110

Id. at 52.

111

Id.

112

Id. at 53.

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113

Id. at 50-53.

114

Id. at 50. As this pronouncement makes clear, the electoral count of 1821 is unique for another reason: this was the first (and only)
time when electors who were appointed died before the meeting of the electoral colleges. It appears that the President of the Senate
miscalculated the number necessary for a majority of the votes. The Electoral College Clauses provide that the needed majority be
“a majority of the whole number of Electors appointed.” U.S. Const. amend. XII (emphasis added); see U.S. Const. art. II, §1, cl.3.
Thus, the correct majority was either 116 or 118 votes, depending on the exclusion or inclusion of Missouri.

115

Counting Electoral Votes, supra note 3, at 56.

116

Id. (emphasis added).

117

Id. at 56.

118

See id. at 70-76.

119

Id. at 70 (Senate Resolution).

120

U.S. Const. art. II, §1, cl.2.

121

Counting Electoral Votes, supra note 3, at 71 (remarks of Sen. Grundy).

122

See id. (noting that “five or six votes only would in any event be abstracted from the whole number”).

123

Id.

124

Id. at 73 (remarks of Rep. Cambreling).

125

Id. (remarks of Rep. Thomas).

126

Id. at 72 (remarks of Sen. Norvell). Senator Lyon agreed and “contended that Michigan was as much entitled to count her vote as
was the State of Indiana.” Id. Senator Clay disagreed. Id.

127

Id. (second emphasis added).

128

Id.

129

Id. at 73.

130

Id. at 75.

131

Id. at 75-76.

132

See id. at 86-144.

133

See, e.g., id. at 117 (remarks of Sen. Seward) (referring to “accidental delay produced by the interposition of Providence preventing
the vote being cast at the prescribed time”).

134

Id. at 87-89.

135

Id. at 89.

136

Id.

137

Id.; see also id. (“The Presiding Officer would state that, the votes having been counted and announced, the functions of the two
houses, assembled for the purpose of counting the votes, are discharged.”).

138

See, e.g., id. (remarks of Rep. Marshall); id. (remarks of Sen. Toombs); id. at 90 (remarks of Sen. Butler); id. at 110 (remarks of
Sen. Nourse).

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139

Id. at 137 (remarks of Sen. Pugh).

140

Id. at 131.

141

Senators Hale and Houston were the sole exceptions in the Senate. Senator Hale urged that Wisconsin's votes should be counted
because the people of Wisconsin ought not to be disenfranchised because of an “accident” of their agents. His cry was very much
one of substance over form. See id. at 119. Senator Houston argued that any resolution that Wisconsin's votes should not have been
counted was unconstitutional. In his view, the electoral count of 1857 was “good, constitutional, and lawful.” Id. at 122-23.

142

See id. at 132 (proposed joint House and Senate resolution); id. at 144 (House).

143

See id. at 357-408.

144

Id. at 366.

145

Id. at 368.

146

Id.

147

Id. at 377.

148

Id. at 380. The Greeley precedent almost certainly affected the electoral vote of 1912. In that year, the defeated Republican candidate
for Vice President died before the meeting of the electoral colleges, and the pledged electors voted for someone else. See 115 Cong.
Rec. 148 (1969) (remarks of Rep. McCulloch).

149

See Counting Electoral Votes, supra note 3, at 380.

150

See id.

151

Id.

152

Id.

153

Id.

154

Id. at 380-81.

155

Id. at 382-83.

156

Id. at 389.

157

Michael W. McConnell, The Forgotten Constitutional Moment, 11 Const. Comment. 115, 127 (1994).

158

For an excellent summary of the incident, see McConnell, supra note 157, at 127-33. For the principal historical scholarship on this
incident, see Charles Fairman, Five Justices and the Electoral Commission of 1877 (Paul A. Freund & Stanley N. Katz eds., 1988);
Eric Foner, Reconstruction: America's Unfinished Revolution 1863-1877, at 575-87 (1988); Paul Leland Haworth, The Hayes-Tilden
Disputed Presidential Election (1906); Keith Polakoff, The Politics of Inertia: The Election of 1876 and the End of Reconstruction
(1973). For a discussion of this incident by those who have written on the Electoral Count Act, see, for example, Glennon, supra note
18, at 16-17, and Wroth, supra note 22, at 331-34 & 331 n.46 (collecting other sources).

159

There was a problem with one electoral vote from Oregon as well: one of the Oregon electors for Hayes was a postmaster, and was
therefore ineligible to the office of elector, see U.S. Const. art. II, §1, cl. 2. Oregon's Democratic Governor, refusing to certify the
electoral certificate, struck the name of the postmaster-elector for Hayes and substituted that of an elector for Tilden, who received the
next most votes. This account is briefly recollected in Harrison, supra note 23, at 700 n.2 (citing Ari Hoogenboom, The Presidency
of Rutherford B. Hayes 30-31 (1988)).

160

During the Electoral Count Act debates, at least one Senator noted that the Electoral Commission of 1877 was constitutionally suspect,
though he noted that it was “a wise solution to a great difficulty.” See 17 Cong. Rec. 817 (1886) (remarks of Sen. Sherman). In his
book on Reconstruction, Professor Bruce Ackerman calls this Electoral Commission “extraconstitutional.” 2 Bruce Ackerman, We

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the People: Transformations 247 (1998). Perhaps this is a clever attempt to avoid calling it “unconstitutional.” Other scholars have
firmly taken the position that the Electoral Commission was unconstitutional. I agree. See, e.g., Harrison, supra note 23, at 700 n.3
(“Under now-current separation of powers doctrine the commission was almost certainly unconstitutional. Its members exercised
significant government power but were not appointed consistently with the Appointments Clause, as Buckley v. Valeo says they
should have been.”) (citation omitted); Tribe, supra note 17, at 278 & n.438. Professor Tribe states:
Today, of course, the service on such a body by members of Congress would be understood to violate the separation of powers as
construed by Buckley v. Valeo, and the reservation of a veto power in Congress acting by anything less than full legislation presented
to the President for signature or veto would be understood to violate the nonparliamentary structure of our government.
(citation omitted) (citing INS v. Chadha, 462 U.S. 919, 959 (1983)).

161

Act of Jan. 29, 1877, ch. 37, §2, 19 Stat. 227, 229; see Wroth, supra note 22, at 331.

162

This “two-House veto” provision is constitutionally problematic. See INS v. Chadha, 462 U.S. 919, 944-51 (1983); Tribe, supra note
17, at 278 (noting same point).

163

See text accompanying infra note 476.

164

The modern view is that Samuel Tilden should have garnered the electoral votes of Florida, thus giving him a several vote majority
of the electoral votes. See, e.g., C. Vann Woodward, Reunion and Reaction: The Compromise of 1877 and the End of Reconstruction
19 (2d. ed. 1966); Jerrell H. Schofner, Florida Courts and the Disputed Election of 1876, 48 Fla. Hist. Q. 26, 46 (1969); Jerrell H.
Schofner, Florida in the Balance: The Electoral Count of 1876, 47 Fla. Hist. Q. 122, 148-50 (1968).

165

See 107 Cong. Rec. 288-91 (1961).

166

See id. at 289.

167

See id.

168

See id.

169

See id. at 290.

170

See id. at 289-90.

171

Id. at 289.

172

Id. at 289-90.

173

Id. at 290.

174

Id. (emphasis added).

175

The result of the electoral count did not even come close to turning on the legal status of Hawaii's three electoral votes. Democrats
Kennedy and Johnson prevailed in the electoral count by a margin of eighty-four votes. See id. at 291.

176

See 115 Cong. Rec. 9-11 (1969); id. at 146-72 (House debate); id. at 209-46 (Senate debate); see also Glennon, supra note 18, at
37-40 (discussing history); Ross & Josephson, supra note 7, at 731-37 (same).

177

See 115 Cong. Rec. 11.

178

Interestingly, the memorandum cited the Necessary and Proper Clause, U.S. Const. art. I, §8, cl.18, as the font of power to pass the
Electoral Count Act. See 115 Cong. Rec. 11.

179

See id. at 146.

180

See id.

181

See, e.g., id. at 147 (remarks of Rep. Wright) (stating that Congress has “the legal and constitutional power, and indeed the duty, to
prevent faithless electors from corrupting the election of a President”); id. at 158 (remarks of Rep. Corman) (stating that “Congress

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sits as a court of last resort”); id. at 170 (remarks of Rep. O'Hara) (“Only the Congress can see to it that the elector respects his
obligations....”).

182

Id. at 148.

183

See, e.g., id. at 169 (remarks of Rep. Schwengel).

184

See, e.g., id. at 146-47 (remarks of Rep. Wright); id. at 158 (remarks of Rep. Rodino).

185

See id. at 165 (remarks of Rep. Hosmer).

186

See, e.g., id. at 151 (remarks of Rep. Anderson) (arguing that Electoral Count Act was “intended to circumscribe to the very narrowest
limits the power of the Congress to do anything other than to certify the results in the States”); id. at 168 (remarks of Rep. Fish).

187

See, e.g., id. at 148-49 (remarks of Rep. McCulloch) (arguing that electors are independent under the Electoral College Clauses and
concluding that Congress could not “tamper” with Dr. Bailey's vote). Representative Poff argued that
[i]f the Congress can look behind the solemn certificate of the Chief Executive of a State, reject that certificate and by a simple
majority vote decide what electoral votes were “regularly given” and which were given irregularly, then the Congress can expropriate
from the people their power to elect their President.
Id. at 157; see also id. at 162 (remarks of Rep. Henderson) (arguing that Congress's role is like a local board of elections whose
“function is solely to receive the votes, count them, and certify the result... not to determine whether votes were properly cast”); id.
at 164 (remarks of Rep. Eckhardt) (stating that it was “beyond question in the Constitution... that the joint session of the House and
the Senate has no power whatsoever other than to hear the returns of the electors read”); id. at 166-67 (remarks of Rep. Fountain)
(calling Congress “powerless”).

188

Id. at 168.

189

Id. at 170.

190

For Representative Gerald Ford's statement in support of the objection, see id. at 163-64.

191

Id. at 246.

192

The converse is not true. See, e.g., Harmelin v. Michigan, 501 U.S. 957, 980 (1991) (opinion of Scalia, J.) (stating that “[t]he actions
of the First Congress... are of course persuasive evidence of what the Constitution means”) (citations omitted); Powell v. McCormack,
395 U.S. 486, 547 (1969) (“[T]he precedential value of these cases tends to increase in proportion to their proximity to the Convention
in 1787.”); Wisconsin v. Pelican Ins. Co., 127 U.S. 265, 297 (1888) (stating that an act “passed by the first Congress assembled under
the Constitution, many of whose members had taken part in framing that instrument,...is contemporaneous and weighty evidence of
its true meaning”). Even then, however, a statute is only presumed to be constitutional.

193

This part presents, in my view, many if not most of the arguments against the constitutionality of the Electoral Count Act. There
may be others.

194

U.S. Const. amend. XII. The only differences between the text of the Twelfth Amendment and the text of the original Constitution
are in punctuation and capitalization. See U.S. Const. art. II, §1, cl.3.

195

No full-scale law review article dissects the text of the Twelfth Amendment. Two recent articles explore the so-called “Habitation
Clause” of the Twelfth Amendment which provides that Electors must not vote for a President and Vice President of the same state
as themselves. U.S. Const. amend. XII (“The Electors shall meet in their respective states and vote by ballot for President and VicePresident, one of whom, at least, shall not be an inhabitant of the same state with themselves;....”); see James C. Ho, Much Ado About
Nothing: Dick Cheney and the Twelfth Amendment, 5 Tex. Rev. L. & Pol. 227 passim (2000); Sanford Levinson & Ernest A. Young,
Who's Afraid of the Twelfth Amendment?, 29 Fla. St. U. L. Rev. 925, 932-54 (2001).

196

Levinson & Young, supra note 195, at 925.

197

See U.S. Const. art. VI, cl. 2 (“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof... shall
be the supreme Law of the Land....”) (emphasis added); Marbury v. Madison, 5 U.S. (1 Cranch) 137, 180 (1803).

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198

U.S. Const. amend. XII.

199

This simple point was not lost during the Electoral Count Act debates. See, e.g., 17 Cong. Rec. 865 (1886) (remarks of Sen. Morgan)
(“We frequently hear it stated that the President of the Senate is the president of the joint meeting. If he is, it is only by reason of
some rule or agreement between the two Houses. The Constitution is silent upon that point. The Constitution speaks of no officer
who is to preside over the joint meeting.”).

200

But see Counting Electoral Votes, supra note 3, at 541 (remarks of Sen. Maxey) (“By the Constitution [the President of the Senate]
is the presiding officer over the joint assemblage of the Senate and the House.”).

201

Cf. 17 Cong. Rec. 865 (remarks of Sen. Morgan) (discussing presiding officer of the electoral count) (“To be a house in parliamentary
law and in constitutional law it must be organized under the presidency of its rightful officer.”).

202

3 U.S.C. §15 (2000) (emphasis added).

203

See, e.g., Walz v. Tax Comm'n, 397 U.S. 664, 678 (1970) (stating that “an unbroken practice... is not something to be lightly cast
aside” in constitutional interpretation); The Pocket Veto Case, 279 U.S. 655, 689 (1929) (stating that a “[l]ong-settled and established
practice is a consideration of great weight in a proper interpretation” of the Constitution); cf. Marsh v. Chambers, 463 U.S. 783 (1983)
(holding that legislative prayer, which began in the First Congress, is constitutional).

204

This statement may be surprising, but I ask the reader to suspend his or her skepticism.

205

U.S. Const. art. I, §3, cl.6. But this clause is not nearly as careful as it should be--the Framers forgot to specify that the Vice President
cannot preside at her own impeachment trial, leaving the matter to necessary implication. For thoughtful commentaries, see Joel K.
Goldstein, Can the Vice President Preside at His Own Impeachment Trial?: A Critique of Bare Textualism, 44 St. Louis U. L.J. 849
(2000); Michael Stokes Paulsen, Someone Should Have Told Spiro Agnew, 14 Const. Comment. 245 (1997).

206

See The Federalist No. 10, at 47 (James Madison) (Clinton Rossiter ed., Mentor 1999) (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.”); William Rawle, A
View of the Constitution of the United States of America 206 (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 to retire from the court.”); 2 Farrand, supra note 35, at 493.

207

See 2 Farrand, supra note 35, at 401-03.

208

Id. at 402-03; see also id. at 403 (remarks of James Madison) (supporting the joint ballot procedure and observing in passing that
“[t]he President of the Senate also is to be occasionally President of the U.S.”).

209

17 Cong. Rec. 1019 (1886).

210

See supra note 3 and text accompanying infra note 230.

211

See U.S. Const. art. II, §1, cl. 6; U.S. Const. amend. XXV, §1.

212

An interesting question arises whether a Senator or Representative--who may also be a presidential or vice presidential candidate-may be the presiding officer of the electoral count, even though the Vice President shall not be. The better answer is “Yes.” Before
opening the electoral certificates and inspecting the electoral votes, the identities of the presidential or vice presidential candidates
are (at least theoretically) unknown, and hence it would be impossible to know which Senators or Representatives to exclude from the
presiding officer's chair. The argument is that the Constitution implicitly assumes that the Vice President--more than any other person
present at the electoral count--would be a presidential or vice presidential candidate, and hence makes the Vice President uniquely
ineligible to be the presiding officer. As a prudential matter, of course, the presiding officer should be someone who is not known
to be a presidential or vice presidential candidate.

213

There is one more reason why the “Presiding Officer Clause” of 3 U.S.C. §15 may be unconstitutional. That clause provides that “the
President of the Senate shall be their presiding officer.” 3 U.S.C. §15 (2000) (emphasis added). What gives Congress the authority to
super-add to the Vice President's duties specified by the Constitution? See, e.g., U.S. Const. art. I, §3, cl.4 (“The Vice President of the

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United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.”); U.S. Const. art. II, §1, cl.6 (“In
Case of the Removal of the President from Office, or of his Death, Resignation or Inability to discharge the Powers and Duties of the
said Office, the Same shall devolve on the Vice President....”); U.S. Const. amend. XXV, §1 (similar); U.S. Const. amend. XII (“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.”). If Congress may add to the Vice President's duties, why not the President's duties or the Chief Justice's duties? If
“shall” means “must,” the Presiding Officer Clause of the Electoral Count Act would seem to be, strictly speaking, unconstitutional.

214

Compare U.S. Const. art. I, §2, cl.5 (“The House of Representatives shall chuse their Speaker and other Officers.”), and U.S. Const.
art. I, §3, cl.5 (“The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President,
or when he shall exercise the Office of President of the United States.”), with 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.”).

215

See infra notes 498-525 and accompanying text.

216

U.S. Const. amend. XII.

217

Others have made this obvious point. See, e.g., 17 Cong. Rec. 1059 (1886) (remarks of Sen. Wilson) (arguing that the counting
function is vested in the President of the Senate and that the Necessary and Proper Clause “does not confer on Congress the power
to assume unto itself the duty which the Constitution imposes on that officer”); 18 Cong. Rec. 74 (remarks of Rep. Baker) (“If the
Constitution... does... by fair implication, vest in the President of the Senate the power and duty not only to open, but also to count,
the votes, then Congress can not, by this or any other legislation, take away or transfer to any other person or officer that power
and duty.”); Paulsen, supra note 205, at 245 (noting that each House of Congress may not use the Rules of Proceedings Clause to
strip the Vice President of constitutional duties); Spear, supra note 18, at 156 (“The Constitution says that ‘the votes shall then be
counted,’ and if this mandate be addressed to the President of the Senate, that ends the question so far as the counting is concerned.
The Constitution has then trusted him with the whole power, and any legislation to direct him, would be an impertinent intrusion
upon his prerogative.”); cf. Harrison, supra note 23, at 703 (“Neither House nor Senate is given any authority over the President of
the Senate when it comes to opening the certificates, and Congress by statute may no more control the exercise of this constitutionally
granted authority than it may tell the President whom to pardon.”).

218

U.S. Const. amend. XII.

219

See 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.”). It does appear that the President pro tempore acted in place of the Vice President in at least the
electoral counts of 1809, 1825, 1857, 1877, and most recently 1969 when Vice President Hubert H. Humphrey “recused” himself
from the electoral count.

220

There is the rather tricky question whether the President of the Senate must open all certificates in a case of multiple returns from the
same state, as in the Hayes-Tilden incident of 1887, or in a case of a return from a putative state (say for example, a certificate from
Puerto Rico). The best answer is that the opening-of-the-certificates function contains no power of discretion because any discretion
in the opening of certificates would interfere with the counting-of-electoral-votes function. Translated into the recent past: if two
certificates had come from Florida during the electoral count of 2001, the Vice President could not, constitutionally speaking, have
refused to open both of them.
In a recent essay, Professor Harrison takes a contrary view on the specific question of multiple (putative) electoral certificates. In
his view, “[t]he certificates that the President of the Senate is to open, however, are those of the electors, not those of non-electors.
Hence in order to know which certificates to open, the President of the Senate must know which of competing slates of electors were
validly appointed.” Harrison, supra note 23, at 702-03. This is a clever (and obvious) textual argument. He continues: “If the Twelfth
Amendment is assumed to be a dispute resolution mechanism, a natural reading of it thus indicates that in one especially important
context the dispute is to be resolved by a single individual.” Id. at 703. The vice of this reading, as Professor Harrison acknowledges,
is that one person has the power to resolve at least one kind of dispute in presidential election, a conclusion that is generally to be
avoided. Indeed, he acknowledges in his very next paragraph that “[i]t would be much easier to believe that this important decision
was vested in a collective body, were there not serious problems with the operation of the collective body, the joint session of Congress
(if it is to be called that).” Id. Notwithstanding the latter “problems” (which are overstated in my view), Professor Harrison ignores the
point that in the case of multiple putative electoral certificates, the opening of the certificates function interferes with the counting-ofelectoral-votes function. The former enables the latter; the former is more of an “exercise” whereas the latter is more of a “function.”
Moreover, the former is simply less important than the latter--a President and Vice President elect are determined after the electoral

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votes are actually counted, not when the electoral certificates are opened. The better answer, I submit, is that the President of the
Senate has discretion in the opening-of-electoral-certificates function only if she also has the counting-of-electoral-votes function,
and even then, that discretion would follow as a matter of the latter function, not the former.
This scenario of multiple putative electoral certificates was the subject of discussion during the Electoral Count Act debates, given
the cases of double returns in the electoral counts of 1873 and 1877. For statements that the President of the Senate has no discretion
in opening the certificates in the case of multiple returns, see, for example, Counting Electoral Votes, supra note 3, at 446-47 (remarks
of Sen. Bayard); id. at 449-50 (remarks of Sen. Thurman). But see id. at 454 (remarks of Sen. Morton) (arguing that President of the
Senate's discretion in opening certificates “shows the necessity for an amendment of the Constitution”).

221

“The famous phrase of the Constitution ‘the votes shall then be counted’ has been like an apple of discord almost since the beginning
of Government.” J. Hampden Dougherty, The Electoral System of the United States 254 (1906); see also Albert J. Rosenthal, The
Constitution, Congress, and Presidential Elections, 67 Mich. L. Rev. 1, 27 (1968) (noting that the passive voice of this phrase breaks
one of the “cardinal rules of draftsmanship”); Tribe, supra note 17, at 279 (“The Framers should have listened to the time-honored
injunction to avoid the passive voice. ‘Shall be counted'--by whom?”).
During the Electoral Count Act debates, Representative Herbert carefully examined the grammar of this patch of constitutional text:
Here is a duty imposed upon the President of the Senate. He shall, in the presence of the Senate and House of Representatives, open
the certificates. Then the first person is dropped and the third person is taken up; there the sentence changes its construction; there
the duty imposed upon the President of the Senate ceases, and afterwards a new part of speech is used--the third person is adopted,
and a verb relating to a noun in the third person, “the votes,” employed, and a new duty imposed by the words, “and the votes shall
then be counted.”
18 Cong. Rec. 75 (1886).

222

The ambiguity is well-evidenced in the congressional debate over the electoral count. See, e.g., Counting Electoral Votes, supra note
3, at 48 (remarks of Sen. Wilson) (“It is not said who shall count the votes, nor who shall decide what votes shall be counted.”); id. at
451 (remarks of Sen. Frelinghuysen) (“So when the Constitution says the vote shall be counted, it says that a decision shall be made
by some one, and it must be made either by the presiding officer of the Senate or by the Senate and House, who are required to be
present.”); see also Spear, supra note 18, at 156 (noting a similar point).

223

This obvious point was made during the Electoral Count Act debates. See, e.g., 18 Cong. Rec. 46 (remarks of Rep. Dibble).

224

These are the two most obvious readings, but there are at least four other readings. A third reading is that the Clause is simply silent
as to who shall count the votes and that Congress may specify the counting agent.
A fourth reading, suggested by Representative Dibble during the Electoral Count Act debates, is that the counting function is split
between the House of Representatives and the Senate: the House is to count the presidential votes and the Senate the vice presidential
votes, because, in case of deadlock, the House chooses the President and the Senate the Vice President. See 18 Cong. Rec. 46. There
is no textual or historical support whatsoever for this reading. Moreover, this reading would have been impossible before the adoption
of the Twelfth Amendment which required Electors to cast separately marked votes for President and Vice President, and it is unlikely
that the Twelfth Amendment added to the evident textual ambiguity.
A fifth reading, suggested by Senator Thompson during the electoral count of 1857, makes even less sense. He suggested that the
counting function is vested solely in the Senate, with the House only present as witnesses. See, e.g., Counting Electoral Votes, supra
note 3, at 126 (“The Constitution, in my judgment, is that these votes are to be returned to us and counted by us, and the House of
Representatives are admitted to be present at the count to prevent a combination, a clandestine operation, a secret session, a coup
d'etat.”); id. at 130 (“When we are counting the votes, (for the President of the Senate only counts them in his official capacity, and in
the session of the Senate, because he cannot count them as a private individual,) it is improper for the House members to be anything
but listeners.”); id. at 136 (“The members of that House of Representatives are to sit by, and whether we put them in the gallery, or
the reporters' desks, or in niches--wherever they are placed they are to look on.”).
Finally, a sixth reading, suggested by Senator Call in 1876, is equally nonsensical. He suggested that the counting function is vested
solely in the House of Representatives, because the Constitution vests in that body the duty to choose the President in case there is no
winner in the Electoral College mode of presidential election, see U.S. Const. amend. XII, and only that body may determine whether
there is such a winner. See 17 Cong. Rec. 1061 (1886); see also id. at 1019 (remarks of Sen. Hoar) (acknowledging and dismissing
as incorrect this view of the counting function).

225

The Constitution only requires that the Senate and House of Representatives, as separately organized bodies, be present as witnesses
for the opening of electoral certificates and (probably) the counting of electoral votes (to the extent that the “in presence of the
Senate and House of Representatives” phrase modifies the counting phrase, “the votes shall then be counted,” see infra notes 278-86

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and accompanying text), but does not address whether the counting of electoral votes is to be done by the Senate and House of
Representatives as such or by Senators and Representatives on a per capita vote basis (equivalent to the Senate and House of
Representatives voting by joint ballot). Other scholars have noted similar points. See, e.g., Tribe, supra note 17, at 279 (“Is any such
[counting] authority reposed instead in one or another House, or in the two Houses acting concurrently, or in the two Houses acting
as a single organ even though not precisely as the Congress of the United States?”); and Harrison, supra note 23, at 703. Professor
Harrison states:
How is the joint session [of the Senate and House of Representatives] to make decisions? The Constitution provides no explicit rule,
and certainly does not indicate that the House and Senate are to be put together into one body that will act by majority vote. Rather,
the two chambers appear to retain their separate identities: the certificates are to be opened in the presence, not of the Senators and
Representatives, but of the Senate and the House.
Id. For various textual and largely structural reasons, I conclude that the counting of electoral votes is to be done by joint ballot
of Senators and Representatives. See infra notes 291-313 and accompanying text (discussing unicameralism principle); infra notes
429-45 and accompanying text (discussing anti-Senate principle of presidential election); infra notes 526-53 and accompanying text
(discussing Chadha principle of law-making).

226

For a classic use of early state constitutions to inform the meaning of provisions in the Constitution, see The Federalist No. 47,
at 271-76 (James Madison) (Clinton Rossiter ed., Mentor 1999) (1961) (surveying the early state constitutions in discussing the
separation of powers).

227

During the Electoral Count Act debates, Senator Hoar made this point, though he did not cite specific provisions from early state
constitutions. See 17 Cong. Rec. 1019. For specific provisions, see, for example, the constitutions of the following states:
Delaware: “A president or chief magistrate shall be chosen by joint ballot of both houses, to be taken in the house of assembly, and
the box examined by the speakers of each house in the presence of the other members....” Del. Const. of 1776, art. 7 (emphasis
added). Maryland:
That a person of wisdom, experience, and virtue, shall be chosen Governor,... by the joint ballot of both Houses (to be taken in each
House respectively) deposited in a conference room; the boxes to be examined by a joint committee of both Houses, and the numbers
severally reported, that the appointment may be entered....
Md. Const. of 1776, art. XXV (emphasis added). Massachusetts:
The selectmen of the several towns shall preside at such meetings impartially, and shall receive the votes of all the inhabitants of
such towns, present and qualified to vote for senators, and shall sort and count them in open town meeting, and in presence of the
town clerk, who shall make a fair record, in presence of the selectmen, and in open town meeting, of the name of every person voted
for, and of the number of votes against his name....
Mass. Const. of 1780, pt. 2, ch. 1, §II, art. II. Also Massachusetts:
Those persons who shall be qualified to vote for Senators and Representatives...shall... give in their votes for a Governor to the
Selectmen, who shall preside at such meetings; and the Town Clerk, in the presence and with the assistance of the Selectmen, shall,
in open town meeting, sort and count the votes, and form a list of the persons voted for, with the number of votes for each person
against his name;....
Mass. Const. of 1780, pt. 2, ch. 2, §I, art. III (emphasis added). Vermont:
[A]t the opening of the General Assembly, there shall be a committee appointed out of the Council and Assembly, who, after being
duly sworn to the faithful discharge of their trust, shall proceed to receive, sort, and count, the votes for the Governor, and declare
the person who has the major part of the votes, to be Governor, for the year ensuing.
VT. Const. of 1777, ch. 2 §XVII (emphasis added). Virginia:
A Governor, or chief magistrate, shall be chosen annually by joint ballot of both Houses (to be taken in each House respectively)
deposited in the conference room; the boxes examined jointly by a committee of each House, and the numbers severally reported to
them, that the appointments may be entered....
Va. Const. of 1776, cl. 29 (emphasis added). Other early state constitutions providing for the election of the executive authority by
the legislature (for example, Georgia, North Carolina, New Jersey, Pennsylvania, and South Carolina) or by direct popular election
(for example, New York) did not address the counting of such votes. See, e.g., Ga. Const. of 1777, art. XXIII; N.C. Const. of 1776,
art. XV; N.J. Const. of 1776, art. VII; Pa. Const. of 1776, §19; S.C. Const. of 1776, art. III.

228

2 Farrand, supra note 35, at 666; see also Burgess, supra note 18, at 647 (“The [F]ramers of the constitution undoubtedly meant that
the president of the Senate should count the electoral votes....”).

229

1 Annals of Cong. 16-17 (Joseph Gales ed., 1789).

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230

See Tansill, supra note 22, at 516; Wroth, supra note 22, at 326 n.23; see also Counting Electoral Votes, supra note 3, at 116 (remarks
of Sen. Reid) (“It has often happened that the Vice-President is a candidate for re-election; and we can scarcely suppose that the
Constitution intended to confer on him the power of declaring himself elected by the votes he may count, without an appeal from his
decision.”). For more on the history of self-counting, see Counting Electoral Votes, supra note 3, at 533 (remarks of Sen. Morton)
(presenting history of self-counting in 1797, 1801, 1821, 1837, 1841, and 1861); Harrison, supra note 23, at 703 n.12 (providing
more examples).

231

See 10 Annals of Cong. 120 (1800). The bill stated:
And the constitution of the United States having directed that “the President of the Senate shall, in the presence of the Senate and
House of Representatives, open all the certificates, and that the votes shall then be counted,” from which the reasonable inference
and practice has been, that they are to be counted by the members composing the said Houses, and brought there for that office, no
other being assigned them; and inferred the more reasonably, as thereby the Constitutional weight of each State in the election of
those high officers is exactly preserved in the tribunal which is to judge of its validity: the number of Senators and Representatives
from each State, composing the said tribunal, being exactly that of the Electors of the same State....
Id. (emphasis added).

232

3 Farrand, supra note 35, at 386 (remarks of Sen. Pinckney, Mar. 28, 1800) (“It is made their [Congress's] 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.”) (emphasis added). Indeed, there is an important difference between the “Congress” and the “Senate and the House
of Representatives.” The word “Congress” necessarily implies the two Houses of Congress acting independently in their corporate
capacities, whereas the text of the Constitution is more ambivalent--allowing for the two Houses of Congress acting independently
in their corporate capacities or for the two Houses of Congress acting conjointly in one corporate capacity.

233

See Wroth, supra note 22, at 327 & n.28 (examining language of implementing Act of Twelfth Amendment, Act of March 26, 1804,
ch. 50, 2 Stat. 295, and language used in the electoral count of February 13, 1805).

234

Chancellor Kent stated:
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.
2 Kent's Commentaries, supra note 19, at *276-77; see Duer's Commentaries, supra note 19, at 88-89 (similar). Note that Chancellor
Kent seems to believe that Congress may by law take the counting function away from the President of the Senate; the source of
Congress's power to do so is unclear. The question of Congress's source of power to enact legislation regulating the counting function
is discussed in Part II.A.2 infra.

235

See supra notes 132-42 and accompanying text.

236

Counting Electoral Votes, supra note 3, at 135. Representative Humphrey Marshall stated his belief that “I am sure that the duty of
determining whether a vote shall be counted belongs to the Senate and House, and not to the President of the Senate.” Id. at 96; see
also id. at 113 (remarks of Sen. Butler) (noting obvious conflicts of interest problem). However, as late as the Wisconsin Incident
of 1857, some Members of Congress believed that the President of the Senate had the sole power to decide what to count and what
not to count. See, e.g., id. at 134 (remarks of Sen. Stuart).

237

Id. at 445 (remarks of Sen. Bayard).

238

See 18 Cong. Rec. 30 (1886) (remarks of Rep. Caldwell); see also 17 Cong. Rec. 815 (1886) (remarks of Sen. Sherman) (noting the
President of the Senate's attempt to assume the counting function in the electoral count of 1857); 18 Cong. Rec. 75 (remarks of Rep.
Herbert) (noting the President of the Senate's attempt to assume the counting function in the electoral count of 1877).

239

18 Cong. Rec. 30.

240

For the historical view, see, for example, Counting Electoral Votes, supra note 3, at 445 (remarks of Sen. Bayard) (“That you could
not delegate that power to another body I cannot doubt.”); id. at 531 (remarks of Sen. Boutwell) (“Congress must exercise the power
and perform the duty, and it is not possible under the Constitution to transfer it to anybody else.”); 18 Cong. Rec. 51 (remarks of Rep.
Adams) (“I can not conceive that any statute can take away from either of these two legislative bodies the power to come to a yes or
no on any question relating to the business they then have in hand under the provisions of the Constitution.”).

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The scholarly view also supports the non-delegation of the counting function. See, e.g., Ross & Josephson, supra note 7, at 715 (“We
agree with Pinckney that the Grand Committee procedure proposed in 1800 was unconstitutional because we do not believe Congress
could delegate its joint power to count to a committee of selected members.”); Spear, supra note 18, at 157 (observing that if the
counting power is lodged in the two Houses of Congress, Congress cannot delegate the counting power to a committee “any more
than it can establish a commission to levy taxes, or declare war”).

241

See text accompanying infra notes 267-313.

242

But cf. Rawle, supra note 206, at 206. Rawle argued that:
It is not stated in the Constitution whether the president of the senate is on the trial of an impeachment restricted, as in legislative
cases, to the casting vote. As he is constituted one of the judges by being appointed to preside without any restriction, the fair inference
would be, that he is entitled to vote like the other judges, but on the trial last mentioned of a judge of the Supreme Court, the vote
of the vice president does not appear in the printed journal.
Id.

243

U.S. Const. art. I, §3, cl. 4.

244

See 3 U.S.C. §15 (2000).

245

See infra notes 287-313, 526-53 and accompanying text.

246

As a related matter, it is not at all clear that the Vice President may cast a tie-breaking vote in a contingency election for Vice President
in the Senate should there be no winner under the electoral college mode of vice presidential election. U.S. Const. amend. XII provides:
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; 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.
Some scholars have suggested that the Vice President could cast such a tie-breaking vote. See, e.g., Ho, supra note 195, at 239 n.47;
Levinson & Young, supra note 195, at 934 n.37. At least one scholar has raised the possibility that the Vice President could not cast
such a tie-breaking vote. See Akhil Reed Amar, President Thurmond? (Nov. 2, 2000), at http://slate.msn.com/? id=1006401 (on file
with the North Carolina Law Review).
There are some very good reasons to seriously doubt that the Vice President could cast such a tie-breaking vote. As a textual matter,
the Vice President is not a “Senator” and the Twelfth Amendment ostensibly requires a majority of the whole number of Senators-today, fifty-one Senators. If there is no majority of Senators in a contingency election for Vice President in the Senate, the Senate
would have to choose again. Note that the same is true in the House of Representatives where there is no arbiter to cast a tie-breaking
vote. If there is no majority of states in a contingency election for President in the House of Representatives, the House would have
to choose again. We have seen this done before: In the contingency election for President in 1801, the House of Representatives
completed thirty-five rounds of balloting before choosing a President, see supra note 3.
More generally: The Framers generally understood and appreciated the conflict of interest problems of the Vice Presidency, see supra
notes 204-13 and accompanying text. It is worth hesitating before concluding that one person has the power to determine an election,
particularly (but not only) when that one person would be likely to benefit from the decision. While it is true that other Senators may
have conflict of interest problems because they too could be candidates for Vice President, it is one thing to say that a Senator may
vote for himself or herself along with other Senators, and quite another to give the decisive vote to one man or woman. The Vice
President's tie-breaking vote is decisive in a way that the votes of Senators are not. Interestingly, when the Framers contemplated
direct presidential election by Congress, they rejected without discussion giving the Vice President a tie-breaking vote. See 2 Farrand,
supra note 35, 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.”).
Finally, if the theory is that the Vice President's power to cast tie-breaking votes only applies to Article I business (legislation
and the internal matters of the Senate, including the election of Senate officers and the appointment of Senate committees) and
not to Article II or Twelfth Amendment business, then it would also follow that the Vice President would not have a tie-breaking
vote under the Treaty Clause or the Appointments Clause, which both appear in Article II. See U.S. Const. art. II, §2, cl. 2. This
appears to be the case, reinforcing the arguments above. It is not possible for the Vice President to cast a tie-breaking vote with
respect to treaties which require a two-thirds majority of Senators, see id., but it is possible for the Vice President to do so with
respect to presidential nominations under the Appointments Clause, which only require a majority of Senators. Notwithstanding,
Alexander Hamilton intimated early on that the Vice President could not cast a tie-breaking vote on presidential nominations under

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the Appointments Clause. See The Federalist No. 69, at 389 (Alexander Hamilton) (Clinton Rossiter ed., Mentor 1999) (1961) (“In
the national government, if the Senate should be divided, no appointment could be made; in the government of New York, if the
council should be divided, the governor can turn the scale and confirm his own nomination.”). The lack of mention of the Vice
President is surprising given that he discussed the Vice President (and her tie-breaking vote) in the immediately preceding essay,
see The Federalist No. 68, at 47 (Alexander Hamilton) (Clinton Rossiter ed., Mentor 1999) (1961), but perhaps he thought that the
Vice President would not necessarily act in accordance with the President's interests (recall that prior to the development of the party
system, the Vice President was merely the runner-up in the presidential election and oftentimes the chief opponent of the President).
Only once in our nation's history, to my knowledge, has a Vice President cast a tie-breaking vote on a presidential appointment. In
1832, President Andrew Jackson nominated Senator Martin Van Buren as ambassador to Great Britain. The Senate split evenly, and
Vice President Calhoun broke the tie by voting against President Jackson's nomination. See Vice Presidents of the United States,
Martin Van Buren (1833-1837), at http://www.senate.gov/learning/stat_vp8.html (last visited Apr. 17, 2002) (on file with the North
Carolina Law Review). Vice President Calhoun's negative vote was unnecessary of course, as a tie vote is widely considered to be
defeated, though some accounts treat his vote as the “deciding vote.” See, e.g., id.

247

U.S. Const. amend. XII (emphasis added).

248

See Robert N. Clinton, A Mandatory View of Federal Court Jurisdiction: Guided Quest for the Original Understanding of Article
III, 132 U. Pa. L. Rev. 741, 782 & n.147 (1984) (stating that the Framers used “shall” as a word of obligation and “may” as a word
of discretion and providing numerous examples in the Constitution); see also 2 Farrand, supra note 35, at 485-86 (stating that the
Framers carefully distinguished between the words “ought,” “shall,” and “may” in the drafting of the Full Faith and Credit Clause,
U.S. Const. art. IV, §1). Indeed, the Electoral College Clauses make the point amply: the word “shall” is used some eighteen times
and the word “may” is used once. See U.S. Const. art. II, §1, cl.4 (“The 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.”) (emphasis added).

249

115 Cong. Rec. 168-69 (1969) (remarks of Rep. Rarick during the Bailey Incident of 1969).

250

See, e.g., The Federalist No. 68, supra note 246, at 380 (“Nothing was more to be desired [in the use of the Electoral College mode
of presidential election] than that every practicable obstacle should be opposed to cabal, intrigue, and corruption.”); 4 The Debates in
the Several State Conventions on the Adoption of the Federal Constitution 122 (Jonathan Elliot ed., 2d ed. 1836) [hereinafter Elliot's
Debates] (remarks of William Davie at North Carolina ratifying convention) (“He is elected on the same day in every state, so that
there can be no possible combination between the electors.”). At the North Carolina ratifying convention, James Iredell remarked:
Had the time of election been different in different states, the electors chosen in one state might have gone from state to state, and
conferred with the other electors, and the election might have been thus carried on under undue influence. But by this provision,
the electors must meet in the different states on the same day, and cannot confer together. They may not even know who are the
electors in the other states. There can be, therefore, no kind of combination. It is probable that the man who is the object of choice
of thirteen different states, the electors in each voting unconnectedly with the rest, must be a person who possesses, in high degree,
the confidence and respect of his country.
4 id. at 105. Sen. Rufus King later remarked:
[M]embers of the General Convention... did indulge the hope, by apportioning, limiting, and confining the Electors within their
respective States, and by the guarded manner of giving and transmitting the ballots of the Electors to the Seat of Government, that
intrigue, combination, and corruption, would be effectually shut out, and a free and pure election of the President of the United States
made perpetual.
3 Farrand, supra note 35, at 461 (Mar. 18, 1824); see also 1 Kent's Commentaries, supra note 19, at *280 (“These electors assemble in
separate and distantly detached bodies, and they are constituted in a manner best calculated to preserve them free from all inducements
to disorder, bias, or corruption.”).

251

Professor Amar has suggested, albeit in passing, that the counting function is ministerial. See Amar, supra note 10, at 229 (“In counting
votes, Congress performs in effect a ministerial function, registering the will of the voters in the electoral college.”).

252

115 Cong. Rec. 158 (remarks of Rep. Corman during the Bailey Incident of 1969).

253

Spear, supra note 18, at 156.

254

See id. (noting that the counting function “must, to some extent, be judicial, in order that it may be ministerial and declarative. It is
not possible to count,... without deciding what shall be counted”).

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255

2 Farrand, supra note 35, at 515.

256

U.S. Const. art. II, §1, cl.3; U.S. Const. amend. XII.

257

Counting Electoral Votes, supra note 3, at 52 (1821). Just two years later, Senator Benton observed:
Two questions of great delicacy now present themselves:
1. If electors are not appointed according to the Constitution, can their votes be counted?
2. If objected to, who shall judge them?
It is the duty of the two houses of Congress to count the votes. Can they count unconstitutional votes? If they cannot, shall they not
judge every vote before it is counted?
Id. at 57 (1823).

258

Id. at 54.

259

Id.

260

Id. at 142.

261

Id. at 89. Representative Marshall misquoted the constitutional text. He also did not notice the textual significance in the use and
seeming disuse of the word “all.” In a later remark, he came close: “The President of the Senate has to open all the certificates, and
then his function is performed; and after all the certificates have been opened, the counting of the votes is then to commence and
be concluded.” Id. at 95 (emphasis in original).

262

Id. at 140; see also id. at 112 (remarks of Sen. Toombs) (“When we are called upon to see these votes counted, it becomes our first
duty to know what are the votes to be counted.”).

263

Id. at 140.

264

Id. at 134.

265

Id. at 456; see also id. at 531 (remarks of Sen. Boutwell) (stating his belief that “the counting of the votes, in the language of the
Constitution, means something more than a mere examination of the certificates returned from the electors of the respective States”).

266

Id. at 523 (remarks of Sen. Bayard).

267

U.S. Const. amend. XII (emphasis added).

268

Id.

269

The word “immediately” is rare in the original Constitution, and is used in only one other clause of the original Constitution. See
U.S. Const. art. I, §3, cl.2 (“Immediately after they shall be assembled in Consequence of the first Election, they shall be divided
as equally as may be into three Classes.”).

270

See 10 Annals of Cong. 137 (1800).

271

See id. at 138 (emphasis added). The Twelfth Amendment, adopted in 1804, also contains a requirement that the House of
Representatives shall “immediately” choose a President. However, the Twelfth Amendment seems to significantly soften--and perhaps
quash--Senator Pinckney's immediacy principle. The Twelfth Amendment, unlike the original Electoral College Clauses, provides
that “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.” U.S. Const. amend. XII, amended by U.S. Const. amend. XX, §3. Federal law, at the time of the adoption
of the Twelfth Amendment, specified that the counting of electoral votes would take place on the second Wednesday in February.
Thus, the Twelfth Amendment seems to countenance up to two weeks of deliberation by the House of Representatives. William
Alexander Duer made the point that
[a]lthough the Constitution directs that when no person is found to have a majority of the Electoral votes, the choice shall be
immediately made by the House of Representatives, yet it is not held obligatory upon that House to proceed to the election directly
upon the separation of the two Houses; but that it may proceed either at that time and place, or omit it until afterwards. This construction

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was adopted before the [Twelfth Amendment], and there can now be no doubt of its correctness, as the amendment expressly declares
the choice of the House to be valid, if made before the fourth of March following the day on which the Electoral votes are counted.
Duer's Commentaries, supra note 19, at 89-90.
If we read the immediacy principle as loosely as Professor Duer suggests, the current Constitution seems to countenance exactly
seventeen days of deliberation by the House of Representatives. See U.S. Const. amend. XX, §1 (“The terms of the President and
Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of
January,...and the terms of their successors shall then begin.”).
It should be noted that the Twelfth Amendment does not specify when the Senate shall choose the Vice President should the choice
devolve upon it. Could it be that the framers of the Twelfth Amendment simply forgot to add comparable language for the Senate? See
also 1 Kent's Commentaries, supra note 19, at *278 (“The [C]onstitution does not specifically prescribe when or where the [S]enate
is to choose [V]ice-[P]resident, if no choice be made by the electors; and, I presume, the [S]enate may elect by themselves, at any
time before the fourth day of March following.”). It goes without saying that the current Constitution seems to countenance exactly
seventeen days of deliberation by the Senate. See U.S. Const. amend. XX, §1.

272

2 Farrand, supra note 35, at 502.

273

Horatius, The Presidential Knot, Wash. Federalist, Jan. 6, 1801 [hereinafter Horatius Letter]. I am grateful to Professor Ackerman
for providing me with a copy of Horatius's letter. Professor Ackerman believes that “Horatius” is John Marshall, a conclusion which
he (tentatively) reaches based on a computer analysis of Marshall's writings (performed with his linguist friend, Roger Shuy), and
based on other “old-fashioned circumstantial evidence,” including a snippet from Marshall historian Albert J. Beveridge. See Email
from Bruce Ackerman to Vasan Kesavan (Apr. 17, 2002) (on file with author).

274

3 U.S.C. §17 (2000) provides that
When the two Houses separate to decide upon an objection that may have been made to the counting of any electoral vote or votes
from any State, or other question arising in the matter, each Senator and Representative may speak to such objection or question five
minutes, and not more than once; but after such debate shall have lasted two hours it shall be the duty of the presiding officer of each
House to put the main question without further debate.

275

See U.S. Const. art. I, §5, cl.2 (Rules of Proceedings Clause) (“Each House may determine the Rules of its Proceedings, punish its
Members for disorderly Behaviour, and, with the Concurrence of two[-]thirds, expel a Member.”). Anyone who wishes to argue that
the Electoral Count Act is constitutional faces the most difficult task in justifying the constitutionality of 3 U.S.C. §17.
During the Electoral Count Act debates, Senator Christiancy noted the constitutional problem. “I notice,” said Christiancy,
that this bill, which it is proposed to make an act of Congress, provides for the length of the time that any Senator or Representative
may speak when the Senate is acting separately and the House is acting separately. I wish to know if that is not trenching upon the
constitutional power of each house to make its own rules to regulate its own proceedings.
Counting Electoral Votes, supra note 3, at 688 (1876). Senator Thurman responded to the point with an entirely unconvincing answer:
The joint rule heretofore adopted prohibited all debate, and it seems to have been held good. No question was ever made in respect
of that rule. If we have the right to legislate upon this subject, as I think we have--and this whole bill goes upon that foundation--then
I think we have a right to regulate the mode of procedure so that it shall not be defeated, as it otherwise might be, by the consumption
of time in speaking.”
Id. Senator Edmunds, for his part, rightly noted that “[t]hen you might pass a law as to all bills.” Id.

276

U.S. Const. art. II, §1, cl.3. This language is likely a vestige of early drafts of the Electoral College Clauses which vested the choice
of a President and Vice President in case of electoral deadlock in the Senate. See, e.g., 2 Farrand, supra note 35, at 497-98. There
is a reasonable functional explanation as to why the Framers kept this requirement. The Framers believed that the Senate would be
in almost constant session anyway, unlike the House of Representatives. See, e.g., id. at 274 (remarks of George Mason) (observing
that Senators “will probably settle themselves at the seat of Govt.” unlike Representatives “chosen frequently and obliged to return
frequently among the people”); id. at 523 (remarks of James Wilson) (“The Senate, will moreover in all probability be in constant
Session.”); id. at 537 (remarks of George Mason) (supporting privy council of six members to the President on basis that it would
“prevent the constant sitting of the Senate which he thought dangerous”); id. at 639 (remarks of George Mason) (referring to “long
continued sessions of the Senate”); George Mason, Objections to the Constitution of Government Formed by the Convention (1787),
reprinted in 2 The Complete Anti-Federalist 11 (Herbert J. Storing ed., 1981) (referring to Senate as “a constant existing Body almost
continually sitting”); Essay XVI of Brutus (Apr. 10, 1788), reprinted in id. at 444 (stating that Senators “will for the most part of the
time be absent from the state they represent” and that Senators will be inhabitants of the “federal city”).

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277

U.S. Const. art. II, §1, cl.3.

278

U.S. Const. amend. XII (emphasis added). Interestingly, an early draft of the Electoral College Clauses at the Philadelphia Convention
provided that “[t]he President of the Senate shall in that House open all the certificates; and the votes shall be then & there counted.”
2 Farrand, supra note 35, at 497-98 (emphasis added).

279

Indeed, the secret drafting history of the Constitution shows that when the “in presence” phrase was agreed to, it was inserted after the
word “counted” in the draft of the Electoral College Clauses, thus modifying both the opening of certificates and the counting of votes.
See 2 Farrand, supra note 35, at 518, 526. When the report was produced, however, the text was re-ordered and read: “The President of
the Senate shall in the presence of the Senate and House of Representatives open all the certificates & the votes shall then be counted.”
Id. at 528; see also Counting Electoral Votes, supra note 3, at 451 (1875) (remarks of Sen. Frelinghuysen) (“The Constitution says
that the votes shall then in the presence of the Senate and House of Representatives be counted.”); 1 Tucker's Commentaries, supra
note 19, app. at 327 (“The certificates... are to be publicly opened, and counted in the presence of the whole national legislature:....”);
Horatius Letter, supra note 273 (“The constitution has enjoined that the certificates of the electors shall be opened, and their votes
counted in the presence of the Senate, and House of Representatives.”) (emphasis in original); 18 Cong. Rec. 45 (1886) (remarks of
Rep. Dibble) (noting that the counting of electoral votes takes place in the presence of the Senate and House of Representatives).

280

See U.S. Const. amend. XII. For an eloquent expression of this point, see 18 Cong. Rec. 30 (remarks of Rep. Caldwell).

281

For an eloquent expression of the publicity principle, see 10 Annals of Cong. 145 (1800) where Senator Pinckney remarked:
Give, however, the power of deciding on their votes, and of rejecting or receiving them, as they please, to thirteen men, all of the same
political description, all wishing the same men, sitting with closed doors, and whose deliberations are removed from the public eye,
and you will find it difficult to avoid just suspicion; your jealous citizens will remember that secrecy always accompanies corruption,
and that even if this committee were to act in the most honorable manner, yet still that the friends of the candidate whose votes have
been refused, if such refusal cost him his election, will never cease to suspect that all has not been fair, and that some improper reason
had influenced the decision.

282

Counting Electoral Votes, supra note 3, at 126 (1857); see also id. at 452 (remarks of Sen. Frelinghuysen) (“Why, sir, are the House and
the Senate present? It is because they represent the sovereignty of the Government at that most critical moment when the executive
power is to be transmitted, and they are there that the transmission may be under their watchful guardianship.”).

283

Professor Glennon seems to think that closed proceedings are constitutionally permissible, but not constitutionally desirable. See
Glennon, supra note 18, at 48 (discussing question of “Open or Closed Proceedings?”). This is a seriously flawed reading of the
Electoral College Clauses, which emphasize publicity, and of the original Constitution in its entirety, which emphasizes the same.
See, e.g., U.S. Const. art. I, §5, cl. 3 (Journal of Proceedings Clause); U.S. Const. art. I, §7, cl. 2 (Veto Clause); U.S. Const. art. I, §9,
cl. 7 (Receipts and Expenditures Clause); U.S. Const. art. II, §2, cl. 1 (Opinion Clause); U.S. Const. art. II, §2, cl. 3 (Commissions
Clause); U.S. Const. art. III, §3, cl. 1 (Treason Clause); see also Harrison, supra note 23, at 705 (noting that “a public occasion for the
[electoral] count will inspire public confidence in the probity of the process”); cf. Pa. Const. of 1776, §13 (“The doors of the house
in which the representatives of the freemen of this state shall sit in the general assembly, shall be and remain open for the admission
of all persons who behave decently, except only when the welfare of this state may require the doors to be shut.”).

284

See, e.g., 10 Annals of Cong. 137 (remarks of Sen. Pinckney) (describing immediacy principle as “instantly, and on the spot, without
leaving the House in which they are then assembled, and without adjournment”) (emphasis added); 2 Farrand, supra note 35, at 518-19
(describing motion of James Madison that, in case of electoral deadlock, two-thirds of Senators be present in presence of the Senate
and the House of Representatives to choose the President; motion passed by a vote of six to four and was subsequently rendered
moot by motion to vest choice of President in case of electoral deadlock in House of Representatives); Horatius Letter, supra note
273 (“The 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.”).
Although the Twelfth Amendment relaxed the immediacy principle (giving the House of Representatives additional time to choose a
President in case of electoral deadlock, see supra note 271), it is much less clear that it also relaxed the publicity principle. It appears
that the House of Representatives chose the President in the presence of the Senate in 1801 and 1825. See 1 Kent's Commentaries,
supra note 19, at *277 (noting that the Senate was “admitted to be present as spectators”); Duer's Commentaries, supra note 19, at
90 (similar).

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285

This principle was violated in the electoral count of 1837. The Senate chose the Vice President because of electoral deadlock but did
so in the Senate Chamber and not in the presence of the House of Representatives in joint convention.

286

Counting Electoral Votes, supra note 3, at 90 (emphasis added); see also id. at 114 (remarks of Sen. Butler) (“The Senate of the
United States is called into the other house as a corporate body, an imposing corporate body, to be a witness to the election of the
Chief Magistrate of this country, and to see that the votes are counted fairly.”); id. at 452 (remarks of Sen. Frelinghuysen) (supporting
amendment to Twenty-second Joint Rule) (“Why, sir, are the House and the Senate present? It is because they represent the sovereignty
of the Government at that most critical moment when the executive power is to be transmitted, and they are there that the transmission
may be under their watchful guardianship.”).

287

Under the current Electoral Count Act, the President of the Senate and Members of Congress are to meet in the Hall of the House
of Representatives. See 3 U.S.C. §15 (2000). During the Wisconsin Incident of 1857, Senator Thompson declared his belief that the
intent of the Framers was to make the House of Representatives present as witnesses in the Senate Chamber. See Counting Electoral
Votes, supra note 3, at 126.

288

In congressional debate, this one body has been repeatedly referred to as a “convention” or a “joint convention” of the two Houses,
although the Constitution does not employ this word. There were, of course, those who disagreed with this term. See, e.g., Counting
Electoral Votes, supra note 3, at 111 (remarks of Sen. Stuart).

289

The unicameralism principle, without more, does not require that the counting function be exercised by the Senators and
Representatives in the unicameral body on a per capita vote basis. The Senate and House of Representatives could, presumably
without undue trouble, organize themselves and vote as separate bodies while convened together in one room. For present purposes,
I define the unicameralism principle as counting electoral votes on a per capita vote basis (equivalent to the Senate and House of
Representatives voting by joint ballot), thereby giving Representatives a decisive advantage over Senators in resolving disputes in the
counting of electoral votes. As we shall see presently, this conception of the counting function makes better sense of constitutional
structure.

290

3 U.S.C. §15.

291

Counting Electoral Votes, supra note 3, at 529. Also, Senator Boutwell remarked that:
There can be, under the Constitution, no tribunal to decide that or any other question arising in the course of counting the votes,
because it is a duty imposed upon the two [H]ouses of Congress. They alone can perform it, and they have not the power to transfer
its performance to anybody else.
Id. at 531.

292

2 Farrand, supra note 35, at 497-98 (emphasis added).

293

See id. at 528.

294

As a background principle, it might be said that the Framers shied away from separate action by the two Houses in electing the
President when both Houses were involved. Before the Framers agreed to the electoral college mode of election, the President was
to be elected by the Legislature--not the two Houses of Congress acting separately--but by joint ballot. 2 Farrand, supra note 35, at
401-03. The rationale was to avoid the “[g]reat delay and confusion [which] would ensue if the two Houses shd [sic] vote separately,
each having a negative on the choice of the other.” Id. at 402 (remarks of Nathaniel Gorham).
The Framers thought that a joint ballot was particularly important in one other area. Both the draft of the Constitution referred to the
Committee of Style and its report provided for the appointment of the Treasurer of the United States by joint ballot of the Congress. See
id. at 570 (draft referred to Committee of Style) (stating that Congress shall have power “[t]o appoint a Treasurer by joint ballot”); id.
at 594 (report of Committee of Style) (first provision of precursor to U.S. Const. art. I, §8) (“The Congress may by joint ballot appoint
a treasurer.”). This provision was subsequently deleted on September 14, 1787, just three days before the Philadelphia Convention
of 1787 completed its business. See id. at 614.

295

Specifically,
A motion of Mr. Gallatin was under consideration to insert, instead of the principle that in cases of doubt the Houses should divide to
their respective Chambers to consider the qualification or disqualification of a vote or votes, from their joint meeting, if such question
should arise at counting the votes, the following words: “And the question of the exception shall immediately, and without debate,
be taken by yeas and nays, and decided by a majority of the members of both Houses then present.”

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Counting Electoral Votes, supra note 3, at 26 (emphasis added).

296

Id. During the Electoral Count Act debates, Representative Adams made note of Representative Gallatin's motion in 1800 in support
of his argument for unicameral action. See 17 Cong. Rec. 51 (1886) (remarks of Rep. Adams).

297

Counting Electoral Votes, supra note 3, at 16.

298

See 10 Annals of Cong. 139 (1800) (“Congress shall not themselves, even in joint convention, have the smallest power to decide on a
single vote.”); id. (“[H]ow utterly unconstitutional it would be for Congress, either acting in their separate chambers or in convention,
to attempt to assume to themselves the power to reject a single vote.”).

299

See 10 Annals of Cong. 120.

300

Counting Electoral Votes, supra note 3, at 54; see also id. at 52 (remarks of Rep. Henry Clay) (implying joint action by the two Houses
because the two Houses might disagree if they met separately and “then the votes would be lost altogether”).

301

Id. at 49.

302

Id. at 137. Senator Cass presented the argument against the unicameralism principle:
I wish to submit a single remark to the President and to the Senate, for I do not consider that this convention can be addressed. We
can take no vote. How are we to vote? Per capita or by States? Are we to vote as representatives of the people or representatives of
States? If we cannot vote here, we cannot discuss. The only thing which remains for us to do, if there are insuperable difficulties in
the way, is to adjourn immediately to our respective halls. Then let the Senate or the House of Representatives bring up the matter
for action. By the present proceeding we are overturning the Government--we are making this a national convention.
Id. at 91. Senator Toucey remarked that “[i]f there is to be any action, or deliberation with a view to action, the two houses must
separate, deliberate, and act separately.” Id. at 121.

303

Id. at 137.

304

Id. at 140. Representative Humphrey Marshall--Justice John Marshall's cousin--agreed:
We have a constitutional duty to see that the count is properly made, and a separate resolution passing from this House to the Senate,
and from the Senate back to this House, does not, according to my view, meet the requirements of the Constitution. The examination
must be made, and the proclamation must be made, in the presence of the two houses.
Id. at 141.

305

Id. at 140.

306

Id. at 465.

307

17 Cong. Rec. 2429 (1886) (remarks of Sen. George).

308

Id.

309

Id.

310

See 15 Cong. Rec. 5460-68, 5547-51 (1884); 16 Cong. Rec. 1618 (1885).

311

See, e.g., 17 Cong. Rec. 1058 (remarks of Sen. Evarts) (stating that the joint convention would be “wholly an unconstitutional
assemblage” and that “I can find no ground to support this extra assemblage of the two Houses voting per capita”); Representative
Caldwell remarked:
It will be perceived that this bill is not predicated upon the idea of throwing the two Houses into convention and merging the smaller
body, the Senate, into the larger body, the House of Representatives, and voting per capita. It is submitted that no constitutional
warrant can be found for such an idea.
18 Cong. Rec. 31 (1886). Representative Herbert remarked:
The words are not in the presence of the members of the Senate, or in the presence of the members of the House of Representatives,
but in the presence of the Senate, which can only mean the organized Senate, and the House of Representatives, which can only mean
the organized House of Representatives.
Id. at 75.

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312

For example, Representative Caldwell stated that
the action of the two Houses shall be separate and concurrent upon all questions of contest arising under the count, but joint as to
results, thus preserving the dignity and rights of the two bodies by conceding to each equal and concurrent powers in counting and
judging of the validity of electoral votes without merger of the lesser body into the numerically greater.
18 Cong. Rec. 31. Addtionally,
[t]he separate concurrent action of both Houses provided for in the bill preserves the constitutional identity, rights, and dignity of
each. This concession of each House to the other of equal and concurrent power to decide on informalities and illegalities appearing
on the face of returns, upon objection of a Senator or Representative, is necessary to the determination of results.
Id.; see also id. at 50 (remarks of Rep. Adams) (“[M]y theory is that the two Houses of Congress, acting each in its own individual
capacity, each voting by itself, have absolute control of the entire subject.”).

313

See infra notes 526-53 and accompanying text.

314

For the structural argument that Congress may not bind the joint convention in counting electoral votes, much less future joint
conventions, see infra notes 498-525 and accompanying text.

315

See, e.g., McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 405 (1819) (“This government is acknowledged by all to be one of
enumerated powers.”); Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176 (1803) (“[T]hat those limits may not be mistaken, or forgotten,
the constitution is written.”).

316

This easy textual point was, of course, made during the Electoral Count Act debates. For example, Senator Jones remarked that
[t]he authority proposed to be given to the Senate and House of Representatives by this bill cannot surely be derived from any of
the express powers of the Constitution. There is not a word said in the article which contains the delegated powers on this subject of
counting the electoral votes. All that the Constitution says in regard to the electoral vote is to be found embodied in the second article.
Counting Electoral Votes, supra note 3, at 596.

317

U.S. Const. art. I, §8, cl.18.

318

The most recent scholars to address the Electoral Count Act state that “Congress probably has the power, when explicit constitutional
requirements are violated, not to count elector votes” because Members of Congress take an oath or affirmation to support the
Constitution. Ross & Josephson, supra note 7, at 713. This argument does not support the constitutionality of the Electoral Count
Act unless the Oath or Affirmation Clause is the font of power for the Electoral Count Act--an interpretation that is devoid of any
textual, historical, or structural support.
It is also not at all clear whether Ross and Josephson believe that the Oath or Affirmation Clause is the font of congressional power or
congressional duty to reject unconstitutional electoral votes. Their foregoing statement suggests the former, but two other statements
suggest the latter. See id. (“Depending on the type of constitutional requirement and whether rejection of the vote would change the
result of the election, Congress might have a duty, under the oath of office to which its members swear, to reject an elector vote
that does not conform to the Constitution.”); id. at 739 (“Under the oath each member takes, Congress must uphold constitutional
requirements for presidential elections, particularly those that lie at the heart of the constitutionality of the process.”) (emphasis
added). If the Oath or Affirmation Clause is the font of congressional duty to reject unconstitutional electoral votes, they cannot be
correct that that duty possibly turns “on the type of constitutional requirement and whether the rejection of the vote would change
the result of the election.” The duty to support the Constitution is absolute, not conditional.
Moreover, the argument from the Oath or Affirmation Clause has almost no historical support: only one Member of Congress, to
my knowledge, pointed to the Oath or Affirmation Clause as a font of congressional power over the electoral count. See Counting
Electoral Votes, supra note 3, at 142 (remarks of Rep. Marshall) (“You are under oath to support the Constitution, and you cannot
count a vote which violates that instrument, and is a breach of the privileges of the electoral colleges.”). The argument has even
less textual support: when we consult the text of the Oath or Affirmation Clause, we see that Members of Congress take an oath or
affirmation to support the Constitution, but so do members of the state legislatures and executive and judicial Officers of the United
States and of the several states. U.S. Const. art. VI, cl. 3. Indeed, Senator Pinckney pointed to the oaths or affirmations taken by
members of the state legislatures and state executives to argue against any congressional power to judge electoral votes. See, e.g., 10
Annals of Cong. 131 (1800) (“Is not the Constitution the supreme law of the land, and must not the State Legislatures conform their
directions in the appointment of Electors to the directions of the Constitution?”). Senator Pinckney also remarked:
Another serious objection to this bill, or to the exercise of this power, either by Congress or committee, is, that the Executives of
the States and the State Legislatures are equally bound with Congress, by oath, “to support the Constitution;” it is an oath they all
take at the commencement of each new Legislature.

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Id. at 144-45. The important point is that there is no textual justification for supposing that the Oath or Affirmation Clause gives
Congress any special constitutional duty in the counting of the electoral vote. Cf. 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.”).

319

U.S. Const. art. I, §8, cl.18.

320

Compare Burgess, supra note 18, at 646 (concluding that the Necessary and Proper Clause is the font of power for the Electoral Count
Act), with Ross & Josephson, supra note 7, at 714-15 (reaching opposite conclusion).

321

As a matter of grammar and punctuation, it is arguable that there is no standalone second prong of the Necessary and Proper Clause,
and that the second prong and third prong together constitute one prong.

322

U.S. Const. art. I, §8, cls.1-17; see also INS v. Chadha, 462 U.S. 919, 983-84 (1983) (White, J., dissenting) (stating that “the Necessary
and Proper Clause vests Congress with the power ‘to make all laws which shall be necessary and proper for carrying into Execution
the foregoing powers [the enumerated powers of §8]”’) (alteration in original).

323

Technically, the third prong of the Necessary and Proper Clause refers to “Department” or “Officer” and not to “Department of the
United States” or “Officer of the United States.” The phrase “of the United States” is fairly and necessarily attributed to both given
the last word in the clause “thereof.” See U.S. Const. art. I, §8, cl. 18 (stating that Congress shall have 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, or in any Department or Officer thereof”). At least one scholar agrees that the word “Officer” in the Necessary
and Proper Clause is “a synonym for the term of art ‘Officer of the United States.”’ Steven G. Calabresi, The Political Question of
Presidential Succession, 48 Stan. L. Rev. 155, 161 (1995).

324

See, e.g., Laurence H. Tribe, American Constitutional Law §4-17, at 290 (2d ed. 1988); Amar & Amar, supra note 27, at 114-17
(presenting textual proof); Calabresi, supra note 323, at 158-63 (same); Vasan Kesavan, The Very Faithless Elector?, 104 W. Va. L.
Rev. 123, 133 n.46 (2001) (same).

325

See U.S. Const. art. II, §4 (“The President, Vice President, and all civil Officers of the United States, shall be removed from Office on
Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”). For early statements supporting
this point, see, for example, 4 Elliot's Debates, supra note 250, at 33 (remarks of Gov. Samuel Johnston at North Carolina ratifying
convention); id. at 34 (remarks of Archibald Maclaine at North Carolina ratifying convention); id. at 127 (remarks of James Iredell
at North Carolina ratifying convention).

326

U.S. Const. art. I, §6, cl. 2 (emphasis added); see also 2 Farrand, supra note 35, at 492 (“The last clause rendering a Seat in the
Legislature & an office incompatible was agreed to nem: con:.”) (emphasis added).

327

See, e.g., The Federalist No. 49 (James Madison) (entitled “Method of Guarding Against the Encroachments of Any One Department
of Government by Appealing to the People Through a Convention”); The Federalist No. 49, at 282 (James Madison) (Clinton Rossiter
ed., Mentor 1999) (1961) (describing “perfectly co-ordinate” legislative, executive, and judicial departments); see also Steven G.
Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105 Harv. L. Rev. 1153, 1156 n.6
(1992) (noting similar point).

328

See, e.g., Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304, 329 (1816) (Story, J.) (“The object of the constitution was to establish
three great departments of government; the legislative, the executive, and the judicial departments.”); Ware v. Hylton, 3 U.S. (3 Dall.)
199, 272-73 (1796) (Iredell, J.) (referring to the “Legislative, Executive, and Judicial Departments” and the “Legislative department”);
Calder v. Bull, 3 U.S. (3 Dall.) 386, 398 (1789) (Iredell, J.) (referring to “a government, composed of Legislative, Executive and
Judicial departments”).

329

U.S. Const. art. II, §2, cl. 1 (“[The President] may require the Opinion, in writing, of the principal Officer in each of the executive
Departments, upon any Subject relating to the Duties of their respective Offices ....”).

330

U.S. Const. art. II, §2, cl. 2 (“[B]ut the Congress may by Law vest the Appointment of such inferior Officers, as they think proper,
in the President alone, in the Courts of Law, or in the Heads of Departments.”).

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331

Such legislation is to be sharply distinguished from legislation enacted pursuant to Congress's enumerated powers operating on, for
example, the federal government (including Congress) as well as the governments of the several States as well as the people (citizens
and aliens) of the United States.

332

U.S. Const. art. I, §5, cl. 2.

333

For a contrary view taken in passing, see Calabresi, supra note 323, at 160 n.31 (noting that the “Necessary and Proper Clause
empowers Congress to carry into execution its own powers, including the rule-making powers of both Houses”).

334

See, e.g., The Federalist No. 51, at 290 (James Madison) (Clinton Rossiter ed., Mentor 1999) (1961) (“In republican government, the
legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches;
and to render them, by different modes of election and different principles of action, as little connected with each other as the nature
of their common functions and their common dependence on society will admit.”); 1 Farrand, supra note 35, at 254 (similar); 2 Story's
Commentaries, supra note 9, §§547-557, at 27-36 (discussing importance of bicameralism in constitutional structure); see also INS
v. Chadha, 462 U.S. 919, 947-51 (1983) (same).

335

See infra notes 498-525 and accompanying text.

336

See, e.g., Gary Lawson & Patricia B. Granger, The “Proper” Scope of Federal Power: A Jurisdictional Interpretation of the Sweeping
Clause, 43 Duke L.J. 267, 274 n.23 (1993) (reading third prong of the Necessary and Proper Clause as giving Congress power to
pass laws “‘horizontally’ to implement the constitutionally vested powers of federal executive and judicial officers”); William Van
Alstyne, The Role of Congress in Determining Incidental Powers of the President and of the Federal Courts: A Comment on the
Horizontal Effect of the Sweeping Clause, 40 Law & Contemp. Probs., 102, 107-120 (1976).

337

Although this body is technically not “Congress,” the argument that this body is not a “Department” whose members are “Officer[s]”
within the meaning of the Necessary and Proper Clause is largely analogous to the argument set forth above concerning Congress.
The members of this body are the Members of Congress, and this body is not an executive or judicial department of the United States
whose officers (with the exception of the President and Vice President) are appointed pursuant to the Appointments Clause, U.S.
Const. art. II, §2, cl. 2.

338

Professor Rosenthal believes the Necessary and Proper Clause is the font of congressional power not to count the electoral votes of
faithless electors. See Rosenthal, supra note 221, at 32. His fatal mistake is that he believes that Members of Congress are “Officers
of the United States.” See id. (“The power to count electoral votes is a power vested in the President of the Senate and the members
of both [H]ouses of Congress, all of whom are officers of the United States.”).
Similarly, during the Electoral Count Act debates, Senator Edmunds believed that Congress was a “Department” within the meaning
of the Necessary and Proper Clause. His words leave no doubt on this construction:
The Constitution of the United States vests powers and duties in all the three great departments of the Government. It then provides
that Congress shall have the power to pass all laws necessary to carry into effect the provisions of the Constitution and the powers
invested in any of its several departments.
... [I]f under your general power of regulation which the Constitution gives you of carrying into effect its powers you may provide
how the Supreme Court shall exercise its functions, how the Executive shall exercise his functions carrying out the duties that the
Constitution has imposed upon him, may you not also do the same thing when, assuming that to be the true construction of the
Constitution, the two houses are to meet and witness the counting of these votes and to decide upon them? It seems to me that no
man can considerately answer that question in the negative.
Counting Electoral Votes, supra note 3, at 455.

339

Again, this begs the question whether there is a standalone second prong of the Necessary and Proper Clause. See supra note 321.
The only power vested by the Constitution in the “Government of the United States” as an undifferentiated whole (in contrast to
powers vested in specific parts thereof) is that (arguably) under the Guarantee Clause. See U.S. Const. art. IV, §4 (“The United States
shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion;
and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.”).
Nonetheless, for present purposes, I assume that there are other “Powers vested by this Constitution in the Government of the United
States” that are not “Powers vested by this Constitution... in any Department or Officer [of the Government of the United States].”
U.S. Const. art. I, §8, cl. 18.

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340

U.S. Const. amend. XII (emphasis added).

341

See U.S. Const. art. III, §3, cl.2 (Treason Clause) (“The Congress shall have Power to declare the Punishment of Treason, but no
Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.”) (emphasis added);
U.S. Const. art. IV, §3, cl.2 (Territories Clause) (“The Congress shall have Power to dispose of and make all needful Rules and
Regulations respecting the Territory or other Property belonging to the United States....”) (emphasis added).

342

See U.S. Const. art. I, §4, cl. 1 (Times, Places, and Manner Clause) (“The Times, Places and Manner of holding Elections for Senators
and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or
alter such Regulations, except as to the Places of chusing Senators.”) (emphasis added).

343

See U.S. Const. art. II, §1, cl. 6 (Presidential Succession Clause) (“Congress may by Law provide for the Case of Removal, Death,
Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President....”) (emphasis
added).

344

See U.S. Const. art. II, §2, cl. 2 (Appointments Clause) (“[B]ut the Congress may by Law vest the Appointment of such inferior
Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”) (emphasis added).

345

See U.S. Const. art. III, §2, cl. 3 (Jury Trial Clause) (“[B]ut when not committed within any State, the Trial shall be at such Place or
Places as the Congress may by Law have directed.”) (emphasis added).

346

See U.S. Const. art. IV, §1 (Full Faith and Credit Clause) (“And the Congress may by general Laws prescribe the Manner in which
such Acts, Records and Proceedings shall be proved, and the Effect thereof.”) (emphasis added).

347

See U.S. Const. art. I, §2, cl. 3 (Census Clause) (“The actual Enumeration shall be made within three Years after the first Meeting
of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct.”)
(emphasis added).

348

See U.S. Const. art. I, §4, cl. 2 (Congress Meeting Clause) (“The Congress shall assemble at least once in every Year, and such
Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day.”) (emphasis added).

349

See U.S. Const. art. II, §2, cl. 2 (Appointments Clause) (“[The President] by and with the Advice and Consent of the Senate, shall
appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States,
whose Appointments are not herein otherwise provided for, and which shall be established by Law....”) (emphasis added).

350

Another example that does not neatly fit into the “may by law” or “shall by law” categories is the Congress Compensation Clause.
U.S. Const. art. I, §6, cl. 1 (“The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by
Law, and paid out of the Treasury of the United States.”) (emphasis added).

351

Nevertheless, a few scholars recently describe the counting phrase of the Electoral College Clauses as the “congressional counting
power,” see Coenen & Larson, supra note 18, at 909-16, or the “counting power,” see Barkow, supra note 17, at 278-79, 284, 286,
288 (2002). This phraseology is wrong, at least insofar as the word “Power” is used in the Constitution. The word “power” implies
discretion to do or not do something. The Electoral College Clauses are devoid of “power”; they direct the counting agent to count
what-are-the-electoral-votes and not to count what-are-not-the-electoral-votes-- nothing less and nothing more. (The scope of whatare-the-electoral-votes is discussed in Part III infra.) The phraseology is also odd considering that Professors Coenen and Larson
acknowledge that “[t]here is not... a congressional power to count votes; there is a congressional duty,” Coenen & Larson, supra note
18, at 910, emphasizing the word “shall” and the passive voice of the phrase “be counted” in the text of the counting phrase, see
id. at n.298. Notably, Professors Coenen and Larson reject the argument that the counting phrase of the Electoral College Clauses
is one of the “Powers vested by this Constitution in the Government of the United States,” U.S. Const. art. I, §8, cl. 18, and hence
not within the meaning of the Necessary and Proper Clause:
We would reject this first argument on the theory that the vesting of a duty, particularly one as important as determining the identity of
our President, inescapably carries with it the grant of a “power” in the sense that the word is used in the Necessary and Proper Clause.
Indeed, we think that there is a strong a fortiori argument to be made here. If Congress can do anything appropriate to carry into
effect powers it may (but need not) exercise, does it not logically follow that it can do anything appropriate to carry out those powers
it has no choice but to wield? The recognition of the existence of less urgently needed powers logically dictates the recognition of
more urgently needed powers as well.

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Coenen & Larson, supra note 18, at 910 (footnotes omitted). This argument fails to persuade for at least a few reasons. First, this
argument overlooks the linguistic meaning of the word “Power” as employed in the Necessary and Proper Clause and the rest of
the original Constitution. Second, this argument does not grapple with the argument that Congress may not legislate with respect
to itself under the Necessary and Proper Clause, see text accompanying supra notes 331-38. Third, this argument mischaracterizes
the Necessary and Proper Clause as a broad-based grant of power to carry into effect all duties imposed on Congress, or for that
matter, on the executive and judicial departments of the federal government. If Congress “can do anything appropriate to carry into
effect powers it may (but need not) exercise,” Coenen and Larson, supra note 18, at 910 (emphasis added), what about Congress
doing anything appropriate to carry into effect those “powers” (read duties) that the executive and judicial departments possess but
have no choice but to wield?

352

See 10 Annals of Cong. 29-32 (1800).

353

Id. at 29.

354

Id. at 30.

355

Id.

356

Id. at 32.

357

Id. (emphasis added).

358

See U.S. Const. art. I, §1 (“All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist
of a Senate and House of Representatives.”) (emphasis added); U.S. Const. art. II, §1, cl.1 (“The executive Power shall be vested in
a President of the United States of America.”) (emphasis added); U.S. Const. art. III, §1 (“The judicial Power of the United States,
shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”)
(emphasis added).

359

Counting Electoral Votes, supra note 3, at 48.

360

Id.

361

Id. (remarks of Sen. Smith, member of Committee of the Judiciary) (reporting “[t]hat the committee have had the resolution under
their consideration, and are of opinion that it is inexpedient at this time to legislate on this subject”).

362

Id. at 57-58.

363

Id. at 58.

364

Id. at 129.

365

Id. at 132.

366

See, e.g., 15 Cong. Rec. 5461 (1884) (remarks of Rep. Springer) (“If Congress may make all laws which are necessary to carry into
effect the powers granted by the Constitution, it may make such laws as it may deem necessary to carry out that express provision of
the Constitution, to count the votes for President and Vice-President.”). Senator Sherman argued:
Congress has undoubted power under the residuary clause in the Constitution giving powers to Congress to pass all laws suitable and
necessary to carry into execution the express grants of power. Here is a provision in the Constitution for the election of electors, and
therefore the mode and manner by which the votes of electors may be counted may be pointed out, but Congress shall not provide
that the votes shall not be counted, because the Constitution says that the votes shall be counted then and there.
17 Cong. Rec. 817 (1886); see 18 Cong. Rec. 30 (1886) (remarks of Rep. Caldwell) (“This bill is to prescribe the mode in which this
count shall be made, and supply the omission that exists[,] under the first article of the Constitution, which gives Congress all power
to make all laws necessary to carry out these provisions.”); id. at 74 (remarks of Rep. Baker) (“It is conceded that [the Necessary and
Proper Clause] is a delegation to Congress of power to provide for carrying into effect the power to open and count the votes of the
electors lodged in the President of the Senate.”). Representative Eden remarked:
In providing by law a method to insure a fair count of the electoral vote we need exercise no doubtful powers. The Constitution
requires the vote to be counted. I assume that Congress has the authority under the Constitution to pass all laws necessary to carry
into effect that mandate of the Constitution.

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Id. at 50. Representative Herbert made the point that
[T]he Constitution vests in the Federal Government the power to count the votes; and the exercise of that power is a Federal function,
to be controlled by the Federal Government.... A power has been given, and it is perfectly plain that the Constitution vests in Congress
the power to enact what legislation is necessary and proper to carry out the purposes of the provision granting the power.
Id. at 75.

367

Issacharoff et al., supra note 16, at 98.

368

15 Cong. Rec. 5465; see also 18 Cong. Rec. 45 (remarks of Rep. Dibble). Representative Dibble, carefully parsing the Necessary
and Proper Clause, stated:
It is true there is a clause which says that Congress has the right to pass all laws necessary to carry out certain powers; but those
powers are defined. It has the power to carry out its own express grants of power. It has the right to pass laws concerning any act of the
Federal Government; but the election of a President is not an act of the Federal Government, but is the action of the State Government.
It has the right to pass laws concerning what any Federal officer shall do or what any Federal department shall do; but there its power
is exhausted. So that Congress has no power in relation to the electoral vote except to count, in the sense of enumeration.
Id.

369

17 Cong. Rec. 1058; see also id. at 1059 (arguing that “a power vested by the Constitution [cannot] be divested by legislative action”).
Senator Ingalls fervently stated in words that ring true today:
Careful consideration of this subject will convince any thoughtful student of the Constitution that the scheme which has been devised
and which now remains in our organic law is fatally defective, and that nothing can be done by way of legislation to cure the inevitable
evils by which it is surrounded, and the more we proceed by legislation to patch, to bridge over apparent difficulties, to abbreviate
the number of perils which surround it, by so much we retard and delay the exercise of the power which the people must ultimately
be called upon to perform in adopting some system that shall remove the perils in which it is now environed.
Id. at 1026.

370

For an illuminating discussion of the “jurisdictional meaning” of the word “proper” in the Necessary and Proper Clause, see Lawson
& Granger, supra note 336, at 297-326.

371

See infra notes 428-554 and accompanying text.

372

See U.S. Const. art. VI, cl. 3 (“The Senators and Representatives before mentioned, and the Members of the several State Legislatures,
and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation,
to support this Constitution....”).

373

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, 169-71 (1995); see also Kent Greenfield, Original Penumbras: Constitutional Interpretation in the First Year
of Congress, 26 Conn. L. Rev. 79, 111-15 (1993) (building on Professor Currie's then-unpublished manuscript).

374

U.S. Const. art. IV, §2, cl.3 provides:
No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law
or Regulation therein, be discharged from such Service or Labour, but shall be delivered upon Claim of the Party to whom such
Service or Labour may be due.
Id.; see Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539, 596-97 (1842) (holding that the Fugitive Slave Act of 1793 was constitutional).

375

See Printz v. United States, 521 U.S. 898, 909 (1997). But oddly, and in what is a most tortured interpretation of the Constitution,
the Supreme Court has held that legislation which is not a “direct implementation” of the Fugitive Slave Clause--that is, legislation
that goes beyond the substance and procedure of the clause--is a constitutional exercise of congressional power under the Full Faith
and Credit Clause which provides that “Congress may by general Laws prescribe the Manner in which such Acts, Records, and
Proceedings shall be proved, and the Effect thereof.” U.S. Const. art. IV, §1; see Printz, 521 U.S. at 909 n.3 (1997) (citing California
v. Superior Court of Cal., San Bernardino Cty., 482 U.S. 400, 407 (1987)).

376

Indeed, Professor Currie has suggested that some congressional regulation of the electoral count may be supported on this “implicit”
view of the Electoral College Clause. See Currie, supra note 35, at 620 n.73.

377

See U.S. Const. art. I, §2, cl.3.

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378

See U.S. Const. amend. XIV, §1.

379

James A. Gardner, Consent, Legitimacy and Elections: Implementing Popular Sovereignty Under the Lockean Constitution, 52 U.
Pitt. L. Rev. 189, 229 (1990).

380

See U.S. Const. amend. XIII, §2; U.S. Const. amend. XIV, §5; U.S. Const. amend. XV, §2; U.S. Const. amend. XVIII; §2; U.S. Const.
amend. XIX, § 2; U.S. Const. amend. XXIV, §2; U.S. Const. amend. XXVI, §2.

381

See supra notes 32-34 and accompanying text.

382

2 Farrand, supra note 35, at 529 (emphasis added).

383

See supra note 36 and accompanying text.

384

See infra notes 498-525 and accompanying text.

385

Counting Electoral Votes, supra note 3, at 596-97.

386

U.S. Const. art. II, §1, cl.4.

387

See 2 Farrand, supra note 35, at 497-98.

388

Burgess, supra note 18, at 636 (emphasis added). Senator Jones made a similar point:
This clause shows that they weighed this subject with great care, and that they thought it necessary not to leave to Congress any
implied power over the election of President.
Now, sir, the power to decide whether the votes of two or ten States shall or shall not be counted is a far more important and delicate
power than that given to Congress in express terms to fix the time of choosing the electors. And am I not warranted in saying that,
if the Constitution intended that Congress should have any more extended power than is conferred by this clause, it would have said
so in plain language?
Counting Electoral Votes, supra note 3, at 597.

389

U.S. Const. art. II, §1, cl.6.

390

See 2 Farrand, supra note 35, at 573 (draft referred to the Committee of Style); 2 id. at 598-99 (report of the Committee of Style).

391

U.S. Const. art. I, §4, cl.1 (emphasis added).

392

For example, Alexander Hamilton wrote:
This provision has not only been declaimed against by those who condemn the Constitution in the gross; but it has been censured
by those who have objected with less latitude and greater moderation; and, in one instance, it has been thought exceptionable by a
gentleman who had declared himself the advocate of every other part of the system.
The Federalist No. 59, at 330 (Alexander Hamilton) (Clinton Rossiter ed., Mentor 1999) (1961). See generally The Federalist Nos.
59-61 (Alexander Hamilton) (discussing the regulation of congressional elections).

393

E.g., 3 Elliot's Debates, supra note 250, at 661 (Virginia ratifying convention) (“Congress shall not alter, modify, or interfere in the
times, places, or manner of holding elections for senators and representatives or either of them, except when the legislature of any state
shall neglect, refuse, or be disabled, by invasion or rebellion, to prescribe the same.”); see 2 id. at 552 (Maryland ratifying convention)
(similar); 2 id. at 545 (Pennsylvania ratifying convention) (similar); 3 id. at 246 (North Carolina ratifying convention) (similar).

394

U.S. Const. art. III, §1, cl. 4 (emphasis added). This clause may be the font of congressional power to regulate the manner of
presidential election. For example, Professor Amar has suggested that, pursuant to this clause and general “electioneering” rules,
“Congress could prohibit--either directly, or through conditional funding rules for any party that seeks federal election funds-any direct effort to lobby electors between Election Day and Electoral College Meeting Day by anyone other than the candidates
themselves, or their direct agents.” Amar, supra note 10, at 231 n.22. Such laws further the independence of electors and moreover
do not operate on electors directly. But the existence of a constitutional power in one direction does not imply the existence of a
power in the equal-and-opposite direction.

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395

U.S. Const. amend. XII; U.S. Const. art. II, §1, cl.3.

396

3 Farrand, supra note 35, at 624 (emphasis added).

397

Cf. U.S. Term Limits v. Thornton, 514 U.S. 779, 827 (1995) (holding that neither Congress nor the States may alter the constitutional
qualifications for congressional office).

398

10 Annals of Cong. 128-29 (1800).

399

See, e.g., 2 Elliot's Debates, supra note 250, at 552 (Maryland ratifying convention); 2 id. at 545 (Pennsylvania ratifying convention);
3 id. at 246 (North Carolina ratifying convention); 3 id. at 661 (Virginia ratifying convention).

400

U.S. Const. art. I, §5, cl.1.

401

See, e.g., Barry v. United States ex rel. Cunningham, 279 U.S. 597, 613 (1928) (holding that the Constitution confers upon Congress
certain powers that are “judicial in character,” including the “power to judge of the elections, returns and qualifications of its own
members,” and “[i]n exercising this power, the Senate may, of course, devolve upon a committee of its members the authority to
investigate and report; and this is the general, if not the uniform, practice”).

402

See U.S. Const. art. I, §2, cl.2 (House Qualifications Clause); U.S. Const. art. I, §3, cl.3 (Senate Qualifications Clause); U.S. Const.
art. VI, cl.3 (Oath or Affirmation Clause).

403

At least one other scholar has noted this obvious point. See Harrison, supra note 23, at 702.

404

See 2 Farrand, supra note 35, at 502-03.

405

For additional discussion, see infra notes 582-89 and accompanying text.

406

See 2 Story's Commentaries, supra note 9, §831, at 294-95.

407

2 id. §831, at 295.

408

Representative Randolph clearly made the point that each of the Electoral Colleges retained the power to judge the qualifications
of electors in the Massachusetts Incident of 1809. See text accompanying supra note 96. The point was also suggested during the
Postmaster Incident of 1837, which squarely presented the elector ineligibility problem of the electoral count. See supra notes 118-25
and accompanying text. Senator Grundy raised the issue thus:
Should a case occur in which it became necessary to ascertain and determine upon the qualifications of electors of President and
Vice-President of the United States, 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 opinion ought to be settled by a
permanent provision upon the subject.
Counting Electoral Votes, supra note 3, at 71; see also id. at 73 (remarks of Rep. Thomas) (reporting to the House of Representatives
that the joint committee “had proposed a remedy, by either giving the power to reject to the college or to Congress, as might be deemed
most expedient”). For the structural argument supporting the power of each Electoral College “House” to judge the qualifications of
Electors, see infra notes 479-97 and accompanying text.

409

10 Annals of Cong. 31 (1800).

410

Id.

411

Counting Electoral Votes, supra note 3, at 132.

412

Id.

413

Id. (emphasis added).

414

Id. at 409.

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415

Id. at 418 (emphasis added).

416

Id. at 658.

417

U.S. Const. art. III, §1 (“The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts
as the Congress may from time to time ordain and establish.”).

418

U.S. Const. art. I, §5, cl.2 (“Each House may determine the Rules of its Proceedings, Punish its Members for disorderly Behavior,
and, with the Concurrence of two[-]thirds, expel a Member.”).

419

U.S. Const. art. I, §3, cl.5 (“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....”).

420

17 Cong. Rec. 1063-64 (1886) (remarks of Sen. Edmunds); see also 18 Cong. Rec. 45 (1886) (remarks of Rep. Dibble) (“There
[referring to House Judging Clause] you find judicial power of a certain kind expressly granted to the two Houses of Congress,
making an exception to the general provision which confines judicial power to the Supreme Court and the subordinated Federal
courts.”); id. at 46 (remarks of Rep. Dribble) (noting the absence of language analogous to the House Judging Clause in the Electoral
College Clauses).

421

See 2 Farrand, supra note 35, at 503 (remarks of James Wilson) (“[He] thought the power involved, and the express insertion of it
needless. It might beget doubts as to the power of other public bodies, as Courts &c. Every Court is the judge of its own privileges.”).

422

Counting Electoral Votes, supra note 3, at 418.

423

See Akhil Reed Amar, Some Opinions on the Opinion Clause, 82 Va. L. Rev. 647, 653 n.30 (1996); Akhil Reed Amar & Neal Kumar
Katyal, Executive Privileges and Immunities: The Nixon and Clinton Cases, 108 Harv. L. Rev. 701, 702-08 & n.6 (1995). For a classic
exposition of the expressio unius principle of textual interpretation, see The Federalist Nos. 32, 83 (Alexander Hamilton).

424

See supra note 60 and accompanying text; infra note 447 and accompanying text.

425

See U.S. Const. art. II, §1, cl.2 (“[B]ut no Senator or Representative, or Person holding an Office of Trust or Profit under the United
States, shall be appointed an Elector.”).

426

17 Cong. Rec. 1059 (1886) (remarks of Sen. Wilson).

427

Counting Electoral Votes, supra note 3, at 345-57 (Senate); id. at 408-44.

428

For an extensive classic discussion of this species of constitutional argument, see generally Charles L. Black, Jr., Structure and
Relationship in Constitutional Law (1969). For a pithy modern discussion, see Philip Bobbitt, Constitutional Fate: Theory of the
Constitution 74-92 (1982).

429

See Part I.A.4 supra.

430

18 Cong. Rec. 31 (1886) (emphasis added).

431

The Senate has exercised this function only once in our history. In the electoral count of 1837, the Senate elected Richard M. Johnson
as Vice President. See supra note 127 and accompanying text. Note that the Senate's role in choosing the Vice President was even
more circumscribed under the original Constitution, further removing the Senate from the business of electing the nation's two top
executive officers. Article II, Section 1, Clause 3 provided that
[i]n every Case, after the Choice of the President [by the House of Representatives], 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.
U.S. Const. art. II, §1, cl.3.

432

See U.S. Const. art. I, §3, cl.6 (“The Senate shall have the sole Power to try all Impeachments.”); see also The Federalist No. 66, at
370 (Alexander Hamilton) (Clinton Rossiter ed., Mentor 1999) (1961) (referring to the Senate as a “court of impeachments”).

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433

See U.S. Const. art. II, §2, cl.2 (“[The President] shall have Power, by and with the Advice and Consent of the Senate, to make
Treaties, provided two[-]thirds of the Senators present concur.”). To be sure, the founding generation seriously debated whether the
treaty-making power was executive, legislative, or neither. For one view, see The Federalist No. 75, at 419 (Alexander Hamilton)
(Clinton Rossiter ed., Mentor 1999) (1961) (“The power in question seems therefore to form a distinct department, and to belong,
properly, neither to the legislative nor to the executive.”).

434

U.S. Const. art. II, §2, cl.2.

435

2 Farrand, supra note 35, at 497-98 (emphasis added).

436

For a classic statement to this effect, see id. at 522 where James Wilson remarked:
They will have in fact, the appointment of the President, and through his dependence on them, the virtual appointment to offices;
among others the offices of the Judiciary Department. They are to make Treaties; and they are to try all impeachments. In allowing
them thus to make the Executive & Judiciary appointments, to be the Court of impeachments, and to make Treaties which are to be
laws of the land, the Legislative, Executive & Judiciary powers are all blended in one branch of the Government.... [T]he President will
not be the man of the people as he ought to be, but the Minion of the Senate. He cannot even appoint a tide-waiter without the Senate.
See also, e.g., id. at 501 (remarks of Charles Pinckney) (objecting to the Report because “it threw the whole appointment in fact
into the hands of the Senate” and “makes the same body of men which will in fact elect the President his Judges in case of an
impeachment”); id. (remarks of Hugh Williamson) (noting “objection to such a dependence of the President on the Senate for his
reappointment”); id. at 502 (remarks of James Wilson) (suggesting that the contingent election should be made by Congress and not
the Senate because “the House of Reps. will so often be changed as to be free from the influence & faction to which the permanence
of the Senate may subject that branch”); id. at 511 (remarks of Charles Pinckney) (objecting to Report because “the dispersion of the
votes would leave the appointment with the Senate, and as the President's reappointment will thus depend on the Senate he will be
the mere creature of that body”); id. (remarks of John Rutlidge) (objecting to Report because “[i]t would throw the whole power [of
presidential election] into the Senate”); id. at 512 (remarks of George Mason) (objecting to Report because “[i]t puts the appointment
in fact into the hands of the Senate” and that “[t]he great objection with him would be removed by depriving the Senate of the eventual
election”); id. at 512 (remarks of Hugh Williamson) (“Referring the appointment to the Senate lays a certain foundation for corruption
& aristocracy.”); id. at 513 (remarks of Governor Randolph) (“He dwelt on the tendency of such an influence of the Senate over
the election of the President in addition to its other powers, to convert that body into a real & dangerous Aristocracy”); id. (remarks
of John Dickinson) (“[He] was in favor of giving the eventual election to the Legislature, instead of the Senate--It was too much
influence to be superadded to that body “); id. at 515 (remarks of George Mason) (“As the mode of appointment is now regulated,
he could not forebear expressing his opinion that it is utterly inadmissible. He would prefer the Government of Prussia to one which
will put all power into the hands of seven or eight men, and fix an Aristocracy worse than absolute monarchy.”); id. at 522 (remarks
of Elbridge Gerry) (proposing eventual election of President to be made by Congress and not Senate so as to “relieve the President
from his particular dependence on the Senate for his continuance in office”); id. at 522 (remarks of Gouverneur Morris) (supporting
Gerry's proposal because “[i]t would free the President from being tempted in naming to Offices to Conform to the will of the Senate,
& thereby virtually give the appointments to office, to the Senate”); id. at 524 (remarks of Hugh Williamson) (“The aristocratic
complexion [of the Senate] proceeds from...the mode of appointing the President which makes him dependent on the Senate.”).

437

See id. at 527 (“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 of each State having one vote.”’).

438

Id.

439

The Federalist No. 66, supra note 432, at 371-72 (Alexander Hamilton).

440

See also 4 Elliot's Debates, supra note 250, at 122 (remarks of William Davie at North Carolina ratifying convention) (“[The President]
is perfectly independent of [the Senate] in his election.”); Letter from James Madison to George Hay (Aug. 23, 1823), reprinted in
3 Farrand, supra note 35, at 458 (“The Agency of the H. of Reps. was thought safer also than that of the Senate, on account of the
greater number of its members.”).

441

1 Tucker's Commentaries, supra note 19, app. at 328.

442

Counting Electoral Votes, supra note 3, at 444.

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443

Id.

444

Id. at 445.

445

Id. at 538.

446

3 U.S.C. §15 (2000).

447

See 2 Farrand, supra note 35, at 497-502. A few years later, Senator Pinckney remarked:
He remembered very well that in the Federal Convention great care was used to provide for the election of the President of the United
States, independently of Congress; to take the business as far as possible out of their hands.... Nothing was more clear to him than
that Congress had no right to meddle with it at all; as the whole was entrusted to the State Legislatures, they must make provision
for all questions arising on the occasion.”).
10 Annals of Cong. 29 (1800).

448

See, e.g., 2 Farrand, supra note 35, at 103 (remarks of Gouverneur Morris) (“Of all possible modes of [presidential] appointment that
by the Legislature is the worst. If the Legislature is to appoint, and to impeach or to influence the impeachment, the Executive will
be the mere creature of it.”); 10 Annals of Cong. 131 (remarks of Sen. Pinckney) (stating that Framers “well knew, that to give to the
members of Congress a right to give votes in this election, or to decide upon them when given, was to destroy the independence of
the Executive, and make him the creature of the Legislature”); Kent's Commentaries, supra note 19, at *279 (noting that legislative
selection of the President “would have rendered him too dependent upon the immediate authors of his elevation to comport with the
requisite energy of his own department; and it would have laid him under temptation to indulge in improper intrigue, or to form a
dangerous coalition with the legislative body....”); 3 Story's Commentaries, supra note 9, §1450, at 313-14.

449

See U.S. Const. amend XII. For an eloquent expression of this point, see 18 Cong. Rec. 46 (1886) (remarks of Rep. Dibble).

450

See also Letter from James Madison to Henry Lee (Jan. 14, 1825), reprinted in 3 Farrand, supra note 35, at 464 (“If, in the eventual
choice of a President, the same proportional rule had been preferred [as in the Electoral Colleges], a joint ballot by the two [H]ouses
of Congress would have been substituted for the mode which gives an equal vote to every State, however unequal in size.”).

451

Counting Electoral Votes, supra note 3, at 54.

452

The single clause which best expresses this separation-of-powers vision is U.S. Const. art. I, §6, cl.2 (“[N]o Person holding any Office
under the United States, shall be a Member of either House during his Continuance in Office.”). For a rich discussion of this clause's
significance as a repudiation of the parliamentary system, see generally Steven G. Calabresi & Joan L. Larsen, One Person, One
Office: Separation of Powers or Separation of Personnel?, 79 Cornell L. Rev. 1045 (1994). See also Amar & Amar, supra note 27, at
118-25 (providing additional discussion of separation-of-powers structure of Constitution).

453

One corollary of this argument is that if there is no power for concurrent action then it follows a fortiori that there is no power for
either House of Congress alone. For example, Senator Wilson remarked:
[I]f no such power rests with the two Houses for concurrent action, how much more preposterous does it seem to be to claim that
it rests with either House alone, and especially with the House of Representatives, with which body to elect a President abides in
the event of a failure of the electors to elect?
17 Cong. Rec. 1059 (1886).

454

U.S. Const. art. II, §1, cl.2.

455

10 Annals of Cong. 131 (1800); see also 17 Cong. Rec. 1059 (1886) (remarks of Sen. Wilson) (“When the [F]ramers of the Constitution
expressly prohibited Senators and Representatives from appointment as electors, they clearly indicated their purpose to exclude them
from all power in or over the matter of the election of a President by the electors appointed by the States.”); 18 Cong. Rec. 46 (remarks
of Rep. Dibble) (“The idea was that the President must go into office without being under any obligation of any sort to the National
Legislature, and the [F]ramers of the Constitution went so far as to provide even that a member of Congress should not be an elector-that to be a member of either House of Congress should be a disqualification.”).

456

10 Annals of Cong. 130-31. Professor Harrison recently put the point in the context of old and recent history:

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As the experiences of 1876-1877 and 2000 indicate, giving Congress power to resolve an electoral dispute is very close to giving it
power to choose the President; indeed, electoral disputes could be trumped up for that very purpose. It is unlikely that the Constitution
allows through the back door what it bars the front door against.
Harrison, supra note 23, at 705.

457

U.S. Const. art. I, §7, cl.2 provides that:
Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to
the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in
which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such
Reconsideration two[-]thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other
House, by which it shall likewise be reconsidered, and if approved by two[-]thirds of that House, it shall become a Law.
See also U.S. Const. art. I, §7, cl.3 (similar).

458

Counting Electoral Votes, supra note 3, at 135.

459

Id.; see also id. at 523 (remarks of Sen. Bayard) (“[F]or this is not a law for to-day only; it is to become a settled law, a fixed rule,
requiring for its repeal the assent of a majority of each house and the President of the United States.”).

460

U.S. Const. art. II, §1, cl.6.

461

10 Annals of Cong. 127 (“[The States] supposed they had placed the hand of their own authority on the rights of religion and the
press, and the as sacred right of the States in the election of the President.”).

462

Id. at 130 (emphasis added). Senator Pinckney largely dismissed problems with respect to the validity of an Elector's appointment.
In answering an objection that Electors might be appointed in violation of the Elector Incompatibility Clause, he stated, “[W]here
is the necessity of this bill? Is not the Constitution the supreme law of the land, and must not the State Legislatures conform their
directions in the appointment of Electors to the directions of the Constitution?” Id. at 131; see also id. at 132 (“Why this anxiety, why
these unnecessary efforts to take from the State Legislatures their exclusive and most valuable right?”).

463

Counting Electoral Votes, supra note 3, at 414 (emphasis added).

464

10 Annals of Cong. 128.

465

The Federalist No. 59, supra note 392, at 330 (Alexander Hamilton).

466

Id. at 365 (emphasis added).

467

U.S. Const. art. I, § 4, cl.1 (emphasis added).

468

Senator Pinckney had a much broader conception of the judicial power of State Legislatures, including the power “to insure the
votes being legally given.” See text accompanying supra note 462. However, it is especially hard to see how state legislatures
have any jurisdiction over questions with respect to an elector's vote (whether, for example, that vote is constitutional or not). The
“Manner” power of state legislatures is textually limited to the appointment of electors. Moreover, electors, once selected, are arguably
independent of state legislatures.

469

Wroth, supra note 22, at 324.

470

U.S. Const. art. I, §5, cl.1.

471

See supra notes 269-74 and accompanying text.

472

During the debate on the Act of 1792, Representative White expressed his wish that this be done “[i]f it had been possible.” 3 Annals
of Cong. 278 (1791).

473

The Federalist No. 59, supra note 392, at 333 (Alexander Hamilton).

474

Wroth, supra note 22, at 325.

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475

U.S. Const. art. II, §1, cl.6.

476

Horatius Letter, supra note 273; see also id. (observing that the word “removal” “comprehends the case where neither the electors nor
the [H]ouse of [R]epresentatives shall elect a successor to the President whose time expires by virtue of the constitutional limitation”).

477

For the relevant text of the Twentieth Amendment, see text accompanying infra note 605.

478

3 U.S.C. §15 (2000).

479

Elsewhere, I have set forth a proof for the proposition that Electors occupy a “public Trust under the United States” because they
are not Members of Congress, Members of the several State Legislatures, Officers of the United States, or Officers of the several
States. See Kesavan, supra note 324, at 128-35; cf. 18 Cong. Rec. 30 (1886) (remarks of Rep. Caldwell) (stating that “the elector is
a Federal functionary, as much so as a Senator or Representative”).

480

See generally Akhil Reed Amar, Architexture, 77 Ind. L.J. (forthcoming 2002).

481

See U.S. Const. art. II, §1, cl.2.

482

For similar statements with respect to constitutional interpretation by the President, see Michael Stokes Paulsen, The Merryman
Power and the Dilemma of Autonomous Executive Branch Interpretation, 15 Cardozo L. Rev. 81 passim (1993); Michael Stokes
Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law Is, 83 Geo. L.J. 217 passim (1994). For a similar
statement with respect to constitutional interpretation by Congress, see Neal Kumar Katyal, Legislative Constitutional Interpretation,
50 Duke L.J. 1335 passim (2001).

483

For example, John Jay argued:
As the select assemblies for choosing the President, as well as the State legislatures who appoint the senators, will in general be
composed of the most enlightened and respectable citizens, there is reason to presume that their attention and their votes will be
directed to those men only who have become the most distinguished by their abilities and virtue, and in whom the people perceive
just grounds for confidence.... If the observation be well founded that wise kings will always be served by able ministers it is fair to
argue that as an assembly of select electors possess, in a greater degree than kings, the means of extensive and accurate information
relative to men and characters, so will their appointments bear at least equal marks of discretion and discernment.
The Federalist No. 64, at 359 (John Jay) (Clinton Rossiter ed., Mentor 1999) (1961); see 10 Annals of Cong. 30-31 (1800) (remarks
of Sen. Baldwin) (“Experience had proved that a more venerable selection of characters could not be made in this country than
usually composed that electoral body.”). To be sure, this understanding began to change in the first decade after the founding. See,
e.g., Stanwood, supra note 7, at 51.

484

See, e.g., U.S. Const. amend. XII (“The Electors shall meet in their respective states, and vote by ballot for President and VicePresident....”) (emphasis added); The Federalist No. 68, supra note 246, at 380 (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.”) (emphasis added). Hamilton further argued:
[A]s the electors, chosen in each State, are to assemble and vote in the State in which they are chosen, this detached and divided
situation will expose them much less to heats and ferments, which might be communicated from them to the people, than if they
were all to be convened at one time, in one place.
Id. (emphasis added); cf. 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) (“[T]he
electoral college, like Congress and an Article V proposing convention, is truly a national group whose existence owes entirely to
the Constitution. On the other hand, the electoral college does not ‘meet’ and deliberate like Congress or an Article V proposing
convention.”).

485

See U.S. Const. art. I, §6, cl.1 (“They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest
during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech
of Debate in either House, they shall not be questioned in any other Place.”). For a claim that the President enjoys similar privileges
although the Constitution does not so textually specify, see Amar & Katyal, supra note 423, at 702-08.

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486

The Framers briefly considered the compensation of electors. See 2 Farrand, supra note 35, at 73 (“Mr. Williamson moved that the
Electors of the Executive should be paid out of the National Treasury for the Service to be performed by them. Justice required this:
as it was a national service they were to render. The motion was agreed to nem.-con.”). The provision was inexplicably dropped
on subsequent debate.

487

See Kesavan, supra note 324, at 133 & n.46.

488

See U.S. Const. art. III, §2, cl. 2 (“In all other cases before mentioned, the supreme Court shall have appellate jurisdiction, both as
to law and fact....).

489

Counting Electoral Votes, supra note 3, at 51 (emphasis added).

490

10 Annals of Cong. 30 (1800).

491

The Framers considered and rejected this idea. See 2 Farrand, supra note 35, at 525; id. at 526 (“Mr. Spaight said if the election by
Electors is to be crammed down, he would prefer their meeting altogether and deciding finally without any reference to the Senate
and moved ‘That the Electors meet at the seat of the General Government.”’). This motion failed with all States in the negative except
North Carolina. Id. Senator Baldwin, a Framer, no doubt remembered this history.

492

Senator Baldwin argued:
If this body of the Electors of all the States had been directed by the Constitution to assemble in one place, instead of being formed into
different Electoral colleges, he took it for granted none of the questions on which this [Senator Ross's] resolution has been brought
forward, would have occurred; every one would have acknowledged that they were to be settled in that assembly.
10 Annals of Cong. 31.

493

Id. at 31-32.

494

Id. at 32.

495

This critical distinction in the problems of the electoral count is explained in Part III.A infra.

496

Senator Pinckney argued:
Who, when he reflects on the immense power the President possesses, can suppose that any man, honorably selected by his fellowcitizens as an Elector, could for a moment be so lost to a sense of his own and his country's welfare, as to vote for a man as the
Supreme Executive, whose citizenship or residence were doubtful, and who were not of sufficient age?
10 Annals of Cong. 132.

497

Id. at 31 (emphasis added).

498

For a brilliant article on this general (and generally neglected) subject, see Paul W. Kahn, Gramm-Rudman and the Capacity of
Congress to Control the Future, 13 Hastings Const. L.Q. 185 (1986). A starting point is Blackstone's maxim: “Acts of Parliament
derogatory from the power of subsequent Parliaments bind not.” 1 William Blackstone, Commentaries *90. For an extensive collection
of British sources on this point, see Brett W. King, Deconstructing Gordon and Contingent Legislative Authority: The Constitutionality
of Supermajority Rules, 6 U. Chi. L. Sch. Roundtable 133, 188 n.248 (1999).
Professor Kahn's argument is that there are two types of statutes: “first-order rules” and “second-order rules.” The former type
addresses behavior directly, and includes most laws; the latter type addresses other rules, imposing burdens on constitutionally
assigned functions (for example, legislation), and necessarily raises questions as to what Congress may accomplish by statute versus
by constitutional amendment. According to Kahn, the Balanced Budget and Emergency Deficit Control Act of 1985, popularly known
as Gramm-Rudman, is a second-order rule, and therefore raises interesting and significant constitutional problems. He further argues
that a future Congress's freedom to repeal a second-order rule does not cure the constitutional infirmities of such legislation. See
Kahn, supra, at 190-204.

499

U.S. Const. art. I, §5, cl.2. Professor Kahn usefully relates that “the House [of Representatives] has taken the position that it is free
to abandon statutory provisions that purport to regulate internal House procedures.” Kahn, supra note 498, at 226. He discusses an
early precedent within the first decade after the founding concerning a subject relevant to the one at hand: determining the outcome
of disputed congressional elections. He observes:

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When Congress passed in 1797 a statute designed to regulate disputed elections, members in the House objected to the statute as
an infringement on each house's rules powers. The statute was defended as legitimate because it did not prescribe rules for the
House but rather procedures binding on the general public, outside of Congress. The House later adopted the position that no power
constitutionally committed to one House by the Constitution could be abridged by an earlier statute.
Id. at 226 n.149 (citing 7 Annals of Cong. 683-84 (1797) (statement of Rep. Sitgreaves); 1 American State Papers Class 10, No. 99,
5th Cong., 2d Sess. 159-60 (1797); 36 Cong. Rec. 231-35 (1902) (contested election statute); Cong. Globe, 35th Cong., 1st Sess.
725-34 (1858) (same)).

500

See Catherine Fisk & Erwin Chemerinsky, The Filibuster, 49 Stan. L. Rev. 181, 245 n.373 (1997) (citing Rules of the House of
Representatives, H.R. Doc. No. 103-342, at 768 (1995)); see also Gojack v. United States, 384 U.S. 702, 706 n.4 (1966) (“Neither
the House of Representatives nor its committees are continuing bodies.”).

501

See Julian Eule, Temporal Limits on the Legislative Mandate: Entrenchment and Retroactivity, 1987 Am. B. Found. Res. J. 379,
408; Fisk & Chemerinsky, supra note 500, at 245 n.375 (citing Senate Comm. on Rules & Admin., Standing Rules of the Senate,
S. Doc. No. 102-25, at 4 (1992)).

502

There should be no question that the Electoral Count Act is a law that regulates a particular proceeding. To be sure, Members of
Congress identified it as a “permanent rule” or “fixed rule” during the Electoral Count Act debates. See, e.g., Counting Electoral
Votes, supra note 3, at 520 (1876) (remarks of Sen. Bayard) (referring to “framing of such a permanent rule in the shape of law upon
this subject as would be satisfactory to the American people”); id. at 523 (remarks of Sen. Bayard) (“[F]or this is not a law for to-day
only; it is to become a settled law, a fixed rule, requiring for its repeal the assent of a majority of each house and the President of the
United States.”); 18 Cong. Rec. 30 (1886) (remarks of Rep. Caldwell) (“This bill is to prescribe the mode in which this count shall be
made....”); id. at 49 (1886) (remarks of Rep. Eden) (“The object of the bill of the Senate is to fix certain rules by which the two Houses
shall be governed in counting the electoral vote.”); id. at 50 (similar). Not surprisingly, some Members of Congress put the terms
“law” or “joint rule” on the same constitutional plane in discussing the counting of electoral votes. See, e.g., 17 Cong. Rec. 815 (1886)
(remarks of Sen. Sherman) (noting that “this most important duty of counting the electoral vote... is now without law or rule to govern
the mode and manner of its procedure”); 18 Cong. Rec. 30 (1886) (remarks of Rep. Caldwell) (“Congress may provide by law or
joint rule the manner of counting the [electoral] vote.”); id. at 46 (1886) (remarks of Rep. Dibble) (“[I]t is competent for Congress, by
statute or by joint agreement, joint resolution, or joint rule, to name individuals to exercise the duty of making the [electoral] count.”).

503

See, e.g., 18 Cong. Rec. 30 (remarks of Rep. Caldwell) (“[T]his bill if passed will be an authoritative expression of the Constitution
erected into law in advance of any complication which may again arise, as it has in the past, as to the counting the electoral votes
of the States and the declaration of the result.”); id. (“The passage of this bill will settle all the questions which have arisen from
time to time as to the electoral count.”).

504

Issacharoff et al., supra note 18, at 97 (emphasis added). For expressions of this concern during the Electoral Count Act debates, see
17 Cong. Rec. 815 (remarks of Sen. Sherman), id. at 2427 (remarks of Sen. Hoar), and 18 Cong. Rec. 50 (remarks of Rep. Eden).

505

3 U.S.C. §5 (2000) (emphasis added).

506

See Part I.A.4 supra.

507

3 U.S.C. §15.

508

Even if one believes that the counting function is committed to Congress and not to the joint convention, it is not at all clear that
one Congress may bind itself in advance with respect to rules of proceedings of the electoral count. For a thoughtful discussion of
one Congress binding itself with respect to rules of proceedings of legislation, see John O. McGinnis & Michael B. Rappaport, The
Constitutionality of Legislative Supermajority Requirements: A Defense, 105 Yale L.J. 483, 506 n.109 (1995).

509

See supra notes 498-501 and accompanying text.

510

Amar, supra note 10, at 222.

511

See supra notes 143-48 and accompanying text.

512

See, e.g., Amar, supra note 10, at 218-19, 226-27, 228-29.

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513

Id. at 227 (emphasis added); cf. Harrison, supra note 23, at 714 (discussing ad hoc solutions to problems of the electoral count and
describing the strength of having a rule, even if not the right one, as “enabl [ing] the country to avoid total political gridlock or even
violence”).

514

See generally Laurence H. Tribe, Taking Text and Structure Seriously: Reflections on Free-Form Method in Constitutional
Interpretation, 108 Harv. L. Rev. 1221 (1995) (criticizing the “free-form” method of constitutional interpretation as an assault on
the coherent and constrained character of the legal enterprise and calling for a method that is attentive to the “stubborn truths” of
text, history, and structure).

515

Tribe, supra note 17, at 267 n.388 (citing 1 Laurence H. Tribe, American Constitutional Law §2-3, at 125-26 n.1 (3d ed. 2000)). The
Gore legal team did not make this argument in any of the briefs filed in Bush v. Gore.

516

Id. at 277.

517

Nelson Lund, The Unbearable Rightness of Bush v. Gore, 23 Cardozo L. Rev. (forthcoming 2002) (manuscript at 61 n.140, on file
with the North Carolina Law Review) (citation omitted). For an extended discussion of the point with respect to 3 U.S.C. §5, see
Michael J. Glennon, Nine Ways to Avoid a Train Wreck: How Title 3 Should Be Changed, 23 Cardozo L. Rev. (forthcoming 2002)
(manuscript at 9-15, on file with the North Carolina Law Review).

518

On the former point that Congress cannot bind the joint convention by law or joint rule, Senator Stockton remarked:
If a constitutional amendment is not necessary, then those two bodies there assembled have the power to regulate the way they shall
count the vote, and if they have not the power it certainly does not exist in these two bodies sitting before the Congress meets, before
the body to whom the Constitution of the United States has committed the power to count the next vote of presidential electors has
convened. At a session before they are elected, you are here making laws to prevent them from doing that which was committed to
them alone, and not to you, by the Constitution of the United States.
Counting Electoral Votes, supra note 3, at 500; see also id. at 515 (remarks of Sen. Stockton) (“The truth is and the honest truth is
that the twenty-second joint rule ought never to have been passed. The whole power rested in the joint assembly when it met.”).

519

Id. at 510 (remarks of Sen. Hager).

520

Id.

521

Id. (emphasis added).

522

Id. (emphasis added). Senator Hager also remarked:
I am satisfied that we cannot bind our successors by any legislation in regard to a constitutional duty that they have to perform. They
themselves must judge how they shall perform it; and you might as well undertake to dictate that they should do it in a particular way
to accomplish a particular result as to undertake to say that they shall do it according to the provisions of this bill.
Id.

523

Id. at 511.

524

Senator Sherman argued:
Sir, if we put our joint rule, the whole of it, in the form of law, the Constitution gives to each house the power to make rules for its
own government and the power to make joint rules for the government of the two houses. That is a constitutional power, and this
Forty-third Congress cannot deprive the next Congress of the power of making rules for the government of the two houses or for the
government of either house. There the constitutional privilege overrides all your laws.
Id. at 516 (remarks of Sen. Sherman). Senator Boutwell stated:
Here is a duty imposed upon Congress by the Constitution; it is a duty to be exercised at stated periods. The provision of the
Constitution does not operate upon every Congress, but it operates upon particular Congresses. Now, can a Congress to which or upon
which the provision of the Constitution does not attach at all legislate and bind the conscience and the judgment of a Congress that
is to perform a duty imposed by the Constitution especially upon itself? I have great doubt upon that point, whether, if the exigency
should arise when it would be thought desirable, so desirable as to be expedient, for one branch or the other of Congress to disregard
the law, (and that would be just the exigency when probably the law should be observed,) we should not find one body or the other
willing to take the responsibility and, upon the argument that could be presented, to go to the country for justification.
Id. at 531. Senator Ingalls remarked:

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I shall be instructed far beyond my expectations if some great constitutional lawyer... can assure me how any legislative enactment
that we may adopt now or at any time can in any manner whatever bind that great political tribunal which is to meet to declare the
result of the presidential election in 1888.... [W]hether the President of the Senate is to count the vote, whether the vote is to be
counted by the Senate and House of Representatives separately or jointly, whether it is to be counted by the tribunal proposed by the
Senator from Ohio, the fact still remains that the vote is to be counted, and that no act can be passed by any antecedent Congress that
can deprive either of the persons or any of those great constituent bodies of the powers that they possess and which they are directed
to exercise under and by virtue of the twelfth article of the amendments to the Constitution.
17 Cong. Rec. 1025 (1886). Representative Adams remarked:
[T]he real question will arise when the two Houses meet here to pass upon the electoral votes in the next Presidential election; and
those Houses, in my judgment, when they meet here to discharge a duty which is expressly imposed upon them by the Constitution,
will not be bound by the action of the Senate and House of the Forty-ninth Congress and the President, when he signs this bill, if it
shall pass. It is their duty, conferred on them by the Constitution, to count the votes. If for any reason whatever a single return shall
appear to both Houses of Congress to be an invalid return they have the right so to determine; and if they do so determine, that vote
will not be counted, however many statutes we may pass like this.
18 Cong. Rec. 51 (1886); see also id. at 51-52 (remarks of Rep. Adams) (similar).

525

The critic would argue (persuasively) that the joint convention should not waste time determining the “shape of the table” on the
important day of the electoral count. The two Houses of Congress are free to create a joint rule purporting to bind the joint convention.
But the requirement of formalism remains. As the first matter of business, the joint convention should (and will in all likelihood)
formally adopt the joint rule as its rule of proceeding.

526

See 3 U.S.C. §15 (2000).

527

Counting Electoral Votes, supra note 3, at 453.

528

U.S. Const. art. I, §7, cl.3.

529

See supra notes 457-60 and accompanying text (presenting structural argument of anti-President principle in presidential election).

530

462 U.S. 919, 958 (1983) (holding that section of Immigration and Nationality Act authorizing one House of Congress, by resolution,
to invalidate decision of Executive Branch to allow a particular deportable alien to remain in the United States is unconstitutional,
because such action is legislative and is therefore subject to the bicameralism and presentment requirements of Article I of the
Constitution).

531

See, e.g., Glennon, supra note 18, at 43 (“While such an action is technically within the scope of the Chadha test, it is doubtful
that the Constitution requires that a congressional objection be presented to the president” because the counting of electoral votes
is not a “lawmaking function.”); Ross & Josephson, supra note 7, at 727 n.317 (“The suggestion that Congress cannot exercise its
counting function bicamerally without presidential action is probably not well taken. The [Presentment Clause] has been interpreted
to refer only to legislative action. Whatever the houses are doing when they are counting electors' votes, they are not enacting laws.”)
(citations omitted).

532

During the Electoral Count Act debates, some Members of Congress made this point. Senator George made this point with ample
frequency. See, e.g., 17 Cong. Rec. 1063 (1886) (stating that “whoever does determine what votes shall be counted performs a
judicial act”); id. at 2429 (1886) (“What kind of business is [counting electoral votes]? It certainly is not legislative business. It is
the ascertainment of a fact and a very important fact to this country.”); id. (stating that counting electoral votes “is not a legislative
function which ought to be considered separately by the two Houses, but it is rather in the nature of a judicial function”). Senator
Hoar also made the point that counting electoral votes was not a legislative act. See, e.g., id. at 1020 (remarks of Sen. Hoar) (judicial
act). Senator Edmunds stated that “this act of receiving and counting these votes is not a legislative act, and I say with equal emphasis
that, in my opinion, it is not a judicial act, because the Constitution of the United States has not imputed any such judicial power
to either or both of the Houses.” Id. at 1064. In his view, the counting of electoral votes “is an administrative act, the same sort of
administrative act that every State which existed at the time of the formation of the Constitution imputed to its executive and election
officers in the canvassing and return of votes and in the final ascertainment of them by some body, for the institution of every officer
of a State from a justice of the peace or an overseer of the poor up at least to its governor.” Id.

533

See Ross & Josephson, supra note 7, at 727 n.317 (“The [Presentment] Clause has been interpreted to refer only to legislative action.”).

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534

U.S. Const. art. I, §7, cl.3.

535

It is arguable that the exception was inserted to simply clarify the meaning of the clause or out of an abundance of caution. See
generally Akhil Reed Amar, Constitutional Redundancies and Clarifying Clauses, 33 Val. U. L. Rev. 1 (1998) (asserting that “[a]
considerable number of constitutional clauses are redundant in a certain sense; they illuminate and clarify what was otherwise merely
implicit”). The secret drafting history of the Presentment Clause suggests otherwise. For example, the Committee of Style inexplicably
dropped the italicized language in the proposed clause:
Every order, resolution or vote, to which the concurrence of the Senate and House of Representatives may be necessary (except on
a question of adjournment and in the cases hereinafter mentioned) shall be presented to the President for his revision; and before
the same shall have force, shall be approved by him, or, being disapproved by him, shall be repassed by the Senate and House of
Representatives, according to the rules and limitations prescribed in the case of a bill.
2 Farrand, supra note 35, at 569 (emphasis added); see 2 id. at 594. During the Electoral Count Act debates, Senator Hoar asserted
that “[t]here are all through the Constitution, among the powers of these two Houses, powers which require the concurrence of the
two Houses for their exercise, but which, not relating to legislation, are never held to require the assent of the President or to be
presented to the President,” but failed to present any examples other than Article V. 17 Cong. Rec. 2429.

536

See INS v. Chadha, 462 U.S. 919, 955 n.20 (1983); Hollingsworth v. Virginia, 3 U.S. (3 Dall.) 378, 381 (1798).

537

Senator George made precisely this response to Senator Hoar during the Electoral Count Act debates with respect to the Article V
presentment question. See 17 Cong. Rec. 2429. Senator Hoar then asked if “the joint rules of the two Houses must be presented to the
President because to their validity they require the concurrence of the two Houses?” Id. Senator George, relying upon the Rules of
Proceedings Clause, responded that each House, in addition to making its own rules, “may also make rules besides its own separate
rules for its joint action with the House, and in the same way the House may perform that function, and in that way reach joint rules.” Id.

538

See U.S. Const. art. I, §2, cl.5 (“The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole
Power of Impeachment.”).

539

See U.S. Const. art. I, § 3, cl. 6 (“The Senate shall have the sole Power to try all Impeachments.”).

540

See id. (“And no Person shall be convicted without the Concurrence of two[-]thirds of the Members present.”).

541

See 17 Cong. Rec. 2428-29. Professor Ross and Mr. Josephson note that Representative Adams also addressed the presentment
problem in Electoral Count Act debate in the House of Representatives in late 1886, but I fail to find any such evidence. See Ross &
Josephson, supra note 7, at 727 n.317 (citing 18 Cong. Rec. 51-52 (1886) (remarks of Rep. Adams)).

542

17 Cong. Rec. 2428-29.

543

See id. at 2429 (“[The Presentment Clause] never has been held anywhere, so far as I know, to apply to anything but legislative
matters which are to take effect upon the people by the authority of the Congress. There are all through the Constitution, among
the powers of these two Houses for their exercise, but which, not relating to legislation, are never held to require the assent of the
President or to be presented to the President.”).

544

See 462 U.S. at 952-58.

545

Id. at 952 (emphasis added) (citation omitted).

546

Id.

547

See id. at 956-57.

548

Id. at 952.

549

See id. at 957 n.21 (discussing Justice Powell's position that the one-House veto provision is a “judicial act” and concluding that
“[w]e are satisfied that the one-House veto is legislative in purpose and effect and subject to the procedures set out in Art. I”).

550

In a footnote, the Court identified one exception to the Presentment Clause, and suggested another. See id. at 955 n.20. The exception
was for the proposal of constitutional amendments by two-thirds of both Houses of Congress under Article V. Id. (citing Hollingsworth
v. Virginia, 3 U.S. (3 Dall.) 378 (1798)). The Court then suggested that “[o]ne might also include another ‘exception’ to the rule that

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Congressional action having the force of law be subject to the bicameral requirement and the Presentment Clauses” by pointing to
the Rules of Proceedings Clause, U.S. Const. art. I, §5, cl. 2, as giving to each House “the power to act alone in determining specified
internal matters.” Chadha, 462 U.S. at 955 n.2. The Court was careful to note that “this ‘exception’ only empowers Congress to bind
itself and is noteworthy only insofar as it further indicates the Framers' intent that Congress not act in any legally binding manner
outside a close circumscribed legislative arena, except in specific and enumerated instances.” Id. (emphasis added). Actually, the
Court incorrectly framed the point: the Rules of Proceedings Clause does not apply to “Congress” but each House of Congress. The
important point is that the Court nowhere suggested that any rule-making authority of Congress could be used to affect the legal
rights, duties, and relations of non-Members of Congress without presentment to the President. See also McGinnis & Rappaport,
supra note 508, at 495 n.60 (stating that “when the [ Chadha] Court stated that the Rules of Proceedings Clause gave Congress the
power to ‘bind itself,’ it meant simply that the rules were binding on members of Congress as opposed to individuals or institutions
outside Congress”).

551

See supra note 162 and accompanying text.

552

See Tribe, supra note 27, at 278 & n.438.

553

Indeed, the argument is an even stronger one to the extent that electors in the electoral colleges constitute a separate and co-ordinate
branch of the federal government, see Kesavan, supra note 324, at 131-35, unlike the Electoral Commission of 1877 which was a
quasi-legislative body largely drawn from Members of Congress.

554

3 U.S.C. §15 (2000).

555

See Michael Stokes Paulsen, Is Bill Clinton Unconstitutional? The Case for President Strom Thurmond, 13 Const. Comment. 217,
222 (1996).

556

For Portland's claim to fame in the legal academy, see, for example, John Hart Ely, On Constitutional Ground 399 n.251 (1996);
John Hart Ely, Standing to Challenge Pro-Minority Gerrymanders, 111 Harv. L. Rev. 576, 581-84 (1997); John Hart Ely, Another
Spin on Allegheny Pittsburgh, 38 UCLA L. Rev. 107, 108 n.6 (1990). Dean Ely's other dog, Buffo, featured prominently in some of
his earlier work, see, e.g., John Hart Ely, Democracy and Distrust 182 (1980), where she almost became Secretary of Agriculture,
but Dean Ely informs me that Buffo has since “passed on to the other side.” See Email from Dean John Hart Ely, to Vasan Kesavan
(Mar. 2, 2001) (on file with author).

557

See, e.g., Clinton v. City of New York, 524 U.S. 417, 421 (1998) (holding cancellation procedures in the Line Item Veto Act
unconstitutional under the Presentment Clause); Printz v. United States, 521 U.S. 898, 935 (1997) (holding interim provisions of
the Brady Handgun Violence Prevention Act unconstitutional as violating the “constitutional system of dual sovereignty”); New
York v. United States, 505 U.S. 144, 149 (1992) (holding the “take title” provision of the Low-Level Radioactive Waste Policy
Amendments Act unconstitutional under the Tenth Amendment); INS v. Chadha, 462 U.S. 919, 957-58 (1983) (holding a “one-House
veto” provision of the Immigration and Nationality Act unconstitutional under the Presentment and Bicameralism Clauses). By citing
these cases, I do not mean to signify my agreement or disagreement with their holdings. Cf. Chadha, 462 U.S. at 944 (“[T]he fact
that a given law or procedure is efficient, convenient, and useful in facilitating functions of government, standing alone, will not save
it if it is contrary to the Constitution. Convenience and efficiency are not the primary objectives--or the hallmarks--of democratic
government....”).

558

U.S. Const. amend. XII.

559

See, e.g., 2 Oxford English Dictionary 1054 (2d. ed. 1989) (defining “certify” as “[t]o declare or attest by a formal or legal certificate”).

560

See, e.g., The Federalist No. 68, supra note 246, at 380 (Alexander Hamilton) (“Nothing was more to be desired [in Electoral College
mode of presidential election] than that every practicable obstacle should be opposed to cabal, intrigue, and corruption.”). Senator
King remarked:
[M]embers of the General Convention... did indulge the hope, by apportioning, limiting, and confining the Electors within their
respective States, and by the guarded manner of giving and transmitting the ballots of the Electors to the Seat of Government, that
intrigue, combination, and corruption, would be effectually shut out, and a free and pure election of the President of the United States
made perpetual.
3 Farrand, supra note 35, at 461 (remarks of Sen. Rufus King).

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561

See, e.g., 18 Cong. Rec. 31 (1886) (remarks of Rep. Caldwell) (“Suppose some State should enthrone a king, constitute a house of
lords, and they should appoint electors, and send up but one return properly certified and finally determined as required under the
second section of the bill proposed by the minority. Shall an American Congress count such a vote?”).

562

See U.S. Const. art. II, §1, cl.2 (States); U.S. Const. amend. XXIII, §1 (District of Columbia).

563

See generally Luther v. Borden, 48 U.S. (7 How.) 1 (1849) (holding that the recognition of a state government lies with Congress,
not the courts); see also U.S. Const. art. IV, §3 (“New States may be admitted by the Congress into this Union....”); U.S. Const. art.
IV, §4 (“The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of
them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against
domestic Violence.”).

564

See Counting Electoral Votes, supra note 3, at 147-49 (House); id. at 149-223 (Senate and House); see also Wroth, supra note 22,
at 328-29 n.34.

565

Counting Electoral Votes, supra note 3, at 229-30; see also Wroth, supra note 22, at 328-29 n.34.

566

See U.S. Const. art. II, §1, cl.2; 3 U.S.C. §3 (2000). For ease of exposition, I will simply refer to electoral votes instead of two distinct
lists of electoral votes for President and Vice President, respectively.

567

Counting Electoral Votes, supra note 3, at 451.

568

Id.

569

This counting principle does not hold in the equal-and-opposite direction: a state may transmit an electoral certificate containing less
electoral votes than the number of electors to which that state is then entitled, and these votes must be counted by the joint convention.
Indeed, the Framers contemplated that electors would be appointed but would not give votes. See 2 Farrand, supra note 35, at 515
(rejecting the motion of James Madison and Hugh Williamson “to insert after ‘Electors' the words ‘who shall have balloted’ so that
the non voting electors not being counted might not increase the number necessary as a majority of the whole.”).

570

The choice is reserved to the states. For example, only Maine and Nebraska have proportional voting instead of “winner-take-all”
voting in their electoral colleges. See Me. Rev. Stat. Ann. tit. 21-A, §805.2 (West 1993); Neb. Rev. Stat. §32-714 (1998). But even
in “winner-take-all” states, the possibility looms that faithless electors will give votes in contravention of the popular vote. See supra
notes 7, 176-91 and accompanying text; infra notes 590-92 and accompanying text.

571

See supra notes 157-64 and accompanying text.

572

See U.S. Const. art. IV, §4 (“The United States shall guarantee to every State in this Union a Republican Form of Government, and
shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot
be convened) against domestic Violence.”) (emphasis added).

573

See 3 U.S.C. §7 (2000) (“The electors of President and Vice President of each State shall meet and give their votes on the first
Monday after the second Wednesday in December next following their appointment at such place in each State as the legislature of
such State shall direct.”).

574

See supra notes 132-42 and accompanying text.

575

See supra notes 165-75 and accompanying text.

576

U.S. Const. art. II, §1, cl.4 (emphasis added). Admittedly, there is nothing in the Electoral College Clauses that expressly provides
that the electors shall date the electoral certificate, but the requirement is fairly subsumed by that of certification. See U.S. Const.
amend. XII (“[The Electors] shall sign, and certify, and transmit sealed to the seat of the government of the United States, directed
to the President of the Senate.”) (emphasis added). Who ever heard of a legal certificate without a date?

577

See U.S. Const. art. II, §1, cl.5.

578

During the Electoral Count Act debates, Representative Dibble thought otherwise:

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[A]s in the election of any of us, if a man who is a voter does not go to the polls on election day and within the hours fixed by law
and cast his vote, the vote is lost, and it makes no difference whether he was sick, or whether he was prevented from casting his vote
by some necessity, or mischance, or design, or whether his vote might have changed the complexion of the election; his vote is lost
if his right to vote is not exercised on the day designated.
18 Cong. Rec. 46 (1886) (remarks of Rep. Dibble).

579

See, e.g., 2 Farrand, supra note 35, at 500 (remarks of Governor Morris) (“As the Electors would vote at the same time throughout
the U.S. and at so great a distance from each other, the great evil of cabal was avoided. It would be impossible to corrupt them.”); 4
Elliot's Debates, supra note 250, at 122 (remarks of William Davie at North Carolina ratifying convention) (“He is elected on the same
day in every state, so that there can be no possible combination between the electors.”). At the North Carolina ratifying convention
James Iredell remarked:
Had the time of election been different in different states, the electors chosen in one state might have gone from state to state, and
conferred with the other electors, and the election might have been thus carried on under undue influence. But by this provision,
the electors must meet in the different states on the same day, and cannot confer together. They may not even know who are the
electors in the other states. There can be, therefore, no kind of combination. It is probable that the man who is the object of choice
of thirteen different states, the electors in each voting unconnectedly with the rest, must be a person who possesses, in high degree,
the confidence and respect of his country.
Id. at 105.

580

One leading scholar agrees. See Michael W. McConnell, Two-and-a-Half Cheers for Bush v. Gore, 68 U. Chi. L. Rev. 657, 676 n.93
(2001). After quoting the Constitution's provision that the “Day [for giving electoral votes] shall be the same throughout the United
States,” see U.S. Const. art. II, §1, cl.4., Professor McConnell concludes, “December 18 was so designated by statute. It would be
unconstitutional for Congress to allow the electors from a single state to give their votes on a later date.” Id. (emphasis added). He then
discusses the Hawaii Incident of 1961, see supra notes 165-75 and accompanying text, and concludes, “That should not be treated as
a precedent. In that election, the votes of Hawaii were not necessary to the result, and on the suggestion of the losing candidate, Vice
President Richard Nixon, in his capacity as President of the Senate, were recognized as a courtesy.” McConnell, supra, at 676 n.93.
This is not to say that December 18, 2000 was a magic point in time for the electoral count of January 6, 2001. Political difficulties
aside, there is no reason why Congress could not have amended 3 U.S.C. §7 to provide that electors shall give their votes on a date
later than December 18, 2000 and, if needed, amended 3 U.S.C. §15 to provide that the joint convention shall count their votes on a
date later than January 6, 2001. Both dates, of course, could be no later than January 20, 2001 at the time of noon, when the terms of
the President and Vice-President expired. See U.S. Const. amend. XX, §1. The important point is that the Constitution demands that
electoral votes be given on the same day throughout the Union--not forty-nine states on December 18, 2000 and one state on some
other date. When Congress could have amended 3 U.S.C. §7 is a more difficult question. The spirit of the Constitution suggests that,
in order to minimize undue congressional interference and manipulation in presidential election, Congress could not amend 3 U.S.C.
§7 after the electors shall have given their votes on December 18, 2001 pursuant to then-existing federal law.

581

See Bush v. Gore, 531 U.S. 98, 144 (Ginsburg, J., dissenting) (“But none of these dates [including December 18, 2000, the date
set by 3 U.S.C. §7 (2000)] has ultimate significance in light of Congress' detailed provisions for determining, on ‘the sixth day of
January,’ the validity of electoral votes.”).

582

There are only two clauses that specify the qualifications of electors. See U.S. Const. art. II, §1, cl.2 (“[B]ut no Senator or
Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.”). U.S. Const.
amend. XIV, §3 provides:
No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil
or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an
officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support
the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the
enemies thereof. But Congress may by a vote of two-thirds in each House, remove such disability.

583

See supra notes 118-25 and accompanying text.

584

See supra notes 400-22 and accompanying text (presenting intratextual argument from House Judging Clause).

585

See U.S. Const. art. I, § 2, cl. 2.

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586

Cf. The Federalist No. 53, at 303 (James Madison) (Clinton Rossiter ed., Mentor 1999) (1961) (suggesting that the votes of an
“illegitimate member” of Congress would be valid before that member is “dispossessed” of his or her seat).

587

U.S. Const. amend. XII states that:
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.
Id. (emphasis added).

588

10 Annals of Cong. 144 (1800). During the Electoral Count Act debates, Senator Sherman also discussed the elector ineligibility
problem and the consequent difficulty of rejecting a “part” of the electoral votes contained in an authentic electoral certificate. See
17 Cong. Rec. 815-16 (1886).

589

See supra note 570.

590

See supra notes 176-91 and accompanying text.

591

See Ray v. Blair, 343 U.S. 214, 232 (1952) (Jackson, J., dissenting) (explaining that the original understanding is that electors “would
be free agents, to exercise an independent and nonpartisan judgment as to the men best qualified for the Nation's highest offices”); The
Federalist No. 68, supra note 246, at 380 (Alexander Hamilton); Amar, supra note 10, at 230 (“The Constitution plainly contemplates
that, at least formally, the electors must themselves decide upon their votes.”). It is an open question whether the original understanding
of 1787-1788 is the right original understanding on the requirement of faithfulness. The Twelfth Amendment significantly rewrote
the Electoral College Clauses and that amendment was adopted in part with the intention of vindicating majoritarian popular will. See
Lolabel House, Twelfth Amendment of the Constitution of the United States 20-40 (1901) (unpublished Ph.D. dissertation, University
of Pennsylvania). More importantly, it does not follow that if there is no constitutional requirement of faithfulness that there is a
constitutional requirement of faithlessness (that is, absolute discretion). It is an open question whether state laws that purport to
bind electors to vote in accordance with the popular vote are constitutional. Compare, e.g., Amar, supra note 10, at 219 (“[T]he
constitutionality of [elector-binding] laws seems highly dubious if we consult constitutional text, history, and structure.”), with 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) (describing the question as an “open one”).

592

See Ross & Josephson, supra note 7, at 690-91 (providing examples of elector-binding laws).

593

See U.S. Const. art. II, §1, cl.5 (“No Person except a natural born Citizen... shall be eligible to the Office of President; neither shall
any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident
within the United States.”); U.S. Const. amend. XII (“But no person constitutionally ineligible to the office of President shall be
eligible to that of Vice-President of the United States.”).

594

See supra notes 143-48 and accompanying text.

595

As a prudential matter, Professor Amar has stated that “[Congress] should simply count the votes of a dead man as if he were alive.”
Akhil Reed Amar, Presidents Without Mandates (With Special Emphasis on Ohio), 67 U. Cin. L. Rev. 375, 388 (1999).

596

U.S. Const. art. II., §1, cl. 6; U.S. Const. amend. XII; see also Ross & Josephson, supra note 7, at 706-07 (suggesting that Greeley
precedent applies to entirety of Presidential Eligibility Clause).

597

See U.S. Const. amend. XII (“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.”).

598

Senator Ross misstated the problem in the Sixth Congress when he asked, “Suppose they should vote... for two persons who were
both citizens of the same State...?” 10 Annals of Cong. 29 (1800); see also Counting Electoral Votes, supra note 3, at 451 (remarks of
Sen. Frelinghuysen) (making same mistake). There is no constitutional requirement that an elector shall not vote for two persons of
the same state--the constitutional requirement is that an elector shall not vote for two persons of the same state as herself. Translated

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into the recent past: Electors from forty-nine states could constitutionally vote for both George Bush as President and Lloyd Bentsen
as Vice President; only Texas electors could not.
The Bush-Bentsen problem resurfaced in the presidential election of 2000. See Jones v. Bush, 122 F. Supp. 2d 713, 715 (N.D. Tex.
2000), aff'd, 2000 U.S. App. LEXIS 34148 (5th Cir. Tex. Dec. 7, 2000), cert. denied, 531 U.S. 1062 (2001) (dismissing suit by three
registered voters in Texas who alleged that Richard B. Cheney was an “inhabitant” of Texas and that, under the Twelfth Amendment,
Texas electors were prohibited from voting for both George W. Bush and Richard B. Cheney). For two recent discussions in the legal
literature of this (putative) problem, see Ho, supra note 195, passim, and Levinson & Young, supra note 195, at 932-54.

599

See text accompanying supra note 154.

600

Under our Constitution, we are never without a President, but we may be without a Vice President. See U.S. Const. amend. XXV,
§§1-2. Moreover, the President, unlike the Vice President, wields the power of an entire branch of Government. See U.S. Const. art.
II, §1, cl.1 (“The executive Power shall be vested in a President of the United States of America.”). At least two commentators seem
to agree that electoral votes for President are to be preferred to those for Vice President. Levinson and Young argue that:
Common-sensically, the correct outcome is most certainly [to count the electoral votes for President and throw out the electoral votes
for the Vice President], since it would seem obvious that preferences for President should be preferred over preferences for Vice
President.... But this answer is hardly the only plausible resolution, and it is certainly not derived from the barebones text [of the
Twelfth Amendment].
Levinson & Young, supra note 195, at 935 n.37.

601

See U.S. Const. amend. XII.

602

See supra notes 587-88 and accompanying text (discussing anonymity principle of Electoral College Clauses).

603

See, e.g., Akhil Reed Amar, An(Other) Afterword on the Bill of Rights, 87 Geo. L.J. 2347, 2358-59 (1999) (criticizing application of
“blinkered textualism” to standard for presidential impeachment and arguing that presidential impeachment requires a higher standard
than that for judges or cabinet officers, although the Constitution lumps presidential impeachment with all other impeachments).

604

See, e.g., 2 Farrand, supra note 35, at 500 (remarks of George Mason) (“[N]ineteen times in twenty the President would be chosen by
the Senate.”); id. at 512 (remarks of George Mason) (“[I]t will rarely happen that a majority of the whole votes will fall on any one
candidate.”); The Federalist No. 66, supra note 432, at 372 (Alexander Hamilton) (“The same house [House of Representatives] will
be the umpire in all elections of the President which do not unite the suffrages of the majority of the whole number of electors; a case
which it cannot be doubted will sometimes, if not frequently happen.”). But see 2 Farrand, supra note 35, at 501 (remarks of Abraham
Baldwin) (“The increasing intercourse among the people of the States, would render important characters less & less unknown; and
the Senate [under the Constitution as adopted and amended, the House of Representatives] would consequently be less & less likely
to have the eventual [presidential] appointment thrown into their hands.”). History has proved Mr. Baldwin to be correct.
Alexander Hamilton, for his part, probably did not think the Bush-Bentsen requirement to be all-important. His private, unadopted
draft of the Constitution contains a provision providing that electors “shall proceed to vote by ballot for a President, who shall not
be one of their own number, unless the Legislature upon experiment should hereafter direct otherwise.” 3 Farrand, supra note 35,
at 622-23 (emphasis added).

605

U.S. Const. amend. XX, §3 (emphasis added).

606

Baker v. Carr, 369 U.S. 186, 217 (1962).

607

U.S. Const. amend. XX, §3. Section 3 of the Twentieth Amendment embarrassingly does not specify who shall act as Vice President
when electors go bananas. The Twenty-fifth Amendment only complicates this problem: “Whenever there is a vacancy in the office
of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both
Houses of Congress.” U.S. Const. amend. XXV, §2. The spirit of section 3 of the Twentieth Amendment suggests that this person is
to act as Vice President until a Vice President shall have qualified.

608

See supra notes 400-24 and accompanying text (presenting intratextual argument of House Judging Clause); supra notes 447-56
and accompanying text (presenting structural argument of anti-Congress principle of presidential election); supra notes 457-59 and
accompanying text (presenting structural argument of anti-President principle of presidential election).

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609

See also Amar, supra note 10, at 222-23 & 231 n.22 (noting that question of whether presidential or vice presidential candidate dies
or becomes incapacitated shortly before election day is a judicial question).

610

See Powell v. McCormack, 395 U.S. 486, 516-49 (1969).

611

There is one truly exceptional situation that the Twentieth Amendment solves that the joint convention could not. Imagine that all
of persons voted for by the electors for President and Vice President were unconstitutional. Even though the joint convention could
pursuant to the Electoral Count Act reject enough of these unconstitutional votes to trigger contingency elections for President in the
House of Representatives and for Vice President in the Senate, the House and the Senate would be required to choose the President
and Vice President, respectively, from a list of unconstitutional candidates.

612

See Paulsen, supra note 555, at 222.

613

See U.S. Const. amend. XX, §1 (“The terms of the President and Vice President shall end at noon on the 20th day of January, and
the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if
this article had not been ratified; and the terms of their successors shall then begin.”).

614

See U.S. Const. art. II, §1, cl.5.

615

Other commentators have taken initial stabs at this question. See Glennon, supra note 517; L. Kinvin Wroth, Election 2000: The
Disease and the Cure, Vt. B.J. 53, 53-54 (2001); L. Kinvin Wroth, Congress Can Clean Up Its Electoral Act, Chi. Sun-Times, Jan.
5, 2001, at 31.

616

See U.S. Const. amend. XII; see also 2 Farrand, supra note 35, at 518 (describing James Madison's motion at the Philadelphia
Convention that a quorum in the Senate for choosing the President in a contingent election be two-thirds of the Members).

617

Counting Electoral Votes, supra note 3, at 525.

80 NCLR 1653
End of Document

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13 Rutgers J. L. & Pub. Pol'y 340
Rutgers Journal of Law & Public Policy
Fall, 2016

Chris Land a1 David Schultz aa1
Copyright © 2016 Rutgers Journal of Law & Public Policy; Chris Land, David Schultz

ON THE UNENFORCEABILITY OF THE ELECTORAL COUNT ACT
I. INTRODUCTION
“It is much more material that there be a rule to go by than what the rule is; that there may be a uniformity of proceeding in
business not subject to the caprice of the Speaker or captiousness of the members.” 1

It goes without saying that the rules that govern how our country elects a president each quadrennium are something that should
be as clear as possible and accepted as binding by all. Otherwise, an incipient constitutional crisis is born.
The value of rules and procedures are most evident when an issue is hotly contested, when consequences are uncertain, and
when the stakes are at their highest. From our country's first constitutional crisis in the 1800 election through the imminent
2016 contest, presidential contenders have been highly motivated to seek every advantage possible, and in the *341 event
of a disputed election result, each candidate would have irresistible motives to attempt to trade on ambiguities and flaws in
the counting process.
Procedure is a funny thing. Invariably hidden among substantive decision-making the vast majority of the time, the means used
to navigate inflexion points are largely an afterthought. When consequences are most uncertain, however, and stakes at their
highest, the adaptability and flaws of our procedural frameworks are mercilessly laid bare.
A hidden imperfection for the first one hundred years of the Republic, the 1876 presidential election exposed our Constitution's
original failure to provide a framework for resolving electoral disputes, bringing about a constitutional crisis in a bitterly
contested post-Civil War climate. After employing a constitutionally unique Electoral Commission to award a disputed Electoral
College majority to Rutherford Hayes, Congress agonized over the creation of a procedural framework for ten years--finally
passing the Electoral Count Act in 1887. 2 The Act placed on a statutory footing the method of appointing state electors, the form
in which votes were to be submitted, and most importantly, a number of restrictive procedures that both Houses of Congress
were required to follow when tabulating the results. 3

The Electoral Count Act was then consigned to the dustbin of history by everyone except the most astute election law scholars
until the United States again faced a razor-thin presidential contest in 2000. While scrutiny of the Act by the United States

Supreme Court in Bush v. Gore 4 largely centered on the timing of certification to receive “safe harbor” deference, 5 procedural
objections that took place in Congress during the subsequent count gave rise to a number of key constitutional questions that

have somehow evaded the academy 6 over the past *342 fifteen years. Whether the 2016 presidential election will provide an

opportunity to resolve these questions is not presently known. However, in a political era that is highly partisan and polarized, 7

and with only a handful of states really being contested in the presidential race, 8 a close and disputed election in one state could
expose flaws in the Act far more intense and consequential than 2000.
Largely unique among the United States Code and other congressional procedures, 9 the Act purports to restrict the authority
of both the House of Representatives and Senate to control their internal discretion and procedures during the quadrennial
count. The Supreme Court, however, has historically held that Article I, Section 5's constitutional grant that “[e]ach House may

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determine the Rules of its Proceedings ...” 10 represents the plenary power of each House to govern its internal parliamentary

activities-- including adjournment, amendment, and debate. 11 As a result, an irreducible conflict centered on non-delegation,
entrenchment, and the separation of powers lies in wait between the Electoral Count Act and the Houses' independent Article
I procedural authority.

*343 In order to test the limits of this conflict, this article will first consider the important threshold question of whether the
institution that actually counts electoral votes is a constitutionally unique entity or merely a simultaneous meeting of the House
and Senate. Neither a plain-text reading of the Constitution, nor congressional intent support the Joint Session reading. Part
III will then examine the Electoral Count Act's (“ECA”) genesis and relevance through the 1876 election, analyzing the 1877
Electoral Commission's role, and contending that this mixed-branch commission was a permissible exercise of the Rules Clause
at the outer limits of congressional delegation.
Part IV will then consider the core issue of whether sections 15 through 18 of the ECA are unenforceable in light of nondelegation doctrine, the Rules Clause, and our system of separated powers. Finally, Part V will proceed to assess the justiciability
of these issues in the context of the upcoming 2016 presidential election, arguing that they must be within reach of our federal
courts. This article thus contends that the ECA unconstitutionally impinges on Congress's internal procedural authority and is
unenforceable, adding ever more uncertainty to an electoral system that has already engendered three constitutional crises in
our Nation's history.
II. WHAT INSTITUTION COUNTS OUR ELECTORAL VOTES?
It is necessary that we first outline the framework provisions that govern the counting of Electoral College results and the
institutions textually charged with this duty. Amendment XII governs the formal process of electing our chief executive. 12

Before its adoption in 1804 following the aftermath of the 1800 Jefferson-Burr tie, 13 Article II governed this process. *344
Consequently, Amendment XII provides that “[t]he President of the Senate [the sitting Vice President] shall, in the presence of
the Senate and House of Representatives, open all the certificates and the votes shall then be counted.” 14

A number of critical constitutional questions can be raised from this provision. The President of the Senate obviously plays
an important role in the count, but does this authority extend to the power to make parliamentary rulings? Does he or she
have substantive decision-making authority over which votes should be counted, 15 or is this textually demonstrable power

merely ministerial, with validity determined by the houses individually or as a group? 16 Additionally, and most crucially for
our discussion, is the body assembled to count the votes a unique constitutional entity, that is, a “Joint Session of Congress”
with independent procedural authority imbued on this body, or is it merely the House of Representatives and Senate assembled
in the same place and retaining their individual powers?
*345 If this quadrennial count was intended by the Founders to be a separate institution, with members of Congress and the

Vice President serving as ex officio 17 members, then it undoubtedly would have a great deal of procedural freedom to develop
a new method for counting presidential results, making many of the issues discussed infra superfluous. 18 Viewing the House
and Senate as ex officio members of a Joint Session is supported by some evidence from the 1787 Constitutional Convention,
which, in an early version, drafted this key provision to read “[t]he President of the Senate shall in that House open all the

certificates, and the votes shall be then and there counted.” 19 Representative (and Founder) 20 Albert Gallatin similarly made
a motion in the Sixth Congress to provide that any decision on the legality of electoral votes would be made by a majority
of Representatives and Senators present--removing any distinction between the Houses. 21 In *346 1886, a year before the
passage of the ECA, Sen. James George also remarked that counting
is not a legislative function which ought to be considered separately by the two Houses, but it is rather in the nature
of a judicial function; ... it would be an anomaly surely in Anglo-Saxon jurisprudence, ... [that] the rendering of
an operative judgment upon the ascertainment of a fact should be committed to two separate tribunals [(the House
and the Senate)], each acting independently of the other, and each having a veto upon the other. 22

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Consequently, if the House and Senate are classified as a constitutionally independent Joint Session, this body likely has the
authority to develop special, binding procedures for counting electoral votes--e.g., the ECA. This stems from the Rules Clause,
inherent legislative authority, 23 and that the observation that our Constitution is largely silent on the detailed method to be
used. Congress is also granted the express authority “[t]o make all laws which shall be necessary and proper for carrying into
execution ... and all other powers vested by this Constitution,” including the ex officio authority delegated to Congress to count
electoral returns. 24

This view, however, fails to consider important textual evidence. No clear indication exists providing that a Joint Session or

convention 25 is to count the votes; quite the opposite *347 in fact, as the House and Senate are individually named in the

counting provisions contained in Article II 26 and Amendment XII. 27 Secondly, and perhaps most crucially, Clauses 3 and 4 of
this Amendment also provide that the House and Senate shall separately elect the President and Vice President in the event of an
Electoral College tie, or if the second place finisher in the House vote fails to attain a majority of votes, respectively. 28 Evidence
cited supra from Rep. Gallatin's motion that purported to grant the Houses, as a corporate body, the joint authority to judge
the validity of electoral votes was also expressly rejected by the Federalist Congress in 1801. 29 Congressional interpretation
of this provision throughout the history of our nation has also affirmed this provision to mean that both the House and Senate
are largely separate entities.
The Supreme Court has recognized that both the President and Congress infrequently rely on past practices or interpretations

as justification for their authority, in areas of textual obscurity. 30 In this way, the “gloss which life has written upon them [the
words of the Constitution],” can make “a systematic, unbroken ... practice, long pursued” worthy of great deference by the
Supreme Court, as long as it otherwise comports with the text of the Constitution. 31 Both the ECA and *348 its forerunner,

the Electoral Commission Act of 1877, 32 exclusively refer to both the Senate and House as separate organs, 33 providing that

in the event of a properly raised 34 parliamentary objection during the actual count, the Houses must withdraw to their chambers

to separately decide its merits. 35

Based on this gloss 36 and the 117-year lifespan of the ECA as a framework for finalizing presidential elections in Congress,
as well as the textual indications discussed supra, the House and Senate would likely be viewed, for constitutional purposes,
as separate bodies with independent authority meeting together to count the certificates of vote submitted by the states for
President and Vice President.
It is important to also note briefly that the ECA may have a grave constitutional defect even if an independent body exists
that is empowered to make rules for counting the votes. Section 17 of the ECA provides that “the two Houses separate to

decide upon an objection.” 37 This provision--other than affirming the principle that the Houses are actually meeting together

as separate entities--could represent an unconstitutional delegation of the Joint Session's authority. 38 In this narrow *349
context, this analysis does not consider collateral questions on whether counting was originally envisioned by the Constitution
to be a ministerial act, 39 or even if the President of the Senate may have a role in deciding the fate of individual returns. 40
Nevertheless, this article will proceed under the assumption that both the Constitution and established historical practice views
the House and Senate as separate constitutional entities in the count.
III. TILDEN OR BLOOD: THE ELECTORAL COMMISSION AND THE LIMITS OF DELEGATION
A. THE 1876 ELECTION
Constitutions regulate the day-to-day workings of government, but the inherent value of our system of separated powers is
perhaps best displayed when out-of-the-ordinary events appear, placing stress on institutional actors and exposing flaws in
inflexion points of decision-making. Chief among the small handful of constitutional crises that our nation has experienced are
the 1876 and 2000 presidential elections, both of which largely centered on the disputed electoral votes of the state of Florida. 41

With an election grounded in lingering feelings of sectionalism and the bitter legacy of the Civil War, 42 neither Democratic
candidate Samuel Tilden, nor Republican *350 Rutherford Hayes were particularly enthusiastic to become chief executive in

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1876. 43 Election night saw many observers predicting a Democratic victory, and early returns from both New York and Ohio

confirmed that Tilden was the frontrunner. 44 Nevertheless, Democratic leaders D.A. Magone and Sen. William Barnum sent
out panicked telegrams to the New York Times office at approximately 3:45am on Wednesday, November 8, 1876 asking for the
latest electoral vote estimate. 45 Curious as to why Democratic officials were worried in spite of favorable predictions made
across the board, the Republican-leaning Times informed their party's leadership, who immediately wired field agents in Florida,
South Carolina, Louisiana, and Oregon--all of which had to be won in order to elect a Republican to the presidency--“urging
them to hold their States--[and] that the election depended on it.” 46 With an Electoral College majority at 185 votes in 1876, 47

Tilden banked 184 votes and Hayes stood at 163 after election night. 48 As a result, Democrats only needed to win one state
or disqualify a single elector, which would throw the election into a Democratic *351 House of Representatives and quickly
make Tilden President-Elect. 49

Reconstruction-era Republican governors heavily controlled the election apparatus in Florida, Louisiana, South Carolina, and

Oregon and “the only way the Democrats could influence an official was to buy him”--and hope to not be outbid. 50 In the weeks
after the election, Republican “visiting statesmen” from northern states went south to help officials “oversee” canvassing, and
by December 1876, Florida, Louisiana, South Carolina, and Oregon each submitted multiple sets of electoral votes to Congress
for consideration, with at least one Democratic and Republican slate from each state. 51 As a result, both Hayes and Tilden
independently had a claim to the presidency that was backed by dozens of potentially fraudulent certificates of vote. 52

While Congress was preparing to meet to conduct the count, this fact became widely known and Candidate Hayes asserted that
the Constitution granted the (Republican) President Pro Tempore of the Senate 53 the sole authority to determine which returns

to count. 54 Tilden feverishly disagreed, arguing that never before had this officer been permitted to decide upon disputed

electoral votes, and that the decision had been previously made in Congress through an objection from the floor. 55 Tilden felt
that the best strategy to ensure he won the Presidency was to make no concessions and allow Congress *352 to count the
vote regularly, throwing out the disputed states. 56 Because no candidate had a majority, a Democratic House would elect him
president before Republicans took control on March 4, 1877. 57

Nevertheless, even though congressional leaders of both parties felt strongly that their respective candidates should be elected,

they also agreed that productive steps should be taken to resolve the crisis before open conflict erupted. 58 As a result, President
Grant and the House and Senate approved the creation of a statutory commission in the Electoral Commission Act by wide
majorities in January 1877. 59 The Commission was composed of five House members, five Senators, and five Supreme
Court justices, split evenly on party lines, with the four justices named specifically in the Act electing a fifth justice--widely

acknowledged to be “independent” and “apolitical” David Davis. 60 Most importantly, the Act provided that the Commission's

recommendations disposing of the disputed votes must be accepted as binding by the House and Senate. 61 Unknown to
Congress at the time of passage, however, Davis was appointed to the U.S. Senate by the Illinois Legislature--as a Republican--

the day before the Commission was created, giving him the opportunity to demur from this partisan affair. 62 Democrats became
furious at this turn of events because each of the remaining justices that could fill the seat were Republican. Justice Joseph
Bradley soon replaced Davis, and predictably the Commission voted 8-7 along party lines to grant each of Louisiana, South
Carolina, Oregon, and Florida's disputed electoral votes to Hayes. 63

*353 With House rules much different than today, 64 Democrats caused “wild disorder” during the count on March 1, 1877,
successfully disrupting floor proceedings and blocking consideration of the Electoral Commission report--even to the extent
that, “for hours Speaker Randall could not even make himself heard.” 65 Southern Democrats were then reportedly promised
by Republican leaders in a backroom deal that Reconstruction and the federal troops stationed throughout the South would be

withdrawn in exchange for allowing Hayes to be placed in the White House. 66 As a result, Democratic leaders began to allow
Randall's “determined, arbitrary, and dictatorial” parliamentary tactics to bring an end to debate and other dilatory motions

made from the floor. 67 After eighteen hours of wild controversy, the Commission report was finally adopted, giving Hayes the
narrowest winning margin in Electoral College history--185 to 184. 68

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*354 B. A SEPARATION OF POWERS PERSPECTIVE ON THE ELECTORAL COMMISSION
The Rules Clause of Article I grants each House of Congress a wide remit to establish, modify, and amend the rules of procedure
they will employ to carry out their constitutional lawmaking duty. 69 The idea that a legislative body has inherent plenary

control over its own procedures has deep roots in British constitutional traditions, 70 initially born of the desire of the House
of Commons to stand alone from the House of Lords in the fourteenth and fifteenth centuries and develop rules diverging from
royal tradition. 71 Based on this spirit, the Rules Clause “vest[s] control over ... key procedural elements of the enactment

process in each House at any point in time.” 72

Within this textual grant of power, Congress has near-absolute authority, granting each chamber the freedom to take different
approaches to similar procedures. For example, Article I, Section 7, Clause 2 provides that every bill shall “pass” the House
of Representatives and Senate. 73 However, both the House and Senate take varying perspectives on what counts as passage,

with the House sometimes employing the “deem and *355 pass” method, 74 and the Senate relying on the sixty-vote cloture

requirement as a de facto threshold for passage. 75 The House and Senate also take much different approaches to determining

the presence of a quorum. 76 Article I expressly defines a quorum as a majority of Representatives and Senators respectively and
requires that all bills pass both the House and Senate before delivery to the White House for signature or veto (bicameralism and
presentment). 77 Nevertheless, something less than a voting quorum frequently passed legislation in the late 19th century and

was held constitutional. 78 Differing procedures also exist regarding length of debate 79 and *356 suspension of the rules. 80
Embracing these nuances, federal courts have given each House of Congress, as a separate constitutional actor, a wide berth in
reviewing their specific rules of procedure, as long as they comport with other textual requirements of the Constitution. 81

It follows that Congress' use of the Electoral Commission as a fact-finding tool in the midst of the 1876-77 constitutional crisis
is likely a valid exercise of the Rules Clause, while also representing the outer limit of potential congressional delegation in
this area. The Commission's mandate was to hear testimony from counsel representing Tilden and Hayes, to gather evidence

pertaining to the validity of electoral votes from the disputed states, and to issue a final report. 82 Pursuant to this mission, the
Electoral Commission was little more than a fact-finder operating on behalf of Congress, in much the same way that committees
routinely operate. Committees allow Congress to solve the collective-action problems normally encountered when dealing
with large groups of people, allowing legislators to also gain specialized knowledge in a policy area, making the legislative
process more effective. 83 However, it *357 could be argued that, from a constitutional perspective, the Electoral Commission
was doing something more significant than gathering facts or taking testimony--it was performing a judicial-like function in
passing upon the validity of votes integral to the function of another coordinate branch and resolving a dispute between adverse
parties. 84 Could this added feature mean the Commission was unconstitutional?

Not all instances of a body of Congress acting in a quasi-judicial role are unconstitutional. In 1989, Mississippi federal district
judge Walter Nixon was serving a felony sentence for perjury but had nevertheless refused to resign his office after congressional
leaders warned him that impeachment and removal were imminent. 85 The House of Representatives unsurprisingly impeached

him, and the charges were dutifully sent to the Senate for trial. 86 The Senate, pursuant to its rules, appointed an Impeachment
Trial Committee to “receive evidence and take testimony,” holding four days of hearings, during which ten witnesses were
called. 87 The Committee then presented the Senate with a complete transcript of the proceeding, reported the uncontested

facts, and summarized the contested issues for the full body to make a final determination of Nixon's fate. 88 Subsequently
removed from office by the requisite two-thirds majority, Nixon brought a federal suit, claiming that because the Senate had “the
sole Power to try all Impeachments,” 89 use of the word “try” meant that a judicial-like fact-finding proceeding was required
before the full Senate, *358 and that the body had unconstitutionally delegated this textual demand to the Impeachment Trial
Committee. 90

The Supreme Court, agreeing with the D.C. District Court and Court of Appeals below, found that this controversy was moot-the Senate had the “sole” power of impeachment, and commiserate with this plenary grant of power, 91 the Senate is free to

define “try” in any manner it chooses, 92 including the use of a committee to carry out the fact-finding function. 93 Justices
Blackmun and White, as part of a unanimous Court, specifically emphasized that the use of a committee to carry out part of the

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impeachment process was a permissible exercise of the Rules Clause, as long as the Senate as a whole had the final word. 94
The Senate's ultimate control over this process was likely dispositive, since much in the same way federal magistrate judges

often first issue reports and recommendations in federal civil suits that are later reviewed by a district judge, 95 senators had the
opportunity to conduct a de novo review of the record made by the Impeachment Trial Committee and had a final, independent
say in removing Nixon from his position as a judicial officer of the United States.
Nixon stands for the proposition that the Senate has broad leeway in trying impeachments as a legislative body, even though
this is a quasi-judicial function. This case accentuates *359 both the freedom and the limitations placed on Congress' power to
delegate pursuant to the Rules Clause. Both the House and Senate are inherently free to use any method of internal delegation
they think prudent or well-adapted to aid the execution of their constitutional responsibilities, but the individual Houses, as
corporate bodies, must maintain the final authority to approve or reject a decision. 96 Even though the House and Senate may
change how they interpret and accomplish these tasks, it may not surrender ultimate control to another entity, either internal
or external of Congress. Therefore, the Senate may not delegate its authority to conduct impeachment trials to the House, nor
would the House be permitted to allow the Senate to elect a president in case of no candidate receiving a majority. These duties
are textually conferred by the Constitution to each house, in the same way that both the House and the Senate are given the
independent authority by the Rules Clause to determine how they will conduct business. 97

As a result, the Impeachment Trial Committee utilized by the Senate and the 1876 Electoral Commission are both within
Congress' power of delegation and rulemaking, but simultaneously stands for the outer boundary of this authority. Any transfer of
dispositive control or influence on procedure matters wholly internal to the House or Senate to an actor outside the membership
of the House or Senate, respectively, would fundamentally impinge the procedural sovereignty vested in each house by the Rules
Clause. In this way, Justice Souter's Nixon concurrence noted that some procedures employed by Congress could potentially
act beyond the scope of their *360 constitutional authority, requiring judicial intervention to return the separation of powers
to its previous state. 98

IV. THE PROCEDURAL PROVISIONS OF THE ELECTORAL COUNT ACT
A. THE 2000 ELECTORAL COUNT
As polls closed across Florida on the evening of November 7, 2000, many news organizations quickly predicted that Vice

President Al Gore would be awarded Florida's twenty-five 99 electoral votes, based on exit polling and turnout. 100 This
prediction was later reversed in favor of Texas Governor George W. Bush, and later declared too close to call in the early

hours of November 8, with Gore trailing Bush by approximately 1,784 votes. 101 The weeks that followed saw recounts in four
Florida counties and numerous lawsuits challenging the counting methods utilized to determine voter intent. 102 The Florida
Supreme Court eventually decided these challenges against Governor Bush, prompting his legal team to seek certiorari in the

U.S. Supreme Court days before the ECA's safe harbor 103 deadline--a point in which deference would be granted to the election
results certified by Florida's (Republican) Secretary of *361 State six days prior to the nationwide meeting of the Electoral
College in December. 104

Many were in front of their televisions on December 12, 2000 when the United States Supreme Court finally put a period on the
contest. In a deeply polarized 5-4 decision, justices held that the diverging tabulation standards being used in Florida's recounts
were an equal protection violation and that insufficient time before the safe harbor deadline existed to make changes to the
counting standards 105 --effectively granting Bush victory because of his marginal lead in the vote totals.

However, the election's true legal coda did not occur until three weeks later, on January 6, 2001. Congress, meeting to count
the nation's electoral votes pursuant to the Twelfth Amendment, had the task of opening the electoral certificates of vote from
each of the fifty States and the District of Columbia. Members waited with baited breath as President of the Senate Al Gore

and congressional vote-tellers worked their way through the alphabet down to Florida. 106 As one of the tellers remarked that

“this is the one we have all been waiting for,” 107 Gore dutifully read the certificate from Florida that sealed his 271-266 defeat
in the Electoral College.

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At that moment, Rep. Alcee Hastings (D-FL) rose to object to the inclusion of the Sunshine State's twenty-five electoral votes,
seeking to offer a formal challenge to their validity based on the litigated counting irregularities and alleged *362 electoral

fraud. 108 Seventeen other objections and points of order were made by House members in the ensuing minutes, ranging

from challenging the presence of a quorum, 109 moving to withdraw the House of Representatives from the count to hold a

formal debate on voting irregularities, 110 and even *363 remarkably attempting to overturn the parliamentary rulings of Vice
President Gore on the previous motions by appealing to the full membership of the House and Senate. 111

Each was overruled perfunctorily, with Gore meekly advising each that “reading the Electoral Count Act as a coherent

whole” 112 required that he overrule each objection because they were not seconded by a senator, in writing, pursuant to the

statutory requirements of the ECA. 113 Beyond the political fervor in the air of the Hall of the House of Representatives on

this day, and Democratic expressions of “solidarity” 114 with Vice President Gore, these overruled objections give rise today
to the fundamental question of whether the ECA is constitutionally enforceable in light of the Rules Clause, entrenchment, and
the doctrine of non-delegation.
*364 B. NON-DELEGATION DOCTRINE
Leaders of large organizations are busy people. They frequently have large staffs, however, enabling them to delegate many
of the tasks for which they are formally responsible by allowing others to act with their authority. When all authority is
concentrated in one individual, this arrangement is perfectly acceptable because the executive cannot arrogate further powers-he/she possesses them already. In a system of separated powers, however, when governmental authority is divided as a structural
protection, delegation to another constitutional actor can result in controversy over the propriety of government action and an
imbalance of authority.
James Madison noted in Federalist No. 51 that “[t]he accumulation of all powers, legislative, executive, and judiciary, in the
same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the
very definition of tyranny.” 115 Affirming the importance of these structural protections, Madison further established that:
the great security against a gradual concentration of the several powers in the same department, consists in giving
to those who administer each department, the necessary constitutional means, and personal motives, to resist
encroachments of the others ... [also] to divide the legislature into different branches; and to render them by
different modes of election, and different principles of action, as little connected with each other, as the nature
of their common functions. 116

Non-delegation doctrine holds that “[o]ur Members of Congress could not, even if they wished, vote all power to the President

and adjourn sine die [indefinitely],” 117 even though it might be more efficient in a time of crisis. Changes to our separation
of powers may only be made via constitutional amendment or an unlikely radical shift in the Supreme Court's *365

jurisprudence. 118 As a result, the legislative and other functions of Congress are divided and entrenched both within our alltoo-familiar three branches of government, 119 but also within Congress itself.

The structural feature of this internal separation of powers promotes accountability in that “when decisions are properly made

in [the right House of] Congress, electoral controls on individual members” 120 are extremely powerful, allowing the public to
readily identify where decisions that affect their lives are being made. This horizontal division of powers among the House and
Senate represents the Founders' belief that Congress was more likely to aggrandize power than any other entity in the Federal

Government. 121 Even though Congress works together as a bicameral body to enact legislation, a number of tasks exists that
are unicameral, for example, origination of revenue legislation in the House of Representatives (Article I, Section 7, Clause 1),
impeachment and trial (House: Article I, Section 2, Clause 5; Senate: Article I, Section 3, Clause 6-7), treaty ratification (Article
II, Section 2, Clause 2), and officer confirmation (Article II, Section 2, Clause 2-3). Based on one interpretation of the Orders,
Resolutions, and Votes Clause, 122 it is even conceivable that one House of Congress may independently enact legislative

vehicles with the *366 force of law after an express delegation through bicameralism and presentment. 123 These powers were

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allocated in large part based on the Founders' considerations of institutional competence, 124 the need to satisfy both large and

small states at the founding, 125 and the belief that no one actor should possess the entirety of the national legislative power. 126

In INS v. Chadha, the Supreme Court considered a provision in the Immigration and Nationality Act that permitted either the

House or Senate to individually abrogate a deportation suspension order of the Attorney General via ordinary resolution. 127
The Court subsequently held that this veto was sufficiently legislative (i.e., individual modification of immigration law--not
unlike a private bill) to mandate passage via bicameralism and presentment. 128 Consequently, the Nationality Act provision

authorizing this one-House action was an unconstitutional delegation by both the President and Congress. 129 Similarly, the
Court held in Clinton v. City of New *367 York that the Line Item Veto Act's grant of authority to the President to cancel
individual appropriations was defective because President Clinton had “effectively amended an act of Congress by repealing
a portion of it.” 130

These cases establish that the Supreme Court has been careful to restrain Congressional actions to change the internal
composition of its powers, whether an external delegation (the President), or an internal shift (one House veto). One
commentator has carried this conclusion further, noting that “all the separation of powers cases seem to go against Congress.” 131
One area the Court has been reluctant to journey into, however, are internal Congressional rules, as each House is issued a

near-plenary grant of authority by the Constitution to set the procedures under which it will operate. 132 The Rules Clause is
granted near-absolute deference because judicial review of congressional procedures has historically been limited to the narrow
situations when “its rules ignore constitutional restraints or violate fundamental rights.” 133
*368 C. RULEMAKING STATUTES
“I'll let you write the substance, you let me write the procedure, and I'll screw you every time.” 134
One of the reasons the Supreme Court found the legislative veto unconstitutional in Chadha was that the statute
improperly allowed one legislative institution to act without the required consent of other players through bicameralism and

presentment. 135 Based on the principles set forth in in this case, as well as Clinton and Nixon, the “single, finely wrought

and exhaustively considered” 136 framework of our constitutional design means the powers of the House and Senate cannot be
transferred, altered, diminished, or increased. The House cannot demand a vote on a Supreme Court nominee, nor could the
Senate impeach and try an officer by itself. Most importantly, it follows that neither house can transfer or limit control of its
internal, enumerated Rules Clause authority.
Let us consider the Electoral Commission Act of 1877 and the Electoral Count Act of 1887. Section 2 of the 1877 Act provided
that the Electoral Commission's report disposing of the controversial certificates of vote was privileged-- requiring that after the
Commission's decision had been made, “such decision shall be read and entered in the journal of each house, and the counting
of the votes shall proceed in conformity therewith, unless, upon objection made thereto in writing by at least five Senators and
five members of the House of Representatives.” 137 The Act provided that “no debate shall be allowed and no question shall be
put by the presiding officer, except to either house on a motion to withdraw,” and,
*369 [T]hat when the two houses separate to decide upon an objection that may have been made to the counting
of any electoral vote or votes from any State ... each Senator and Representative may speak to such objection or
question ten minutes, and not oftener than once; but after such debate shall have lasted two hours, it shall be the
duty of each house to put the main question without further debate. 138

The ECA mirrors many of the same provisions used by the Electoral Commission. First, in order to receive objections, any

motion made during the count must be presented in writing and signed by both a Senator and Representative. 139 Similarly,
section 17 provides that no debate shall occur in the main assembly, and that both members of the house and senators cannot
speak for longer than five minutes after withdrawing from the count to consider the objection, and that the “main question” of
upholding or sustaining the objection is to be put to each individual house after two hours of debate. 140 Finally, section 18

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of the ECA provides that neither debate nor motions shall be entertained, except on a motion to withdraw--provisions nearly
identical to the 1877 Commission Act. 141

*370 Congressional rulemaking statutes, like the ECA, are uncommon, but not unheard of in the United States Code. 142
Numerous frameworks enacted by Congress delineate a special procedure for the House or Senate to follow in considering

particularly controversial areas of policy. 143 Naturally, this legislation serves a valuable collective action benefit, allowing
the procedural statute to serve “a coordinating function between the two Houses, announcing focal points (such as numerical

deadlines) so that legislators from one house may shape their behavior.” 144 In this way, when considering policy areas of great
sensitivity or complexity, Congress has attempted to minimize initial disagreements over how a decision is to be made, 145
allowing it to focus instead on substantive policy, much like the ECA has sought to streamline the inherently political process
of ratifying the winner of a presidential election.
Rulemaking statutes are not the “silver bullet” they were intended to be, however. From the first procedural statute *371

enacted as part of the Reorganization Act of 1939 through the Trade Promotion Authority passed in 2015, 146 most procedural
provisions 147 --other than the ECA-- found in the U.S. Code include an anti-entrenchment provision that specifically states
that the enacted procedure is promulgated pursuant to the Rules Clause of the Constitution, and that either house is free to

follow, modify, or ignore the statutory procedure at any time without further action or amendment to the statute. 148 In this
way, these rules are “essentially hortatory or directory; they have no legal effect on the rule-prescribing power of the houses”
whatsoever. 149

Metzenbaum v. FERC 150 addressed the nature of these procedural statutes, in a controversy where the plaintiffs asked the
D.C. Circuit to invalidate a statute enacted in violation of an earlier rulemaking provision contained in the Alaska Natural Gas
Transportation Act. The reviewing court held that the two houses retained completed control over their own rules-- especially

in situations when an earlier provision enacted as statutory law purported to entrench itself. 151 No such provision exists in the
ECA, and yet this act was nevertheless enforced as *372 absolutely binding in the face of sustained House objections during
the January 6, 2001 count.
Similarly, long standing precedent of both houses recognizes that rulemaking statutes are generally hortatory. Persuasive
authority used by the House Parliamentarian to advise the Speaker states that the House of Representatives has previously

deferred to procedural statutes enacted in the same session of Congress. 152 This reasoning is presumably rooted in the fact
that a provision is more normatively legitimate when it has been expressly ratified by the members of the current legislature.

Likewise, while the Reorganization Act of 1946 153 broadly establishes committee jurisdiction and other procedural rules in
statute, the Senate has acknowledged that it is authorized by the Rules Clause to change procedures enacted in this statute via
a simple one-house resolution because they govern operations that are wholly internal to Congress. 154

Custom and usage 155 of the Houses also emphasizes that Congress has ignored “statutized” rules in the past when found to
be cumbersome or inexpedient. Speaker James Orr ruled in 1858 that a statute providing that Congress would consider bills
appropriating funds to claimants who were victorious in the newly established Court of Claims was unenforceable and that

claims bills would no longer be placed on the House Calendar. 156 Two years later, a Member-elect objected to the adoption of

House rules before the Clerk of the House and members were *373 sworn, citing a 1789 statute 157 that required that oaths
be the first order of business after an organizational session was convened. 158

Over a century later, Rep. Trent Lott reportedly objected to consideration of additional aid to the Nicaraguan Contras in 1986
on the basis that the resolution failed to comply with an existing statute providing for fast-track procedures for international

aid. 159 Speaker Tip O'Neill issued a parliamentary ruling that stated that the rule reported out by the House Committee on

Rules and accepted by the full body had abrogated the prior statute. 160 Five years before, the House ignored the Alaskan

Natural Gas Transportation Act's statutory procedure 161 for approval of a regulatory waiver, prompting review by the D.C.

Circuit in Metzenbaum. 162

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D. THE UNENFORCEABILITY OF THE ELECTORAL COUNT ACT'S PROCEDURAL PROVISIONS
Let us now return to our preliminary question of whether the Electoral Count is comprised of two separate constitutional
institutions or a unique Joint Session of Congress. If a Joint Session existed, Congress would be free, as ex officio members

*374 of this separate constitutional organ, 163 to enact rules governing its operations because none exist in the Constitution.
Because no unique body exists, the Electoral Count is merely a meeting of the House of Representatives and Senate in the
same room. As a result, the House and the Senate, as the same entities, are still bound by the other textual requirements of the
Constitution, one of which requires that the House and Senate have absolute authority over their own internal procedures, a
provision not suspended during the hours in which Congress ratifies the election of our next president. This plenary authority
requires that the House and Senate be free to debate, make motions, and withdraw from the count at any time as they wish, the
ECA notwithstanding, subject, of course, to motions passing by the requisite majority of that house.
The inclusion of anti-entrenchment provisions in the Congressional Review Act, Nuclear Waste Policy Act, the Reorganization

Acts of 1939 164 and 1946, the Congressional Budget Impoundment and Control Act of 1974, 165 and the majority of other
rulemaking statutes allows either House of Congress to ignore its own mandate, and is fully compliant with the Rules Clause
because each House still maintains the absolute authority to determine their individual rules of procedure. Instead, lacking this
provision, the ECA purports to entrench itself, violating the Rules Clause and improperly involving another legislative chamber
and the President.
Integral to the non-delegation doctrine is that fact that another constitutional actor cannot have dispositive control over
another institution's textually enumerated authority. Because the ECA is statutory law subject to bicameralism and presentment,
requiring the President's approval improperly delegates to our chief executive a veto over internal Congressional procedures
which our separation of powers *375 prohibits. 166 More importantly, pursuant to Vice President Gore's interpretation of the

ECA in 2001, 167 the Senate has dispositive control, vis-à-vis the House, over whether an objection to Florida's electoral votes
was debated, the determination of the presence of a quorum in the House during the meeting, and even the power of the House
to independently leave the count. Such a result is inconsistent with the Rules Clause and runs counter to most other statutory
rule-making provisions, and in any event, is clearly unenforceable based on the parliamentary traditions of both houses.
Rigid enforcement of the Electoral Count Act's provisions by a member of one house (e.g., President of the Senate Al Gore)
against members of another house (e.g., the House objectors) therefore improperly delegates procedural control of a standalone

House of Congress to the other chamber--abrogating the fundamental individual constitutional prerogatives 168 of both the
House and the Senate. Moreover, the ECA cannot be amended or ignored by one House of Congress alone since any scenario
requires the involvement of another actor-- short of a constitutional crisis, that is. 169

Enforcement of the ECA's procedures also impermissibly entrenches these measures, as individually applied to either the House
or Senate. 170 A basic principle of constitutional law, one *376 of “the most familiar and fundamental principles, so obvious

as rarely to be stated,” 171 is that “one legislature may not bind the legislative authority of its successors.” 172 Each sequential
legislature has equal lawmaking authority, and statutes purporting to limit changes that future lawmakers can make or requiring
a supermajority for amendment, can be repealed entirely by ordinary statutes by a simple majority, the text of the original law

notwithstanding. 173 It follows from this proposition that legislatures are free to adopt new rules of procedure at the opening of a

session or subsequently during a session depending on preexisting rules. 174 Though less clear to nineteenth century legislators,
because rule-making statutes were largely foreign to them, a number of Congressmen stated during debate on the ECA that this
measure would attempt in vain to entrench procedures that would bind future Congresses. 175 As Vice President Gore restricted
the ability of the House to exercise its vested Article I procedural rights, this action effectively entrenched the text of a statute
above the Constitution, limiting the authority of the House to unilaterally change this onerous limitation, 176 because it must
gain the assent of both the Senate *377 and the executive, itself a violation of the non-delegation doctrine. 177 For many

Members of Congress who voted for the ECA in 1887, an unenforceable law was better than no law 178 because it would at least
create a reference point that might allow Congress to avoid a repeat of the 1877 saga. However, in this case, an unenforceable
law might actually be worse than no law at all.

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V. JUSTICIABILITY AND THE 2016 ELECTION
Split governments are exceedingly common in the United States, with either the Republicans or Democrats frequently
controlling one House of Congress and the other party controlling the White House and the remaining chamber or some
combination of one or more of these bodies. One party has only controlled all three constitutional lawmaking entities--the
Presidency, the House, and Senate--for six of the last sixty-one years since 1955. Usually a recipe for political compromise or
deadlock, the Electoral Count Act could instead turn this separation of political power into a lurid constitutional nightmare.
Imagine this scenario: the Senate flips to narrow Democratic control in the November 2016 elections 179 and the Democratic
nominee runs an incredibly close race with the Republican contender and is leading in the Electoral College with Florida's

votes again hotly disputed. In this way, the Democrats now control the Senate 180 and the Vice Presidency 181 *378 while the
Republican candidate's party continues to control the House. The count is tied up in Florida's courts, and as a result, the Florida
Attorney General and Secretary of State independently certify two certificates of vote, one Republican and one Democratic. 182
Therefore, the actions of Congress will be dispositive in deciding which slate of electors to validate.

Vice President Joe Biden naturally seeks to take advantage of every opportunity to award the Democratic candidate the disputed
electors, while the Republican House wants to debate the subject, or better still, obstruct the count long enough to throw the
election into the House, pursuant to Clause 3 of Amendment XII. 183 Vice President Biden, based on the precedents 184 set by

the 2001 count, refuses to entertain House Members' motions to adjourn or withdraw from the count to hold a debate, 185 and
no Democratic or Republican senator offers to concur--similar to 2001 when no Democratic senator could be found to second
the House Members' objections. House Members, with the election genuinely in dispute, leave the count in protest and Vice
President Biden awards the electors to the Democratic candidate. With its *379 General Counsel in tow, the House, meeting

down the corridor in Statuary Hall in the Capitol, passes a resolution 186 that disclaims the authority of the ECA and the Senate

to bind its internal procedural discretion, and authorizes a lawsuit 187 to challenge the Vice President and the Senate's unilateral
actions. A constitutional crisis over the enforceability of the ECA's procedural provisions is born.
Few expected an obscure voting mechanism in South Florida and equal protection doctrine to decide the 2000 election. If the
political history of our country teaches us anything, it is that flaws in our election system eventually are exposed--and what can
happen will eventually happen. The parties are incredibly motivated to use whatever means at their disposal to win an election,
especially the Presidency, and our election law framework must be robust enough to account for every risk. Returning to our
hypothetical, the General Counsel of the House of Representatives quickly scribbles out a motion for injunctive relief on a
notepad and then walks across Constitution Avenue to the federal district court. Quickly passed upward, will the Supreme Court
even reach the merits of the House's claim that the Act and the actions of the Senate are unenforceable?
The seminal doctrine governing controversies that involve a political question is the familiar case of Baker v. Carr. 188 In this
case, the Warren Court laid out six criteria for *380 determining whether the Court should reach the merits of a question or

abstain from entering the political “thicket.” 189 The Baker doctrine is a monument to judicial restraint, and consequently, the
federal judiciary is hesitant to intervene in a controversy when the coordinate constitutional actors involved “possess ample
political resources with which to protect their interests.” 190

Any possible institutional dispute between the House and Senate during an Electoral Count would not likely be resolved by
normal political processes because this question would fundamentally be a challenge over the inherent powers of the Houses
and the enforceability of the ECA--i.e., a classic affirmation of the Court's role “to say what the law is.” 191

In Chadha, the House of Representatives, arguing that a one-house legislative veto was constitutional, stated that the Supreme
Court's review--of a procedure internal to Congress--was beyond the reach of the courts because the legislative process was
textually committed to Congress, a coordinate political department, and that this case was fundamentally “an assault on the

legislative authority [of Congress] to enact” the provision, citing the first, and most commonly used, Baker factor. 192 The Burger
Court, however, disagreed, finding that the separation of powers dispute inhering among the Executive and Congress rendered
this case a justiciable political question, and that “if this [argument] turns the question into a political *381 question, virtually

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every challenge to the constitutionality of a statute would be a political question,” also remarking that “no policy underlying
the political question doctrine suggests that Congress or the Executive ... can decide the constitutionality of a statute.” 193

When the Court decided similar separation of powers issues in Bowsher v. Synar and Clinton v. City of New York, no non-

justiciable political issues were found, in spite of the lead role granted to Congress in these areas. 194 The remaining Baker
factors militate in favor of review as well, since the standards for reviewing the ECA are well-defined (constitutionality/
enforceability and the Rules Clause) (factor 2), separation of powers disputes are classically judicial (factors 3-4), and finally,
because a judicial decision is critical to decide the presidency (factors 5-6).
In addition to the Baker factors, the Court's previous reticence to examine internal Congressional matters must also be weighed.
In Field v. Clark, the Court established the “enrolled bill rule,” which held that courts will not look beyond the text of a bill and
the signature of the presiding officers to examine possible procedural defects in passage, for example, whether a tax provision
really passed both chambers, or was mistakenly inserted by just one and sent to the President. 195 Similarly, in Ballin, justices
examined the constitutionality of House rules meant to defeat the disappearing quorum, and found that the Rules Clause was

ambiguous in this area--delegating this issue to the House's discretion. 196 The Nixon Court also relied on this deferential
doctrine to say that the method employed by the Senate to “try” a judge during impeachment proceedings was exclusively an
issue for our upper chamber. 197

*382 The Court's deference in this area is not absolute, especially when an inter-branch controversy, 198 much like our
hypothetical, is raised. Our case would involve both vertical and horizontal separation of powers issues, as between the House
and Senate horizontally and among Congress and the President. In 1932, the Court considered the validity of an officer's
appointment after the Senate confirmed a nominee and subsequently asked President Hoover to return the nomination for
reconsideration in United States v. Smith. 199 The Hughes Court recognized that “[i]n deciding the issue, [we] must give great

weight to the Senate's present construction of its own rules” authorizing the Senate to demand reconsideration. 200 Nevertheless,
this controversy was found justiciable, even though reconsideration was an internal procedural matter, because “the construction
to be given the rules affects persons other than members of the Senate” 201 --separation of powers and Appointments Clause
grounds. 202 Our 2016 hypothetical would be an analogous controversy.

The 1892 Ballin quorum decision also established boundaries on the Court's “expansive” deference 203 to the internal workings

of Congress, stating that Congress “may not by its rules ignore constitutional restraints.” 204 In the same way, the Rules Clause
expressly grants absolute procedural freedom to each House of Congress, and the ECA's procedural limitations, combined
with the actions of the Senate in our *383 hypothetical enforcing them, acts to patently ignore this constitutional restraint on
regulations limiting the Houses' authority.
Most importantly, it is also important to acknowledge, from a pragmatic perspective, that if a constitutional crisis in the 2016
election occurred, only the federal courts would likely be detached and respected enough to be capable of resolving the crisis-short of an unlikely Congressional compromise--and that much like Bush v. Gore, some institution must be universally accepted
by all parties in our government to have the last word. While our federal judiciary would normally be reticent to insert themselves
into such a contested political issue, failure to do so in this scenario would lead to the collapse of workable government.
Accordingly, understanding the separation of powers concerns inherent in this case and the nature of the constitutional issues
raised by the ECA, it is likely that review of the Act's procedural provisions would be a justiciable question in this unique setting.
VI. CONCLUSION
“It is the height of folly to shut our eyes to this danger .... The only safe solution to this problem is their removal by a constitutional
amendment that shall make plain and simple every step in the process, both State and national.” 205

Individuals experiencing a major transition in their lives often find similarities reminding them of the past in their new

environments, underscoring the force of the popular expression, “the more things change, the more they stay the same.” 206 So it
is with our system of electing a president. It is not an accident that a heated dispute surrounding the Electoral Count Act erupted

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during the 2001 Electoral Count or that three of the United States' major constitutional crises centered on disputed elections. A
lack of detail surrounding the procedures to be used in electing a president is perhaps the greatest failing of the Founders.
*384 Alexander Hamilton noted in 1788 that selection of a chief executive was “almost the only part of the system, of any

consequence, which has escaped without ... the slightest mark of approbation from its opponents.” 207 In spite of this optimism,
through the decisions and compromises of 1800, 1876-1877, and 2000, we have inherited an electoral system that places a
premium on ambiguity and ad hoc fixes. After the 1800 election uncovered a fatal defect in Article II, Amendment XII was
ratified--allowing electors to vote separately for president and vice president, but failing to detail the specific procedure Congress
should use to tabulate this choice. This ambiguity laid the seeds for crisis in 1876-1877 when the State of Florida and four others
submitted multiple (likely fraudulent) certificates of vote, leaving Congress to hurriedly cobble together an ad hoc Electoral
Commission to resolve this dispute, in the midst of many calling for “Tilden or Blood!” 208 Congress then agonized for ten years
over an effective policy alternative to this chaos, finally enacting the Electoral Count Act in 1887. However, as the 2000 election
has shown, this Act contains numerous ambiguities and constitutional defects itself, laid bare by the procedural objections raised
in the Hall of the House of Representatives during the Electoral Count on January 6, 2001.

A basic framework of election law entrenches two key principles. 209 First, the system establishes a structure through which the
mechanics of an election can operate, indicating decision-making points for candidates and robustly accounting for all possible

alternatives. 210 This principle, above all, ensures fairness and predictability in our system of laws, with both winner and loser
accepting the validity of the process, even if they are disappointed with the result. Election jurisprudence, secondly, must protect
the procedural equality of voters, ensuring both a meaningful right to cast a vote and the *385 unshakable assurance that his/
her choice will be weighed the same against all others. 211

Through perpetuating the ambiguities inherent in our presidential election system and raising numerous constitutional concerns,
the procedural provisions of the ECA fall short of these ideals. The ECA's procedural mandate to the House and Senate fails to
respect the notion of political equality. Our “finely wrought” Congressional system mirrors the interests and rights of the people

and States, 212 and a statute that impermissibly deprives one Congressional actor, that is, the House or Senate depending on the
circumstances, of its procedural prerogatives lessens the ability of our representatives to influence the machinery of government
in the manner intended by the Constitution. Fundamentally, the fatal flaw of the ECA's procedural provisions is its simultaneous
delegation of the rostrum during the Electoral Count to the President of the Senate, while simultaneously providing no means
for the House (or potentially the Senate) to assert its independent constitutional prerogatives.
Unlike the hopes of Thomas Jefferson, 213 a candidate engaged in a heated dispute over a state's electoral votes cannot be
assured of an orderly or predictable process during the Electoral Count because the ECA's procedural mandate strips each House
of Congress of its procedural authority, unconstitutionally countermanding the text of the Rules Clause.
Some might believe that an unenforceable law is better than no law at all. 214 However, in the context of resolving a contested

presidential election, an unenforceable law inevitably leads to chaos since candidates and their surrogates 215 will not hesitate
to challenge the validity of a 117-year old statute that is facially unenforceable. A strong procedural framework seen to *386
be fair and known to have teeth is the best prophylactic against chaos.

Understanding the Supreme Court's recent separation of powers formalism, 216 the ECA today represents “a torpedo planted in

the straits with which the ship of state may at some time come into a fatal collision.” 217 A procedural framework that respects
our system of separated powers, affirms the institutional prerogatives of Congress, and comports with the text of the Constitution
must give rise to procedures that can withstand the stiffest challenge during a contested election, when both the stakes are
paramount and legal creativity is high. Improving the ECA now and allowing our policymakers to negotiate changes in the best
interests of the country “when the political facts of the moment are least likely to distort our considered legal judgment” 218
is crucial.

A familiar national discussion has existed for a long time on whether the Electoral College should be discarded in favor of

popular election--making the Congressional count moot. 219 However, if we choose to retain this system, the Electoral Count
Act should be discarded, and a new constitutional amendment ratified establishing a clear, scrupulously detailed method for

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counting electoral votes in Congress, addressing the procedural posture of the Houses, and outlining how disputes will be
resolved.
Shortly after his narrow victory was ratified by the Electoral Commission in 1877, President-Elect Rutherford Hayes remarked
that “[b]efore another Presidential Election, this whole subject ... ought to be thoroughly considered, and a radical change made.
It is probable that no wise measure can be *387 devised which does not require an amendment of the Constitution.” 220

Over a century later, the heightened threshold for a constitutional amendment will allow the country to arrive at a true national
consensus, and put an end-- at long last--to a hovering uncertainty that continues to linger over our presidential elections and
a history of untimely constitutional crises.

Footnotes
a1

Deputy Legislative Counsel, Nevada Legislature; University of Minnesota Law School, J.D., cum laude; Institute of
Advanced Legal Studies, University of London, LL.M., with distinction; Florida State University, B.S., summa cum
laude.

aa1

Professor of Political Science, Hamline University; Adjunct Professor of Law, University of Minnesota Law School.

1

CONSTITUTION, JEFFERSON'S MANUAL, AND RULES OF THE HOUSE OF REPRESENTATIVES, H. DOC.
NO. 111-157, at 129 (2011) (quoting Thomas Jefferson).

2
3
4
5

24 Stat. 373 (codified at

3 U.S.C. §§ 1-

21 (2011)).

Id.
531 U.S. 98 (2000).
Id. at 113.

6

See Vasan Kesavan, Is the ECA Unconstitutional?, 80 N.C. L. REV. 1653, 1719 (2002) (arguing that the Electoral Count
is meant to be a ministerial duty and that neither House has the authority to judge validity). Kesavan devotes one sentence
to the issue of whether the ECA's procedural provisions are enforceable. See also Aaron-Andrew P. Bruhl, Using Statutes
to Set Legislative Rules: Entrenchment, Separation of Powers, and the Rules of Proceedings Clause, 19 J.L. & POL.
345 (2003) (omitting any discussion of the Electoral Count Act or the 2000 election).

7

See generally SARAH BINDER, STALEMATE: CAUSES AND CONSEQUENCES OF LEGISLATIVE GRIDLOCK
(2003) (discussing the rise of partisan gridlock and politics in America and Congress); THOMAS E. MANN AND
NORMAN J. ORNSTEIN, IT'S EVEN WORSE THAN IT LOOKS: HOW THE AMERICAN CONSTITUTIONAL
SYSTEM COLLIDED WITH THE NEW POLITICS OF EXTREMISM (2012) (same).

8

See e.g., STACEY HUNTER HECHT & DAVID SCHULTZ, PRESIDENTIAL SWING STATES: WHY ONLY TEN
MATTER (2015) (establishing that the presidential race has effectively been reduced to contests in ten or so states).

9

See Part IV(c) infra for analogous provisions and discussion about why the Electoral Count Act does not have an antientrenchment provision.

10

U.S. CONST. art. I, § 5, cl. 2.

11

See Eric A. Posner & Adrian Vermeule, Legislative Entrenchment: A Reappraisal, 111 YALE L.J. 1665, 1683 (2002).

12

U.S. CONST. amend. XII.

13

Art. II states that electors should “vote by ballot for two persons,” unaware of the likelihood that the Presidential and
Vice Presidential candidates of a party were likely to get the same number of votes. In the previous elections in 1792

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and 1796, the Vice Presidential vote was split, which did not occur in 1800. See, e.g., Sanford Levinson & Ernest A.
Young, Who's Afraid of the Twelfth Amendment?, 29 FLA. ST. L. REV. 925, 928-30 (2002) (outlining the 1800 crisis).
Accord TADAHISA KURODA, THE ORIGINS OF THE TWELFTH AMENDMENT: THE ELECTORAL COLLEGE
IN THE EARLY REPUBLIC, 1787-1804 (1994). A Democratic-Republican elector was reportedly given the task of
abstaining from voting for Aaron Burr to prevent a tie, but failed to do so. Joshua D. Hawley, The Transformative
Twelfth Amendment, 55 WM. & MARY L. REV. 1535-42 (2014) (discussing 1800 and arguing that the adoption of this
amendment infused the presidency with a political character that absent from the original text of Article II).
14

U.S. CONST. amend. XII, cl. 2.

15

See infra note 41 and accompanying text.

16

A number of theories about where this authority lies were offered by Members of Congress in the ten years between
the 1877 Electoral Commission and the passage of the ECA, namely: (1) the President of the Senate; (2) the House
(Presidential Electoral votes only) and the Senate (Vice Presidential votes); (3) the House and Senate as a corporate
body with each member having one vote; (4) the House and Senate with each chamber having one vote; (5) no one,
until Congress appoints a counter by concurrent resolution or legislation (the accepted proposal, e.g., the ECA). See
Stephen A. Siegel, The Conscientious Congressman's Guide to the ECA of 1887, 56 U. FLA. L. REV. 542, 551-52
(2004). The second proposal seemingly strikes the best balance between efficiency and a robust framework that respects
the institutional powers of each House. This method is also supported by Amendment XII's division of authority among
the House and Senate in case of a tie.

17

Ex officio refers to an authority exercised “by virtue or because of an office.” Ex Officio, BLACK'S LAW DICTIONARY
267 (3d pocket ed. 2006).

18

This authority could even be contextually drawn from the Rules Clause, U.S. CONST. art. I, § 5, cl. 2, which grants both
the House and Senate the plenary power to craft their own procedures. In this way, it would be a stretch to argue that the
Constitution had created an independent constitutional organ and had failed to give it the power to establish parameters
of operation. The Supreme Court has also recognized that legislative bodies possess significant inherent authority to
exercise the functions necessary for their operations. See Buckley v. Valeo, 424 U.S. 1, 127-28 (1976); Watkins v.
United States, 354 U.S. 178, 187 (1957) (describing the subpoena and contempt process as inherent legislative powers
first recognized in the British House of Commons and Lords' “absolute and plenary authority over their privileges.”);
SEC v. Comm. on Ways and Means, No. 14-MC-193, 2015 U.S. Dist. LEXIS 154302 (S.D.N.Y. Nov. 13, 2015); Comm.
on the Judiciary v. Miers, No. 08-CV-409, 558 F. Supp. 2d 53 (D.D.C. Jul. 31, 2008).

19

20

Max Farrand, The Records of the Federal Convention of 1787, 25 HARV. L. REV. 198, 529 (1911) (book review)
(emphasis added). See also Kesavan, supra note 6, at 1723-24 (arguing that the Electoral Count is meant to be a
ministerial duty and that neither House has the authority to judge returns' validity); Albert J. Rosenthal, The Constitution,
Congress, and Presidential Elections, 67 MICH. L. REV. 1 (1968).
See Marsh v. Chambers, 463 U.S. 783, 790 (1983) (finding that “substantial weight” should be given to interpretations
of the Constitution by the first Congresses composed of Founding-era members).

21

See SUBCOMM. ON COMPILATION OF PRECEDENTS, COUNTING ELECTORAL VOTES, H.R. MISC. DOC.
NO. 44-13, at 26 (1877); Kesavan, supra note 6, at 1725.

22

17 CONG. REC. 2429 (1886) (remarks of Sen. James Z. George).

23

See supra note 16 and accompanying text.

24

U.S. CONST., art. I, § 8, cl. 18.

25

In Germany, the Bundesversammlung (Federal Convention) elects the Federal President and is a special constitutional
entity comprised of the Bundestag (the lower House of Parliament) and delegates nominated by Lander (state)
governments. See GRUNDGESETZ [GG] [BASIC LAW], at art. 54, cl. 1-4, translation at http://www.gesetzeiminternet.de/englisch_gg/index.html.

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26

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 ....”).

27

U.S. CONST. amend. XII, cl. 2 (“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 ....”).

28

U.S. CONST. amend. XII.

29

SUBCOMM. ON COMPILATION OF PRECEDENTS, COUNTING ELECTORAL VOTES, H.R. MISC. DOC. NO.
44-13, at 26 (1877). This motion would hardly have been dispositive had it been carried, however. Congress is a
legislature of enumerated powers, and any authority assumed must stem from an express or implied power, meaning
that Marshall's Supreme Court would have had the last word in 1801.

30

31
32
33

Medellín v. Texas, 552 U.S. 491, 531 (2008);
See, e.g.,
610-11 (1954) (Frankfurter, J., concurring).
See

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579,

Youngstown, 343 U.S. at 610-11.

Act Creating an Electoral Commission, 19 Stat. 227 (1877).
See Electoral Count Act, 3 U.S.C. §§ 2-

7 (2011).

34

An objection seconded by at least one senator and representative. See 3 U.S.C. § 15; see also Part IV infra.

35

See 3 U.S.C. §15.

36

Admittedly, the Supreme Court could theoretically use this doctrine to hold the ECA binding on both Houses, and
outside the remit of the Rules Clause, because the ECA has been in place and largely obeyed by Congress since 1887.
See Part V infra. However, it would be hard to square this with the Constitution's textual grant in the Rules Clause and
Non-Delegation Doctrine, since bicameralism and presentment would involve the President in an area committed to
Congress by the Constitution.

37

3 U.S.C. § 17.

38

In this context of a Joint Session, this result follows because the House and Senate are individually empowered
by the Electoral Count Act to make final--and possibly conflicting--decisions on the objection. In the event the
House and Senate came to opposite conclusions, the governor of the disputed state would cast the deciding
vote. See 3 U.S.C. § 15; Edward B. Foley, 2016: How John Kasich Could End Up Picking the Next President,
POLITICO, Mar. 20, 2016, http://www.politico.com/magazine/story/2016/03/the-bizarre-130-year-old-law-that-coulddetermine-our-next-president-213645 (observing that the text of the Electoral Count Act is “bizarre,” “tangled,” and
“unintelligible.”).

39

This theory relies on the definition and context of the word “count,” and early 19th century counts. See generally
Kesavan, supra note 6, at 1711-17.

40

See U.S. CONST., amend. XII; Eric Schicker, Terri Bimes & Robert W. Mickey, Safe at Any Speed: Legislative Intent,
The ECA of 1887, and Bush v. Gore, 16 J.L. & POL. 717, 735-36 (2000).

41

See WILLIAM REHNQUIST, CENTENNIAL CRISIS, 4 (2004). The 1800 election also meets this criteria. Id.

42

See id. at 86.

43

Walker Lewis, The Hayes-Tilden Election Contest, 47 A.B.A. J. 36, 36 (1961).

44

REHNQUIST, supra note 41, at 94.

45

Lewis, supra note 43, at 37.

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46

Id. Modern analysis speculates that “without the strenuous adjustments” made by Republicans shortly after the election,
at least one of these states would have gone Democratic--electing Tilden. Id. The nature of these adjustments can only be
speculated, but it likely involved at least some amount of selective counting by canvassing boards, ballot-box tampering,
or similar fraud. See id. at 37-38.

47

The total number of electors in the Electoral College is a function of the number of states in the union and their
populations. 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 the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the
United States, shall be appointed an Elector.”); Norman R. Williams, Reforming the Electoral College: Federalism,
Majoritarianism, and the Perils of Subconstitutional Change, 100 GEO. L.J. 173 (2011).

48

Lewis, supra note 43, at 38.

49

See U.S. CONST. amend. XII.

50

Lewis, supra note 43, at 37.

51

Id.

52

See REHNQUIST, supra note 41, at 101-12.

53

As mentioned supra, the Vice President, in his ex officio role as President of the Senate, is constitutionally charged
with presiding over the count. However, the Vice Presidency was vacant from 1875-77, so this responsibility would
have fallen on Sen. Thomas Ferry in his role as President Pro Tempore of the United States Senate. See Ferry, Thomas
White, BIOGRAPHICAL DIRECTORY OF THE U.S. CONGR., http://bioguide.congress.gov/scripts/biodisplay.pl?
index=F000095 (last visited Jan. 23, 2016).

54

See Part II supra.

55

Lewis, supra note 43, at 163.

56

REHNQUIST, supra note 41, at 116.

57

Id.

58

Id.

59

Act Creating an Electoral Commission, 19 Stat. 227 (1877).

60

Lewis, supra note 43, at 39.

61

Id. This provision also likely would have been unenforceable.

62

Id. at 40.

63

Lewis, supra note 43, at 163, 167. For an additional viewpoint of the proceedings of the Electoral Commission, see J.
HAMPDEN DOUGHERTY, THE ELECTORAL SYSTEM OF THE UNITED STATES 136-213 (1906) (recounting
the proceedings of the Electoral Commission).

64

For example, the filibuster and disappearing quorum were common tactics used by the minority party until Speaker
Thomas Reed largely curtailed these practices in the early 1890s and began to impose the procedural controls marked by
the rise of the Committee on Rules and a strong speakership. See, e.g., ROBERT REMINI, THE HOUSE: A HISTORY
OF THE HOUSE OF REPRESENTATIVES 245 et seq. (2006).

65

Lewis, supra note 43, at 167.

66

See, e.g., ROY MORRIS, FRAUD OF THE CENTURY: RUTHERFORD B. HAYES, SAMUEL TILDEN, AND THE
STOLEN ELECTION OF 1876 (2004).

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67

Lewis, supra note 43, at 167. Rep. Blackburn of Kentucky remarked, “Mr. Speaker, the end has come .... Today is
Friday. Upon that day the Savior of the world suffered crucifixion between two thieves. On this Friday constitutional
government, justice, honesty, fair dealing, manhood, and decency suffer crucifixion amid a number of thieves.” Id.

68

Historical Election Results, NAT'L ARCHIVES & REC. ADMIN., http://www.archives.gov/federal-register/electoralcollege/votes/index.html (last visited May 7, 2016).

69

See U.S. CONST. art. I, § 5, cl. 2.

70

John C. Roberts, Entrenchment of Ordinary Legislation: A Reply to Professors Posner and Vermuele, 91 CAL. L. REV.
1773, 1790 (2003).

71

See also supra note 16 and accompanying text.

72

Roberts, supra note 70, at 1794.

73

U.S. CONST.

74

See WALTER J. OLESZEK, CONG. RESEARCH SERV., “SELF-EXECUTING RULES” REPORTED BY THE
HOUSE COMMITTEE ON RULES (2006), http://usgovinfo.about.com/library/PDF/self_executing.pdf (updated Dec.
21, 2006). This method avoids a formal vote on the underlying legislation, and the legislation is “deemed” passed by a
favorable vote on the resolution reported by the House Rules Committee that establishes the time allocated for debate,
number of amendments, allowable points of order, and other parameters of debate. See also Ronald J. Krotoszynski,
Deconstructing Deem and Pass: A Constitutional Analysis of Enactment of Bills by Implication, 90 WASH. U.L. REV.
1071, 1072-78 (2013).

75

See, e.g., MARTIN B. GOLD, SENATE PRACTICE AND PROCEDURE 33-64 (2013).

76

Article I provides that “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members,
and a Majority of each shall constitute a Quorum to do Business ....” U.S. CONST. art. I, § 5, cl. 1. However, the House
interprets this provision as requiring positive action from the floor. See Stanley Bach, The Nature of Congressional
Rules, 5 J.L. & POL. 725, 727-29 (1989). The presiding officer of the Senate may only ascertain the presence of a
quorum after cloture on a piece of legislation has been invoked--otherwise the Secretary of the Senate must call the roll
after a motion suggesting the absence of a quorum. Id.

77

See U.S. CONST. art. 1 at § 5, cl. 1; § 7, cl. 2.

78

United States v. Ballin, 144 U.S. 1 (1892) (discussing the “disappearing quorum” and the frequent tactic
See, e.g.,
used by minorities at that time to be present in the Hall of the House of Representatives but fail to vote. Speaker Thomas
Reed subsequently ordered the Clerk of the House to record non-voting members as present and the Supreme Court
accepted this as constitutional, even though only a minority of the full House had actually voted.).

79

See generally Gold, supra note 75.

80

See R.K. Gooch, The Legal Nature of Legislative Rules of Procedure, 12 VA. L. REV. 527, 538 (1926).

81

See, e.g.,
Ballin, 144 U.S. at 5 (“[T]here should be a reasonable relation between the mode or method of proceeding
established by the rule and the result which is sought to be attained. But within these limitations all matters of method
are open to the determination of the House .... The power to make rules is not one which once exercised is exhausted. It
is a continuous power, always subject to be exercised by the House, and within the limitations suggested, absolute and
beyond the challenge of any other body or tribunal.”);
NLRB v. Canning, 134 S. Ct. 2550, 2574 (2014);
Yellin v.
United States, 374 U.S. 109, 114 (1963); Bach, supra note 72, at 730 (noting that “the Supreme Court has been reluctant
to entertain challenges to these interpretations and superimpose its own judgments”); Gregory Fredrick Van Tatenhove,
A Question of Power: Judicial Review of Congressional Rules of Procedure, 76 KY. L.J. 597 (1987).

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82

83

84
85
86
87

See U.S. ELECTORAL COMM., PROCEEDINGS OF THE ELECTORAL COMMISSION (1877), http://
books.google.com/books?
id=DBJCAAAAIAAJ&printsec=frontcover&source=gbs_ge_summary_r&cad=0#v=onepage&q&f=false.
Watkins, 354 U.S. at 200 (observing that committees “act as the eyes and ears of the Congress in obtaining facts upon
which the full legislature can act.”); see also Adrian Vermuele, The Constitutional Law of Congressional Procedure,
71 U. CHI. L. REV. 361, 382 (2004).
See supra note 15.
Nixon v. United States, 506 U.S. 224, 226 (1993).
Id. at 226-27 (1993).
Id. at 227.

88

See REPORT OF THE IMPEACHMENT TRIAL COMMITTEE ON THE ARTICLES AGAINST WALTER L.
NIXON, S. DOC NO. 164, 101ST CONG., 1ST SESS., at 18-19 (1989).

89

U.S. CONST., art. I, § 3, cl. 6.

90

91
92
93

94
95
96
97

Nixon, 506 U.S. at 229 (recounting Petitioner's argument that “‘Try’ means more than simply ‘vote on’ or ‘review’
or ‘judge.’ In 1787 and today, trying a case means hearing the evidence, not scanning a cold record.”).
Id. at 235-36. The Justices of our Supreme Court are even subject to this power.
Id. at 230.
Interestingly, the Senate only uses this committee method during the trial of inferior officers. During the impeachment
of President Clinton in 1999, the full Senate acted as both a fact-finder and jury. See generally IMPEACHMENT
OF PRESIDENT WILLIAM JEFFERSON CLINTON: CONSTITUTIONAL PROVISIONS; RULES OF PRACTICE
AND PROCEDURE IN THE SENATE WHEN SITTING ON IMPEACHMENT TRIALS, S. DOC. 106-2, 106th Cong.,
2d Sess. (1999).
Nixon v. United States, 506 U.S. 224, 250 (1993) (Blackmun & White, JJ., concurring).
See, e.g.,

28 U.S.C. § 636 (B)(1)(A-B) (2009) (outlining the authority of a federal magistrate judge).

See generally

Nixon, 506 U.S. 224 (1993).

U.S. CONST. art. I, § 5, cl. 2. See, e.g., U.S. CONST. art. I, §, cl. 6 (impeachments tried by the Senate); amend. XII
(the House elects a president in the absence of an Electoral College majority). See also INS v. Chadha, 462 U.S. 919,
959 (1983) (“With all the obvious flaws of delay, untidiness, and potential for abuse, we have not yet found a better
way to preserve freedom than by making the exercise of [legislative] power subject to the carefully crafted restraints
spelled out in the Constitution.”).

98

99

Id. at 253-54 (Souter, J., concurring) (stating that “a coin toss” or “summary determination that an officer of the
United States was simply ‘a bad guy”’ might warrant review).
For comparison, Florida only had four electors in the 1876 presidential contest. Charles Fairman, Five Justices and the
Electoral Commission of 1877, at 57-58, in VII HISTORY OF THE SUPREME COURT OF THE UNITED STATES
(Paul A. Freund & Stanley N. Katz, eds. 1988).

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100

See e.g., Steve Bickerstaff, Counts, Recounts, and Election Contests: Lessons from the Florida Presidential Election,
29 FLA. ST. L. REV. 425, 434 (2001).

101

David Barstow & Don Van Natta, Jr., Examining the Vote; How Bush Took Florida: Mining the Overseas Absentee
Vote, N.Y. TIMES (July 15, 2001), http://www.nytimes.com/2001/07/15/us/examining-the-vote-how-bush-took-floridamining-the-overseas-absentee-vote.html.

102

See Bickerstaff, supra note 98, at 435.

103
104
105

3 U.S.C. § 5 (2011).
Schicker, supra note 40, 720-22 (2000). The Electoral College met in its respective locations in each of the fifty states
on Dec. 18 that year. Id.
Bush v. Gore, 531 U.S. 98, 111 (2000). Interestingly, the United States Supreme Court did not even need to grant
certiorari because the Florida Legislature intended to convene shortly before the safe harbor deadline to award the
state's electors to Bush. See Ronald Brownstein, Florida Lawmakers Cite Broad Powers to Award Electors to Bush,
L.A. TIMES (Nov. 28, 2000), http://articles.latimes.com/2000/nov/28/news/mn-58208. Since Bush v. Gore is today seen
as an example of a politically polarized judiciary and the opinion is widely believed to have little precedential value,
allowing Florida's democratically elected representatives to solve this issue may have been a more prudent course.

106

See 147 CONG. REC. H30 (daily ed. Jan. 6, 2001) (outlining the events of the 2001 electoral vote count).

107

Id. at H34 (statement of Rep. Chaka Fattah (D-PA)).

108

Id.

109

Id. at H32 (statements of Rep. Ted Deutsch (D-FL) and Vice President Al Gore)
Mr. DEUTSCH. ‘Mr. Vice President, there are many Americans who still believe that the results we are going to certify
today are illegitimate.’ The VICE PRESIDENT. ‘The gentleman will suspend. If the gentleman from Florida has a point
of order, he may present the point of order at this time. Otherwise, the gentleman will suspend.’ Mr. DEUTSCH. ‘Mr.
Vice President, I will note the absence of a quorum and respectfully request that we delay the proceedings until a quorum
is present.’ The VICE PRESIDENT. ‘The Chair is advised by the Parliamentarian that section 17 of title 3, United States
Code, prescribes a single procedure for resolution of either an objection to a certificate or other questions arising in the
matter. That includes a point of order that a quorum is not present. The Chair rules, on the advice of the Parliamentarian
that the point of order that a quorum is not present is subject to the requirement that it be in writing and signed by both a
Member of the House of Representatives and a Senator. Is the point of order in writing and signed not only by a Member
of the House of Representatives but also by a Senator?’ Mr. DEUTSCH. ‘It is in writing, but I do not have a Senator.’
The VICE PRESIDENT. ‘The point of order may not be received.’
See also id. at H35-36, 47.

110

Id. at H35 (statements of Rep. Cynthia McKinney (D-GA) and Vice President Al Gore)
Ms. McKINNEY. ‘Mr. President, I object to Florida's electors, and in view of the fact that debate is not permitted ... and
pursuant to title 3, I move that the House withdraw from the joint session in order to allow consideration of the facts
surrounding the slate of electors from Florida.’ The VICE PRESIDENT. ‘The Chair will remind the Members of the joint
session that even though a Member's motion may affect only one House, the statutory principle of bicameral signatures
must, nevertheless, be applied. The gentlewoman will suspend. Reading sections 15 through 18 of title 3, United States
Code, as a coherent whole, the Chair holds that no procedural question is to be recognized by the presiding officer in
the joint session unless presented in writing and signed by both a Representative and a Senator. Is the gentlewoman's
motion in writing and signed by a Member and a Senator?’
Ms. McKINNEY. ‘Mr. President, the motion is in writing, it is at the desk, and because it involves the prerogatives of
the House, therefore Senate assent is not required.’ The VICE PRESIDENT. ‘The Chair will advise the gentlewoman
respectfully that reading sections 15 through 18 of title 3, U.S. Code, as a whole, the Chair holds that no procedural
question, even if involving only one House of Congress, is to be recognized by the presiding officer in the joint session,
unless presented in writing and signed by both a Representative and a Senator. Because the gentlewoman's motion is not

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signed by a Senator, on the basis previously stated, the motion may not be received. The Chair thanks the gentlewoman
from Georgia.’ (emphasis added).
111

Id. at H36 (statement of Rep. Alcee Hastings (D-FL)) (“Mr. President, point of order. Would the President advise whether
or not there is an opportunity to appeal the ruling of the Chair?”). Appealing the ruling of a presiding officer is a rarelyused, last-ditch motion in parliamentary procedure.

112

3 U.S.C. §§ 15-18 (2011).

113

See, e.g., 147 CONG. REC. H35 (daily ed. Jan. 6, 2001) (ruling of President of the Senate Al Gore).

114

Id.

115

THE FEDERALIST NO. 51 (James Madison).

116

THE FEDERALIST NO. 47 (James Madison).

117

Mistretta v. United States, 488 U.S. 361, 415 (1989) (Scalia, J., dissenting).

118

See generally Patrick M. Garry, The Unannounced Revolution: How the Court Indirectly Effected a Shift in the
Separation of Powers, 57 ALA. L. REV. 689 (2006).

119

Admittedly, Congress delegates some policymaking authority in permitting agency regulations and other aspects of
administrative law. However, as the Supreme Court has noted, Congress must provide a broad “intelligible principle”
for agencies to promulgate binding rules, thereby fulfilling its policymaking role. See
Otherwise, an unconstitutional delegation has occurred. See Id.

Mistretta, 488 U.S. at 372.

120

See George I. Lovell, That Sick Chicken Won't Hunt: The Limits of a Judicially Enforced Non-Delegation Doctrine,
17 CONST. COMMENT. 79, 83 (2000). For example, members of the public might be more likely to hold their
Congressperson accountable for a tax increase, or their Senator for an unpopular Supreme Court justice. See also James
O. Freedman, Delegation of Power and Institutional Competence, 43 U. CHI. L. REV. 307, 325 (1976).

121

See Freedman, supra note 118, at 309; infra note 126.

122

U.S. CONST. art. I, § 7, cl. 3.

123

This theory persuasively argues that this clause is currently interpreted by the federal courts in a duplicative manner
when compared with the Bicameralism and Presentment Clause, art. I, § 7, cl. 2, and that the original meaning of this
Clause should be read in light of British parliamentary taxation practices and contextual evidence from the Founding era.
See generally Seth Barrett Tillman, A Textualist Defense of Article I, Section 7, Clause 3, 83 TEX. L. REV. 1263 (2005).

124

See

Powell v. McCormack, 395 U.S. 486, 532, 535 (1969).

125

FARRAND, supra note 19 at 177-80.

126

This belief was underscored by the fact that many of the Framers believed that late eighteenth century state legislatures
enacted far too many illconsidered laws. See, e.g., THE FEDERALIST NO. 62 (James Madison) (“the facility and
excess of law-making seem to be the diseases to which our governments are most liable.”); THE FEDERALIST NO. 73
(Alexander Hamilton) (“The propensity of the legislative department to intrude upon the rights, and to absorb the powers,
of the other departments, has been already suggested and repeated; the insufficiency of a mere parchment delineation
of the boundaries of each, has also been remarked upon; and the necessity of furnishing each with constitutional arms
for its own defense, has been inferred and proved.”).

127
128

See

INS v. Chadha, 462 U.S. 919, 923-29 (1983).

Id. at 951.

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129

130
131

132

133
134
135

136

Id. (holding that “[t]he Constitution sought to divide the delegated powers of the new Federal Government ... to assure,
as nearly as possible, that each branch of government would confine itself to its assigned responsibility. The hydraulic
pressure inherent within each of the separate Branches to exceed the outer limits of its power, even to accomplish
desirable objectives, must be resisted.”).
Clinton v. City of New York, 524 U.S. 417, 436 (1998). See also Garry, supra note 116, at 716.
Garry, supra note 116, at 717. A recent notable case where Congress prevailed in a separation of powers case is NLRB
v. Canning, 134 S. Ct. 2550 (2014) (finding that the Senate's own definition of ‘recess' was dispositive to whether the
Recess Appointments Clause was triggered).
United States v. Nixon, 506 U.S. 224, 250 (1993) (Blackmun & White, JJ., concurring) (“the
See supra part III(b);
Constitution itself ... provides the Senate ample discretion to determine how best to try impeachments.”); see also Chris
Land, That's Not What I Bargained For: Legislative Materials, Comparative Intent, and the Nature of Statutory Bargains,
17 EUR. J.L. REFORM 424 (2015) (discussing the comparative effect of legislative procedure on statutory interpretation
outcomes).
United States v. Ballin, 144 U.S. 1, 5 (1892) (emphasis added).
Regulatory Reform Act: Hearing on H.R. 2327 Before the Subcomm. on Admin. Law and Gov't Relations of the House
Comm. on the Judiciary, 98 CONG. REC. 312 (1983) (statement of Rep. John Dingell).
INS v. Chadha, 462 U.S. 919, 959 (1983) (“There is no support in the Constitution or decisions of this Court for the
proposition that the cumbersomeness and delays often encountered in complying with explicit constitutional standards
may be avoided, either by the Congress or by the President.”).
Id. at 951.

137

Act of January 29, 1877 Creating an Electoral Commission, § 2, 19 Stat. 227 (1877) (emphasis added).

138

Id. at §§ 3-4.

139

3 U.S.C. § 15 (2011) (providing that “[u]pon 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, 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.”).

140

Unsurprisingly, the ECA is also dangerously unclear as to what would happen if the House and Senate deadlocked. Use
of the conference committee model would potentially be an option, but again this would be yet another issue that would
have to be resolved by Congressional leaders in the midst of a hotly contested political environment.

141

It is patently apparent, as a matter of basic parliamentary privilege, that Vice President Gore improperly refused to
entertain a motion for the House to withdraw/adjourn that was offered during the January 2001 count. See Electoral Count
Act of 1887, 24 Stat. 373 (current version at 3 U.S.C. §5 (2011); CONSTITUTION, JEFFERSON'S MANUAL, AND
RULES OF THE HOUSE OF REPRESENTATIVES, H. DOC. NO. 113-181, at 413 (2015) (asserting that a motion
to adjourn is highly privileged, and even takes precedence over other motions that “affect[] the rights of the House
collectively, [or] its safety, dignity, and the integrity of its proceedings.”).

142

See, e.g., Constitution, Jefferson's Manual, and Rules of the House of Representatives, H. Doc. No. 113-181, at
1125-1305 (2015); Gold, supra note 75, at 4-5; see also Steven S. Smith, Call to Order: Floor Politics in the House and
Senate (1989) (discussing the use and importance of floor rules to structure Congressional debates).

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143

See, e.g., Defending Public Safety Employees' Retirement Act, 129 Stat. 319 (2015) (containing the “fast-track” Trade
Promotion Authority that establishes limited procedures for Congressional disapproval of executive trade agreements);
5 U.S.C § 802(c) (2009)) (noting that thirty senators
Congressional Review Act, 110 Stat. 847 (1994) (codified at
must sign a motion placing a joint resolution on the calendar of the Senate to disapprove an agency rule); Nuclear Waste
Policy Act of 1982, 96 Stat. 2201 (1982) (codified at 42 U.S.C. § 10135(d) (2010)) (providing procedures for Congress
to disapprove of the siting of a nuclear waste repository).

144

Adrian Vermeule, The Constitutional Law of Congressional Procedure, 71 U. CHI. L. REV. 361, 428 (2004).

145

See Elizabeth Garrett, The Purposes of Framework Legislation, 14 J. CONTEMP. L. ISSUES. 717, 734 (2005).

146

Reorganization Act of 1939, Pub. L. No. 76-19, 53 Stat. 561, 564.

147

A handful of other rule-making statutes do not have anti-entrenchment disclaimers. See, e.g., Aviation Investment and
Reform Act, Pub. L. No. 106-181, § 106(c), 114 Stat. 61 (2000); Treasury, Postal Service, and General Government
Appropriations Act, Pub. L. No. 104-52, § 632(c), 109 Stat. 468 (1996); Commercial Space Launch Act Amendments
of 1988, Pub. L. No. 100657,

148

§ 5(a),

102 Stat. 3900; see also Bruhl, supra note 6, at 363.

See, e.g., Defending Public Safety Employees' Retirement Act of 2015, Pub. L. No. 114-26, 129 Stat. 319, 355; Trade
Act of 2002, Pub. L. No. 107-210, 116 Stat. 933, 1016 (codified at
Act, Pub. L. 104-121, 110 Stat. 871 (1996) (codified at

19 U.S.C. § 3805 (2011)); Congressional Review

5 U.S.C. § 802(g) (2009)); Nuclear Waste Policy Act of

1982, 42 U.S.C. § 10135 (d)(1)(b) (2010); Trade Act of 1974, Pub. L. 93-618, 88 Stat. 1978, 2001 (codified at
U.S.C. § 2191(a) (2014)).
149
150
151

19

Vermeule, supra note 117, at 428. Practice in the states also supports Congress' view. See Bruhl, supra note 6, at 367
n.98 (providing examples of hortatory procedural statutes from Georgia, Iowa, California, and Massachusetts).
Metzenbaum v. FERC, 675 F.2d 1282 (D.C. Cir. 1982).
Id. at 1287.

152

Hinds' Precedents of the House of Representatives, vol. 1, § 245 (Washington, D.C.: Government Printing Office, 1907).

153

Legislative Reorganization Act of 1946, Pub. L. No. 79-601, 60 Stat. 812 (codified as amended in various sections at
28 U.S.C.).

154

See S. RES. 274, 96th Cong. (1979); Bruhl, supra note 6, at 366; S. REP. NO. 107-139 at 54 (2002) (stating in a report of
the Senate Committee on Finance on the Trade Act of 2002 that the disclaimer clause found in the Bill “simply confirms
what is the case under Article I, section 5, clause 2 of the Constitution of the United States [the Rules Clause] .... Because
the rules of proceedings in each House are determined by that House and do not require the consent of the other Chamber,
each House may change its rules independently of the will of the other Chamber.”).

155

This term refers to the internal precedents, traditions, and interpretations of a legislative body's own rules that are later
relied upon as persuasive authority.

156

4 HINDS' PRECEDENTS 143, § 3298.

157

Act of Sept. 24, 1789, 1 Stat. 23 (1789).

158

1 HINDS' PRECEDENTS, supra note 149, § 245.

159

132 CONG. REC. H1848 (daily ed. Apr. 16, 1986).

160

Id. (recounting Speaker O'Neill's remarks that “[t]he House is not operating under that statute, and that statute does
acknowledge that the House has the constitutional right to change the procedure at any time under its rulemaking
authority. The Committee on Rules and the House have changed the procedure.”); see also 133 CONG. REC. 1189-90

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(daily ed. Mar. 11, 1987) (statement of Rep. Trent Lott) (“Mr. Speaker, what in heaven's name is going on around this
House that we can't abide by our own process and rules we established, by law, just five months ago, for dealing with
this issue .... The only way prescribed by that law that the aid could not be released would be by the enactment of a
joint resolution of disapproval.); Jeffrey A. Meyer, Congressional Control of Foreign Assistance, 13 YALE J. INT'L
L. 69, 99 (1988).
161
162

Alaska Natural Gas Transportation Act of 1976, Pub. L. 94-586, 90 Stat. 2903, 2909 (codified as amended at 15 U.S.C.
§ 719f(d)(5)(B) (2011)).
Metzenbaum v. FERC, 675 F.2d 1282,1284-86 (D.C. Cir. 1982).

163

This scenario is much like the German Federal Convention. See supra note 25.

164

Reorganziation Act of 1939, Pub. L. No. 76-19, 53 Stat. 561. The act was the first use of statutory legislative rulemaking and employed an unconstitutional legislative veto. Id.

165

2 U.S.C. §§ 634- 645(a) (2009). This provision, known as the “Budget Act” is the modern framework for the
adoption of an annual budget to govern congressional appropriations.

166

See SUBCOMM. ON COMPILATION OF PRECEDENTS, COUNTING ELECTORAL VOTES, H.R. MISC. DOC.
NO. 44-13, at 229-30 (1877); Siegel, supra note 16, at 561.

167

Again, Gore's January 6th ruling requiring a senator to sign a motion to withdraw from the count appears to be
irreconcilable with section 5 of the ECA (providing that either House may withdraw without the consent of the other).

168

147 CONG. REC. H35 (daily ed. Jan 6, 2001) (objection of Rep. Cynthia McKinney).

169

This is perhaps the greatest flaw of the ECA. Changes would require the acquiescence of the President of the Senate
during the count that the ECA is hortatory, or a statutory amendment achieved through bicameralism and presentment.

170

Requiring the consent of another actor in amending rules that are subject to a lower internal threshold (e.g., a motion
to waive or amend the rules of the House or Senate made by one of the members of the body and approved by that
House). But see Bruhl, supra note 6, at 355-77 (asserting that the entrenchment of legislative rules is not burdensome
because of Rules Clause authority to abrogate, but incorrectly failing to observe that the ECA has been enforced against
the House of Representatives without any measures to change this provision short of the concurrence of the Senate or
an amendment to the ECA).

171

Roberts, supra note 66, at 1777 (citing Charles A. Black, Jr., Amending the Constitution: A Letter to a Congressman,
82 YALE L.J. 189, 191 (1972)).

172

United States v. Winstar Corp., 518 U.S. 839, 872 (1996) (citing 1 WILLIAM BLACKSTONE, COMMENTARIES
90 (1765)).

173

See Posner & Vermeule, supra note 11, at 1695-96. See generally John C. Roberts & Erwin Chemerinsky, Entrenchment
of Ordinary Legislation: A Reply to Professors Posner and Vermeule, 91 CAL. L. REV. 1775 (2003).

174

See Posner & Vermeule, supra note 11, at 1683; CONSTITUTION, JEFFERSON'S MANUAL, AND RULES OF THE
HOUSE, supra note 138; GOLD, supra note 75.

175

8 CONG. REC. 164 (1878) (statement of Sen. Augustus Garland) (noting in debate on a precursor to the ECA that “an
act passed by a previous Congress assuming to bind ... a succeeding Congress need not be repealed because it is void;
and for that I reason I oppose this bill”) (emphasis added); see also Siegel, supra note 16, at 560.

176

Consequently, to avoid encountering one or more non-delegation issues, the House or Senate could only overturn this
interpretation through the courts. This is because, for the reasons discussed supra, a re-interpretation of the Electoral
Count Act and the Rules Clause by the President of the Senate would impermissibly grants him or her control over

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house procedure. Additionally, any amendment to the Electoral Count Act would have to follow the normal process of
bicameralism and presentment. In this setting, a constitutional amendment might be most appropriate.
177

See Posner & Vermeule, supra note 11, at 1699.

178

Siegel, supra note 16, at 564.

179

See, e.g., Nate Cohn, Republicans Risk Five Key Senate Races With Supreme Court Stance, N.Y. TIMES
(Feb. 15, 2016), http://www.nytimes.com/2016/02/16/upshot/supreme-court-vacancy-looms-over-five-key-senateraces.html?partner=rss&emc=rss&_r=0.

180

Control of the U.S. Senate would flow to the Democratic Party at the beginning of the 115th Congress on January 3,
2017 before the certificates of vote from the Electoral College are counted. See 2 U.S.C. §§ 1,

181
182

7 (2009).

The term of the President and Vice-President does not expire until noon on January 20 of each quadrennium. See U.S.
CONST. amend. XX.
3 U.S.C. § 5 (2011) (requiring that Congress grant deference to electoral votes submitted by a state's governor by
a prescribed deadline). This is nearly the same scenario that happened in 2000. This argument, however, assumes that
the Florida Legislature did not act unilaterally to award the state's electors to a candidate, as the Florida Legislature
considered in 2000. See supra note 103. An interesting argument can be made that this provision also governs the
procedure by which electoral votes are counted in Congress, treading on the houses' procedural sovereignty. If this
section was found to be procedural (vs. substantive), it would likely be unenforceable as well.

183

U.S. CONST. amend. XII, § 1, cl. 3.

184

See DESCHLER'S PRECEDENTS, H. DOC. 94-661, 94TH CONG., 2D SESS. (1994). These parliamentary rulings
are persuasive authority, as presiding officers are generally free to rule as they wish and can be overruled by an appeal
from the floor, although Vice President Gore ruled that appeals were not permissible during the 2001 count. See 147
CONG. REC. H36 (daily ed. Jan. 6, 2001).

185

186

Again, the text of the Act, at
§ 5, states that a motion to withdraw does not require the concurrence of a senator,
however, the 2001 count places the practical validity of this provision in question as Vice President Gore ignored it.
The institutional standing of Congress as a whole is unchallenged. See generally ALISSA M. DOLAN &
TODD GARVEY, CONG. RESEARCH SERV., CONGRESSIONAL PARTICIPATION IN ARTICLE III COURTS:
STANDING TO SUE (2014). However, the individual standing of one House, though itself an independent Art. I
organ, has not been resolved by the Supreme Court, though it is likely that standing exists if an ordinary resolution is
based manifesting assent. See id. at 13-14;
United States House of Representatives v. Burwell, 130 F. Supp. 3d 53
(D.D.C. Sept. 9, 2015) (holding that the House of Representatives, as a whole, has standing to bring an action for nonappropriation against the executive).

187

188
189

It is generally assumed that one house of Congress may authorize a lawsuit on its behalf through an ordinary resolution.
See Memorandum Opinion, Burwell, No. 14-CV-1967, 2015 U.S. Dist. LEXIS 119712, at *45-54 (D.D.C. Sept. 9,
2015) (holding that “disregard for that reservation [appropriation power] works a grievous harm on the House, which
is deprived of its rightful and necessary place under our Constitution. The House has standing to redress that injury in
federal court.); DOLAN & GARVEY, supra note 183.
Baker v. Carr, 369 U.S. 186 (1962).
Id. at 217, 330. The six Baker factors are: (1) “textually demonstrable constitutional commitment of the issue to a
coordinate political department;” (2) “a lack of judicially discoverable and manageable standards for resolving it;” (3)
“the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion;” (4)
“the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate

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branches of government;” (5) “an unusual need for unquestioning adherence to a political decision already made;” and
(6) “the potentiality of embarrassment from multifarious pronouncements by various departments on one question.” Id.
190

Jonathan L. Entin, Separation of Powers, the Political Branches, and the Limits of Judicial Review, 51 OHIO ST. L.J.
175, 209 (1990).

191

NLRB v. Canning, 134 S. Ct. 2550, 2560 (2014) (quoting

192
193
194

INS v. Chadha, 462 U.S. 919, 941 (1983).
Id.
See

195

Bowsher v. Synar, 478 U.S. 714 (1986);

United States v. Ballin, 144 U.S. 1, 6 (1892).

197

Nixon v. United States, 506 U.S. 224, 235-36 (1993) (White & Blackmun, JJ., concurring).
An inter-branch dispute exists because Congressional actions affect the appointment of an executive branch officer, i.e.
the President, in much the same way as
J.).

199
200

Clinton v. City of New York, 524 U.S. 417 (1998).

Field v. Clark, 143 U.S. 649, 672 (1892).

196

198

Marbury v. Madison, 5 U.S. 137 (1803)).

United States v. Smith. United States v. Smith, 286 U.S. 6 (1932) (Brandeis,

Smith, 286 U.S. 6.
Id. at 33. See also Gregory Fredrick Van Tatenhove, A Question of Power: Judicial Review of Congressional Rules
of Procedure, 76 KY. L.J. 597, 609-10 (1987).

201

Smith, 286 U.S. at 33.

202

Id.

203

See John C. Roberts, Are Congressional Committees Constitutional?, 52 CASE W. RES. L. REV. 489, 532 (2001).

204

United States v. Ballin, 144 U.S. 1, 5 (1892).

205

See DOUGHERTY, supra note 63, at 402 (quoting Sen. Henry L. Dawes in 1876).

206

Quote widely attributed to Jean-Baptiste Alphonse Karr, LES GUÊPES (Jan. 1849).

207

THE FEDERALIST NO. 68 (Alexander Hamilton).

208

ROY MORRIS JR., FRAUD OF THE CENTURY, at picture 23 (2004).

209

See John Copeland Nagel, The Appearance of Election Law, 31 J. LEGIS. 37, 38 (2004).

210

Id.

211

Id.

212

This duality is reflected in our Electoral College system, in which voters select a slate of electors who in turn vote on
a state-weighted basis for President and Vice President.

213

See supra note 1 and accompanying text.

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214

Siegel, supra note 16, at 564.

215

Members of Congress in this case.

216

See Garry, supra note 118, at 717.

217

Kesavan, supra note 6, at 1812 (quoting HOUSE SPEC. COMM., COUNTING ELECTORAL VOTES, H.R. MISC.
DOC. 44-13, at 443 (1877) (remarks of Sen. Oliver Morton)).

218

Id.

219

See, e.g., Derek T. Muller, Invisible Federalism and the Electoral College, 44 ARIZ. ST. L. REV. 1237 (2012);
Norman R. Williams, Reforming the Electoral College: Federalism, Majoritarianism, and the Perils of Subconstitutional
Change, 100 GEO. L.J. 173 (2011).

220

RUTHERFORD BIRCHARD HAYES, DIARY & LETTERS OF RUTHERFORD BIRCHARD HAYES:
NINETEENTH PRESIDENT OF THE UNITED STATES 70-71 (D. MCKAY CO. 1964).

13 RUJLPP 340
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34 Hastings Const. L.Q. 161
Hastings Constitutional Law Quarterly
Winter 2007
Article

Richard K. Neumann Jr. a1
Copyright (c) 2007 Hastings College of the Law; Richard K. Neumann Jr.

THE REVIVAL OF IMPEACHMENT AS A PARTISAN POLITICAL
WEAPON
Contents
I.
II.
III.

IV.

V.

Introduction
The Adoption and Meaning of Constitutional Provisions on Impeachment
The Evolution of Impeachment Practice
A. The First Two Impeachments: Blount and Pickering
B. The Chase Impeachment, Its Context, and Its Aftermath
C. Between Chase and Johnson
D. Johnson
E. The Era of Nonpartisanship and Bipartisanship
1. Bellknap to Hoover
2. 1937
3. Ritter
4. Judicial Impeachments After Ritter
5. Nixon and Agnew
F. The Revival of Impeachment As a Partisan Political Weapon
1. The Fortas and Douglas Investigations: The Beginning of the Struggle for the Supreme Court
2. Clinton
The Future of Partisan Impeachments and Threats of Impeachment
A. Thomas
B. Evidentiary Burdens in the House and Senate
C. The Effect of Party Insecurity on the Partisan Use of Impeachment
Conclusion

*162 I. Introduction
Impeachment--the procedure through which the House of Representatives accuses and then prosecutes a federal official in the
Senate with the aim of removing him or her from office--has historically had either of two purposes. One has been to oust in
a nonpartisan or bipartisan manner a corrupt official who abuses power and thereby damages the country. The other has been
to inflict, for partisan reasons, a political blow on an official whose conduct the impeaching Representatives simply dislike.
Because the second purpose is much less acceptable, the impeaching Representatives attempt to disguise their purpose even
when voting on strictly party lines. Together, these two purposes represent the dual personality of impeachment.
Beginning soon after the formation of the federal government, impeachment was used as a partisan political weapon. After
the failed impeachment of President Andrew Johnson in 1868, a long period of largely nonpartisanship and bipartisanship in

impeachments ensued. 1 But since 1968, some elements in the Republican Party have been willing to use impeachment as a
partisan weapon; to inflict political damage on their opponents and as part of a campaign to control the Supreme Court and the
lower federal courts. For example, in 1969, Republican President Richard Nixon's Administration built a case against Justice Abe
Fortas that it would have submitted to the House of Representatives for impeachment if Fortas had not made that unnecessary

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by resigning. 2 Then, in 1970, Nixon's Administration built an impeachment case against Justice William O. Douglas. Gerald
Ford, then House Republican Minority Leader, introduced an impeachment resolution on the floor of the House. But House

Democrats outmaneuvered Ford by creating a committee to investigate the charges, which found no grounds for impeachment. 3
Abundant historical evidence demonstrates that the Nixon Administration's purpose in each instance was to create a Supreme
Court vacancy for Nixon to fill. 4

Those events were seen at the time as aberrations peculiar to the Nixon Administration. But in 1997, House Republican Majority
Whip Tom DeLay began threatening to impeach judges who decided cases *163 contrary to his beliefs. “I advocate impeaching
judges who consistently ignore their constitutional role, violate their oath of office and breach the separation of powers,” wrote
DeLay in the New York Times. “The framers provided the tool of impeachment to keep the power of the judiciary in check.” 5
“The judges need to be intimidated,” DeLay said a few months later; “[t]hey need to uphold the Constitution;” if they don't,
“we're going to go after them in a big way.” 6

In 1998, House Republicans impeached President Bill Clinton. This was the second time that a president, and the first time that
an elected president, had been impeached. In the trial that followed, the House impeachment managers failed to persuade even
a simple majority of the Senate to convict, much less the two-thirds required by the Constitution. 7

In 2005, former House Speaker Newt Gingrich wrote that “the Ninth Circuit judges who found the motto ‘one nation under

God’ unconstitutional could be considered unfit to serve and be impeached.” 8 Republican Representative Tom Feeney, a cosponsor of a House resolution that would denounce judges who cite foreign law in interpreting U.S. law, said that a judge who
persisted in citing foreign sources may be subject to the “ultimate remedy” of impeachment. 9

Later in 2005, after Congressional Republicans enacted legislation intended to cause federal courts to order the reinsertion of
Terri Schiavo's feeding tube, some Republicans threatened to impeach the judges who declined to do so. DeLay, who had become
House Majority Leader, cautioned that “[t]he time will come for the men responsible for this to answer for their behavior.”
DeLay went on to complain of what he called “an arrogant and out of control judiciary that thumbs its nose at Congress and
the president.” 10 Senator Tom Colburn's chief of staff told a meeting of Jerry Falwell and other activists, “I'm in favor of

mass impeachment if *164 that's what it takes.” 11 Similarly, DeLay talked of Congress removing judges who lacked “good
behavior.” 12

Still later in 2005, some Republicans began to threaten to impeach Justice Anthony Kennedy. 13 At the time, Republicans
had become increasingly nervous that Kennedy, like Justices Harry Blackmun, Lewis Powell, John P. Stevens, Sandra Day
O'Connor, and David Souter before him, 14 was evolving from the right wing toward the center or further. This evolution had
been evidenced by his opinions for the Court holding unconstitutional the imposition of the death penalty on a defendant who

committed the crime while under the age of eighteen, 15 the criminalization of gay or lesbian sex, 16 the prohibition of local

governments from enacting ordinances protecting gays and lesbians from discrimination, 17 and the incorporation of prayer
into a public school graduation, 18 as well as his concurrence in decisions holding the execution of a mentally ill murderer to
be unconstitutional 19 and reaffirming a constitutional right to abortion. 20

This might seem like the talk of Jacobins. But the Republican use of impeachment--actual impeachment against Clinton
in 1998-1999, threatened impeachment to create Supreme Court vacancies in the Nixon Administration, and threatened
impeachment to intimidate judges more recently--is well supported by precedent in American history.
Historically, there have been four great confrontations between or among branches of the federal government: (1) the struggle
between the Federalist-dominated judiciary on one hand, and the Jefferson *165 Administration and Jeffersonian Congress
on the other in the early years of the nineteenth century; (2), from 1865 to 1869, the confrontation between President Andrew
Johnson and the Radical Republican Congress over Reconstruction; (3) the conflict, which peaked in 1937, between the
Administration of Franklin D. Roosevelt and a Supreme Court that repeatedly struck down his New Deal legislation as
unconstitutional; and (4) the on-going struggle, which began in 1968, in and between the two elected branches on several issues
but, most particularly, over the composition of the Supreme Court. Impeachment as a highly partisan exercise of legislative

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power, in which one branch of government attacks another, played a central role in all of these confrontations except the struggle
between Roosevelt and the Supreme Court.
This article compares the use of impeachment in each of these confrontations as well as other uses of impeachment. Part
II describes how delegates at the Constitutional Convention understood English impeachment and why they drafted the
constitutional impeachment provisions as they did. Part III explains how, from the first impeachment in 1797 through the trial
of Andrew Johnson in 1868, impeachments, actual and threatened, were based on reasoning and rhetoric very much like those
expressed and acted upon by Republicans since the Fortas episode in 1969. Part III also explains how, after 1868, a parallel
tradition of impeachment evolved through mundane procedures--nonpartisan and bipartisan-- for separating corrupt judges from
their constitutional lifetime tenure, and how impeachment practice is now evolving further to incorporate both the partisan
and the nonpartisan. Parts IV and V consider the effects of the re-emergence of partisan impeachment since 1969. Part IV
explores whether the use of impeachment and impeachment threats as a partisan political strategy is likely to continue. Part
V concludes that, despite its superficial strategic appeal, partisan political impeachment for the most part fails to produce the
results its advocates seek.
Some of what occurred during earlier eras of partisan impeachment will seem familiar to us today. For example, during the
Adams and Jefferson Administrations, attack politics like those we experience now, including accusing political opponents of

treason and near-treason, dominated the political culture, and partisan impeachments were an inherent part of that culture. 21
Some historical figures, on the other hand, behaved in surprising ways. Chief Justice John Marshall, for example, feared
impeachment by Thomas Jefferson's party in Congress. Marshall routinely behaved in ways that would violate modern judicial
ethics, and *166 would have been required, under modern conflict-of-interest law, to recuse himself from some of the
foundational cases in constitutional law. 22 Jefferson's letters to his subordinates during the most partisan disputes of his
Presidency reveal obsessions on his part similar to those expressed by President Nixon on the White House Watergate tapes

(though without Nixon's dishonesty, vulgarity, and lack of imagination). 23 And during the trials of Aaron Burr, Jefferson
invented transactional immunity, by plea bargaining directly with some potential witnesses and by providing the prosecutor with
blank signed presidential pardons to be given to any witness the prosecutor wished separately to immunize. 24 Several decades
later, immediately before President Andrew Johnson was impeached, he tried to form a large army unit that would bypass the
ordinary chain of command and be answerable personally to him so that he could use it against his political opponents if he
wished. 25

Some aspects of the Clinton impeachment have not commonly been understood. For example, the procedural safeguards
observed by the House Judiciary Committee and the special prosecutors to prevent partisanship in the impeachment of President

Nixon were ignored during the Clinton impeachment. 26 The evidence of a right-wing campaign to destroy the Clinton
Presidency, beginning almost immediately after his inauguration in 1993 and culminating in impeachment in 1998, is abundant,
though much of it became available only after Clinton left office. 27 And the evidence that Justice Clarence Thomas committed
perjury during his confirmation hearings compares favorably with the perjury case against Clinton. 28

Compared with the past, the political context in which we live today is not quite what it appears to be. Although the Republicans
controlled both Houses of Congress almost continually from 1995 to 2007, they did so through margins that are razor-thin by
historical standards--thinner by far than those of any other party during any period of comparable length in American history. 29
For example, in the elections that produced the Senate that confirmed Chief Justice John Roberts in 2005 and Justice Samuel
Alito in 2006, more votes were cast for Democratic candidates than for *167 Republican candidates. In essence, the public

voted for a Democratic Senate but got a Republican one. 30 Party insecurity produced by situations like this has a substantial
role in encouraging partisan impeachments. The Jeffersonians who impeached Justice Chase, the Radical Republicans who
impeached Andrew Johnson, and the Republicans who impeached Clinton were all new to power, insecure about their ability
to hold on to it, and driven to use what power they had while they had it. In contrast, the Democrats in the constitutional
confrontation of 1937 had some of the most massive congressional majorities in American history, could look toward the future
with confidence that problems could be solved without assaults on individual judges, and therefore did not consider impeaching
anybody.
II. The Adoption and Meaning of Constitutional Provisions on Impeachment

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Historically, impeachment had a significant role in the diminution of monarchical power in England and imperial power in
the American colonies. In England, impeachment was a tool through which “Parliament, after a long and bitter struggle, made

ministers chosen by the King accountable to it rather than the Crown.” 31 In the struggle between monarch and legislature,

“Parliament indulged in the fiction that the King could do no wrong but was mislead by his ministers.” 32 Against that
background, impeachment was understandably considered by the drafters of the Constitution to be an ordinary political device,
consistent with reasonable government.
Although the House of Commons was at times eager to use impeachment as a weapon to depose officials it did not like, or even
to punish private citizens who held no office, it tended not to impeach “without evidence of some wrongdoing, negligence, or
betrayal of public trust.” 33 If the House of Commons set the bar of impeachment any lower there was no chance of conviction
in the House of Lords, where “proceedings were more often than not fair, dignified, and learned,” though *168 there were

ample instances of abuse. 34 For example, the House of Commons impeached an Anglican priest named Sacheverell, who held

no government office but criticized the Glorious Revolution of 1689 from the pulpit. 35 The public reaction was so negative

that the Whigs, who prosecuted Sacheverell, were turned out in favor of the Tories. 36

In the colonies, impeachment, like the common law jury, acquired an honorable reputation because it offered a tool for resistance
to the Crown. Although not legally authorized to do so, colonial assemblies at times impeached offensive colonial officials.
The impeachments might have been technically without effect, but they represented such an extreme form of protest that the

impeached officials often resigned or the Crown withdrew them. 37 The last of the colonial impeachments occurred in 1774,
the year before Lexington and Concord, when the Massachusetts General Court--a legislature, despite its name-- impeached the
Crown's chief justice in the colony 38 for “obeying a directive from the crown,” which began the collapse of British government
in Massachusetts. 39

During the Revolution of 1775-1783, the new state governments began to use impeachment as a vehicle to remove officials for
routine abuse of their offices. 40 Having used it as a tool of rebellion, “the Revolutionaries had absorbed impeachment into a

republican system” and made it an ordinary facet of government. 41 At this point impeachment had already acquired its dual
personality: it could be a non-partisan device for removing officials or it could be a partisan political weapon. At the time the
Constitutional Convention met in Philadelphia in 1787, most of the thirteen original states had impeachment provisions in their

own constitutions. 42 The constitutional provisions spread to newly admitted states and were frequently used. “From 1776 to
1805, New Jersey had nine [impeachment] trials, Vermont six, Massachusetts and Pennsylvania four apiece, South Carolina and
Kentucky three each, Tennessee two . . ., and *169 Georgia one.” 43 Today, every state constitution except Oregon's contains

impeachment provisions. 44

When the Constitutional Convention met in Philadelphia, British impeachment abuses were on the delegates' minds, 45 and they
methodically added restrictions to prevent such abuses. For example, in England, a judgment of conviction on an impeachment

could include criminal penalties, including imprisonment, 46 but at the Constitutional Convention, the delegates limited the
judgment of conviction to “removal from office, and disqualification to hold and enjoy any Office of honor, Trust, or Profit

under the United States.” 47 Although in England anybody except a member of the royal family could be legislatively tried and
punished through impeachment, 48 the Constitutional Convention limited the jurisdiction of impeachment to “[t]he President,

Vice President and all civil Officers of the United States.” 49 And while the House of Lords could convict by a simple

majority, 50 the Constitutional Convention decided to permit conviction in the Senate only by a two-thirds super-majority. 51
The Constitutional Convention also rejected some other aspects of English impeachment. For example, the head of state is

impeachable in the United States (the president), 52 but was not in England (the monarch). 53 And *170 although the English
monarch could pardon an impeachment conviction, 54 the American president cannot. 55

Perhaps the most perplexing issue for the delegates concerned a definition of the offenses for which a “civil Officer” could

be impeached. There was no limitation in English law: anything could be an impeachable offense. 56 The delegates vacillated
on this issue. On August 20, 1787, the Committee of Five recommended that officials be removable through impeachment

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for “neglect of duty malversation or corruption.” 57 On September 8, when it was proposed to limit impeachment to cases of
treason or bribery, George Mason objected that:
Treason as defined in the Constitution 58 will not reach many great and dangerous offences. Hastings 59 is not
guilty of Treason. Attempts to subvert the Constitution may not be Treason as above defined. As bills of attainder
which have saved the British Constitution are forbidden, 60 it is the more necessary to extend the power of
impeachments. 61

Mason moved to add “maladministration” as an impeachable offense. 62 James Madison countered that “[s]o vague a term
will be equivalent to a tenure during pleasure of the Senate.” 63 Mason “withdrew ‘maladministration’ [and] substitute[d]
‘other high crimes [and] misdemesnors [sic] ag[ainst] the State,”’ and the amended motion was adopted by a vote of eight
states to three. 64 Almost immediately, the *171 delegates voted to change “State” to “United States . . . in order to remove

ambiguity.” 65 The result was the list of impeachment grounds in the Constitution today: “Treason, Bribery, or other high Crimes
and Misdemeanors.” 66

The phrase “high Crimes and Misdemeanors” was not invented in Philadelphia. It had been part of English impeachment

practice for centuries, having first appeared as a ground for impeachment in 1386. 67 It was the ground for the Warren Hastings
impeachment, 68 which was contemporaneous with the Constitutional Convention. 69 And it accounted for twenty-six of the
fifty-six 70 English impeachments from 1642 to the time of the Constitutional Convention. 71

But the phrase did not come into the Constitution with its meaning clear. Part of the problem was contextual: in this new
form of government, what characteristics would make a crime “high?” The English impeachment precedents provide no clear
guidelines, and the words were often used as rhetoric rather than to communicate actual meaning. “Sometimes the English cases
seem to prove too much, treating as ‘high Crimes and Misdemeanors' petty acts of maladministration which no sensible person
could think impeachable offenses in a president, or in anybody.” 72 This seems nonsensical until one recalls that at that time the
modern parliamentary method of dislodging an unacceptable minister--the vote of no confidence--had not yet been invented,
and the English Parliament was reduced to using accusatory formats to remove appointees of the Crown. 73

The Constitutional delegates did not work out a definition in Philadelphia. Their drafting style, which produced by far the
shortest constitution of any modern country, was to sketch out a general outline, add a few specifics about which they felt

strongly, and leave it to *172 interpretation to fill in the rest. But a consensus of scholars 74 and the federal impeachment
precedents agree that, as Michael Gerhardt puts it:
The phrase “other high Crimes and Misdemeanors” consists of technical terms of art referring to “political
crimes” . . . [which] were not necessarily indictable crimes. Instead, “political crimes” consisted of the kinds of
abuses of power or injuries to the Republic that only could be committed by public officials by virtue of the public
offices or privileges they held. Although the concept “political crimes” uses the term “crimes,” the phrase did not
necessarily include all indictable offenses. Nor were all indictable offenses considered “political crimes.” 75

A second part of the problem is that over time words tend to acquire new meanings. The drafters did not require “high felonies
or misdemeanors,” although the modern ear might hear something like that when “high Crimes or Misdemeanors” is said. It

was not unknown in the eighteenth century to refer to crimes less serious than felonies as misdemeanors. Blackstone did. 76 But
modern criminal codes, with finely worked out differentiations among degrees of criminality, came only later, giving us today
the impression that a misdemeanor could only be a crime. At the time of the Constitutional Convention, “demeanor” meant what
it still means today on elementary school report cards: behavior. “Misdemeanor” was misbehavior. 77 Sound evidence that this is
what the delegates meant in Article II appears in the Article III provision creating lifetime tenure for federal judges: “The Judges,
both of the supreme and inferior Courts, shall hold their Offices during good Behaviour.” 78 Even though a misdemeanor in the

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criminal sense would always be a low offense and never a “high” one, twentieth century folklore assumed that “high crimes and
misdemeanors” was a quaint way of saying “felonies and misdemeanors”--which would limit impeachment to crimes. That,
however, has never been true.
*173 A third part of the problem is the appearance, although not necessarily the reality, of textual inconsistency. The grounds

for impeachment--“Treason, Bribery, or other high Crimes and Misdemeanors”--are set out in Article II of the Constitution, 79
which creates and governs the executive branch. The sentence begins “The President, Vice President and all civil Officers of

the United States, shall be removed from Office on Impeachment for, and Conviction of,” and then the grounds are given. 80
Placement of this sentence in Article II and the manner in which officials are listed both suggest that it applies only to the
executive branch, and that judges are not “civil Officers.” Article III, the Judicial Article, provides that “Judges . . . shall hold

their Offices during good Behaviour.” 81 If judges have “Offices,” they might reasonably be considered “civil Officers” and
subject to the same impeachment grounds as other impeachable officials, despite the placement of the Impeachment Clause in
Article II. In fact, when judges have been impeached, the House of Representatives always accuses them of bribery or other
high crimes and misdemeanors. 82

What then does the phrase “during good Behaviour” mean in Article III? The drafters intended “Misdemeanor” in the

Impeachment Clause to mean the opposite of “good Behaviour,” 83 and treason, bribery, and high crimes are, of course, all
bad behavior by any form of measurement. But, it has often been argued that judges can be impeached and removed on lesser
grounds than would be needed to remove a president or a vice president.
Both structural and textual justifications have been offered to support this view. One structural justification is that the removal
of a president--though not of a lesser executive official--disrupts the country, which would care less about removal of a Supreme
Court Justice and hardly care at all when a lesser judge is removed. Another structural justification is that federal judges have
life tenure and can be removed from office only by impeachment, while presidents and vice presidents serve four-year terms;
presidents are subject to term limits under the Twenty-second Amendment; and other executive branch officers can be dismissed
by the president. Gerald Ford, among others, made this argument during his unsuccessful *174 attempt to have Justice Douglas
impeached. 84 The textual justification is that the Impeachment Clause in Article II (the Executive Branch Article) requires
especially egregious misbehavior (“high . . . Misdemeanors”) and not just misbehavior, which is all Article III (the Judicial
Article) requires. There is no way to know whether the Framer left a loose end or made a conscious distinction. The records of
the Constitutional Convention contain no debate on the subject. It is true that two judges (Archbald and Ritter) 85 have been
impeached and removed for conduct that was only partly criminal. But that proves little. It is easy to imagine noncriminal
conduct that could quickly lead to impeachment of a president, such as a flat-out refusal to do the job combined with a refusal
to resign from it.

Even with the limitations imposed by the Constitutional Convention, impeachment remained a partisan political weapon as well
as a means of removing the unfit from office. In The Federalist, Alexander Hamilton described impeachment as “a method
of NATIONAL INQUEST [sic] into the conduct of public men.” 86 Because the circumstances of such an inquest cannot be
predicted in advance, impeachment “can never be tied down by . . . strict rules, either in the delineation of the offense by the
prosecutors [House managers who prosecute impeachments] or in the construction of it by the judges [Senators who decide

both law and fact] as in common cases serve to limit the discretion of courts in favor of personal security.” 87 This is exactly
the justification Congress would offer if it were to respond to criticism over its failure, explained in Part IV(B) of this article,
to adopt burdens of production and persuasion. 88

Hamilton, in fact, frankly admitted that impeachment would be seen as a partisan political weapon. Because a bill of
impeachment would allege “abuse or violation of some public trust,” it would be political by nature, its prosecution, as Alexander
Hamilton explained:
[W]ill seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly
or inimical to the accused. In many cases it will connect itself with the pre-existing factions, and will enlist all their
animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always
be the greatest danger that *175 the decision will be regulated more by the comparative strength of parties than
by the real demonstrations of innocence or guilt. 89

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III. The Evolution of Impeachment Practice
From the first impeachment in 1797 to the most recent one in 1998-1999, impeachment practice has gradually evolved, although
in the process it has, in recent decades, circled back toward its starting point. The most recent impeachment (Clinton) has more
in common with some of the earliest impeachments (Blount and Chase) and with the 1868 impeachment of Andrew Johnson
than it does with any of the impeachments that occurred between 1868 and 1998. During those 130 years impeachments were
mostly nonpartisan or bipartisan-- although since 1968 some threatened impeachments and attempts at impeachment have been
extremely partisan.
A. The First Two Impeachments: Blount and Pickering
In the early years of the federal government, “Congress briefly experimented with using impeachment to remove political
opposition.” 90 The first three impeachment trials all fit this pattern.

Senator William Blount of Tennessee was the first person impeached by the House. Blount was elected to the Senate in 1796

and took his seat in March 1797. 91 “In the fall of 1796 Blount secretly plotted with frontiersmen and Eastern speculators to
wrest Louisiana”--the huge territory later purchased by Jefferson, not the modest-sized modern state--“from Spain in order to

open the Mississippi Valley to settlers eager to purchase acres of his vast land holdings.” 92 To accomplish this, Blout organized

a private expedition into Spanish territory west of the Mississippi River, 93 and hoped for aid from the British, who at the time

were fighting a war against Spain in Europe. 94 In July 1797, evidence of the plot became public, and immediately the Senate,
on its own initiative, *176 expelled him. 95 At the same time, the House separately impeached him. 96 The impeachment trial,
however, did not begin until December 1798. 97 Those managing the case against Blount lost interest in prosecuting the case
until the election of 1800 approached.

Blount's conspiracy seemed to have had two purposes. First, Blount simply hoped to make money in land sales. 98 Second, many

Westerners, as those who lived in Kentucky and Tennessee were called at the time, viewed such an expedition with sympathy. 99
Western ambitions looked across the Mississippi, where the vacuum of weak Spanish administration seemed to invite American

infiltration. 100 In politics, the Jeffersonian party represented, among other groups, these Western interests, while the Federalists,
who controlled all branches of the federal government, were hostile to them. At various times, the Jeffersonians were called
the Anti-Federalists, the Democratic-Republicans, and the Republicans--even though they were the ancestors of what we now
call the Democratic Party. All these names can be confusing to the modern reader. Here, it will be called the Jeffersonian party.
What matters most in this context, and what is most easily remembered today, is that it was led by Jefferson. Blount started out
as a Federalist but switched to the Jeffersonian party shortly before his election. 101

To modern sensibilities, Blount's conspiracy seems like a fantasy, but intrigues like his were not rare in the Mississippi Valley of
his time. 102 It was a frontier, without settled borders. 103 The governments that claimed the land were far away, and they had

few, if any, forces on site to enforce their claims. 104 People on the frontier were not shocked at Blount's actions; in *177 fact,
after leaving the Senate he was popular, even revered in Tennessee. 105 But a Senator should not have done it: his conspiracy
could be imputed internationally to the United States government, giving Spain solid grounds for grievance.

The Federalists in the House of Representatives continued to prosecute the impeachment case against Blount even though the
Senate had expelled him. Their motives were not to remove him from the Senate (he was no longer there) but to disqualify

him from taking any future seat in Congress or any other position in the federal government. 106 The Federalists also wanted
to establish the principle that anybody, even someone not currently holding any office, could be so disqualified. The English
House of Commons could impeach its own members and members of the House of Lords, as well as citizens holding no office
at all, 107 but the words of the Constitution--“The President, Vice President and all civil Officers of the United States, shall be

removed from Office on Impeachment . . . and Conviction . . . .” 108 --limited that expansive concept of the impeachment power.

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Short, capsule descriptions of the Blount impeachment tend to treat it as a simple, though odd, case in which Blount's conduct

and status were the only issues. 109 The picture presented is of a somewhat confused, if not naive Senate, in the early days
of the Republic, trying earnestly to resolve an ambiguity in the Constitution on the question of whether a legislator could be
impeached and convicted. In-depth scholarly analysis, on the other hand, tends to treat it as an example of one party (in this
case, the Federalists) using impeachment as a calculated partisan political weapon against the other party. 110

The roll call votes in the Senate certainly support the scholarly analysis. There were a number of them in 1798 and 1799, some
procedural and others substantive. Of twenty-seven Federalist Senators, twenty-five voted against Blount most of the time;
eighteen of them voted against him *178 all of the time. 111 Of eleven Senators from the Jeffersonian party, eight voted for
Blount most of the time. 112

Perhaps even more corrobative are the other things Congress was doing while it was impeaching Blount. In July 1798, Congress
passed the Sedition Act “subjecting all Americans (but especially newspaper editors) to prison terms for libeling the President

and Congress.” 113 And “[t]he same two [Federalist] congressmen who actively managed the Blount impeachment trial . . . were
in the forefront of the drive for the Sedition Act. In the newspaper campaign for its passage, Federalist editors concentrated on
Jefferson, Madison, and Gallatin as traitorous Americans . . . .” 114 This was an era of hardball politics not unlike our own. The
Sedition Act criminalized the Federalists' adversaries by turning criticism of the Federalists into a crime. It certainly reflected
the Federalists' “disposition to interpret political opposition as treason.” 115 The first person convicted under the Sedition Act
served a year in prison for publishing the opinion that President Adams was “swallowed up in a continual grasp for power, in
an unbounded thirst for ridiculous pomp, foolish adulation, and selfish avarice.” 116

There is some evidence that the Federalists tried to use the Blount impeachment for similar ends. Federalist Senator Jacob Read
introduced a resolution that would end the Blount impeachment trial with a finding that a Senator is not liable to impeachment
more “than any citizen of the United States not a member of either House of Congress.” 117 In other words, every ordinary citizen
(and every Senator) could be impeached 118 and punished, on conviction, by “disqualification to hold and enjoy any Office of

honor, Trust or Profit under the United States.” 119 Although that would have been unconstitutional, as the Constitution limits

the reach of impeachment to “[t]he President, Vice President and all civil Officers of the United States,” 120 the Federalists
had nothing to fear except popular opinion. They controlled the federal judiciary as well as Congress, and the Sedition Act -*179 also plainly unconstitutional--was eagerly enforced by the courts. The point of impeachment would thus not be limited
to removing undesirable people from office. It would be extended to preventing undesirable people from ever assuming office.
Candidates for any federal office from the Jeffersonian party could be eliminated from the ballot in this way. 121 Jefferson
and Madison were sufficiently worried about this prospect to write anxious letters to each other immediately after the Read
resolution was introduced. 122

The Federalists did not bring the Read resolution to a vote. “Presumably the Federalists thought it unwise to confront the
American people with a declaration of the absolute immunity of senators from impeachment, coupled with the universal liability

of private citizens to exclusion from office by that process.” 123 The Read resolution, enunciating a doctrine of universal
impeachment, represents not what the Federalists succeeded in doing, but instead what at least a faction within them would
have liked to have done, if they had thought they could get away with it.
In the impeachment trial, Blount's lawyers offered several defenses: that he was no longer a Senator; that Senators are not

“civil Officers” 124 subject to impeachment; that whatever he did was not done in the execution of his official duties--and that

therefore he was not within the jurisdiction of an impeachment proceeding. 125 In response, the House managers made Senator
Read's argument: “That all persons, without the supposed limitation [to President, Vice President, and civil Officers of the
United States], are liable to impeachment.” 126

Certainly, there was no nonpartisan reason to prosecute an impeachment, since Blount was no longer in office. One of the

House managers, James A. Bayard, who was “in the forefront of the drive for the Sedition Act,” 127 made it clear in his closing

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argument to the Senate that the real purpose of the Blount impeachment trial was to establish the principle of universal liability
to impeachment and disqualification from future office-holding:
*180 Let us suppose that a citizen, not in office, but possessed of extensive influence, arising from popular arts
[ability to speak to the people], from wealth or connexions, actuated by strong ambition, and aspiring to the first
place in the Government, should conspire with the disaffected of our own country, or with foreign intriguers, by
illegal artifice [criticizing the president and Congress, which were crimes under the Sedition Act], corruption, or
force, to place himself in the Presidential chair. I would ask, in such a case, what punishment would be more likely
to quell a spirit of that description, than absolute and perpetual disqualification . . . . 128

John Adams, the president and a Federalist, had a year left in his term of office and was not confident of reelection. At the time
these words were spoken, Madison held no federal office, 129 though, nine years later, he was elected president, succeeding
Jefferson. Jefferson was in federal office, although Brant speculates that if impeached before the next election, he might have

resigned to avoid a trial, and thus these words were aimed at him as well as Madison. 130 Jefferson was vice president and heard

Bayard's speech in the Senate chamber, where he was presiding 131 (before vice presidents became so busy that they delegated

this duty 132 to others). The Federalists controlled all three branches of government, and Jefferson was vice president only
because he lost the presidential election of 1796 to John Adams. Until the Twelfth Amendment was adopted in 1803, the vice
presidency went to the losing presidential candidate with the largest number of electoral votes. 133

According to Brant, “[h]ere was a clear revelation of Federalist party strategy to control the presidential election of 1800 by
combining impeachment with the Sedition Act”: prosecuting anti-Federalist editors under the Sedition Act while threatening

anti-Federalist candidates with impeachment, whether or not they were currently “civil Officers.” 134 Melton, who wrote the

most exhaustive study of the Blount impeachment, holds a similar view, though less vividly expressed. 135 He reports that,
“[d]uring the proceedings against Blount, the Federalists had never *181 concealed their desire to establish impeachment as
a weapon that could reach any person, public or private, and deprive him of office; on the contrary, they were quite vocal about
it.” 136 Because the Constitution does not limit impeachment to criminal acts, Congress could permanently disqualify from

federal office any citizen whose politics Congress did not like. 137 “With this power a determined Congress could virtually
guarantee permanent Federalist ascendancy.” 138

There is much plausibility in these theories, but perhaps one exaggeration. Universal impeachment was probably only a strategy
preferred by a faction within the Federalist Party. The Federalist Party was not monolithic. Like most political parties, it had
both extremist and moderate elements. The moderates tended to cluster around Adams and Alexander Hamilton. 139 The

extremists--called High Federalists 140 --were owners of substantial property, who also felt they owned the government; they
considered democracy “to be the government of the worst,” in the words of George Cabot. 141 Among their leaders was
Justice Samuel Chase, 142 whom the Jeffersonians later impeached for expressing and acting on exactly that sentiment from

the bench. 143 Hoffer and Hull, who wrote the most thorough study of the uses of impeachment just before and after adoption
of the Constitution, concluded that although the Federalists used the Blount impeachment as a partisan political weapon against
Jefferson's party, it was an aberration and not part of a grand strategy. 144 Perhaps the strongest evidence is that the Blount
experience was not repeated. The House made no serious efforts to impeach Jefferson, Madison, or other prominent members
of their party.

*182 At the end of Blount's impeachment trial, “[t]he plan failed, obviously because a count of heads in the strongly Federalist

Senate showed that fewer than two thirds were brave enough to go through with it” 145 --probably because of popular hostility
already building up over the Sedition Act. A motion to dismiss for lack of jurisdiction was approved by a vote of fourteen to
eleven. 146 Although scholars disagree about the exact party division in the vote, 147 they agree that “a composite portrait of

the senator who wanted to assert Senate jurisdiction over Blount shows him to be a Federalist from the Northeast.” 148

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Blount's impeachment is remembered for establishing that a legislator is not subject to impeachment. 149 But it did not actually
do that. The grounds in the motion to dismiss were not specified, and a Senator could have voted for it on the theory that

Senators are not impeachable or on the theory that private citizens are not impeachable (Blount no longer being a Senator). 150
Nor was Blount's impeachment needed to establish the unimpeachability of legislators. The Constitution had done that already.
Article II, Section 4 makes liable to impeachment the president, vice president, “and all civil Officers of the United States.”
Article I, Section 6, forbids appointment of a Senator or Member of the House of Representatives to “any civil Office under
the Authority of the United States” while still serving in Congress. Thus, a legislator cannot be a “civil Officer” since they are
prohibited from assuming “any civil Office.”
In the 1800 election, Jefferson was elected president, defeating the incumbent Federalist John Adams, and Jefferson's party took
over both Houses of Congress. 151 In its last weeks in office, the lame-duck Federalist Congress created sixteen new judgeships
as well as a number of justices of the peace, by passing the Judiciary Act of 1801 (sometimes called the Midnight Judges
Act). 152 These judgeships and other reforms in the statute, *183 such as the elimination of circuit-riding by Supreme Court
Justices, were needed, but the Federalists' dominant purpose was to appoint as many of their own people to the bench as possible

before the Jefferson Administration took office. 153 This was a court-packing plan packaged as a reform to enhance judicial
efficiency, a tactic that Franklin Roosevelt tried unsuccessfully in 1937. The statute was also intended to deprive Jefferson of a
Supreme Court appointment; it reduced the Court from six Justices to five, effective with the next vacancy. 154

In his last hours in office, by candlelight on the night before Jefferson took the presidential oath, Adams signed commissions
appointing Federalists to the positions created by the Judiciary Act of 1801. 155 Madison, Jefferson's new Secretary of State,

refused. to turn over these commissions to the appointees, 156 setting in motion the train of events that led to Marbury v.
Madison. 157 Even without these appointments, the Federalists had a solid grip on the judiciary, occupying virtually every
federal judgeship, although they had lost the two elected branches. 158

The Federalists used their grip in partisan ways. While acting as trial judges when riding circuit, Justices William Patterson and
James Iredell of the Supreme Court “made partisan statements from the bench” in trials of members of Jefferson's party under the
Sedition Act, 159 doubtless for the purpose of inflaming juries. Although every Justice on the Supreme Court was a Federalist,
Samuel Chase, in particular, was “intensely partisan.” 160 He was so partisan, in fact, that the Supreme Court's August 1800

term had to be postponed because Chase was out of town campaigning for the reelection of Adams as president. 161 The Sedition

Act expired in 1801, 162 but “nearly all the men who had ruthlessly enforced [it] were still on the *184 bench.” 163 Jefferson
and his party felt under attack from “an antagonistic and politically active judiciary,” 164 and they counter-attacked.

Just as the Federalists had used impeachment as a partisan political weapon, so, too, would Jefferson's party--but this time

to dislodge Federalists from the judicial branch. 165 John Randolph, 166 a leader among Jefferson's party in the House of

Representatives, initially “popularized the idea that the lower house could define impeachable offenses as it wished” 167 --a

concept later pushed aggressively by Gerald Ford, Bob Barr, 168 and Tom DeLay. When trying to get William O. Douglas
impeached in 1970, Ford, then House Minority Leader, claimed that “an impeachable offense is whatever a majority of the
House of Representatives considers it to be at a given moment in history; conviction results from whatever offense or offenses
two-thirds of the other body [the Senate] considers to be sufficiently serious to require removal of the accused from office.” 169
During the Clinton impeachment, DeLay, the House Majority whip, took the same position: that a high crime or misdemeanor
is “whatever a majority of the House of Representatives considers it to be at a given moment in history.” 170

There was ambivalence in Jefferson's party about using impeachment against the judiciary, 171 but by 1804, Jefferson had

become “the nominal leader of the most sweeping impeachment movement in American history.” 172 According to Dumas
Malone, the most prominent of Jefferson's biographers:
[p]olitical enemies of Jefferson in his lifetime and numerous later writers contended that he planned a ‘campaign’
against the judiciary from the very start, but that as a cautious politician, he put this into effect only step by step

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lest he jeopardize the *185 popularity of his party. It seems more likely that he took one step without being sure

of or necessarily committed to the next one. 173

Ten days after taking office as president, Jefferson said of the Federalists, “The principal of them have retreated into the judiciary
as a stronghold, the tenure of which makes it difficult to dislodge them.” But he did nothing in particular to plan a strategy of

impeachment, leaving that to members of his party in Congress. 174 One of them, Congressmen (later Senator) William Branch
Giles, wanted to abolish the entire judicial branch and create a new one, without any judges belonging to the Federalist Party.
Jefferson, according to Malone, “never advocated that degree of demolition.” 175

John Pickering was a Federalist and a district court judge in New Hampshire. 176 He had written New Hampshire's state

constitution in 1784. 177 But even before Jefferson was elected president, Pickering had become undeniably incompetent due

to drunkenness and insanity 178 and “was making a daily spectacle of himself on the bench.” 179 The Federalists themselves

had actually managed to remove him from the courthouse temporarily. Using a provision in the Judiciary Act of 1801, 180 the
circuit court had delegated a circuit judge to substitute for Pickering on the ground that he was incapacitated. But when the

Jeffersonians repealed the Act, they “inadvertently forced Pickering to resume his position.” 181 The last straw was a case in
which the owner of a ship seized by the government sued for its return, which Pickering ordered. “When the district attorney
reminded him that he had heard no witnesses for the Government, Pickering jeeringly replied: ‘You may bring forty thousand
and they will *186 not alter the decree.”’ 182 In 1804, the House impeached him, and the Senate convicted. 183

It was a strange impeachment, and some basic ingredients of a trial were missing. Pickering did not attend the proceedings,

and nobody appeared to represent him. 184 Federalist Senators conducted his defense. 185 When Pickering was served with

Senate subpoenas, he “demanded ‘trial by battle’ and challenged Jefferson to a duel.” 186 Pickering's son submitted a petition
arguing that his father was “insane, his mind wholly deranged,” and thus “incapable of corruption of judgment, not subject to
impeachment, . . . and his disorder has baffled all medical aid.” 187

Pickering should have been removed from the bench. But he also fit conveniently within the agenda of the Jeffersonian party.
When Jefferson became president in 1801, “the national judiciary, one hundred per cent Federalist, amounted to an arm of that
party.” 188 If removing Federalists was the goal, Pickering seemed a good place to start because it was impossible to defend

him. 189 There were only about two dozen federal judges at the time, 190 and none of them was truly obscure.

In the House and Senate, the Federalists, now a minority, fought back bitterly. 191 The House voted to impeach by forty-five to

eight, and all of the nay votes were Federalists. 192 The Senate convicted nineteen to seven on a straight party-line vote and then
voted twenty to six to remove Pickering. 193 *187 What should have been nonpartisan and a sad duty was instead a vitriolic
pitched battle--not because of anything peculiar to Pickering, but because of what the political parties had to gain or lose on the
outcome. Jefferson “rewarded three of the principal prosecution witnesses with lucrative posts,” and appointed the local federal
prosecutor-- the one who initially alerted Jefferson about Pickering--to Pickering's judgeship. 194 Pickering was merely a trial
court judge, but both parties saw him as first blood in a campaign to oust Federalists from the judiciary. Hoffer and Hull call

Pickering's impeachment a “dress rehearsal” for the impeachment of Federalist Supreme Court Justice Chase. 195 In fact, in the
same month Pickering was convicted (December 1804), Chase was impeached by the House. 196
B. The Chase Impeachment, Its Context, and Its Aftermath
By December 1804, the Jeffersonians had held the elected branches for almost four years. Why did they wait so long before
convicting Pickering and impeaching Chase? There are two reasons. The simpler one is that for the first two years it would
not have been possible to get a conviction in the Senate. After the elections of 1800, the Jeffersonians lacked the two-thirds
majority needed to convict if the voting followed party lines. After the elections of 1802, however, the Senate could much
more easily support a conviction, with twenty-five Jeffersonians and only nine Federalists (73.5%). In fact, from March 1803,

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when the Congress elected in 1802 was sworn in, until the end of Jefferson's Presidency, his party's strength in Congress was
overwhelming. 197
*188 Table 1
Congressional Party Divisions After the Elections of 1798 Through 1808
1798

1800

1802

1804

1806

1808

Jeffersonians

10

17

25

27

28

27

Federalists

22

15

9

7

6

7

Senate 198

Vacant

2

House 199
Jeffersonians

46

68

103

114

116

92

Federalists

60

38

39

28

26

50

Vacant

1

The more complex reason is that the Jeffersonians, like the Federalists, were divided into extremists and moderates, and as long
as the judiciary did not interfere with Jefferson's goals, he was himself instinctively a moderate. 200 And the Supreme Court had

not interfered. A good illustration would be the companion cases of Stuart v. Laird 201 and Marbury. Decided six days apart,
Stuart and Marbury together constitute the Supreme Court's reaction to the Jeffersonians' treatment of the Judiciary Act of 1801.
The Court held in Stuart that Congress could constitutionally repeal the Act and thus abolish the judgeships the Act created and
terminate the appointments of the judges involved (all Federalists), despite the Constitution's guarantee 202 of lifetime tenure for
federal judges. Although in Marbury, the Court postulated in dicta that as long as the Act was in effect, the executive branch was
required to deliver the paperwork needed by nominated and confirmed judges so they could *189 assume their offices, and that
a Cabinet officer such as the Secretary of State could be compelled by mandamus to do so, the Court refused to grant a writ of
mandamus because the statute providing the Court with original (as opposed to appellate) jurisdiction was unconstitutional. The
Supreme Court thus surrendered to the Jeffersonians on the point of the lawsuit, even if Marshall used the occasion to enunciate
judicial power to mandamus Cabinet officers and to nullify congressional statutes inconsistent with the Constitution. This was
“exceptionally adroit” on Marshall's part, “leaving no target for [Jeffersonian] retaliation beyond frustrated rhetoric.” 203

Jefferson was outraged. On the day Marbury was decided, he wrote that the Federalists “have retired into the Judiciary as a

stronghold . . . and from that battery, all the works of” his party “are to be beaten down and erased.” 204 To some extent, this
was an exaggeration. Unlike the Supreme Court of the 1930s, which struck down New Deal legislation vitally important to

the Administration of Franklin D. Roosevelt, 205 the Court had not in Marbury held unconstitutional a statute enacted by a
Jeffersonian-dominated Congress. The statute struck down in Marbury was an obscure provision of the original Judiciary Act of

1789. 206 And in earlier decisions, the Supreme Court 207 and Justices of the Supreme Court, sitting as circuit judges, 208 had
assumed they could hold federal statutes unconstitutional. In Marbury, Marshall only enunciated that power more clearly and
supported it with extensive arguments. There is some historical evidence that what so angered Jefferson and his party was not
the assertion of a power of judicial review of legislation for constitutionality, but instead Marshall's assertion, in dicta, that if the
Court had actually had jurisdiction, it would have had the power to order a Cabinet officer, through mandamus, to take action
the Court considered legally required. 209 That might seem today to be the reaction of politicians who think of themselves as
imperial and beyond objective constraints such as those embodied in law. But the Federalist judiciary had so abused its power
under the Sedition Act that the mandamus discussion in Marbury could have been perceived as laying a foundation for future
abuses. Marbury was thus seen by Jefferson and his *190 allies, and could still be seen today, as “one of the most flagrant
specimens of judicial activism.” 210

Against this background, Pickering was impeached and convicted because the radical and moderate Jeffersonians came to
agreement, although based on different reasoning. On ideological grounds, the radicals were willing to impeach any Federalist
judge whose conduct was egregious enough to make a conviction feasible. The moderates, on the other hand, could not imagine
leaving a judge as incompetent as Pickering on the bench; they might have felt the same way even if he had been a Jeffersonian.
Why, then, were the radicals able to get Chase impeached?

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Of the first three impeachment defendants, Blount, Pickering, and Chase, “Chase was clearly the most partisan.” 211 He lectured
jurors on why Jefferson and his party were evil. He helped arrange an indictment under the Sedition Act and then made outof-court statements that the defendant should be convicted, after which he presided over the defendant's trial. 212 Although
he signed the Declaration of Independence and was second only to John Marshall as an intellectual leader of the Supreme
Court, 213 Chase was a generally abusive judge as well. “Essentially a bully, he loved nothing better than insulting witnesses
and lawyers with sarcasm, knowing they dare not reply in kind.” 214

He acted as though virtually everyone brought before him on a criminal charge was guilty. He did not truly accept
the adversarial process in criminal trials [and] was impatient with defense counsel not just because they represented
radicals and democrats, but because he had not [really accepted] the idea of defense counsel conducting the

defendants' cases. 215 Because Chase's “turbulent disposition made him an ally who often proved more of a
liability than an asset,” Washington nominated him for a Supreme Court vacancy only when he could not get others
to take the job--the Supreme Court had very little prestige in the 1790s--and the Senate “reluctantly confirmed
his appointment.” 216 Eventually, Chase became “the most hated member of the Federal judiciary.” 217 Oddly
*191 enough, Chase had opposed adoption of the Constitution while a member of the Maryland Convention

called to consider whether to ratify it. 218

Chase was accused of misconduct not in the Supreme Court, but instead while riding circuit and presiding as a trial judge (at

the time, a significant part of a Supreme Court Justice's work). 219 The articles of impeachment alleged that in one case he
tried to persuade a jury to convict and refused to allow defense counsel to argue the law. The articles alleged that in another
case, he refused to excuse a juror who admitted prejudging the defendant guilty; excluded evidence illegally; harassed defense
counsel; and otherwise acted improperly. In a third case, the articles alleged that he pressured a grand jury to indict and, when
they did not, pressured a district attorney to prosecute anyway. In a fourth case, the articles alleged that he made a partisan

political speech from the bench to a grand jury, 220 The last was the immediate provocation for the impeachment. 221 Chase
had lectured the grand jurors that, among other things, allowing all white males to vote was “mobocracy”; that the Jefferson
Administration held “unfairly acquired power”; and that it was evil to repeal the Judiciary Act of 1801. 222

On five of the eight articles of impeachment, a Senate majority voted to acquit. 223 On the remaining three, only a simple

majority voted to convict, not the two-thirds constitutionally required 224 --“thanks in part to a few” from Jefferson's party “who
consistently sided with the Federalists. Chase thus escaped . . ., but the episode had a sobering effect on him, and *192 he was
never the same man afterwards.” 225 All of the Federalist Senators voted not guilty on every impeachment article. 226 On each
article, at least six members of Jefferson's party--and often more--voted to acquit. 227

The House managers were furious at the result. Senator John Quincy Adams (John Adams' son and a future president) wrote
that he “had some conversation . . . with Mr. Madison, who appeared much diverted at the petulance of the managers on their

disappointment.” 228 Back in the House, John Randolph introduced an amendment to the Constitution that would provide for
removal of judges by a simple majority in each House of Congress; another manager introduced a Constitutional amendment
that would permit a state legislature to recall and replace a Senator. 229 But this was venting and came to nothing. 230

What caused the defections in the Senate is not clear. Most scholars ascribe at least part of it to senatorial resentment at the
conduct of the House managers--especially Randolph--both during the impeachment trial, and in another controversy involving
land in Georgia and unrelated to Chase. 231 Randolph had bragged that this was to be his impeachment to accomplish, 232 and

his “invective, his dramatic but often irrelevant harangues” 233 unsettled the Jeffersonian moderates in the Senate. Other causes

might have been sympathy for an “old and feeble” revolutionary, however obnoxious he might have been; 234 uncertainty about
whether what Chase had done was really illegal at the time; 235 and ambivalence by Jefferson and his party as they became
comfortable in power and came to *193 experience judicial opposition more as a receding nuisance than a threat, due to the
judicial self-restraint (compared to the late 1790s) superintended by Marshall. 236 Perhaps most importantly, Jefferson took

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no public position on whether Chase should be impeached or convicted, and he did nothing to persuade Senators to vote one
way or the other. 237

Irving Brant concluded that “Chase had made himself unfit for his position,” 238 and Raoul Berger considered Chase to be

“an implacably prejudiced judge” and his acquittal to be “a miscarriage of justice.” 239 The evidence easily supports Berger's
opinion. If a modern judge were to behave as Chase did, it would cause a bipartisan uproar. However, the historical evidence
also supports a contrary opinion. Our sensibilities today are more refined than those of Chase's contemporaries and measured
against his contemporaries, he was a severely flawed but not incompetent judge. Remembering that, as a tribunal, the Senate
was hostile to Chase to begin with, one is tempted to conclude that the acquittal had little to do with the merits of the case
against him. The Jeffersonian party was using impeachment as a partisan political weapon, and the real issues in Chase's trial
were not limited to his conduct. Aside from the power struggle between two political parties and the dispute about whether a
party victorious at the polls could reach into the judiciary through impeachment and threaten judicial independence, perhaps
the most important (and least understood) issue was whether people were tired of hyper-partisanship and wanted politics to
operate in a more civilized way. 240 Even within Jefferson's party, there was some fear that overreaching might lead to defeat
at the polls, 241 and that if the Federalists ever regained Congress, they would again use impeachment as a partisan political

weapon unless some limits were observed in the meantime. 242

Afterward, Jefferson grumbled that “impeachment is not even a scarecrow.” 243 But despite Chase's acquittal, Jefferson had
won at least part of his point--not as much as he wanted, but probably as much as he needed.
*194 Jefferson had challenged [the Federalist judicial] arrogance and humbled it. Chase's lawyers had pleaded
for mercy. Marshall, appearing for the defense, had seemed frightened. Not until the impeachment of Chase
had Federalist politicians conceded openly that prostitution of the judiciary to the purposes of party was even
questionable . . . . But when Jefferson challenged these practices in the impeachment of Chase, the defense had
been forced to admit their impropriety . . . . [and the result lifted the judiciary] above the hog wallow of politics to

the decent dignity it has since maintained. 244 When Chief Justice John Marshall testified, his answers showed “a

desire to please the prosecution.” 245 He had reason to be afraid. If the Senate convicted Chase, Marshall could

have been the next impeached. 246 The radical Jeffersonians thus got exactly the scene they wanted: a frightened
John Marshall, currying their favor in an attempt to avoid being himself purged.

History concentrates on federal impeachment. But Hoffer and Hull collected extensive evidence showing widespread use of

impeachment in state legislatures during Adams and Jefferson's time. 247 At the time, the states were treated as the basic unit of
sovereignty, and the federal government was a novel contraption to hold the states together. For that reason, state impeachments
were at least as immediately significant as the federal ones. The use of state impeachments as partisan political weapons was
so widespread that “[t]he same characteristics that were coming to mark major electoral campaigns--hoopla, press coverage,
popular rhetoric preached to the mass of voters--appeared at the trial of [state] impeachments . . . . Conviction was rare in
such carnival cases because the objective of proving a charge became less important than the objective of discrediting an entire
party.” 248 And, both state legislatures and state judiciaries were getting worn out from these struggles. 249 “No officeholder,
*195 whatever his status, was truly safe from impeachment” when the opposing party controlled the legislature. 250

The Pennsylvania legislature's impeachment, conviction, and removal from office of a state court judge named Alexander

Addison in 1803 is often considered a rehearsal for the Pickering and Chase impeachments. 251 The same key elements were
present: a Federalist judge who used his office for partisan purposes, a Jeffersonian majority in the legislature, and a Federalist
minority that unanimously defended its judge. 252 Moreover, the Pennsylvania Jeffersonians were, like the party in Congress,

split between radicals and moderates. 253 And Addison, like Chase, liked to lecture juries on politics: for example calling protests

against the Sedition Act “a declaration of war against the government of the United States.” 254 Although, under Pennsylvania
law, a judge could be removed by the Governor without a trial on demand of both Houses of the legislature (a procedure called
a joint address), 255 the radical Jeffersonians preferred impeachment because the joint address procedure, though simpler, was
not sufficiently accusatory and did not provide the same opportunities to flail and embarrass the Federalists. 256 Addison was

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convicted because even the moderates thought him incorrigible: after the state supreme court had held that Addison could not
legally prevent judges over whom he presided from charging grand juries, he did so anyway. 257

Another Pennsylvania impeachment started in the spring of 1804, 258 about the same time that Pickering's impeachment began
in Washington, and the result in the state senate predicted the verdict in Chase's trial. Three state supreme court judges--Edward
Shippen, Jr., Thomas Smith, and Jasper Yeats--all Federalists, were impeached for imprisoning a litigant for thirty days on the
ground of contempt, for reasons that were *196 arguably partisan. 259 The remaining state supreme court judge, a Jeffersonian,
specifically requested that he too be impeached because, although not involved in the contempt ruling, he agreed with it. 260
That should have been a signal to the radicals in the legislature that they had gone too far. The Jeffersonians ignored the hint

and through joint address asked the Governor to remove the Jeffersonian judge, which the Governor refused to do. 261 In
January 1805--after Pickering had been convicted and Chase had been impeached, and just before Chase's trial--the state senate
acquitted the three Federalists. 262 Just as it would happen a few weeks later in Chase's trial in Washington, a majority, but

not the two-thirds needed, voted to convict. 263 Moderate Jeffersonians defected, and although the reasons are not clear, the

extreme positions taken by the impeachers were a factor. 264

The Chase impeachment trial was presided over by Vice President Aaron Burr, who at the time was under indictment in two
states for the murder of Alexander Hamilton, 265 leading to contemporary jokes about the judge being tried by the murderer,

rather than the other way around. 266 Burr, a fugitive in fear of extradition, had not presided over the Senate since Hamilton's

death. 267 To induce Burr to return to Washington and preside favorably, both the extremists and the moderates in Jefferson's
party flattered him with attention. The Jefferson Administration gave government jobs to Burr's relatives and friends, and

Jeffersonian Senators asked New Jersey to drop the murder indictment. 268 The motives of the extremists were obvious, but
those of the Administration were not. Channing concluded that Jefferson was trying to increase the odds of conviction, while
Richard Ellis thought the opposite. 269

*197 No one took any action to impeach Burr. He belonged to Jefferson's party, which had no intention of impeaching its own

vice president. 270 The Federalists, with only about a quarter of the seats in each House of Congress, 271 had no hope of winning
anything in either chamber. Jefferson's party pointedly did not renominate Burr for vice president, although Burr's murder of
Hamilton was not the only reason. The original constitutional plan for electing presidents and vice presidents called for electors
to cast two votes for president; the candidate with the largest electoral vote became president, and the runner-up became vice

president. 272 This was perhaps the only truly naive provision in the Constitution, and it was replaced in 1804, through the
Twelfth Amendment, with the system used today. In the first two presidential elections, 1788 and 1792, political parties did
not participate, and Washington was unanimously elected president and John Adams vice president. Both were Federalists. The
1796 election produced a president (Adams) and vice president (Jefferson) of opposing political parties because presidential
and vice presidential candidates did not run together on tickets.
In 1800, to avoid this kind of result, the parties ran tickets, Jefferson's party supporting him for president and Burr for vice
president. Because there was no way to vote separately for vice president, every one of Jefferson's electors voted for both him

and Burr for president, producing a tie and throwing the election into the House of Representatives. 273 The House that decided
the election was not the newly elected one, dominated by Jeffersonians, but instead the lame-duck Federalist House, whose
leaders plotted to stop Jefferson by electing Burr. 274 The task of electing a president after the Electoral College fails to do so
no longer falls on a lame-duck House because the Twentieth Amendment moved the beginning of presidential terms of office
from March 4 to January 20 and the beginning of congressional terms of office from March 4 to January 3--the latter in part

to prevent a lame-duck House from choosing a president. 275 When the House elects a president, voting is tallied by states,
each state having one vote. Although the Federalists had a majority of the membership of the House, they did not control a

majority of state *198 delegations in the House. 276 After thirty-five ballots produced exactly the same tally--eight states for
Jefferson, six for Burr, and two split and not voting, thus failing to give any candidate a majority--a few of the Federalists gave
up and allowed Jefferson to be elected. 277

Two aspects of this fiasco forever poisoned Jefferson's view of Burr. First, the flaws in the original system of electing presidents
required that when a party ran presidential and vice presidential candidates as a ticket, at least one of that party's electors had

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to vote for someone other than the vice presidential nominee, or a tie would result. Some electors who planned to do that

were dissuaded on assurances from the Burr camp that other electors would do so. 278 The primitive communications of the
time mostly accounted for this lack of coordination, but it also appeared that Burr was manipulating the situation to his own
advantage. Second, once the election was thrown into the House, Burr did not take himself out of the contest, even though
Jefferson was the party's nominee for president and the voters who chose Jeffersonian electors thought they were electing

Jefferson. 279 Had Burr announced that under no circumstances would he take the presidential oath of office, the Federalist
effort to elect him would have been futile. Burr's refusal to make such an announcement led Jefferson to conclude that Burr
had conspired with the Federalists. Jefferson never wavered from the belief that a conniving and self-dealing Burr had almost
succeeded in helping the Federalists steal an election from him. We have no way of knowing whether Burr actually did what

Jefferson thought he did, 280 though Burr's later behavior as vice president seemed consistent with Jefferson's interpretation of
the election fiasco. “It was common knowledge in Washington that Burr was trying to build a following loyal to him alone,
and his rulings from the chair favorable to the defense in the Pickering trial gave further evidence of his lack of scruples in
making overtures to the enemy for support.” 281

The Chase trial ended three days before Burr's term of office expired. 282 Immediately afterward, Burr absconded into the

frontier *199 territories, apparently on a scheme not unlike Blount's. 283 Burr's conspiracy was particularly far-fetched. He

tried to induce the then westernmost states and territories to secede from the Union and then invade Mexico. 284 Burr intended to

take most of what Jefferson had just acquired for the United States in the Louisiana Purchase. 285 When he was caught by federal
marshals two years later, he was taken to Richmond and tried in a courtroom presided over by Chief Justice John Marshall,

who was riding circuit. 286 Burr was acquitted of treason in “one of the most spectacular trials in American history.” 287
Marshall both judged the admissibility of evidence and instructed the jury according to a controversial definition of treason “that
essentially forced the jury to acquit Burr.” 288 The jury foreman--who was Marshall's brother-in-law--announced the verdict
thus: “Burr is not proved guilty under this indictment by any evidence submitted to us. We therefore find him not guilty.” 289
Burr and his lawyers angrily protested the form of the verdict and demanded that in the record it be reduced to “Not guilty.” 290
Then a member of the jury said:
he would produce the same verdict if called upon to decide a second time. He said that every member of the jury
knew that the verdict was not phrased in the usual form but that they had all wanted it that way. . . . And so the
original Burr verdict entered the record: an announcement by the jury that, in effect, it considered him a guilty
man but was unable to pronounce him so because the rulings by the Chief Justice. 291

Actually, there were two trials. In the second, which immediately followed the treason proceeding, Burr was acquitted of the

crime of waging war against a friendly nation, Spain, which still claimed territories bordering the United States. 292 As in
Marbury v. Madison, Marshall's goal *200 in both trials was to craft rulings that advanced judicial power without provoking
impeachments or constitutional amendments that would humble the judiciary, while. Jefferson tried to defeat what he perceived
to be the partisanship of Federalists, like Marshall, secure in the judicial branch. The result set precedents that influenced the
near-impeachment of Richard Nixon as well as the impeachment and trial of Bill Clinton.
This was “the last major episode in the conflict between the executive and judicial branches during Jefferson's presidency” 293 --

the earlier battles having included the repeal of the Judiciary Act of 1801, 294 the Marbury litigation, and the Chase

impeachment. In both Houses of Congress, a party-line vote brough about the repeal of the 1801 Judiciary Act. 295 Immediately
afterward, the Jeffersonian Congress restructured the Supreme Court's schedule, delaying the Court's next session for fourteen

months so that the Court would not have an opportunity to declare the repeal unconstitutional until after it had taken effect. 296 In
the end, the Court held the repeal to be constitutional in a decision dated six days after Marbury. 297 As Marbury itself was being

litigated, the Federalists panicked, fearing that “all members of the [Supreme] Court would be impeached.” 298 The Court's
decision to adjudicate Marbury--the rough equivalent of today's granting of a writ of certiorari--infuriated the Jeffersonians and
hastened the repeal of the Judiciary Act of 1801. 299 Before the Court decided the case, Jefferson “had determined to ignore a
writ of mandamus should one be issued,” and afterward he “took great pains . . . to deny that Marshall's dictum had any force in

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law. It stood in his mind as a bald assertion of illegal power by an arrogant judge . . . .” 300 It must have been obvious to Marshall
that “[i]f he were to issue a mandamus, he would have no way to enforce it, and it would be ignored by the executive branch.” 301

Jefferson desperately wanted his former vice president convicted, and was convinced that the Federalists, through Marshall,

were contriving to *201 acquit Burr to embarrass the Administration. 302 “In fact, the President appears to have hoped to use
any acquittal of Burr as grounds to either impeach Marshall or to introduce a constitutional amendment to allow the President
and Congress to remove federal judges.” 303 Jefferson also considered the Burr trial to be part of a personal struggle between

himself and Marshall. 304 “It is difficult to overstate the personal animus that Jefferson and Marshall appeared to hold for one
another . . . .” 305

We will probably never know what caused their mutual animosity. Marshall fought in Washington's army during the Revolution
and shared in its privations at Valley Forge and elsewhere, while Jefferson stayed home. Beveridge, one of Marshall's

biographers, believed that Marshall's antipathy for Jefferson began then. 306 But no evidence supports that. 307 Another theory
has it that Jefferson disliked Marshall because Marshall married the daughter of a woman Jefferson had once courted. But
this theory, too, lacks evidence. 308 During the 1800 election, Marshall wrote that Jefferson's “foreign prejudices” in favor of

everything French, for example, “seem to me totally to unfit him” for the Presidency. 309 After Jefferson and Burr tied in the

electoral college, Marshall, unlike other Federalists, declined to take sides between Jefferson and Burr. 310 Although Marshall
wrote in a private letter that he considered Burr to be a “still greater danger than even . . . Mr. Jefferson,” he added that “I cannot
bring myself to aid Mr. Jefferson.” 311 When the election of 1800 was thrown into the House and stalemated there, a rumor
circulated that Marshall had written an opinion to the effect that the Chief Justice (himself) should succeed to the Presidency if
the stalemate were to continue. 312 Although the effect of this rumor on Jefferson hardly needs to be imagined, Jefferson and
Marshall already had low opinions of each other before 1800.

*202 The most likely explanation is that Marshall and Jefferson became political adversaries because of their differing political
beliefs when parties formed in the 1790s, and that the conflicts during Jefferson's Presidency caused mutual suspicion to deepen
into something close to hatred. 313 As president and chief justice, they were, after all, the highest government officials of
antagonistic political parties, during a period in which politics was intensely personal and people assumed the worst character
in their opponents. “The relatively small and closed political communities of Washington and Virginia did not keep personal

secrets well, so Marshall and Jefferson certainly knew what one thought of the other.” 314 The steady reporting of each insult to
the insulted may have deepened the feeling of grievance on both sides. If their personal rivalry predated the 1790s, it might have
come, at least in part, from over twenty years of lawsuits that grew out of a 1773 inheritance in which Jefferson had an interest
and Marshall represented various parties, to Jefferson's dissatisfaction. 315 Jefferson and Marshall were in fact cousins. 316

Both Marshall and Jefferson behaved in surprising ways during this confrontation. For example, Marshall taunted Jefferson

by dining with Burr and his lead defense lawyer at the latter's home immediately after releasing Burr on bail. 317 Today, that
would require a judge to recuse himself under the federal judicial conflict-of-interest statute. 318 Even in the context of his
era, Marshall was remarkably casual about judicial proprieties. By modern standards, Marshall would have been required to

recuse himself from adjudicating Marbury v. Madison. Marshall was Adams's last Secretary of State. 319 “Until nine o'clock of
the night before Jefferson's inauguration, Adams continued to nominate officers, including judges, and the Senate to confirm
them. Marshall, as Secretary of State, signed and sealed the commissions.” 320 Under the modern conflict-of- *203 interest
statute, Marshall would be disqualified not only because of the appearance of partiality, 321 but also because, in the words of
the modern statute, he “served in governmental employment and in such capacity participated as counsel, adviser or material
witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy.” 322

In fact, when Marshall signed the commissions, he was both Secretary of State and Chief Justice. The Senate confirmed his

nomination for Chief Justice on January 27, 1801. 323 On February 4, Marshall received his own commission for that position,
and on the same day he took the Supreme Court bench and presided. 324 Nonetheless, Adams asked Marshall to continue to

serve as Secretary of State until the end of the Adams Administration, a month later. 325 (The same thing had happened once

before. John Jay was both Secretary of State and Chief Justice for six months during the Washington Administration.) 326 After

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working--as Secretary of State-- into the evening of March 3, 1801, to pack the judiciary with Federalists, Marshall--as Chief

Justice--administered the oath of office to Jefferson at noon the next day. 327 Adams had “taken the four o'clock stage out of

town that morning.” 328

These were the “midnight judgeships” at issue in Marbury. When James Madison, Jefferson's Secretary of State, assumed office
the following day, he found on his desk--which had been Marshall's desk until midnight the evening before--four undelivered
commissions for Federalists nominated and confirmed by the Senate as justices of the peace in the District of Columbia. Madison
refused to turn them over to their intended recipients, and they sued to get the commissions that would have allowed them to
take office. 329

*204 Under modern standards, Marshall also should have recused himself in another landmark case, Martin v. Hunter's

Lessee, 330 which held that treaties entered into by the federal government supervene state law, and that state courts must obey
the Supreme Court in matters of federal law. Marshall and his brother owned some of the land at issue in the litigation. 331

The case came before the Supreme Court twice. The first time, Marshall did recuse himself, 332 and the Supreme Court, in
an opinion by Justice Story, issued an order that the Virginia courts refused to obey. Marshall then wrote a petition for a writ
of error--similar to, but not the same as the modern petition for certiorari--to get the case back into the Supreme Court. The
modern federal judicial conflict-of-interest statute requires a judge to recuse himself where “he served as a lawyer in the matter
in controversy,” 333 or where he, or a person within a scope of relationships that includes brothers, has “an interest that could

be substantially affected by the outcome of the proceeding.” 334 In the second appeal, Story again wrote the Court's opinion.
Marshall not only participated in the Court's decision, but he wrote a memorandum on which Story relied. 335

Compared to Marshall's participation in the adjudication of Marbury and Martin v. Hunter's Lessee, Abe Fortas's offenses 336
were but a trifle. On the one hand, Fortas resigned from the Supreme Court after being threatened with impeachment for
creating an appearance of impropriety, even though there was no evidence that any of his judicial decisions had been improperly
influenced. Marshall, on the other, sat in judgment on the legality of his own actions as Secretary of State. In Marbury, he refers
to himself in the third person: “Mr. Marbury, then, since his commission was signed by the President, and sealed by the secretary
of state, was appointed . . . .” 337 That he was not impeached--though the radicals in Jefferson's party, and perhaps Jefferson,
too, would have been delighted to *205 do so--speaks volumes about the casual judicial standards prevailing at the time.

For his part, Jefferson “lost control of himself for a season.” 338 He sent a steady stream of correspondence to the lead prosecutor,

George Hay, 339 “pepper[ing] Hay with instructions,” 340 that look like micro-management, but on closer examination see to
reflect obsession. “Stop . . . citing Marbury v. Madison as authority,” commanded Jefferson; “I have long wished . . . to have the

gratuitous opinion in that case . . . denounced as not law.” 341 And, along the way, Jefferson seems to have invented transactional
immunity as American criminal procedure now understands it--something only a head of state could have contracted for before
the development of judicially enforceable plea bargaining agreements.
On the eve of the trial, Jefferson forwarded to Hay a sheaf of blank pardons he had signed. Hay was instructed to
fill them out *206 “at discretion, if [he] should find a defect of evidence, and believe that this would supply it.”
This was a carte blanche for the prosecuting attorney to grant presidential pardons in order to secure testimony

against Burr. 342 Jefferson also “took the extraordinary step of interrogating one of the key witnesses, of striking
a plea bargain with him that exchanged a pardon for testimony, and then of instructing the prosecutor on how to
examine him at trial.” 343

To aid in his defense, Burr moved 344 for an order compelling production of a letter written to Jefferson by General Wilkinson,
as well as Jefferson's response and other documents. 345 The motion required only the documents and not Jefferson's personal

appearance in court. 346 Although Jefferson's appearance might have been needed to supply the evidentiary foundation for
the letter's receipt into evidence, Burr did not insist on that, as long as the papers were delivered and the Government would
stipulate to their foundation. 347 “Burr sought a subpoena duces tecum, not a subpoena ad testificandum.” 348 Jefferson did

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not refuse to supply the papers, 349 although twentieth-century advocates for what has now become the doctrine of executive

privilege 350 --among them President Nixon's *207 lawyers--later claimed otherwise. 351 Instead, Jefferson warned that the
letter, in particular, could involve “state secrets,” and asked Hay to prevent disclosure of those parts of the letter not material to the

issues. 352 In court, Hay offered to supply the entire letter to Marshall; argued that a subpoena would therefore be unnecessary;
and asked Marshall to redact that which was not material in order to protect state secrets. 353 Marshall, in turn, committed
himself to redact anything “which it would be imprudent to disclose . . . if it be not immediately and essentially applicable to the
point.” 354 When the government produced the documents Burr wanted, 355 “both Burr and Marshall considered the subpoena
satisfied.” 356 In the second trial, Burr made another motion regarding a different letter, and this time Jefferson's position
hardened somewhat: he submitted a redacted copy of the letter, and a certificate explaining his reasons for the redactions. 357
Again, Burr and Marshall “appear to have let the matter drop.” 358

In the most extreme claims of executive privilege, such as those vigorously asserted by Richard Nixon, a president refuses to
submit evidence for judicial review. The Supreme Court, however, relying in part on Marshall's rulings in the Burr trial, held
in United States v. Nixon that generalized claims of executive privilege that do not identify specific risks to the country are

overcome by, among other things, a grand jury subpoena. 359 When, at the Supreme Court's direction, Nixon complied with
such a subpoena, the audiotapes he turned over persuaded even the leaders of his own party that he could not defend against
impeachment, and he resigned. 360

John Yoo argues that the Nixon Court misinterpreted both Jefferson's positions and Marshall's rulings. 361 In a letter to Hay,
Jefferson offered to provide the documents at issue in Burr's trial, while in principle *208 “[r]eserving the necessary right of
the president of the United States, to decide, independently of all other authority, what papers coming to him as president the

public interest permits to be communicated.” 362 Jefferson sent this letter after the Government argued and submitted the issue

to Marshall for decision. 363 Hay then read Jefferson's letter into the record in open court, 364 which might have been what
Jefferson wanted. Marshall decided that documents in a president's possession could be subpoenaed, but he added a qualification
ignored by the Nixon court. Marshall held that if a president's “duties as chief magistrate demand his whole time for national
objects . . . at the time when his attendance on a court is required, it would . . . rather constitute a reason for not obeying the
process of the court than a reason against its being issued.” 365 In other words, the judiciary has a right to issue such a subpoena,
and the president has a right to ignore it. Marshall might have been looking ahead to the type of problem that supposedly later
caused President Andrew Jackson to remark, after Worcester v. Georgia, 366 that “John Marshall has made his decision; now

let him enforce it.” Although some historians doubt that Jackson actually said that, 367 “the evidence is that if Jackson did not

say [it], he certainly meant it.” 368 In any event, it was the State of Georgia, not Jackson, who would have to comply with the

Supreme Court's judgment, and Georgia did ignore it, which is the point of the supposed Jackson quote. 369

At the time of the Burr trial, and for some decades afterward, the popular prestige of the Supreme Court was so low that a
president would suffer little harm from ignoring a Supreme Court decision. Because Federalists initially dominated the judiciary
and misused it for partisan political purposes--such as in prosecutions under the Sedition Act--much of what the judiciary
did was suspect in the popular mind. Part of Marshall's genius was that he understood this and crafted decisions so that they
simultaneously claimed the largest reasonable amount of judicial power while giving his enemies the smallest objective grounds
for grievance. The best known example is Marbury. There, Marshall claimed *209 the Court's power to issue binding orders
to executive branch officials and the power to render statutes unenforceable if inconsistent with the Constitution, while at the
same time holding that the Court lacked the jurisdiction to order Jefferson's Secretary of State to turn over a commission to one
of Adams's midnight judges. And, in Burr, he held that a president, unlike a monarch, is subject to the process of a court, but
that Jefferson need not obey that process if he did not want to. After the prestige and moral authority of the Supreme Court had
grown to what it is today, the Nixon court labored under no such disability and held, 370 while misciting Burr, that a president
must obey a valid subpoena. “Marshall always managed to cloak his personal feelings toward Jefferson behind an elaborately
constructed screen of impartial-sounding arguments that invariably ended up leaving him no choice but to align himself with
the other side. . . . If Hamilton came at you with a saber, Marshall preferred the stiletto.” 371

What Jefferson asserted more passionately was a privilege not to testify himself--a privilege similar to the one that President
Clinton later claimed with as much vigor as Nixon asserted executive privilege. 372 “To comply with such calls,” Jefferson

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wrote to the federal prosecutor, “would leave the nation without an executive branch” because any litigant could haul a president

away to some far part of the country. 373 But here, too, Jefferson claimed a right smaller than one that a later president in trouble
would like to have had. Jefferson offered to testify “by way of deposition.” 374 In other words, he thought he should not have
to go to Richmond, but easily volunteered to put himself under oath if the lawyers *210 and, presumably, the judge would
come to him in Washington. Previously, the federal prosecutor had conceded that Jefferson could be subpoenaed to testify but
had argued that he could not be subpoenaed duces tecum and thereby required to supply the letter. 375 Marshall decided that

Jefferson was subject to both forms of subpoena, 376 but in a later ruling added that “[i]n no case of this kind would a court be
required to proceed against the president as against an ordinary individual.” 377 In any event, the subpoena, as issued, required
only production of the documents; it specifically provided that Jefferson need not come to court himself. 378

President Clinton asserted a right not to be required to defend a private lawsuit while in office on the ground that the burdens
of a litigant, including the burden of being deposed, would interfere with the duties of the Presidency. But the Supreme Court

held in Clinton v. Jones, 379 relying in part on Marshall's rulings in Burr, 380 that a person can be both a president and a private
litigant at the same time. As a result, the lawyers and the judge went to Washington so that Clinton could testify in a deposition-just as Jefferson had volunteered to testify--and that testimony led to Clinton's impeachment. 381

In each of its first three uses, impeachment served as a partisan political weapon. For a time afterward, a truce seemed to make
further use of that kind unnecessary. Although the judiciary remained vaguely Federalist in its outlook, it abandoned much of
the partisan behavior that so incited the Jeffersonians, 382 and Jefferon's presidential successors, James Madison and James

Monroe, were not innately hostile to the judiciary. 383 The Chase impeachment, though unsuccessful, may have had an effect
on the federal judiciary similar to the one that the 1936 election and Franklin D. Roosevelt's court-packing proposal may have

had on the Supreme Court *211 in 1937: it may have persuaded judges to avoid confrontation with the other two branches. 384
Both the Chase impeachment and the Roosevelt court-packing plan certainly had a boomerang effect: each seemed, to a crucial
body of less partisan or nonpartisan thought, to have gone too far. Moreover, Jefferson's party so dominated elections after 1800
that it controlled the executive and legislative branches for a generation. After Jefferson left office it became a consensus party
and absorbed a fair amount of the Federalist thought. 385 When Monroe ran for reelection as president in 1820, the Federalist

Party had nearly disappeared, nobody was left to oppose him, 386 and the period became known as the Era of Good Feeling.
Thus, impeachment fell temporarily into disuse because the Chase trial had left an unpleasant memory on all sides, and because,
for a time afterward, nobody needed impeachment as a partisan political weapon.
Chase's chief defense counsel during the Senate trial was Luther Martin, one of the leading lawyers in the country and a delegate
to the Constitutional Convention--though he refused to sign the Constitution because he had come to oppose the document
the Convention produced. Later, Martin became chief defense counsel in Aaron Burr's trials and argued several cases to the

Supreme Court, including the losing side in M'Culloch v. Maryland. 387 He was also an alcoholic. Some years after Chase's
impeachment, Martin tried a case while drunk before Chase, who was riding circuit. “I am surprised that you can so prostitute
your talents,” Chase said from the bench. “Sir, I never prostituted my talents except when I defended you and Colonel Burr,”
replied Martin, who then faced the jury and said: “A couple of the greatest rascals in the world.” 388

Adams and Jefferson both died on July 4, 1826--50 years to the day after the Declaration of Independence was purportedly
signed. Adams and Jefferson were not only the second and third presidents. They were also, respectively, the chair of the
committee appointed by the Continental Congress to draft a document declaring independence, and the author of the first draft
of that document. 389 In 1776, Adams was considered to have had *212 the more prestigious assignment: not only did he chair

the committee, but he was also expected to steer the proposal through the Congressional debate. 390 Jefferson was like the junior
professor who gets stuck writing a faculty committee report, although he did such a good job of it that, in historical memory,
his role almost completely eclipses Adams's. Adams later recalled that he insisted that Jefferson write the draft because, among
other things, Jefferson was the better writer. 391

When we read the Declaration's text today, we are reading Jefferson's words, as altered by other people. Jefferson wrote the draft
in a few days, and Adams and Benjamin Franklin marked it up, changing, for example, Jefferson's “sacred & undeniable truths”
to “self-evident truths.” 392 Then, the Continental Congress debated the document line-by-line and deleted about a quarter of

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Jefferson's draft, while he seethed. 393 For decades afterward, he felt the grievance of an author who thinks his best work has

been mangled through the editing of others. 394 The great scene, where all the Members of the Continental Congress signed the
Declaration, did not happen on July 4, 1776--and as it has been depicted in paintings, it probably did not happen at all. On July
2, Congress voted, in principle, to declare independence. On July 4, Congress approved, as amended, the document that would
communicate that declaration, and sent it out to a printer, although approval was not unanimous until the New York delegation
received instructions from home on July 15, and most Members signed it on August 2. 395

None of this denies Jefferson the achievement of converting what could have been a mere statement of governmental separation
into a profound expression of what would in later years become the American idea of a polity: “that all men are created equal,
that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of
Happiness” (surely, the first time in history that the possibility of being happy became a political issue); “[t]hat to secure these
rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”
When it was learned that both men had died on the same day, and on the fiftieth anniversary of the supposed signing of the
Declaration, much of the public saw in the event, in the words of John Quincy Adams--John *213 Adams's son, the sixth
president of the United States and a member of Jefferson's political party--the “visible and palpable marks of Divine favor.” 396

The Adams-Jefferson friendship, begun in 1776, had withstood Adams's defeat of Jefferson in the presidential election of

1796, but each was so offended by the conduct of the other in 1800 and 1801 that they broke it off. 397 In 1811, after
Jefferson had left politics, Benjamin Rush, who also signed the Declaration, visited Adams and provoked him into saying,
“I always loved Jefferson, and still love him.” 398 Rush made sure that Jefferson learned of this remark, and Jefferson wrote
to Rush, “This is enough for me. I only needed this knowledge to revive towards him all the affections of the most cordial
moments of our lives.” 399 Adams wrote to Jefferson, “You and I ought not to die before we have explained ourselves to each

other.” 400 Thereafter, living 500 miles apart, Adams and Jefferson communicated often through letters that constitute “one

of the most remarkable literary exchanges in American history.” 401 They argued as friends about philosophy, metaphysics,
religion, science, political theory, and history--until they died on the same Fourth of July. 402
C. Between Chase and Andrew Johnson
The Chase trial was such a disagreeable and convoluted affair, tying up the Senate and preventing legislation, that one Senator

wrote that “[a]ll parties appear to wish it had never been commenced--I believe we shall not hear of another very soon.” 403
Twenty-five years passed before the House impeached another federal officeholder.

James H. Peck, a district court judge in Missouri, was impeached in 1830 404 after sustained lobbying by a lawyer he had held

in contempt. 405 A substantial part of Peck's docket was made up of lawsuits to settle ownership of individual parcels within
the Louisiana Purchase. The land had been subject to three sovereignties (France, Spain, and the United *214 States) as well

as three different land tenure regimes, and in many cases nobody really knew who owned what. 406 In the first such lawsuit to
go to trial, Peck had made rulings suggesting that he was likely to decide most of these cases contrary to the interests of certain
claimants, who happened to be wealthy and influential. 407 The lawyer involved had represented the losing party in that lawsuit
and had appeared in a third of the cases yet to be tried. 408 Upset with the outcome of the first trial, the attorney published an

article criticizing Peck's rulings. On the ground that the article misrepresented what Peck had decided, 409 Peck held the lawyer
in contempt, had him incarcerated for twenty-four hours, and suspended him from practice in his court for eighteen months. 410
The ostensible controversy was whether Peck had abused his power, but the subtext was the desire of influential and worried
claimants to replace Peck with a judge more to their liking. 411

For the first time in a Senate impeachment trial, the House managers were a bipartisan group--four Democrats and one

Federalist. 412 By this time, Jefferson's party had evolved into the Democratic Party; Andrew Jackson, considered the first
Democratic president, held that office from 1829 to 1837. The Democrats dominated the Senate, with thirty-six of forty-eight

seats. 413 Twenty-one Senators voted to convict: eighteen Democrats, two Whigs, and a Federalist. Twenty-two Senators voted

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to acquit: fifteen Democrats, three Whigs, two National-Republicans, and two Federalists. 414 Although powerful interests
worked to oust Peck, they were economic interests and not partisan ones.
Not only were the Peck impeachment and trial nonpartisan, they were also principled. Economic interests, which considered
the accused judge inconvenient, did not succeed in replacing him with someone more pliable. At the same time, Peck had
vindictively abused the contempt power, and the law was immediately changed to prevent similar abuses in the future. Future
President James Buchanan led the House managers in the impeachment process. Like the managers in the Chase impeachment,
*215 Buchanan returned to the House upset with the result. Unlike them, he did not introduce legislation to punish the Senate
or make it easier to remove judges. Instead, he introduced legislation, still in effect today, restricting federal civil contempt to
conduct that more directly disrupts a court and its authority. 415

In 1862, West H. Humphreys was impeached and convicted. 416 A federal district judge in Tennessee, Humphreys joined the

rebellion after the Civil War began and accepted a Confederate judgeship without bothering to resign from the federal bench. 417

The fourteen other federal judges who joined the Confederacy had resigned from the federal bench. 418 In fact, Humphreys
was “the only officer of the U.S. government who failed to resign after shifting his allegiance to the Confederacy during the

Civil War.” 419 A person in rebellion against the federal government cannot be allowed to continue to hold a federal judgeship,
and when the Union armies recaptured Tennessee, Lincoln would not have been able to appoint a replacement judge unless
the Senate removed Humphreys from office. 420 He is the only impeachment defendant ever to be convicted by a unanimous
vote in the Senate. 421

During the period between the Chase impeachment and President Johnson's impeachment in 1868, at least two and perhaps
four federal judges resigned to avoid impeachment trials. William Stephens, a district court judge in Georgia, resigned in 1818

after a House Judiciary Committee investigation into allegations, which are not specified in the records available today. 422
Thomas Irwin, a district judge in Pennsylvania, resigned in 1859 during an impeachment investigation by the House Judiciary
Committee, also into allegations not specified in the records now available. 423 Replacements for two other judges were
appointed in the *216 context of impeachment investigations, but it is not clear whether the vacancies came about through
death or resignation. A judge replacing Peter B. Bruin of a Mississippi territorial court was appointed after the House in

1808 authorized an investigation into allegations of drunkenness and neglect of duty. 424 The president appointed another
replacement judge in 1841, to fill the Louisiana district court judgeship held by Philip K. Lawrence, after a select House

committee recommended impeachment on grounds of drunkenness, corruption, and abuse of power. 425 During the same period,

ten other judges were investigated, or referred for investigation, by House committees without resulting impeachments. 426 In all
fourteen of these proceedings, the sketchy records available do not contain any suggestion that the House utilized impeachment
as a partisan political weapon.
Although the period from 1805 to 1862 might seem to be one in which the impeachment clauses in the Constitution were
forgotten--with only Peck's impeachment getting to the Senate in half a century--the picture looks very different when one
compares the number of House impeachment investigations of federal judges, for example, with the size of the federal judiciary
at the time. Because the federal judiciary was tiny compared with today's bench, a handful of investigations could have a
substantial impact. During the first decade of the nineteenth century, the House conducted impeachment investigations involving
13% of the federal *217 judgeships, and during the 1820s, the House investigated 11% of the judgeships. 427 Except for the
1870s, when 11% of the judgeships again were investigated, the figures for the other decades in the nineteenth century never

exceed 6%. 428 But by modern standards, that was still high. In the 1920s and 1930s, the House investigated, respectively, 4%

and 3% of the judiciary. 429 In every other decade of the twentieth century, the rate was less than 1%, and in several decades
it was zero. Although it is startling to contemplate decades in which one in every eight federal judgeships was involved in an
impeachment investigation, it is also startling to contemplate decades in which the House did not investigate anybody, though it
is difficult to believe that corruption during those periods had become extinct. Certainly, these figures illustrate how erratically
impeachment and impeachment investigations have been used--or, more accurately, overused in some periods and underused
in others.
D. Johnson

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Although Abraham Lincoln is universally considered the greatest president in American history, 430 his reelection in 1864 was
very much in doubt. The Civil War was marked with numbers of deaths unprecedented in warfare as technology outpaced the
ability of field commanders to use new weapons decisively. Many newspapers mocked Lincoln as a tyrant for suspending the
writ of habeas corpus and as an ineffectual Commander in Chief who could not find a way to end the war. Battles like Antietam,
where the two sides together suffered 3,600 deaths and over 17,000 wounded in a single day, staggered the public.
Lincoln did win the 1864 election, but only because he finally found generals who could win, beginning with the capture of

Atlanta in September 1864. 431 Uncertain of victory in June 1864, Lincoln and his Republican Party decided to call its national
ticket Unionist, and in order to appeal to non-abolitionists in border states, nominated Andrew Johnson, a Southern Democrat
with a long record favoring slavery, for vice president. 432 Lincoln also hoped that having a Southern Democrat as vice *218
president would be useful in persuading the South to reconcile with the North. When Johnson's state, Tennessee, seceded from
the Union in 1861, Johnson, then a Senator, refused to secede with it. When Union troops occupied most of Tennessee, Lincoln
appointed Johnson military Governor of the state, and Johnson was most conspicuous as a Southerner loyal to the Union. 433

Before the war, Johnson owned slaves. 434 In personality, he was the opposite of Lincoln in virtually every respect. Johnson
thought and spoke belligerently; could not tolerate disagreement; resented everything that could conceivably be thought of as
a slight; and was unable to find common ground with or inspire others, listen with an open mind, or think in subtleties and
nuances. 435 When he and Lincoln were inaugurated in March 1865, Johnson was drunk. 436 Five weeks later, John Wilkes
Booth shot Lincoln in Ford's Theater, and Johnson became president, inheriting nearly the entirety of Lincoln's second term.
“By any measure, he was truly the wrong man, in the wrong place, at the wrong time. His presidency was a catastrophe.” 437
For both political and personal reasons, Johnson was in constant conflict with Congress from the day he took the presidential
oath until the day he left office. He vetoed twenty-one bills compared to thirty-six vetoes exercised by all the presidents who
preceded him combined, and Congress overrode fifteen of his vetoes, more than any other president before or afterward. 438

The Republicans were an insecure party, founded only six years before Lincoln became president. He was elected in 1860 with
only 40% of the popular vote because the Democrats split and ran three separate tickets. During and shortly after the Civil
War, the Republicans were a majority party only because whites in the Confederate states were not voting because their states
had seceded and were not readmitted for some time after the end of the war. The party had been founded for the purpose of
abolishing slavery. A natural extension of that purpose would be to make freed slaves citizens with the right to vote, and they
would likely vote for the Republican Party that had freed them. If that did not happen, the Republicans would revert to a minority
party because the substantial *219 number of Northerners who were Democrats greatly exceeded the few white Southerners
who considered themselves Republicans.
In two of the eleven Confederate states--South Carolina and Mississippi-- African Americans had been a majority of the

population in the 1860 census, although in that year they were still slaves. 439 In five more-- Virginia, Georgia, Alabama, Florida,

and Louisiana--African Americans had been between 43% and 49% of the population. 440 After the Confederacy surrendered
in 1865 and the rebellious states began to rejoin the Union, the white vote in many of those states was depressed, as many
white voters had not yet been requalified to vote. As they were requalified, the surge in Republican Congressional seats during
and after the war would be drastically reversed unless African Americans in the same states were freely voting. The results of
Congressional elections preceding the 1868 Johnson impeachment illustrate the point. 441
*220 Table 2
Congressional Party Divisions After the Elections of 1856 Through 1866
1856

1858

1860

1862

1864

1866

Republicans

20

26

31

33

39

57

Democrats

41

38

15

10

11

9

Unionist

3

9

4

Other

5

2

Senate 442

Vacant

1

2

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House 443
Republicans

90

116

108

86

136

173

132

83

44

72

38

47

26

Democrats

25

18

2

1

4

Unionist
Other

15

39

5

Vacant

2

For both parties, the struggle over who would vote in the South was a struggle not just for principles but also for power. Through
violence, fraud, and repressive state statutes enacted soon after the war, white Southerners were preventing African Americans
from voting. The Union army still occupied much of the South, and Congressional Republicans intended to use it to guarantee
that African Americans could vote. Johnson, a racist, opposed this. In one message to Congress, he called African Americans
unfit to be voters, “corrupt in principles and enemies of free institutions,” and “inferior.” 444

The result was a struggle between Johnson, who was still a Democrat and who favored readmitting the rebellious states
more or less unconditionally, and Congress, which was dominated by Radical Republicans determined to change the South

fundamentally in order to protect newly freed slaves. Johnson frustrated congressional goals at every opportunity. 445 In 1866,

Johnson vetoed the Civil Rights Bill, a veto Congress overrode. 446 The bill extended citizenship to freed slaves and *221

guaranteed them the right to vote, make contracts, sue, and testify. 447 Johnson also opposed adoption of the Fourteenth

Amendment. 448 He and his Democratic allies tried to demonize his opponents in Congress by calling them Radical Republicans;
but they wore the phrase as a badge of honor. 449

In 1866, Congress reduced the number of Supreme Court Justices to eight, apparently to deprive Johnson of an opportunity

to fill a vacancy 450 -- roughly the reverse of Franklin Roosevelt's court-packing plan. 451 To prevent Johnson from replacing
Radical Republican officers in the executive branch with persons more amenable to his philosophy, Congress passed the Tenure
of Office Act in 1867. 452 The act provided that no executive branch official confirmed by the Senate could be dismissed during

the term of the president who appointed him and for thirty days after that term ended without the consent of the Senate. 453 If a
president dismissed an official covered by the Act without the Senate's consent, the president was guilty of a crime punishable by

imprisonment for up to five years as well as a fine. 454 The Act also declared that such a dismissal would be considered a “high
misdemeanor”--clear warning of what Congress intended to do if Johnson removed any of his Cabinet members from office.
Johnson inherited his Cabinet from Lincoln. Congressional Republicans intended to limit Johnson's power by restricting his
ability to replace subordinates. They were most concerned about Edwin Stanton, Lincoln's and Johnson's secretary of war and
the leading Radical in the Cabinet, whose department controlled the Union army still in the South. Stanton was a complex

person who had Lincoln's trust and Johnson's *222 respect but did not believe he needed to take orders from Johnson. 455 The
Tenure of Office Act made him unsuperviseable. Because Lincoln appointed Stanton during his first term, Johnson argued, as
a matter of ordinary statutory interpretation, Stanton was not protected by the Act. 456

“The whole Cabinet, especially Stanton, called the act unconstitutional and advised Johnson to veto it,” which he did, on the
ground that a president cannot satisfy his constitutional duty to faithfully execute the law if he is prevented from dismissing

unsatisfactory subordinates. 457 Congress overrode his veto by very large margins in both Houses. 458 The Tenure of Office
Act was a large step in the direction of parliamentary government, in which the executive branch as a whole (a Cabinet) and
individuals within the executive branch (a minister, for example) serve at the pleasure of the legislative branch. The Act did not
give Congress the power to remove officials, although Congress could have used the power of impeachment for that purpose,
as the British House of Commons did until it acquired the power of removal through a vote of no confidence.
Johnson knew the Tenure of Office Act was unconstitutional, but he made that point in a manner guaranteed to inflame Congress.
First, in summer 1867, Johnson suspended Stanton, which the Act permitted him to do when Congress was not in session, and he

appointed General Ulysses S. Grant as acting secretary of war. 459 Both the North and Congressional Republicans viewed Grant
as the general who had saved the country, but he was far less of a Radical than Stanton. The Act gave the Senate the authority
to disallow a suspension when it came back into session. When the Senate reconvened on January 13, 1868, it did so. 460 Grant

immediately resigned as Acting Secretary, and gave the office keys back to Stanton, who barricaded himself there for weeks. 461

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*223 Johnson then tried to create an army unit, located in and around Washington, that he could control directly himself.
On February 6, Johnson ordered Grant, who had reverted to his role as the highest general in the army, to form an Army of
the Atlantic under the command of General William T. Sherman. 462 Sherman was a solid racist and sympathetic to Southern
whites despite his tactics during the war. 463 On February 13, Johnson sent the Senate a nomination to promote Sherman to
the rank of General of the Army, the same rank as Grant's. 464 “Sherman was thunderstruck” and declined the command. 465

He wrote to his brother, a Republican Senator from Ohio, that “[t]he President would make use of me to begat violence.” 466
On February 21, Johnson fired Stanton. 467

Three days later, the House impeached Johnson by a vote of 126 to 47. 468 With one exception, the articles of impeachment

charged him with violating the Tenure of Office Act. 469 The exception accused him of trying “to impair and destroy the regard
and respect of all the good people of the United States for the Congress . . . and to excite the odium and resentment of all
good people of the United States against Congress” and of “mak[ing] and deliver[ing], with a loud voice, certain intemperate,
inflammatory, and scandalous harangues [with] loud threats and bitter menaces . . . against Congress” and the statutes it had
recently enacted. 470

*224 Radical Republicans in the House had been itching to impeach. They actually tried to impeach Johnson in 1867, but

failed by a vote of fifty-seven to one hundred and eight. 471 And on January 30, 1868--a little more than three weeks before
they actually did impeach Johnson--the House ordered an impeachment inquiry concerning a Supreme Court Justice who could

not, from the evidence before the House, be identified. 472 The totality of the evidence, in fact, was the following paragraph
published in a newspaper story:
At a private gathering of gentlemen of both political parties, one of the justices of the Supreme Court spoke very
freely concerning the reconstruction measures of Congress, and declared in the most positive terms that all these
laws were unconstitutional, and that the court would be sure to pronounce them so. Some of his friends near
him suggested that it was quite indiscreet to speak so positively, when he at once repeated the views in a more
emphatic manner. 473

This was hardly an impeachable offense. If it were, Justice Scalia would have been impeached after he publicly took a position

concerning the 2004 Pledge of Allegiance case before it had been argued in the Supreme Court. 474 Even if a Justice had in
fact prejudged an issue in this way, the proper remedy would have been recusal from cases where that issue arose. No such
cases had reached the Supreme Court, and thus no opportunity to recuse had arisen. But the House voted to investigate anyway,
by a vote of ninety-seven to fifty-seven. 475 On June 18--after Johnson had been acquitted in the Senate--the relevant House

committee asked for authorization to terminate the investigation into the unidentified Supreme Court Justice. 476 The House

agreed by voice vote and without debate. 477 The available records do not reveal whether the committee was unable to learn the

Justice's identity (thought to be Justice Stephen Field), 478 or the accuracy of the newspaper story, or whether, after Johnson's
acquittal, the House had tired of impeachment, or whether the *225 House was no longer worried about whether Reconstruction
legislation might be declared unconstitutional.

Johnson's Senate trial began on February 25. 479 Johnson's lawyers provided several key defenses: (1) that the Tenure of Office
Act was unconstitutional; (2) that it did not protect Stanton (who was appointed during Lincoln's first term); (3) that Johnson fired
Stanton to test the constitutionality and interpretation of the statute in court; and (4) that the impeachment article that complained
about his views of Congress violated his First Amendment rights. 480 In May, the trial adjourned for a few weeks to permit

Senators to attend the Republican Convention, which nominated Grant for president. 481 On May 26, the Senate reconvened
and acquitted Johnson by a vote of thirty-five for conviction to nineteen against, one vote short of the two-thirds necessary to
convict. 482 All the votes to convict were Republican, although seven Republicans voted to acquit. 483 “The closeness of the
vote may be deceiving,” according to Trefousse, a leading historian of Johnson's impeachment. “Considerable evidence exists
that other senators [who voted to convict] stood ready to vote for acquittal [instead] if their votes had been needed.” 484

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Johnson's impeachment is remembered as the ultimate use of the procedure as a partisan political weapon. It took to extremes
tendencies that dominated three of the five impeachments that preceded it. And some of the participants had much to gain
personally from the outcome. Throughout, everyone expected Grant to be a candidate for president in 1868. Because Johnson
became president on Lincoln's death, and because no procedure existed for filling a vice-presidential vacancy (later supplied
by the Twenty-Fifth Amendment), under the law of presidential succession at the time, the president pro tempore of the Senate,
Benjamin Wade, would become president if Johnson were convicted. Although the propriety of Wade's sitting with the other
Senators as a judge in Johnson's trial was questioned at the time, he was permitted to do so. 485 When a president is impeached,
the chief justice presides at the Senate trial, and Chief Justice Salmon Chase did so in this instance, even though it was well
*226 known that he wanted to run for president. 486 Chase had even tried to outmaneuver Lincoln and gain the presidential

nomination in the 1864 Republican Convention. 487

It was obviously in Wade's interest that Johnson be convicted because that would make Wade president immediately. But it was
in Grant's and Chase's interest that he be acquitted. If Wade became president, he would be in a much stronger position to win
the 1868 presidential election. But at the same time, both Grant and Chase had to avoid alienating the Radicals because neither
could be nominated for president by the Republican Party if the Radicals opposed them. It is unclear how many of the seven
Republicans who voted to acquit Johnson did so in order to prevent Wade from gaining this advantage. If that was their motive,

they would have needed to hide it because Wade would remain a powerful Senator with whom they would have to work. 488
Similarly, it is unclear to what extent House Republicans who voted to impeach Johnson were motivated by a desire to give
Wade a position of strength over Grant and Chase in the 1868 presidential election.

Later in 1868, after his acquittal, Johnson tried but failed to get the Democratic nomination for president. 489 He returned to

Tennessee and failed to be elected Senator in 1869. 490 He ran unsuccessfully for other offices until he was elected Senator and
returned briefly in 1875 to the body that nearly convicted him seven years before. 491 He died later that year. 492

Grant was elected president as a Republican in November 1868. Immediately after taking office, he asked Congress to repeal the
Tenure of Office Act. Johnson was no longer president, and both Grant and Congress thought similarly about Reconstruction.
Instead of completely repealing the act, Congress rewrote it by deleting the punishments for a president's violation of the act but
preserving the Senate's power to overrule a president's dismissal. 493 In 1872, Congress enacted another statute providing that

certain postal officials, including some local postmasters, *227 could be dismissed only with the consent of the Senate. 494
In 1887, Congress repealed the Tenure of Office Act in its entirety.

The postal statute remained in place until 1926, when it came before the Supreme Court in an appeal by a dismissed postmaster

in Myers v. United States. 495 The Solicitor General did not defend the statute but instead argued that it was unconstitutional--

a rare event in the history of the Solicitor General's office. 496 Chief Justice Taft wrote the Court's seventy-two page opinion,
which struck down the statute as a violation of the Separation of Powers doctrine.
E. The Era of Nonpartisanship and Bipartisanship
After 1868 and through the 1980s, most impeachments were nonpartisan, although beginning in 1968, extremely partisan
impeachments were threatened and occurred.
1. Belknap to Hoover
Secretary of War William Belknap resigned in 1876, “two hours before the House voted to impeach him” for corruption in
office. 497 By a vote of thirty-seven to twenty-nine, the Senate concluded that it still had jurisdiction, despite his resignation. 498

Belknap refused to defend himself, 499 perhaps because his lawyers predicted from the jurisdictional vote that the two-thirds
majority needed for conviction would not materialize. That is exactly what occurred, though most of the Senate thought him

guilty. 500 It is impossible to know from the vote how many of the Senators voting to acquit did so because Belknap had already
resigned. 501

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In 1872, the House voted to impeach Mark Delahay, a district court judge in Kansas, for drunkenness and corruption. 502 But

he resigned before *228 the House could present articles of impeachment to the Senate. 503 Almost the same thing happened
after the House impeached George English, a district court judge in Illinois, except that English resigned at the beginning of his
Senate impeachment trial--after the House had presented the impeachment articles--on charges of corruption, favoritism, and
abuse of power; the House managers withdrew the articles of impeachment. 504

Charles Swayne, a district court judge in Florida, was impeached in 1904, which the Florida state legislature had twice petitioned
the House to do. 505 He was a Republican, appointed by Republican President Benjamin Harrison. 506 Politically, Florida was
a Democratic state at the time. The House that impeached Swayne included 207 Republicans and 178 Democrats, and the initial
vote to impeach was 198 to 61, suggesting bipartisanship. 507 But after the impeachment vote the House appointed a committee
to draft articles of impeachment--an odd and no longer used procedure, which has the defect of asking Representatives to vote
for an accusation in principle and then approve the wording of it later. 508 When the articles of impeachment eventually were
submitted to the House, the votes on each article of impeachment were much closer--165 to 160, 162 to 138, and 159 to 136--

and had become partisan, most of the yeas being Democratic and most of the nays being Republican. 509 In the Senate, Swayne
was acquitted, and none of the articles got even a majority of the votes, much less the two-thirds required for a conviction. 510

The articles accused Swayne of improprieties involving railway travel, filing false expense accounts, not living inside his judicial

district (which the law, at that time, required), and improperly sentencing people for *229 contempt of court. 511 These are
too insignificant to motivate a state legislature to petition Congress twice to remove a federal judge. None of the impeachment
scholars who has written about Swayne has fully considered the position of a Republican federal judge in a Southern state
with a large African-American population 512 During the last decade of the nineteenth century and the first decade of the

twentieth. Henry Cabot Lodge's National Election Bill 513 failed of enactment in 1890, and Southern whites escalated the
disenfranchisement of African-American voters through intimidation and fraud and eventually through new statutes and state

constitutional provisions that made it extremely difficult if not impossible for African-Americans to vote in the South 514 until

passage of the Voting Rights Act in 1965. 515 When African Americans were able to vote in the South, they largely voted
Republican. The closest any impeachment scholar comes to recognizing this context is a single comment by Bushnell--not
mentioning race or the final loss of rights gained during Reconstruction--that Harrison had nominated Swayne “to ensure swift
and firm hearing of cases stemming from election frauds in Florida . . . allegedly committed by the Democratic party,” 516 and

because he had enforced the law, “the impeachment of Judge Swayne was made a party issue by Democrats.” 517

*230 In some sense Democrats used impeachment as a political weapon against Swayne. Democrats had looked hard for
pretexts to oust a judge who had offended them by enforcing the law in political cases. But this was not of the same character as
the impeachments of Blount, Pickering, Chase, Johnson, or Clinton. Swayne was an obscure trial judge in what was then almost
an entirely rural state. Democrats were trying neither to wound the Republican Party nationally nor win a national political or
constitutional confrontation.
Robert Archbald of the U.S. Commerce Court (which existed for only three years) 518 was impeached in 1912 and convicted
by the Senate in 1913. “Archbald's case . . . followed the modern model of a largely nonpartisan impeachment” after he was

accused of a wide range of corruption. 519 In the 1930s, Jacobus tenBroek wrote an article trying to show, among other things,
that the Archbald impeachment was an attempt by President William Howard Taft's enemies to embarrass Taft because “the
Democrats persistently voted against Archbald, and they were continuously supported by the Progressives and the adherents of

Theodore Roosevelt” 520 right after Taft was defeated for reelection by Woodrow Wilson, a Democrat, and Roosevelt, a thirdparty candidate. The numbers can be looked at as tenBroek describes them, but that presents a misleading picture. First, the
Senate trial began on December 3, 1912, 521 a month after Taft was soundly defeated. Second, the votes for conviction were
overwhelming. The Senate convicted Archibald on five articles of impeachment by votes of sixty-eight to five, sixty to eleven,

fifty-two to twenty, sixty-six to six, and forty-two to twenty, acquitting him of other charges. 522 And third, only five Senators
voted on every charge to acquit; one was a Democrat, and two were the Senators from Archbald's home state. 523 Every other
Senator thought he was guilty of at least one of the charges.

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*231 Harold Louderback, a district court judge in California, was impeached in 1932 and acquitted by the Senate in 1933. The

House investigating committee recommended censure rather than impeachment, but the House voted to impeach anyway. 524
Of the five articles of impeachment, four failed to get even a simple majority in the Senate, and the fifth failed for lack of a

two-thirds majority. 525 The San Francisco Bar Association had asked the House to investigate Louderback for corruption in

the appointment of receivers in bankruptcy cases. 526 Democratic Senators were split between conviction and acquittal, and
Republicans mostly voted for acquittal. 527

Several other federal judges resigned during this period to avoid impeachment. Charles Sherman, an Ohio district court judge,

resigned in 1873 during an impeachment investigation in the House on charges of corruption. 528 Richard Busteed, a district
court judge in Alabama, resigned in 1875 after the House Judiciary Committee recommended impeachment for failing to hold

court regularly and for manipulating his judgeship for self-enrichment. 529 Edward Durrell, a Louisiana district court judge,
resigned after the House Judiciary Committee recommended impeachment in 1875 for irregularities in supervising bankruptcy
cases. 530 Cornelius Hanford, a district court judge in Washington State, resigned in 1912 during a House investigation into

allegations of corruption and drunkenness. 531 Daniel Wright of the Supreme Court of the District of Columbia resigned in
1914 during a House Judiciary Committee subcommittee impeachment investigation on corruption and miscellaneous other

charges. 532 And Francis Winslow, a district court judge in New York, resigned in 1929 on the day a House Judiciary Committee
subcommittee was to begin impeachment hearings on allegations of corruption. 533

In 1921, the House referred to the Judiciary Committee an impeachment resolution accusing Kenesaw Mountain Landis, a
district judge in Illinois, of “neglecting his official duties for another gainful *232 occupation not connected therewith.” 534
In 1920, Landis had accepted a job as the first Commissioner of baseball--which paid $50,000 a year compared to a federal

judge's $7,500 salary 535 --and did not think he needed to resign from the bench. After a public outcry, and after an impeachment
investigation began, Landis rethought that position and resigned from the less lucrative and, some would say, the less intriguing
of the two jobs. 536

From 1931 until he left office in March 1933, Herbert Hoover was probably the most reviled of all presidents, and his handling
of the Great Depression was widely felt to have exacerbated a national disaster with enormous human suffering. Millions of
people who had lost their jobs were reduced to living in shacks or tents in communities of the homeless called Hoovervilles. At
no other point in American history have so many people felt that they were being personally and directly harmed by the failures
of a single president. The enduring image of the Great Depression is one of destitute people selling apples on street corners.
Hoover was so isolated from what was happening that he actually believed that these people were doing well financially, that
they had not become unemployed as factories and other businesses went bankrupt--but instead, in Hoover's words, had “left
their jobs for the more profitable one of selling apples.” 537

Even though the economy was in free fall from late 1931 through the end of Hoover's term, no one seriously thought of
impeaching him. He could not have been convicted. Although the Democrats controlled the House of Representatives during

this period, the Republicans barely held onto the Senate. 538 There is no evidence that the Democrats even considered using
impeachment as a political tactic to harass and embarrass Hoover and his party in preparation for the 1932 elections, as the
Republicans in 1998 and 1999 used impeachment to harass and embarrass Clinton and the Democrats. In December 1932, a
lone Congressman moved for Hoover's impeachment. A month earlier, Franklin D. Roosevelent had overwhelmingly defeated
Hoover, but Hoover's term still had four months to run because the Twentieth Amendment, shortening the *233 time between
election and inauguration, had not yet been adopted. The House quickly and overwhelmingly rejected the motion. 539

In the years since 1868, impeachment had largely lost its political purpose and was used primarily to remove from office deeply
unsatisfactory officials. By the 1930s, impeachment had become so nonpartisan that its use as a political weapon seemed to
have left everyone's consciousness.
2. 1937
Sometimes, the thing that is most revealing is what did not happen, like the dog that did not bark, 540 or the impeachment that
was never attempted or threatened.

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In 1928, Hoover was elected president in a landslide. The Great Depression began the following year. By November 1932, when
Franklin D. Roosevelt defeated Hoover in an even bigger landslide, the economy had collapsed. The week before Roosevelt's
inauguration in March 1933, virtually every bank in the United States was closed, and commerce was being conducted by barter.
In Roosevelt's first administration, a massive amount of legislation was enacted in attempts to restore prosperity and to stabilize
capitalism by adopting the types of social insurance that had long ago been enacted in nearly every advanced European country.
This New Deal resulted from a massive political realignment. The Democrats, who had been a minority party since the Civil
War, suddenly became the majority party and remained so for the next two generations. The size and speed of this political tidal
wave can be seen in the results of Congressional elections from 1928 through 1938. 541
*234 Table 3
Congressional Party Divisions After the Elections of 1928 Through 1938
1928

1930

1932

1934

1936

1938

Democrats

39

47

59

69

76

69

Republicans

56

48

36

25

16

23

1

1

1

1

2

2

1

11

Senate 542

Farmer-Labor
Progressive
Independent

1

1

House 543
Democrats

164

216

313

322

334

262

Republicans

270

218

117

103

88

169

1

1

5

3

5

1

7

8

2

Farmer-Labor
Progressive
American-Labor

1

The numbers in Table 3 understate Democratic strength because the third-party Senators and Representatives nearly all voted
enthusiastically for New Deal legislation. At times, political change happened so fast that party divisions in Congress changed
every few weeks. For example, in the November 1930 elections the Republicans retained the House of Representatives by two
seats. But before the first day the newly elected Congress convened, nineteen Representatives-elect had died. In special elections
to replace them, fourteen of these seats changed hands, producing a Democratic majority in the House not reflected in Table 3.
Roosevelt viewed the Supreme Court with suspicion even before he was elected president. In the 1932 election campaign, he

feared that, even if he won, the Republican Party would continue to control the Court. 544 Republican presidents concerned
with property rights had nominated seven of the nine Justices then on the Court. Although two of those seven had joined the
progressive wing (Harlan Fiske Stone and Benjamin Cardozo), one of the Justices nominated by a Democratic president had
become viscerally and reflexively right-wing (James McReynolds). The senior Justice, Willis Van Devanter, had been nominated
by William Howard *235 Taft. In four years as president, Taft had appointed a total of six Justices--more than any other
president except George Washington, who appointed the entire first Supreme Court, and Franklin Roosevelt, who was president
for longer than anyone else. 545

Taft had had a profound influence on the entire federal judiciary, and he would rather have been chief justice than president, as
he admitted while appointing Chief Justice Edward D. White. 546 At the 1912 Republican Convention, Taft and his campaign

manager had asked Warren Harding to make the speech nominating Taft for reelection. 547 After Harding was himself elected

president in 1920, Taft successfully lobbied to be appointed chief justice. 548 (Taft is the only person to have headed both the
executive and judicial branches of the federal government.) While chief justice, Taft persuaded Harding to nominate Pierce
Butler as associate justice. 549 Butler “had the distinction of voting to overturn sixty-nine federal statutes after Franklin D.

Roosevelt became president.” 550 Taft “then strategized with Butler and the White House staff on how to get Butler confirmed by

the Senate.” 551 When the next Supreme Court vacancy appeared, Taft dissuaded Harding from appointing Learned Hand. 552

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While chief justice, he constantly badgered presidents and attorneys general on whom to appoint to any vacancy on any federal
court. 553 His only significant failure was when, out of office, he opposed Woodrow Wilson's nomination of Louis Brandeis. 554

Well aware of all this, Roosevelt and the Democrats viewed the Supreme Court as Jefferson and his allies had viewed the
Court and the federal judiciary of their time: as a fortress into which a party soundly defeated in elections had retreated. By
1935, four Justices--James *236 McReynolds, George Sutherland, Pierce Butler, and Willis Van Devanter--consistently voted
to strike down New Deal statutes as unconstitutional. Later, they became known collectively as the Four Horsemen of the

Apocalypse. 555 Three Justices--Louis Brandeis, Benjamin Cardozo, and Harlan Fiske Stone--generally voted to sustain New
Deal legislation. The swing votes belonged to Owen Roberts and Chief Justice Charles Evans Hughes, both of whom frequently
sided with the Four Horsemen in 1935 and 1936.
More than any other before or since, this was the Supreme Court that most clearly deserved the designation of “judicial activist.”

In not much more than a year, it struck down the Railroad Pension Act, 556 the National Industrial Recovery Act (the NIRA,

but more commonly known by the initials of the agency it authorized, the National Recovery Administration or NRA), 557 the
Frazier-Lemke Farm Mortgage Act, 558 section five of the Federal Home Owner's Loan Act, 559 the Agricultural Adjustment
Act (the AAA), 560 the Bituminous Coal Conservation Act, 561 and the Municipal Bankruptcy Act. 562

The weakest New Deal legislation--both constitutionally, and logically--were some of the emergency bills written and enacted
quickly *237 after Roosevelt's inauguration in 1933. Typically, the Four Horsemen voted solidly against New Deal legislation
and picked up one or both of the swing votes, although with some of the emergency legislation, like the NRA, the Justices'
vote to nullify was unanimous. The NRA was clearly beyond the constitutional power of Congress to legislate. It was also
dreadful economic policy. The NRA was designed to raise industrial wages for those who were employed. At a time of epidemic
business failures and consequent unemployment, its effect--had it been permitted to continue--would have been to drive even
more companies out of business and put even more people out of work while raising the prices of goods and services that
consumers already could not afford to buy. The AAA had similar defects in regard to food and agriculture. It is fashionable today
among neoclassical economists to blame Roosevelt for this, but economic knowledge in the 1930s was so primitive (even the
available economic statistics could not meet modern standards for accuracy), and the Great Depression was so cataclysmic and
unprecedented, that the only thing Roosevelt could do was to try several different approaches simultaneously to see which would
work. In retrospect, what did work was not regulation of wages and production but instead simple government spending through
the Works Progress Administration, the Civilian Conservation Corps, and similar programs, which gave people employment
and money to create demand for goods and services. What finally ended the Depression was the largest government spending
program in history: the Second World War. But, during the Depression nearly everyone feared that if the government spent too
much, it would collapse into insolvency.
New Deal legislation of a more permanent nature was more thoroughly thought out than the NRA and the AAA. Much of
it had been proposed before Roosevelt became president and had been refined through years of vetting by legislators and
academics associated with the Progressive movement that preceded the New Deal. These more carefully written statutes not only
accomplished their goals more effectively, but were easier to defend constitutionally. An example was the statute authorizing
the Tennessee Valley Authority, which would build dams on the Tennessee River and generate affordable electricity for the
middle South, and which the Court did sustain. 563

But the distinction between emergency legislation meant to stimulate the economy and legislation meant to permanently reform
and modernize capitalism is apparent only now in hindsight. Almost nobody understood it at the time. The first wave of New
Deal legislation to reach the Supreme *238 Court was made up primarily of emergency statutes, and the Court's reaction was
startling. On Black Monday, May 27, 1935, the Court unanimously struck down, on constitutional grounds, legislation in three
separate cases. It seemed as though no part of the New Deal was safe. Every time the Justices took the bench to announce
any decision involving a statute enacted after Roosevelt's inauguration, the country anxiously waited to find out which part of
the New Deal would be struck down or allowed to survive. When Wall Street “stockbrokers heard that Hughes was reading
the opinion in Ashwander,” on the constitutionality of the Tennessee Valley Authority, “they jumped to the conclusion that it
was adverse to the government and began buying utility stocks as fast as they could get their orders filled. . . . Later, when
it appeared that the Administration had been sustained, they made frantic efforts to get rid of the stocks they had bought less
than an hour earlier.” 564

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Roosevelt was convinced that unless something changed drastically and quickly the entire New Deal--including aspects of
government we take for granted today, such as social security--would be struck down by the Supreme Court as unconstitutional,
making recovery from the Depression and a modernized capitalism impossible. Essential elements of the New Deal--such as the
Social Security Act, 565 the National Labor Relations Act, 566 the Banking Act of 1935, 567 and the Securities Exchange Act of
1934--were being litigated in the lower courts and had not yet reached the Supreme Court. After a Cabinet meeting in December
1935, Harold Ickes, Roosevelt's Secretary of the Interior, wrote in his diary, “Clearly, it is running in the President's mind that
substantially all of the New Deal bills will be declared unconstitutional by the Supreme Court. This will mean that everything
that this Administration has done of any moment will be nullified.” 568 Roosevelt considered several options, among them
limiting the Court's jurisdiction by statute, amending the Constitution to provide the federal government with the powers the
Court had held it lacked, and amending the Constitution to create a procedure through which Congress could reenact nullified
statutes and constitutionalize them. 569 The Depression had already brought the National Socialist Party to power in Germany

and had brought Fascist and Communist parties near power *239 elsewhere in Europe. 570 When Roosevelt first explained
to a meeting of Cabinet officials and Congressional leaders what he intended to do about the Supreme Court, he said: “When
I retire to private life on January 20, 1941, I do not want to leave the country in the condition Buchanan left it to Lincoln [on
the eve of the Civil War].” 571

On January 20, 1937, Roosevelt was inaugurated for his second term as president. On February 5, he asked Congress to enact
legislation to make the judiciary generally more efficient, one aspect of which--treated as a minor one in Roosevelt's message-would be to add an additional Justice to the Supreme Court whenever an existing Justice passed the age of 70. 572 Roosevelt's
slyness in packaging the court-packing plan in a proposal on judicial efficiency was quickly seen as deceptive. The whole
proposal was really intended to achieve a single goal: Roosevelt needed at least a three-vote margin in the Supreme Court. If
the number of Justices remained at nine, he would have been satisfied with six-to-three votes in his favor, but he viewed fiveto-four victories as, in his own words, “too uncertain.” 573

Almost a quarter-century before, McReynolds himself had proposed the concept on which Roosevelt's court-packing plan was
based. In Justice Department files, Administration lawyers had found a forgotten proposal drafted by McReynolds in 1913 or
1914, when he was Woodrow Wilson's Attorney General. 574 The McReynolds plan would have applied to the lower courts
and not to the Supreme Court, but the idea was the same: when a federal judge did not retire at a stipulated age, the president

could appoint another judge to supplement and in some ways supplant the one who would not retire. 575 Homer Cummings,
Roosevelt's attorney general, recommended it to Roosevelt, who loved the irony of using McReynolds' own idea against the

Four Horseman. 576 A “seething rage had been building in Roosevelt for a long time.” 577 Even though he had won massive
electoral landslides, everything he had accomplished was being *240 dismantled by a handful of unelected judges. Perhaps
his outrage and the pleasure of the irony is why neither Roosevelt nor Cummings noticed that the court-packing plan was crude,
impractical, and certain to offend most people's sense of what is fair and appropriate. 578

Rejiggering the number of Supreme Court Justices to gain a partisan advantage had a great deal of historical precedent. In the
Constitution's first century, politicians continuously fiddled with the size of the Court so they could pack it:
John Adams, as his Presidency came to an end, had Congress pass a law to reduce the size of the court from six to
five members, to take effect when the next vacancy occurred, so that Thomas Jefferson, his successor, would not
have an opportunity to fill a vacancy. When Jefferson was President, he was able to make appointments by having
the Court restored to six justices and then raised to seven. In 1837, the Court was increased to nine. In 1863, to
prevent the Court from blocking Lincoln's war policies, the Court was increased to ten, to, in effect, pack the Court
in Lincoln's favor. In 1866, when there were two vacancies . . ., the Congress reduced the Court's membership
from ten to eight so that President Andrew Johnson might not be able to fill the two empty seats. In 1869, the
eight-man Court had one vacancy. It also [had held] unconstitutional the Legal Tender Act, by which the Union
had financed the Civil War. Congress increased the Court's size to nine, giving President Ulysses S. Grant two
appointments . . . . As soon as his two appointees took their seats on the Court, the Court voted again on the Legal
Tender Act and approved it. 579 The primary difference between all these precedents and Roosevelt's plan was
the formula for increasing the size of the Court, which McReynolds had unwittingly supplied. But Roosevelt's
plan stunned Congress and the public. After intense political maneuvering, it died through a procedural vote in
the Senate in July 1937--a humiliation for a president who had just won an historic landslide, and whose party had
huge majorities in both Houses of Congress. Roosevelt personally suffered a loss of public trust and credibility

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because the court-packing plan was widely seen as reflecting bad political judgment, disingenuousness, and an
appetite for power in conflict with the checks and balances inherent in the Constitution.

But Roosevelt ultimately got what he wanted, even if he appeared to lose. Folklore has it that Hughes and Roberts were so
intimidated by the *241 1936 Democratic landslide, or by the court-packing plan, or both, that they switched sides and began
voting with Brandeis, Cardozo, and Stone--the “switch in time that saved nine.” The switch is generally thought to have begun
when Roberts changed his position on whether a government could constitutionally require employers to pay a minimum wage.

In the spring of 1936, the Court had struck down a New York statute requiring employers to pay a minimum wage to women. 580
The statute was not part of the New Deal, but the Court's reasoning replicated the rationale in some of its decisions striking down
New Deal legislation. In the fall, the Court had granted certiorari to review a nearly identical Washington State statute. The case
was argued in December 1936, and the Justices first discussed it in conference around the turn of the year. The Court again
reconsidered the case in conference on February 6, the day after Roosevelt's court-packing proposal was sent to Congress. 581
In both conferences--before and after the court-packing plan had been announced--Roberts voted to sustain the Washington
statute. 582 The decision was announced on March 29. 583 More cases quickly followed in which the Court sustained the *242

National Labor Relations Act 584 and the Social Security Act 585 in April and May 1937. From then on, “the Supreme Court
upheld every New Deal statute that came before it.” 586

The switch alone would not have been enough to satisfy Roosevelt or to persuade Congress that the crisis had passed. Van

Devanter announced his retirement in May 1937. 587 He was able to do so only because a few months earlier Congress had
enacted a statute guaranteeing retiring Justices for the rest of their lives their salary at the time of retirement, in lieu of a

pension. 588 The bill had been introduced in 1935 but failed on the floor of the House. 589 The Administration wanted this

bill to pass 590 but failed to make it a priority. When Roosevelt announced the court-packing plan, Hatton Sumners, the chair
of the House Judiciary Committee, resuscitated the retirement bill and got it enacted at warp speed. Sumners was joined by

other legislators who opposed packing the Court and wanted a different solution. 591 The bill cleared the House five days after
Roosevelt's *243 announcement of the court-packing plan, and the Senate passed it soon thereafter; Roosevelt signed it into
law on March 1 592 -- a little more than three weeks from resuscitation to presidential signature.

Van Devanter timed his retirement announcement for the morning of the day on which the Senate Judiciary Committee was
to vote on the court-packing plan. His announcement helped persuade some members of the committee that the Court need

not be packed. 593 Whether because of Van Devanter's retirement or not, the committee voted to recommend that the Senate

not approve the plan. 594 Sutherland's retirement the following January, 595 created a second vacancy for Roosevelt to fill.

Eventually, Roosevelt appointed a total of eight Supreme Court Justices and promoted a ninth to Chief Justice. 596 Supreme
Courts that have left their mark on history are usually known by the name of the Chief Justices who led them--the Marshall
Court, the Taney Court, the Warren Court, the Rehnquist Court, and so on. The only exception is the one Roosevelt appointed,
which we know as the Roosevelt Court.
Remarkably, in this titanic clash between the Supreme Court and the most popular president since 1820, no one seems seriously
to have contemplated using impeachment as a partisan political weapon. There is no evidence that anyone in the Roosevelt
Administration or in Congress looked for impeachable misdeeds in the public acts of Justices, as the Jeffersonian party did in
the first decade of the nineteenth century, or in their private lives, as the Nixon Administration was to do in 1969 and 1970. 597

None of the leading studies of the court-packing controversy 598 or of the doctrinal evolution of the Supreme Court in the
1930s 599 mention *244 any interest in impeachment. Nor do any of the standard histories of the New Deal. 600

Nobody was interested in impeaching even McReynolds, who nursed scores of hatreds and, like Chase, had alienated through
his own intemperate behavior a great many people. If the House had impeached McReynolds, some would have defended him
out of duty or for political reasons, but none would have done so out of personal loyalty to him or out of respect for him
or his work. It was in his nature to abuse those around him. During the Harding Administration, Justice Clarke expressed a
desire to resign partly because “McReynolds had made life on the Court almost unbearable for him by his incessant insolence
and personal insults.” 601 McReynolds detested virtually all ethnic groups other than his own. 602 He despised Brandeis and

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Cardozo because they were Jewish, and “there is no official photograph of the Court in 1924, because McReynolds would

not sit next to Brandeis as protocol required.” 603 He especially hated Roosevelt and vowed, “I'll never resign as long as that

crippled son-of-a-bitch is in the White House.” 604 But after Roosevelt was reelected in 1940, McReynolds finally gave up and

announced his retirement eleven days after Roosevelt took the presidential oath of office for an unprecedented third time. 605

No Justice attended McReynold's funeral, 606 although several went to the funeral of his messenger, an African-American who
for many years had suffered with great dignity through McReynolds's racist tirades.
Of the four great confrontations among the branches of the federal government, 607 the battle between Roosevelt and the
Supreme Court is the only one in which none of the political branches reached instinctively for *245 impeachment as a
partisan weapon. One reason was that the events of 1937 occurred deep in the era of almost purely nonpartisan and bipartisan
impeachment. A second was that Roosevelt's personal political style was not confrontational. He preferred to lead through
flanking maneuvers, goading the public in whatever direction he wanted to go while pretending to follow the consensus he was
building. He believed that winning by defeating others was costlier and more distasteful than winning by following an indirect
path to his goal. A third reason was that the Democratic landslide of 1936 was massive, the most lopsided since 1820 both in
popular votes and in the composition of Congress; it has not been equaled since then. A party in so enviable a position can
afford to have the confidence that its problems can be solved without attacking individuals.
In the end, Roosevelt got what he wanted, although historians disagree about how it happened. Some believe that the election,
or the court-packing plan, or both, influenced Roberts and, to a lesser extent, Hughes in how they voted, thus causing an abrupt
change in constitutional law. 608 Others argue that, even before the election in November 1936 and Roosevelt's presentation of
the court-packing plan in February 1937, the Court had been evolving toward what we now think of New Deal and post-New

Deal jurisprudence. 609 It is true that some ingredients of the post-1937 doctrine on government regulatory powers appear in
embryonic form in some pre-1937 cases. But the rationalizations in judicial opinions are often justifications for what judges
want to do rather than their real reasons for deciding, and one of the more effective methods of justifying a court's decision is
to write the opinion so that it appears to be grounded in past practice as much as possible. Academically formalistic analysis is
thus a limited and only partially reliable tool for discovering what judges are really up to. Moreover, Roberts never satisfactorily
explained the 180-degree somersault he made between the two state minimum wage cases, and even he might not fully have
understood why he did what he did. Perhaps the most we can know is that the timing proves that Roberts could *246 not have
been influenced by the court-packing plan, which was announced after he stated his position in conference, and that he might
have been influenced by the election, which happened before he did so.
It is plain, however, that the effect of the retirement bill has been underestimated. Van Devanter and Sutherland hinted that
they would have retired immediately after it became law. But to avoid giving the impression that the court-packing plan had

intimidated them, they delayed their retirements. 610 The Court might have been “nine old men,” as it was pejoratively dismissed

at the time, 611 but the power the Four Horsemen exercised had obscured the fact that at least some of them were very fatigued
old men.
3. Ritter
Halsted Ritter, a Republican lawyer in Colorado, moved to Florida in 1925. 612 Four years later, Republican Presdient

Calvin Coolidge nominated him for a district court judgeship in Florida. 613 A Republican-dominated Senate confirmed him.
Apparently his appointment annoyed Florida politicians and the Florida Bar. Florida was a predominantly Democratic state with
memories of the Reconstruction. The annoyance stemmed from having a Republican with no roots to Florida--a “carpetbagger”
in Southern speech-- appointed to the federal bench. In 1933, only four years after Ritter assumed the bench, the House began
an impeachment investigation. 614 In 1936, Ritter was impeached for allegedly denying a plaintiffs' motion to dismiss their own
lawsuit; awarding excessive fees in the same case to his former law partner, who immediately gave money to Ritter; evading
income tax; and practicing law while a federal judge. 615 In an overwhelmingly Democratic House, the vote to impeach was

181 to 146. 616 Almost all the votes for impeachment were Democratic. 617 Sixty-three Democrats and eighty-one Republicans
voted against impeachment. 618 It appears that Republicans were united against *247 impeachment, but Democrats were free
to vote one way or the other, though most voted to impeach.

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Ritter was acquitted of all the articles of impeachment that charged him with criminal activity and was convicted only of the

article that alleged that his conduct, as set forth in the other articles, had brought his court “into scandal and disrepute.” 619 On
all the articles of which he was acquitted, at least a simple majority--but not a two-thirds majority--voted for conviction. 620 On

each article, most Republicans voted to acquit. 621 On three articles, almost as many Democrats voted to acquit as to convict. 622
On the other four articles, Democrats voted to convict by sizeable majorities. 623

TenBroek argued that the Ritter impeachment could have been motivated by partisan political motives because Ritter was
acquitted of the articles charging criminal conduct but convicted of discrediting his court, and because the Ritter trial preceded

by ten months Roosevelt's court-packing proposal. 624 To justify his unsuccessful attempt to get Justice Douglas impeached, 625
Gerald Ford repeated this theory, arguing that in the Ritter impeachment “the criminal charges were admittedly thin,” that Ritter
was a conservative Republican, and that the impeachment occurred “in the context of F.D.R.'s effort to pack the Supreme Court
with Justices more to his liking.” 626

That theory cannot be substantiated by the facts. First, the Senate vote to convict on the first and most important article alleging
corruption was fifty-five in favor and twenty-nine against 627 --one vote shy of the two-thirds needed to convict. The tally on the
scandal-and-disrepute article was fifty-six to twenty-eight to convict, or exactly two-thirds. A single vote differentiates the two
articles of impeachment. On all but one of the other articles, a majority voted to convict. 628 The straightforward explanation
is that one or more Senators thought Ritter was guilty of the corruption alleged in the other articles, but not of the corruption
alleged in the first article, and joined in voting to convict on the scandal-and-disrepute article.
*248 Second, the chronology shows no connection between Ritter and the controversy over the Supreme Court and the New

Deal. The first efforts in the House to investigate Ritter began in May and June 1933, 629 at a time when the Supreme Court had
not (and could not have) decided any New Deal cases, as Roosevelt and the first New Deal Congress had taken office only a few
months earlier. Ritter was impeached by the House in March 1936, 630 and convicted by the Senate in April 1936. 631 When

the Supreme Court invalidated the National Industrial Recovery Act in 1935, 632 Roosevelt expressed his annoyance to the
press, 633 and the reaction to those comments was so hostile that Roosevelt said virtually nothing else critical of the Supreme

Court until early 1937 634 --a period that includes the entire time during which Ritter was being impeached and tried. Roosevelt
maintained this near silence even from January to June 1936, a time when the Court delivered a string of decisions attacking

the New Deal. 635 During the 1936 presidential election campaign, Roosevelt never mentioned the Supreme Court because
he feared that any criticism on his part of the judiciary would permit the Republicans to convert the core election issue from

economic recovery into preservation of constitutional checks and balances, which the Republicans were eager to do. 636 During
a period when Roosevelt was afraid even to criticize the Supreme Court in public, it could hardly be true that the Democrats
were impeaching and removing an obscure federal judge to bully the Supreme Court.
Moreover, most of Roosevelt's closest advisors were astounded when he proposed his court-packing plan in February 1937--

ten months after Ritter had been removed from office. 637 Congress reacted similarly. James MacGregor Burns, one of the
most perceptive Roosevelt scholars, concluded that Roosevelt contemplated doing something about the *249 Supreme Court

as early as 1935 but told only those few people needed to draft the legislation. 638 Cummings, Roosevelt's attorney general,

drafted the plan in secret and without the knowledge of Roosevelt's usual advisors. 639 When Roosevelt announced the court-

packing proposal at a meeting of Cabinet officers and congressional leaders, “the congressional delegation sat as if stunned.” 640
Not only had there been no prior serious congressional interest in impeaching the judiciary, but Roosevelt's plan failed mostly
because it surprised and appalled many in Congress. The Senate Judiciary Committee report rejecting the proposal is unique
for the rhetoric with which legislators derogated a measure behind which a president of their own party had placed his prestige:
the court-packing plan was “an invasion of judicial power such as has never been attempted in this country” 641 (which was

not actually true); 642 it would lead to “the very thing against which the American colonies revolted, and to prevent which the

Constitution was in every particular framed”; 643 and “[i]t is a measure which should be so emphatically rejected that its parallel
will never again be presented to the free representatives of the free people of America.” 644 These were the same Senators
who convicted Ritter.

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Third, Roosevelt's troubles were not with the lower judiciary, but with the Supreme Court, which had been declaring
unconstitutional significant parts of the New Deal. Roosevelt never showed any interest in packing the lower judiciary, and
never needed to because the constitutionality of any important federal statute would be decided only in the Supreme Court
anyway. Ritter himself never held any New Deal legislation to be unconstitutional.
Fourth, given the relatively large number, historically, of federal judges who had resigned in the preceding years during House
impeachment investigations for corruption, 645 or who had not resigned and been impeached, 646 there seems to be nothing
special or different about Ritter's situation that would suggest to a Supreme Court Justice that Ritter's impeachment was aimed
at the Supreme Court. Not counting those on *250 senior status, there were over two hundred federal judges in 1936, 647 and
Ritter was an obscure trial judge in what was in 1936 a backwater rural state. None of the leading studies of the court-packing
controversy 648 even mentions Ritter.

Finally, the most realistic explanation is that Ritter's appointment irritated people who were locally important in Florida. that
they watched him carefully for misbehavior, and that he obliged them by misbehaving. Although the Democrats had a 322

to 103 majority in the House 649 --one of the largest in history--the vote to impeach Ritter was 181 to 146. 650 And although
in the Senate the Democrats had a sixty-nine to twenty-five majority 651 --also one of the largest in history--the vote on the

only article on which Ritter was convicted was fifty-six to twenty-eight. 652 On most of the other six articles, the margin was
much closer. 653

4. Judicial Impeachments After Ritter
Several judges resigned during or just before impeachment investigations. In 1939, Martin T. Manion, Chief Judge of the
Second Circuit, was accused of corruption by Manhattan District Attorney Thomas E. Dewey, who demanded that the House

impeach. Manson resigned within days, before the House could authorize an investigation. 654 Ferdinand A. Geiger, a district
court judge in Wisconsin, resigned in 1939 after House Judiciary Committee hearings on his dismissal of a grand jury before it
could issue findings in a major antitrust case. 655 John P. Nields, a district court judge in Delaware, was the subject of House

Judiciary Committee hearings on unspecified charges in May 1941; he retired in October of that year. 656 Albert W. Johnson,
a Pennsylvania district court judge, resigned in 1945 after a House Judiciary subcommittee recommended impeachment for
bribery. 657 The subcommittee found that his decisions were “commonly sold for all the traffic would bear.” 658

*251 Otto Kerner, a court of appeals judge in the Seventh Circuit, was convicted and sentenced to prison for corrupt activities
while he was Governor of Illinois before his appointment to the federal bench; he resigned his judgeship before entering prison,

avoiding almost certain impeachment. 659 This was the first time a federal judge had been convicted while still holding office; he

resigned only after he had exhausted all of his appeals. 660 Robert F. Collins, a district court judge in Louisiana, was convicted

in 1991 of bribery, conspiracy, and obstruction of justice, and sentenced to six years and ten months in jail. 661 Although he
was imprisoned in 1991, Collins did not resign from the bench (and continued to draw his judicial salary) until 1993. At that
point, the chair and the ranking minority member of the House Judiciary Committee jointly introduced a resolution to impeach

him. 662 On the other hand, Robert P. Aguilar, a district court judge in California, was convicted in 1990 of disclosing a wiretap,
and obstruction of justice, and sentenced to six months imprisonment; in 1993, the Ninth Circuit affirmed the wiretap disclosure
conviction, reversed the obstruction of justice conviction, and remanded for resentencing. 663 The House received a resolution

to impeach him in 1993 but did not act upon it. 664 Aguilar took senior status in 1996. 665

Harry E. Claiborne, a district court judge in Nevada, was convicted in a criminal trial of tax evasion. 666 He was sentenced to two
years of imprisonment but refused to resign his judgeship, drew his full salary for the two years spent in prison, and threatened
to sit behind the bench again and try cases as soon as his imprisonment ended. 667 This was the first time a federal judge had
been incarcerated while still holding office. He was impeached by the House 668 and convicted by the Senate 669 in 1986. 670

*252 Alcee L. Hastings, a district court judge in Florida was indicted for bribery but acquitted. 671 The Judicial Conference

certified to the House that there might be grounds to impeach Hastings. 672 Despite Hastings' claims that his prosecution

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and impeachment were motivated by racism, the House voted 413 to 3 to impeach. 673 The Senate committee charged with
examining the evidence was less persuaded. The Democratic committee chair and Republican vice chair both argued against

conviction because of ambiguities and gaps in the evidence. 674 In 1989, the Senate convicted Hastings on the impeachment
articles that charged him with conspiring to solicit a bribe, lying under oath, and fabricating evidence. 675 Hastings later ran
for election to the House of Representatives and won. 676

Walter L. Nixon, a district judge in Mississippi, was convicted of perjury in a criminal trial and sentenced to five years in
prison. 677 Like Claiborne, he refused to resign after his conviction. 678 And, like Claiborne, he was impeached (in 1988) and

convicted (in 1989) while still in prison. 679 Like Hastings, Nixon had been nominated for the bench by a Democratic president,
impeached by a Democratic House, and convicted by a Democratic Senate. 680

By 1974, impeachment had become so non-partisan that Raoul Berger could write that it “has sunk in this country to the ouster
of dreary little judges for squalid misconduct.” 681
5. Nixon and Agnew
On June 17, 1972, a security guard at the Watergate complex in Washington noticed a burglary in progress and called police,

who arrested *253 five men inside the offices of the Democratic National Committee. 682 The Committee to Re-Elect the
President, which was coordinating the reelection campaign of Richard Nixon, had hired them. Six days later, Nixon and H.R.
Haldeman, his principal aide, had a private conversation in the Oval Office in which they strategized about how to hide White
House involvement in the burglary (this later became known as “the cover-up”). After the burglars were convicted, and before
they were to be sentenced, one of them wrote a letter to the trial judge, John Sirica, saying that the burglars had been paid off
to keep silent about the White House's role (“the hush money”). Three days later, Sirica read the letter into the record in court
before sentencing the burglars to long prison terms, which he offered to reduce if they cooperated with a grand jury investigation
of the cover-up.
Because of public suspicion that Nixon's Justice Department could not be relied upon to investigate crimes that might have
been committed in the White House, Attorney General Elliot Richardson appointed Archibald Cox, a former Solicitor General,
as a special prosecutor with his own independent staff on May 18, 1973. On July 13, Alexander Butterfield, Nixon's former
appointments secretary, testified to a Senate committee investigating the Watergate burglary and cover-up, that Nixon had
ordered a voice-activation audiotaping system installed in the Oval Office and that the system recorded every conversation

there since 1971. 683 On July 23, 1973, Nixon refused to turn over any of these recordings to the Senate committee or to
Cox. Cox later subpoenaed certain recordings from the White House. Nixon offered instead to let an elderly Senator listen
to the tapes and summarize their contents for Cox. On October 19, 1973, Cox refused and said that he would seek judicial
enforcement of his subpoena. A day later, on Saturday, October 20, Nixon ordered Richardson to fire Cox and abolish the
office of special prosecutor; Richardson refused and resigned instead. Within minutes, Nixon ordered Deputy Attorney General
William Ruckelshaus to do what Richardson would not, but he, too, refused and resigned. Solicitor General Robert Bork then
became Acting Attorney General and, obeying Nixon's orders, fired Cox, abolished the office of special prosecutor, and had
the FBI lock up the office and its records (“the Saturday night massacre”).

*254 Public and congressional outrage was so overwhelming (“the firestorm”) that impeachment resolutions were introduced
in the House, and Nixon was forced to back down and appoint another special prosecutor, Leon Jaworski. By then, the term
“Watergate” had expanded in everyday speech to include allegations about other burglaries, fraudulent political campaign
practices, income tax evasion by Nixon, stealing government money to improve his private residences in California and Florida,
and the use of the FBI, IRS, and other federal agencies to harrass political opponents and cover up illegal White House activities.
On March 1, 1974, a grand jury supervised by Jaworski's office indicted John Mitchell, Nixon's Attorney General at the time
of the Watergate burglary, H.R. Haldeman and John Ehrlichman, the most important people on Nixon's White House staff, and
other White House aides. In these indictments, Nixon was named as an unindicted co-conspirator, which did not become public
until later that summer. Jaworski decided not to indict Nixon because he was not sure he could indict a sitting president. 684

On July 24, 1974, the Supreme Court affirmed the lower courts' orders commanding Nixon to surrender the tapes sought
by Jaworski and earlier by Cox. 685 On July 27, 29, and 30, the House Judiciary Committee voted to recommend to the

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House that it impeach Nixon on three articles of impeachment. On August 5, the White House released transcripts of the June
23, 1972, conversation and two others between Nixon and Haldeman showing that the White House directed the Watergate
burglary and that Nixon directed the cover-up and ordered the FBI not to investigate the burglary (“the smoking gun”).
Nearly all the Republicans on the House Judiciary Committee who had voted against the obstruction of justice article of
impeachment announced that they would reverse their votes. 686 “By early August, Nixon lost almost all Republican support
in Congress . . . .” 687 On August 7, Republican leaders in the House and Senate went to the White House, told Nixon that he

would certainly be impeached and would probably be convicted, and implored him to resign. 688 On August 9, Nixon resigned,

preventing his certain *255 impeachment. 689 On September 8, Gerald Ford, who had succeeded to the presidency on Nixon's
resignation, granted a pardon for “all offenses against the United States” committed by Nixon while he was president.
The first article of impeachment approved by the House Judiciary Committee charged Nixon with obstruction of justice for
lying and making deceptive statements and causing others to lie and make deceptive statements to federal law enforcement
personnel and in court; withholding evidence; interfering with federal law enforcement investigations; paying hush money to
witnesses; misusing the CIA to obstruct justice; leaking information gathered by federal law enforcement personnel to people
under criminal investigation; and deceiving the public about investigations of the Watergate burglary. 690 The committee vote

in favor of this article was twenty-seven to eleven. 691 Democrats voted for it, twenty to zero, and Republicans voted against

it, six to eleven 692 --although after the smoking gun tapes became public a few days later, ten of the eleven Republicans who

opposed it announced that they would reverse their positions and vote to impeach. 693

The second article of impeachment charged Nixon with abuse of power for using the IRS, FBI, Secret Service, CIA, and “a
secret investigative unit within the office of the President, financed in part with money derived from campaign contributions”
to violate the constitutional and statutory rights of citizens. 694 The committee vote in favor of this article was twenty-eight to

ten. 695 Democrats voted for it, twenty-one to zeron, and Republicans voted against it, seven to ten. 696 The Republicans who
reversed their votes on the first article declined to do the same on the second. 697

The third article of impeachment charged Nixon with contempt of Congress for disobeying Congressional subpoenas. 698 The
committee vote *256 in favor was twenty-one to seventeen. 699 Democrats voted for it, nineteen to two, and Republicans

voted against it, two to fifteen. 700 (The committee rejected other articles on income tax evasion and the bombing of Cambodia

secretly and without Congressional authorization). 701

Separately from all this, in 1973, about two weeks before Vice President Spiro Agnew resigned and pleaded nolo contendere

to criminal charges of receiving bribes, 702 he asked the House to begin an impeachment inquiry against him on the claim that

he could not be prosecuted criminally while still vice president. 703 The House ignored this request, 704 which was a tactical
feint to delay a criminal indictment.

Although the Nixon near-impeachment may be remembered in some extremist right-wing circles as a wound, it was non-partisan
in every conceivable sense. Individual members of the House Judiciary Committee imposed on themselves the extraordinarily
high evidentiary burden of clear and convincing evidence, and in some cases, the higher burden of proof beyond a reasonable
doubt. 705 In the initial committee votes, a significant bloc of Republicans voted, with Democrats, for impeachment. After the
smoking gun tape transcripts were released, all but one of the remaining Republicans deserted Nixon, and Republican leaders
of both Houses of Congress went to the White House, advised Nixon that he would be impeached by an overwhelming vote
in the House, and asked him to resign, which he did.
F. The Revival of Impeachment as a Partisan Political Weapon
By the 1950s, historical memory treated the Andrew Johnson impeachment as an aberrational abuse of power, regrettable no
matter how badly Johnson himself had behaved. Then-Senator John F. Kennedy's 1955 book Profiles in Courage described

Senator Edmund G. Ross's deciding vote against convicting Johnson as an act of heroism. 706 Impeachment had been utilized
so long for the sole purpose of ousting corrupt office holders, that its other use--as a political weapon during *257 periods of
political crisis--had been forgotten or considered an artifact of past and less civilized times. In the mid-1950s, billboards urging

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“Impeach Earl Warren” began proliferating along rural highways, at least some of them paid for by the John Birch Society, 707
and in 1957 the Georgia State House of Representatives passed a resolution petitioning Congress to impeach not only Chief

Justice Warren, but also Justices Black, Frankfurter, Douglas, Clark, and Reed. 708 But these instances were seen at the time as
marginal and irrelevant, rather than as beginnings of the revival of impeachment as a partisan political weapon.
1. The Fortas and Douglas Investigations: The Beginning of the Struggle for the Supreme Court
Brown v. Board of Education 709 began a long process through which the vacating and filling of seats on the Supreme
Court became an interminable focus of partisan political fighting. At one point, during the first Nixon Administration,
confirmation struggles and attempted impeachments were joined into a single battlefield. Brown and its progeny infuriated
most of the white South, and in the 1950s and 1960s, it could be dangerous to be a federal judge in a Southern state enforcing
desegregation law. 710 And the Supreme Court angered other constituencies as well through a wide range of decisions 711

concerning reapportionment, 712 criminal procedure, 713 obscenity, 714 civil rights, 715 the relationship between government
and religion, 716 and eventually abortion. 717 The Republican *258 Party developed a strategy to build an electoral majority
by converting Southern whites from Democrats into Republicans. 718

The first Supreme Court confirmation battle in the style with which we have now become accustomed--antagonistic interest
groups researching the nominee's background for any conceivable damaging information, unfriendly Senators cross-examining
the nominee while supporters complain that the nominee is being persecuted, and people on both sides spinning the facts rather

than exploring them with an open mind--occurred in 1968 719 when President Lyndon Johnson nominated Associate Justice
Abe Fortas to replace retiring Chief Justice Earl Warren. The model for attacking the nominee was set by Republicans and rightwing Southern Democrats in the 1968 Senate Judiciary Committee. 720 Democrats and interest groups allied with them learned
from that experience and used similar techniques in a muted way in the later confirmation hearings of Clement Haynsworth, G.
Harrold Carswell, William Rehnquist, and then more aggressively against, Robert Bork and Clarence Thomas.

The Senate had many times before rejected Supreme Court nominations. The earliest Senate rejection had been of George
Washington's nomination of John Rutledge. Although Rutledge had chaired the Committee on Detail, which wrote the first draft
of the Constitution at the Constitutional Convention, the Senate refused to confirm him as Chief Justice because he had made a

speech opposing the Jay Treaty with France. 721 Jefferson wrote that “[t]he rejection of Rutledge by the Senate is a bold thing,
for they cannot pretend to have any objection to him”--one of the outstanding lawyers in the country--“but his disapprobation
of the Treaty. It is, of course, a declaration that they will have none but tories . . . .” 722

*259 In all, “33 of the 148 nominees for the highest court [now 150 nominees, including John Roberts and Samuel Alito]
have either been rejected by a vote of the Senate, had the voting on their nomination repeatedly postponed or filibustered into
nonexistence or eventually bowed out.” 723 In fact, during the nineteenth century over a third of those nominated to the Court

failed to achieve confirmation. 724 Among the casualties was Roger Taney, who was rejected by the Senate when nominated by
Andrew Jackson to be an Associate Justice. The reason was purely political: as Secretary of the Treasury, Taney had approved

Jackson's withdrawal of federal deposits from the Bank of the United States 725 --an issue about which virtually no one at the
time had feelings that could be described as moderate. Actually, the Senate did not reject the nomination on an up-or-down
vote. It moved the nomination off its agenda and then voted to abolish the vacant seat in a bill that failed enactment in the
House 726 and surely would have been vetoed by Jackson. When Chief Justice Marshall later died, Jackson nominated Taney

again, and he was confirmed. 727 “[S]enators often admitted to political motives when they opposed a nominee.” 728 President
Tyler nominated six men to the Supreme Court, only one of whom was confirmed. 729 Although some nominations in *260

the twentieth century had been controversial, (most notably Woodrow Wilson's nomination of Louis Brandeis in 1916) 730 at
the time of the Fortas nomination in 1968, the most recent rejection of a nominee by the Senate had been that of John J. Parker,
who was nominated by Herbert Hoover in 1930. 731

But the events of 1968 started an era of confirmation battles in a long-running war for control of the Supreme Court. The earlier
rejections and controversies had been episodic, many of them having unique dynamics. From 1968 on, each nomination became
either a battle or a truce in a war over the Court that sometimes spilled over into impeachment or attempted impeachment. That

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is not to say that every impeachment or attempted impeachment after 1968 was a partisan political attack. The impeachments
of Judges Claiborne, Hastings, and Walter Nixon, and the near-impeachment of President Richard Nixon were all nonpartisan

or bipartisan. 732 In 1968, however, the United States entered an era in which impeachment could be used as a partisan political
weapon in a long and not-yet-ended struggle.
Fortas was considered at the time to have a brilliant legal mind, but he was not an unblemished nominee. While on the Court,
he had advised President Johnson “on national policy and had even done some behind-the-scenes lobbying on the president's
behalf.” 733 Justice Frankfurter, had done similar things for President Franklin Roosevelt, 734 and later Chief Justice Warren

Burger tried to give advice to President Nixon. 735 Only much later did it become apparent how deeply Fortas's advice had
created conflicts of interest. Fortas had also accepted speaking fees paid by some prominent businessmen recruited by his former
law partner, Paul Porter; apparently neither Fortas nor Porter worried that the contributors sat on the boards of a number of
corporations which might some day be parties before the Supreme Court. 736 Although this could sound like carelessness or

corruption, it was not; no one told Fortas who the contributors were. 737 Moreover, judges must recuse themselves from cases
involving former *261 clients and law firms, as well as friends and political allies, 738 and Fortas did so routinely. 739

But the timing of his nomination--a promotion from his Associate Justice position to be Chief Justice of the Supreme Court-infuriated Republicans, who hoped to win the 1968 presidential election and have a president of their own party choose the
next chief justice. 740 In confirmation hearings, they cross-examined Fortas in a way that nonstop television coverage today

would make impolitic. “Mallory, Mallory,” Senator Strom Thurmond shouted at Fortas, referring to a case 741 decided by the
Supreme Court while Fortas was still a lawyer in private practice and with which he had no connection of any kind, “I want
that word to ring in your ears--Mallory.” 742 When Fortas's nomination got to the Senate floor, the Republicans filibustered it;

cloture votes failed; and Fortas asked that the nomination be withdrawn. 743 Two months later, a Republican, Richard Nixon,
was elected president.
When in 2004 and 2005, Senate Democrats considered filibustering a few nominees to the Courts of Appeals, Republicans
claimed that no one had ever filibustered a judicial nominee in the Senate. But the truth is that, in 1968, the Republicans
filibustered Fortas's nomination, and everyone at the time considered what was happening to be a filibuster. After the first day,

the headline in the New York Times began “Critics of Fortas Begin Filibuster . . . .,” 744 and the Washington Post headline read

“Fortas Debate Opens With A Filibuster.” 745 The first words of the Washington Post story were: “A full-dress Republican-led
filibuster broke out in the Senate yesterday against a motion to call up the nomination of Justice Abe Fortas *262 for Chief

Justice of the United States.” 746 When the motion to end debate failed, the New York Times headline began “Senate Bars Move

to End Filibuster . . . .” 747 The historians who have studied the Fortas nomination uniformly agree that it was filibustered. 748
And Senator Robert Griffen, the Republican floor manager of the opposition to Fortas justified what he was doing as having
historical precedent: “it has not been unusual for the Senate to indicate its lack of approval for a nomination by just making
sure that it never came up for a vote on the merits.” 749

According to Nixon's own legal counsel, John Dean, Nixon began looking for ways of creating Supreme Court vacancies in

1969 soon after being sworn in as president. 750 Nixon was in the same position Roosevelt had been in 1937. Each wanted a
Court that would decide cases differently, and each wanted to appoint Justices to cause that result. But Nixon and Roosevelt used
very different strategies. Roosevelt chose a variation of the traditional rejiggering of the number of Justices, which had occurred
several times in the nineteenth century. 751 Nixon tried to smear Justices in an effort to get them to resign or to serve as a basis
for impeachment. According to Dean, Nixon ordered his Justice Department to use its resources to accomplish that purpose. 752

In the spring of 1969, a Life magazine reporter began looking into a questionable relationship Fortas had with a businessman
named Wolfson. The reporter approached Will Wilson, Assistant Attorney General and chief of the Justice Department's
Criminal Division, who years later told Bruce Murphy he had been “excited about the prospect. I knew what kind of potential
coup we had . . . we wanted Fortas off the Court.” 753 The Justice Department then began a high priority investigation of its

own, 754 and secretly gave the magazine essential elements of the story that was *263 eventually published. 755 Nixon was
kept informed throughout. 756 According to John Ehrlichman, one of his closest aides, “Nixon cleared his desk of other work

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to focus on getting Fortas off the Court.” 757 To get Fortas to resign without being impeached, John Mitchell, Nixon's Attorney
General, secretly gave Chief Justice Earl Warren evidence not published in Life. 758

The Justice Department eventually leaked that evidence to the press. 759 To further intimidate Fortas, the Department convened
a grand jury to investigate whether Fortas's wife, Carol Agger, and Fortas's former law partner and best friend, Paul Porter,
should be indicted for obstruction of justice over subpoenaed documents that had been mislaid in an unrelated case years earlier
(even though the Department had previously decided that Agger and Porter were not at fault). 760 Fortas resigned. By that
point, congressional antipathy was building. 761 Had Fortas remained on the bench, impeachment resolutions almost certainly

would have been introduced on the House floor, 762 and referred to the House Judiciary Committee for investigation. Senator

James O. Eastland, 763 a Mississippi Democrat and segregationist who was content with the treatment Fortas received when
nominated to be Chief Justice in 1968, chaired the Senate Judiciary Committee. But, the House Judiciary Committee was chaired

by Representative Emanuel Celler, 764 a New York City Democrat who was the opposite of Eastland in every respect except
party affiliation. Although differences in the membership of the two committees were not as stark as the differences between
their chairs, the House Judiciary Committee, then as now, is larger, so that the personalities of individual members leave less
of an imprint on its proceedings. Due to its larger size, the House Judiciary *264 Committee apportions more of its work into
subcommittees, which gives added power to the committee chair to control the flow of business.
The House committee would not have abused Fortas as the Senate committee had. On the other hand, an investigation involving

Fortas would not have ended as quietly as the one that, a short while later, would involve Justice Douglas. 765 It would have gone
on very publicly and painfully for months while Republicans tried to read nefarious intent into every ambiguity in the evidence,
and while Fortas, who seemed to lack the ability to make his own case except legalistically, would have looked more and more
disingenuous. The House probably would not have impeached Fortas, and the Senate certainly would not have convicted him.
There was no evidence of the kind of corruption that had been essential in every other instance of a Senate conviction. Moreover,
Democrats controlled both Houses of Congress. Although party realignment in the South had only just begun and a significant
bloc within the Democratic majorities was still made up of right-wing Southerners, it would have been extraordinarily difficult
in the Senate to collect the constitutionally required two-thirds majority needed to convict. But the humiliation of a public
impeachment investigation would almost certainly have led Fortas to do later what he actually did earlier: resign.
The Fortas incident must be included among the impeachments that did not run their full course because they were aborted by the
accused's resignation. And it would be an understatement to say that it must also be included among instances of impeachment's
used as a partisan political weapon. Throughout, the Republicans were determined to get Fortas off the Court for partisan political
reasons, and they were turning to an impeachment investigation at the moment when his resignation made it unnecessary.
Although Fortas's relationship with Wolfson was questionable, it was not illegal at the time. 766 Nixon's own Justice Department

could find no violation of law. 767 Wolfson controlled a nonprofit foundation, and Fortas had accepted a $20,000 consulting fee

from the foundation while the SEC *265 was investigating Wolfson. 768 In compensation for helping the foundation plan its

public service activities, Fortas was to receive the same amount annually, as long as he or his wife lived. 769 But when Wolfson's
legal problems deepened, or, more precisely, when it finally dawned on Fortas that a Supreme Court Justice should not be
accepting money from an entity controlled by a person being investigated by a law enforcement agency, 770 Fortas returned

the $20,000 he had already received and cancelled his consulting contract with Wolfson's foundation. 771 Moreover, Fortas did

nothing to help Wolfson escape his legal difficulties, which ended in imprisonment. 772

Although the Republicans did everything they could to force Fortas off the Court, Fortas, like Chase and Andrew Johnson, had
faults that seemed to conspire with his enemies to do him in. Certainly money mattered enough to him that he took it when he
should not have. 773 Fortas had lived very well on his income as a named partner in one of the country's leading law firms, 774
but, when he became a Supreme Court Justice, his income shrank to a fraction of what it had been. 775

Fortas hurt himself in three ways. First, Fortas never seemed to understand that judges, unlike lawyers, do not sell their
professional time. Although part of what it takes to succeed as a lawyer is knowing how to bill clients, leaving the practice of law
often means leaving that mentality behind. Second, like so many lawyers who come to grief in Washington, Fortas assumed that
if a position is legally arguable, it will for that reason alone satisfy politicians and the public. He never understood that it would

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appear corrupt for a Justice earning $39,500 a year to accept a lifetime income from a private source of an additional $20,000

a year, even if legal *266 devices like recusal were sufficient to avoid any genuine harm. 776 He also never understood that,
although the money Wolfson paid him might have been consistent with his billing rates in private practice, it looked like a gross
overpayment--one intended to secure special treatment for Wolfson--when compared to Fortas's judicial salary.
And third, although Fortas could strategize with exceptional skill in the narrow confines of litigation, 777 he, like many other
lawyers, was a mediocre strategist in the broader world. Lawyers, especially litigators, usually feel that they get results by
sharing as little information as possible with adversaries and third parties, and by putting a self-serving spin on the information
they do share. Throughout all of his troubles in 1968 and 1969, Fortas's instinctive reaction was to do exactly that, and it created
a convincing impression that he was hiding something and being disingenuous. 778 Even in the final days before he resigned,
Fortas could not understand how much he was being hurt in this way. The lifetime payments feature of the consulting contract

was the fact most damaging to Fortas. When John Mitchell learned of it, he was overjoyed. 779 At the time Fortas resigned, the
nature of the consulting contract had not yet become public knowledge. But the Nixon Administration knew of it, had informed

Chief Justice Warren about it, and could tell the public about it at any time. 780 Fortas sought Justice Hugo Black's advice, and
explained everything to him. “After he heard about the lifetime nature of the Wolfson contract, Black recognized what had to
be done. Tell the press yourself, he advised Fortas. After all, the initial payment had been returned and the agreement had been
cancelled.” 781 That was Fortas's last opportunity to appear forthright and honest. He refused.

To fill the vacancy created by Fortas's resignation, Nixon nominated Clement Haynsworth, Chief Judge of the Fourth Circuit. 782

The civil rights and labor movements, initially suspicious, mobilized to oppose the nomination. 783 “Senators who opposed
Haynsworth on ideological grounds, as well as those Democrats furious about the Fortas affair, could *267 point to two cases
of apparent conflict of interest,” in which Haynsworth, while on the Court of Appeals, had participated even though he had
undisclosed personal interests and probably should have recused himself. 784 At the time, the ABA Canons of Judicial Ethics
required recusal in such circumstances, but the federal judicial conflict-of-interest statute did not. (As a result of this and the

Fortas and Douglas controversies, the statute was rewritten later into the form today at
28 U.S.C. § 455.) 785 Most federal
judges at the time followed the Canons, although they were stricter, and it reflected badly on Haynsworth's character that he did
not do so. 786 Haynsworth, in essence, could not pass the standards that Fortas had been held to, 787 and the Senate rejected
him by a vote of fifty-five to forty-five. 788 After the Haynsworth defeat, Nixon told one of his aides, “I want you to go out

this time and find a good federal judge further south and further to the right” of Haynsworth. 789 The result was the nomination
of G. Harrold Carswell.
Carswell was not qualified for the Supreme Court. He had been a mediocre district court judge whose annual output of published
opinions averaged less than 16 pages, 790 and who was reversed 58% of the time when his decisions were appealed. 791 He

had been promoted to the Court of Appeals only six months before Nixon nominated him for the Supreme Court. 792 Dean
Louis Pollack of the Yale Law School told the Senate Judiciary Committee that Carswell had “more slender credentials than

any Supreme Court nomination put forth in this century.” 793 Professor William *268 Van Alstyne of Duke, a Haynsworth
supporter, told the Judiciary Committee that “[t]here is, in candor, nothing in the quality of [Carswell's] work to warrant any

expectation whatever that he could serve with distinction on the Supreme Court.” 794 Nixon's own aides felt the same way. 795
Senator Hruska, the floor manager of the Carswell nomination, made the most memorable--but not the only--argument that
Carswell's mediocrity was a virtue: “there are a lot of mediocre judges and people and lawyers. They are entitled to a little
representation, aren't they, and a little chance. We can't have all Brandeises and Frankfurters and Cardozos and stuff like that
there.” 796

There was speculation at the time that Nixon nominated Carswell both out of annoyance over Haynsworth's rejection, 797 and as
a cynical tactic to set up a claim, after Carswell's likely rejection, that the Senate, so long as it was controlled by the Democratic
Party, could never be fair to a white Southern nominee. (Haynsworth was from North Carolina and Carswell from Florida.)

Carswell had helped convert a public golf course into a private club at which only whites could play. 798 And, while running
for the state legislature in 1948, Carswell made a racist speech that included comments like “I yield to no man . . . in the firm,
vigorous belief in the principles of White Supremacy, and I shall always be so governed,” 799 and “I believe that segregation

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of the races is proper and the only practical and correct way of life in our states.” 800 At his confirmation hearings, Carswell

disavowed the speech. 801 The Senate rejected him by a vote of fifty-one to forty-five. 802

A day later, Nixon told the press, “[W]ith the Senate as presently constituted[,] I cannot successfully nominate to the Supreme
Court any Federal appellate judge from the South who believes as I do in the strict *269 construction of the Constitution.” 803
These were code words meaning that Nixon could not successfully nominate a Southerner hostile to Brown and its progeny. In
fact, there were five judges on the Fifth Circuit-- Griffin B. Bell, John R. Brown, Richard T. Rives, Elbert P. Tuttle, and John
Minor Wisdom 804 --whose reputations were so commanding that they could have been confirmed for the Supreme Court as
easily as Lewis Powell later was. Burke Marshall, Assistant Attorney General in the Kennedy Administration and later on the
law faculty at Yale, said that Brown, Rives, Tuttle, and Wisdom “have made as much of an imprint on American society and

American law as any four judges below the Supreme Court have done on any court.” 805 But Nixon would nominate none of
them, even though Brown, Tuttle, and Wisdom were Republicans, 806 because all five were in the habit of voting to enforce

Brown. Instead, Nixon nominated Harry Blackmun of the Eighth Circuit, 807 a Minnesotan who at the time gave no indication
of the kind of Justice he would later become. 808 The Senate confirmed Blackmun unanimously. 809

Carswell's nomination was defeated on April 8, 1970. 810 On April 12, Republican House Minority Leader Gerald Ford

announced that the House would investigate Justice William O. Douglas with a view toward impeachment. 811 Of all the
Justices on the Supreme Court, Douglas irritated the Republicans most deeply. He voted against their principles more regularly
than other Justices; he wrote books and articles they considered offensive; and he had been married four times to successively
younger women. 812 His most recent book at the time, Points of Rebellion, contained sentences like “We must realize that

today's establishment is the new George III.” 813

Douglas's vulnerability was that he had accepted $12,000 a year over six years for serving as the president of a nonprofit

foundation--an arrangement that Republicans claimed replicated Fortas's. 814 Much of the *270 foundation's income came
from a mortgage on a Las Vegas hotel and casino, and the foundation's primary benefactor owned stock in three Las Vegas
casinos, 815 all of which allowed Republicans to claim falsely that Douglas was consorting with gamblers and gangsters. 816
But there were fundamental differences between Douglas's situation and Fortas's. Fortas's consulting contract did not actually
seem to require that he do much work, while “Douglas actually ran the [foundation that paid him] and took an active role in

the implementation of its very tangible and highly praised programs in the United States and Latin America.” 817 Moreover,
the $12,000 salary was not really a salary at all. Originally, the foundation had offered Douglas a $20,000 salary, which he

refused because he did not want to be paid. 818 “He then was voted a salary of $12,000 plus expenses,” which were to be
significant because the work involved travel, “but he refused to collect expenses and said that he would treat the salary (after

income tax) as an expense account.” 819 Although the foundation used a small portion of the salary to purchase an annuity

for Douglas, 820 he worked almost for free, and the foundation's correspondence with him suggests that the foundation's board
felt guilty or embarrassed because of his generosity. 821 In 1969, because of Fortas's troubles, Douglas resigned as president

of the foundation. 822

With help from the White House and from Will Wilson, the same Assistant Attorney General who had coordinated building the
case against Fortas, 823 Ford “accumulate[d] a mound of information on Douglas.” 824 Nixon directly encouraged Ford. 825
“From the beginning,” according to John Ehrlichman, one of the president's closest aides, “Nixon was interested in getting
rid of William O. Douglas. . . . John Mitchell had *271 begun to gather information about Douglas's nonjudicial sources of

income, and some of it looked hopeful.” 826 “A loosely organized impeach-Douglas effort was organized in the House,” led by
Ford and two other senior Republican Congressmen, “with the single goal of filing articles of impeachment against Douglas
during the 1970 congressional term.” 827 Not long afterward, Wilson himself resigned over allegations that he helped a former
client who was being investigated by the Justice Department and the SEC. 828 Mitchell was later convicted and imprisoned
in the Watergate scandal. 829

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Eventually, Ford took the House floor to accuse Douglas of being a “well-paid moonlighter” as a foundation president; 830 of

having voted on the Court in a case where a publisher that had once paid him $350 was a party; 831 of having done some work
for an organization Ford considered subversive, 832 the Center for the Study of Democratic Institutions, 833 (even though Chief
Justice Warren Burger, a Nixon appointee, had worked for the same organization, as had William Buckley, the conservative
writer, and some Senators and other people whose views were not controversial 834 ); of having written Points of Rebellion;

and of having published a chapter of it in a magazine Ford considered pornographic 835 (even though the book's publisher
had licensed the magazine to publish the chapter without telling Douglas about it until after the fact, a common practice in the
publishing industry). 836

While Ford was making this speech, he was outmaneuvered procedurally by Democratic Representative Andrew Jacobs, Jr., a

Douglas supporter, who went into the well of the House and filed a resolution to impeach Douglas. 837 Ford wanted a select
committee designated because *272 that would cause his own resolution to be “referred automatically to the House Rules
Committee, chaired by a Mississippi segregationist.” 838 But Jacobs' resolution called for referral to the Judiciary Committee,
where Celler would control procedure. Because Jacobs filed first, his resolution took priority. 839

Celler appointed a subcommittee consisting of himself, two other Democrats, and two Republicans. 840 The subcommittee
produced a 924-page report that found the allegations against Douglas to be groundless. 841 All three Democrats voted to

that effect. 842 One of the Republicans criticized the subcommittee but conceded that Douglas had committed no impeachable
offense. 843 The remaining Republican neither joined the majority nor dissented. 844 Ford and his allies later called the

subcommittee investigation a “travesty” and a “whitewash.” 845 Will Wilson, who as Assistant Attorney General had helped
assemble the case against Douglas, remembered things differently. “Ford took the material we gave him and screwed it up,”
Wilson said later: “Ford blew it.” 846

The Douglas investigation occurred in 1970. In 1973, Spiro Agnew resigned the vice-presidency and was convicted of taking
bribes while a state official. Under the Twenty-Fifth Amendment, Nixon nominated and Congress confirmed Ford to replace
Agnew as vice president. When Nixon later resigned in 1974, Ford became president. During all this, Douglas's health
deteriorated, and in 1975 he resigned from the Supreme Court. 847 Ironically, Ford nominated Douglas's successor, John P.
Stevens, then a judge on the Seventh Circuit. Still more ironically, Stevens became a leader of the liberal bloc on the Supreme
Court.
The war in which the Fortas and Douglas incidents were the first battles continued through the defeated nomination of Robert

Bork in 1987, 848 and the confirmation of Clarence Thomas in 1991. Eventually, the *273 war broadened, and Republicans
used impeachment as part of a partisan attack on a Democratic president.
2. Clinton
While complicated events are happening, we are least able to understand what is really going on and why. Only afterward-with historical distance--does the big picture emerge, and causation can be discussed meaningfully. History does not merely
reconstruct the knowledge that people in the past had about what they lived through. It discovers what they could not have
realized at the time.
Bill Clinton had sex with Monica Lewinsky and lied about it to the public and under oath. The question here is not whether
that merited impeachment and conviction. Reasonable people can differ about that. The argument in favor of the impeachment's
appropriateness is that perjury is a felony, and that a president who commits perjury deserves impeachment and removal because
the known example of a high official committing perjury corrodes the public's confidence in government as well as the public's
own commitment to honesty. 849 As we shall see in Part IV(A) of this article, this argument has the potential of boomeranging
back onto those who make it.
There are three arguments against the appropriateness of Clinton's impeachment. First, not every felony is a high crime or
misdemeanor, 850 and felonies outside the scope of impeachable offenses include those that do not damage the integrity of

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government or the political system in substantial ways. For example, income tax evasion has not been considered an impeachable
offense. In 1974, the House Judiciary Committee, including all of its Republican members, voted not to recommend impeaching
Richard Nixon for tax evasion, even though a taxpayer signs every tax return, at the bottom of Form 1040, “[u]nder penalties of
perjury . . . .” A second argument is that other presidents have told, encouraged, or helped others to tell much more damaging
lies that have not led to impeachment, such as lying to create a basis for a war in which thousands die and in which the national

interest is substantially harmed. 851 According to this argument, the absence of an oath to tell the *274 truth in these situations
is more than compensated for by the injury to the integrity of government and the national interest. A third argument is that
impeachment is not the only method Congress has of sanctioning a president. One or both Houses of Congress have censured

other presidents, 852 and in both Houses attempts were made (and defeated) to censure Clinton. 853 By extension, this argument
would also posit that, if both Houses of Congress had voted to censure Clinton, that would have been a rebuke more satisfying
to the public than to have the House impeach him and the Senate acquit him.
This Article does not analyze or choose among these arguments. That has been done amply elsewhere. Instead, the question
here is whether the Republicans merely reacted to the misdeeds of an office holder, or whether they set Clinton up so they could
impeach him to gain political advantages, or more precisely, whether some Republicans set him up and others impeached him
to gain political advantages.
Richard M. Scaife has a large fortune that he inherited from the Mellon banking family and from oil interests. 854 Over decades,
he gave between $200 million and $300 million to right-wing organizations, and, though almost unknown to the public, he was
considered one of the essential figures “in building the modern conservative movement.” 855 Beginning with Clinton's 1992
campaign for president, and continuing throughout his first term in office, Scaife and others financed a campaign to destroy
Clinton's political viability. Perhaps the best known person in this campaign was David Brock, a journalist who had written a
book extraordinarily hostile to Anita Hill, the witness who almost cost Clarence *275 Thomas his confirmation to the Supreme

Court. 856 Brock later repented his role in the campaigns against Clinton and Hill, and he apologized to both of them. 857 “[I]n
its secretiveness and in its single-mindedness [and] also in its lack of fidelity to any standard of proof, principle, and propriety,”
wrote Brock in retrospect about the early campaign against Clinton, “there was no precedent in modern American politics” 858

Scaife invested a substantial amount of money in trying to prove that Bill and Hillary Clinton “were leaders of a criminal
syndicate” and had murdered a White House aide named Vince Foster “to cover up their crimes in Whitewater, a failed real

estate deal.” 859 (Investigations by two different independent counsels later showed that the Clintons had done none of this.) In
1999, Scaife told a magazine that Clinton “can order people done away with at his will . . . there must be 60 people [associated

with Clinton] who have died mysteriously.” 860 Over the years, Scaife had given the right-wing magazine for which Brock
wrote, The American Spectator, about $6 million, and he subsequently used the magazine as a front to operate something he
called the Arkansas Project, which used private investigators to scour the state for evidence of crimes he believed Clinton must
have committed while governor. 861

Theodore Olson, the second President Bush's Solicitor General from 2001 to 2004, gave legal advice to the Arkansas Project. 862
At one point, Brock asked Olson to read a draft article, written by another journalist, that argued that Foster had been murdered.
Brock opposed publishing the article because it lacked evidence. He hoped that Olson would back him up, but was surprised at
Olson's response. “Ted . . . told me bluntly . . . that while he believed . . . that Foster had committed suicide, raising questions
about the death was a way of turning up the heat on the [Clinton] administration until another scandal was shaken loose, which
was the Spectator's mission.” 863 Olson also wrote articles for the magazine under a fictitious by-line accusing the Clintons of

committing various crimes and comparing President Clinton to Don Corleone of the Godfather films. 864

*276 In 1994, Brock himself wrote the original article portraying Bill Clinton “as a sexually voracious sociopathic cipher”

and Hillary Clinton “as a foulmouthed, castrating, power-mad harpy, joined together in a sham power marriage.” 865 Brock
interviewed some Arkansas state troopers, who told salacious stories about the Clintons. The stories were later discredited
because some of the troopers wanted and accepted money for talking to journalists; 866 the troopers retracted much of what

they said when put under oath in depositions; 867 and in Brock's own words later, “[n]one of the trooper allegations that could
be independently checked turned out to be true.” 868

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One of the troopers, however, described an incident in which he accompanied a woman named Paula to Clinton's hotel room,

and that she told the trooper she was willing to be Clinton's “regular girlfriend.” 869 Some time later, a person named Paula Jones
announced that she was the Paula described in Brock's article, and that the article had portrayed her inaccurately and damaged
her reputation. Normally such an accusation would result in a defamation action against Brock and The American Spectator. But
that did not happen. According to Brock, Jones did not sue him because “a conniving cadre of right-wing lawyers and operatives
was secretly calling the shots in the Jones case to forward [their] own political agenda of undermining the Clinton presidency,
which meant leaving me out of it.” 870 Jones's original Arkansas lawyer lacked the skills and resources to litigate her case. He
found help in “the Landmark Legal Foundation, a right-wing public-interest law firm generously funded by Richard Mellon

Scaife.” 871 The retainer agreement between Jones and her original lawyer gave the lawyer a share of any royalties Jones might

later gain from a book or movie about her story. 872 And Jones's sister told the media that Jones had told her, “Whichever
way it goes, it smells money” or “Whichever way it goes, it smells big money” (depending on the journalist reporting). 873
Later, Jones was represented by lawyers supplied by the *277 Rutherford Institute, which also benefited from donations by

Scaife. 874 In the background, a small group of lawyers who called themselves “the elves,” did some of the legal work without
publicly acknowledging their involvement; one of them was Ann Coulter. 875

Eventually, Jones's lawsuit was dismissed for lack of evidence on a summary judgment motion. 876 But the dismissal came
only after her Jones's lawyers deposed Clinton about Monica Lewinsky. “One of the secret legal strategists for Paula Jones”
told David Brock years before that deposition “that the purpose of the sexual harassment suit was to probe Clinton's consensual
sex life through the deposition process, and then to question Clinton under oath about it,” and thus, according to Brock, “the
Jones case had become a vehicle to create a crime where one may not have otherwise existed.” 877

In January 1994, after the Independent Counsel Act had expired and had not yet been reenacted by Congress, Attorney General
Janet Reno, using her inherent authority as chief official in the Department of Justice, appointed Robert B. Fiske 878 as a
special prosecutor to investigate allegations that Clinton had had Vince Foster murdered, and had committed various kinds of
fraud while governor of Arkansas and an investor in a real estate development called Whitewater. Fiske, a Republican and
a retired federal judge with a national reputation for nonpartisanship, “was a reviled figure in the conservative movement,
dating back to the days when he sat on an American Bar Association review panel that gave Robert Bork a low rating and

damaged his confirmation prospects in the Senate.” 879 When Fiske, after an investigation, issued a report concluding that
Foster had committed suicide because of untreated depression, rightists determined to prove that Foster had been murdered
began lobbying for his dismissal. “From the moment that Fiske issued his findings . . ., Republican leaders and influential *278

conservatives began maneuvering to eliminate him.” 880 Shortly afterward, Congress reauthorized the Independent Counsel
Act, which had the effect of terminating the appointments of special prosecutors who had been appointed during the period
between the Act's expiration and its reauthorization. Because Fiske had already concluded the Foster matter and had done a
great deal of investigation in the Whitewater matter, the logical step would have been to appoint Fiske as an independent counsel
under the Act to finish the job. That did not happen. Instead, Kenneth Starr was appointed in Fiske's place with authority to
reopen the Foster issue.

*279 Under the Independent Counsel Act, 881 a unique three-judge panel called the Special Division appointed the independent
counsel. In *280 assigning judges to the Special Division, the Act instructed the Chief Justice of the Supreme Court that

“priority shall be given to senior circuit judges and retired justices” of the Supreme Court. 882 A senior federal judge is one
who is semi-retired. In 1992, Chief Justice William Rehnquist ignored this provision and assigned Judge David Sentelle to
preside over the Special Division. 883 Not only was Sentelle not semi-retired, he was 48 years old at the time, and had been

on the federal bench for only seven years. 884 Before becoming a judge, Sentelle had devoted a great deal of time and money
campaigning and raising money for Republican candidates for political office, and he was a protégé of right-wing Republican
Senator Jesse Helms. 885

On June 30, 1994, Fiske issued his report concluding that Foster's death was a suicide and not murder. 886 On the same day,
Clinton signed into law the reenactment of the Independent Counsel Act. 887 The next day, Janet Reno, filed a motion asking
the Special Division to appoint Fiske as independent counsel so that he could finish the job he started as special prosecutor. 888
That afternoon, Senator Lauch Faircloth spoke on the Senate floor in favor of replacing Fiske, whom Faircloth believed had

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been too lenient with Clinton. 889 Senators Faircloth and Helms both represented North Carolina, where Sentelle had been
active politically in the Republican Party before accepting an appointment to the D.C. Circuit. On July 14, Helms, Faircloth,

and Sentelle met for lunch. 890 When this later became public, all of them at first denied they discussed whom to appoint as
independent counsel, but Sentelle later admitted that it “may” have come up in conversation. For years afterward, the three
insisted that they talked mostly about the conditions of their prostates. 891

On August 5, the Special Division replaced Fiske and appointed Kenneth Starr, a judge on the D.C. Circuit from 1983 to
1989 and the first *281 President Bush's Solicitor General from 1989 to 1993. 892 In removing Fiske, the Special Division

stated that he had a conflict of interest because Reno initially appointed him. 893 But Starr's conflicts of interest were much
larger. Starr had been Solicitor General throughout the Administration of the first President Bush, whom Clinton defeated for
reelection (which had the effect of ousting Starr from the second-most important position in the Justice Department). Starr had

given strategic advice to Paula Jones's lawyers in her lawsuit against Clinton, 894 and his law firm “was negotiating a highly
sensitive legal settlement” with officials of the Resolution Trust Corporation, whom Starr would later investigate in connection
with Whitewater. 895 The replacement made even less sense given that Fiske, as a former U.S. Attorney, possessed extensive

experience both prosecuting and defending white-collar criminal cases, 896 while Starr had virtually no criminal litigation
experience. The Special Division's objections to Fiske thus appeared to be contrived.

When the media reported the Sentelle-Helms-Faircloth lunch, there was an uproar. “The timing of the lunch suggested that the
senators were lobbying Sentelle to dump Fiske--which the judge promptly did.” 897 Five former presidents of the American

Bar Association joined in asking Starr to resign as independent counsel, which he refused to do. 898 Because of the Republican
campaign to appoint politically reliable judges, the federal judiciary has become more politically partisan than at any other time
since the judicial domination by the Federalists at the end of the eighteenth century and the beginning of the nineteenth. 899
According to Michael J. Luttig, formerly a judge on the Fourth Circuit (appointed by the first President Bush):
Judges are told, “You're appointed by us to do these things.” So then judges start thinking, Well, how do I interpret
the law to get the result that the people who pushed for me to be here want me to get? . . . I believe that there's
a natural temptation to line up as political partisans that is reinforced by the political process. *282 And it has

to be resisted, by the judiciary and by the politicians. 900 As a lawyer in the Justice Department, before his own
appointment to the bench, Luttig prepared Clarence Thomas to testify at the hearings on his nomination to the
D.C. Circuit and his later nomination to the Supreme Court. 901

Starr reopened the question of how Vince Foster had died, and his staff investigated everything all over again. In October 1997,
he issued a report finally concluding that Fiske had been right all along, and that Foster had committed suicide. Later, Starr
also reported that there was insufficient evidence that the Clintons had done anything criminal in the Arkansas Whitewater
development, or in the 1993 firing of White House travel office employees, or in the mishandling of FBI files. 902 But by then,
these accusations were no longer needed because Starr had Monica Lewinsky instead.
Congressman Bob Barr, a Republican member of the House Judiciary Committee, campaigned to have Clinton impeached. 903
In June 1997, he wrote a letter to Congressman Henry Hyde, chair of the Judiciary Committee, insisting that the Committee

begin an impeachment investigation. 904 On November 5, 1997--at a time when no one in Congress had ever heard of Monica
Lewinsky-- Barr, joined by eighteen other Republican co-sponsors, introduced a resolution in the House that would direct the
House Judiciary Committee to determine whether Clinton should be impeached for “engag[ing] in a systemic effort to obstruct,

undermine, and compromise the legitimate and proper functions and processes of the executive branch.” 905 The language was
purposefully elastic. Some Republicans were determined to find a cause to impeach Clinton, but were not quite sure what that
cause would be.
Throughout 1997, right-wing agitation for impeachment built up based on claims that Clinton had murdered Vince Foster and
had won the 1996 election through fraud. 906 The editorial page of the Wall Street *283 Journal twice published articles

demanding that Clinton be impeached because, among other things, he had “met with drug dealers . . . and mobsters” 907 and

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stolen the 1996 election. 908 Regnery Publishing, the leading publisher of right-wing political literature, published a novel
called The Impeachment of William Jefferson Clinton, written by the editor of The American Spectator. All of this occurred
before the name Monica Lewinsky reached any news source. According to David Brock, the former right-wing journalist,
the Republican right . . . continued to maintain that the Clinton scandals represented a wide pattern of vague
criminality by the first couple, and therefore that it was only a matter of time until the truth would be revealed, the
Clinton administration would be brought down, and the world would be set right again. They seemed to believe
this, or at least they asserted it, all the more intensely the more they failed to prove any of it, and they went around
the bend as the promised indictments never came. 909 At one point, Brock's home answering machine told callers

to leave a message because “I'm out trying to bring down the president.” 910

As a White House intern assigned one day to deliver some papers to the president, Lewinsky surprised Clinton by showing him
her underwear. This began a series of furtive encounters that reflected poorly on both participants. Lewinsky confided what
was happening to Linda Tripp, a Pentagon employee, who secretly tape-recorded her telephone conversations with Lewinsky-itself a crime under Maryland law. Tripp in turn told Starr's Office of the Independent Counsel about the Clinton-Lewinsky

affair and claimed that Clinton was trying to get Lewinsky a private industry job as the price of Lewinsky's silence. 911 Tripp
needed a lawyer to assist her in negotiations with Starr and to defend her against a potential Maryland prosecution. Ann Coulter
helped her find one. 912

On January 16, 1998, without Clinton's knowledge, the Special Division expanded Starr's jurisdiction to include any criminal

liability Clinton might have had because of his behavior with Lewinsky. 913 Under *284 the statute, an independent counsel
who wanted expanded jurisdiction had to request it from the Attorney General, who was required to “give great weight to” the
independent counsel's recommendation, and if the Attorney General, so deferring to the independent counsel, “determine[d] that
there are reasonable grounds to believe that further investigation is warranted,” the Special Division was required to (“shall”)
grant the request. 914 This deference, both direct and indirect, to the independent counsel meant that any arguable request for
expanded jurisdiction was likely to be granted. Nothing in the public record suggests that Starr informed the Attorney General
or the Special Division that he had simultaneously been working with Paula Jones's lawyers to set a trap for Clinton at his
January 17th deposition, before his jurisdiction had been expanded to include the Lewinsky matter.
In fact, Starr had been looking for sexual misbehavior by Clinton long before his jurisdiction was expanded to include Lewinsky,
and before any of the perjury and alleged evidence tampering that later formed the basis for the impeachment had even

happened. 915 In other words, Starr was using the law enforcement power of his office to try to produce material that could be
used politically to embarrass Clinton even if Clinton had not yet violated the law. Starr also did not tell the Special Division
that, as a private lawyer, he gave strategic advice to Paula Jones's lawyers, one of whom “had billed Jones $975 [in lawyer time]
for consultations with [Starr] on six occasions in 1994.” 916

*285 On January 17, 1998, a day after the Special Division expanded Starr's jurisdiction, Clinton testified at a deposition in

Jones's lawsuit. 917 Linda Tripp had told Jones's lawyers about Monica Lewinsky, and they asked Clinton whether he had sex

with Lewinsky or been alone with her; Clinton answered in the negative. 918 That was a lie. Because Clinton was under oath,
it was also perjury. Lewinsky had previously signed an affidavit denying that she had had sex with Clinton. Clinton's lawyers,
unaware of its falsity, put the affidavit into evidence at the deposition, while Clinton, who knew the falsity of its contents,
watched silently. 919 This was later to form part of the basis for the impeachment articles alleging obstruction of justice. The
issue of whether Clinton had had sex with someone other than Jones, however, was not naturally part of the Jones lawsuit,
although the right-wing backers of Jones's lawsuit had paid money and supplied lawyers so they could put Clinton under oath
and ask exactly these kinds of questions. 920

On August 17, 1998, Clinton testified again, this time to Starr's grand jury: 921
[Starr] called the President to testify before the grand jury to ask him whether he had lied in his deposition. The aim
was to put him in the position of having to confess to possible perjury, or to commit a fresh perjury by denying he

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had lied. The tactic ingeniously created a more formal and imposing setting than a discovery deposition in a defunct
civil case, one in which the President's denials of wrongdoing would seem more grave and culpable. Ordinary
defendants sidestep traps like the one the OIC set for Clinton by invoking their Fifth Amendment privilege not to
incriminate themselves: but for political reasons, as [Starr] knew, the President could not “take the Fifth.”

[Thus,] the point of calling Clinton to the grand jury was not to investigate an ordinary crime: it was . . . to produce a public

spectacle of a president defying the rule of law by testifying falsely under oath. 922 *286 On September 9, Starr delivered two

van loads of evidence to the House along with what he called a “referral” 923 alleging that Clinton “obstructed justice in the
Clinton v. Jones lawsuit by lying under oath and concealing evidence of his relationship with Lewinsky [and] lied under oath

and obstructed justice during the grand jury investigation.” 924 The referral then listed what it called “eleven possible grounds

for impeachment.” Starr thus asked the House to impeach Clinton. 925 Neither Cox nor Jaworski had done that with Nixon.
Cox was fired before he could do anything, and Jaworski turned his evidence over to the House Judiciary Committee without

any recommendation. 926 The referral's description of the events between Clinton and Lewinsky was widely reprinted in the
press and on the Internet.
Clinton came across not as a cunning seducer and monster of predation but as an awkward and guilt-stricken
overgrown adolescent, Lewinsky as a sexually aggressive and experienced but also touchingly insecure young
woman. Starr meanwhile came across as a Puritan pornographer, obsessed with sex and the destruction of the
President. Most readers were horrified at the brutal invasion of the lovers' privacy, and the dumping of the details
into the public domain. Their horror grew as it became apparent [that Starr] had subpoenaed family members to
inform on their sources; bookstores to inform on their customer's reading habits; the Clinton's lawyers, closest
aides, and even their Secret Service guards to reveal the most intimate aspects of their personal lives; Lewinsky's
family, closest friends, and former lovers to reveal what she had told them, and her psychiatric records and personal
computer files. . . . Not to catch a master terrorist, a drug boss, or a Mafia chieftain, but a hapless schmo with
a sexual secret. 927

In October, investigators from the House Judiciary Committee started searching through the files physically located in Starr's
office looking for evidence that Starr's staff might have inadvertently not sent to the House along with Starr's referral.
*287 Rummaging through Starr's file cabinets, the House lawyers discovered interviews with Monica Lewinsky's
hairdressers, childhood friends, and college lovers. There were files [on] Kathleen Willey's dentist [Clinton was
alleged to have made a pass at Willey], her mail carrier, the woman who had bought her house, and the funeral
home director who had buried her late husband. Starr's investigators had tracked down Vernon Jordan's chauffeur
[Jordan was alleged to have tried to get a job for Lewinsky in exchange for her silence] and at least three people
who worked at a Parcel Plus store near the Watergate where Lewinsky would go to log onto the Internet. They
had scanned Lewinsky's library records at the Pentagon (where she had checked out just one book) and seemingly
quizzed almost everyone who had ever worked in the Clinton White House, including the painters, the custodians,
the men who washed the Oval Office windows, and the doorman who talked about the weather with the president
every day.

None of this Starr had included in the . . . boxes of evidence he had shipped to Congress . . . . House investigators counted more
than 320 grand jury transcripts or FBI interviews . . . that never made their way to Capitol Hill. There seemed to be virtually no
tip, lead, or rumor that had not found its way to the prosecutors, and they had wandered down numerous undisclosed rabbit trails
searching for misconduct by Clinton and his allies. The Democratic lawyers finally concluded that Starr must not have sent all
this because it would prove to be powerful evidence of how overzealous his pursuit of the president had become. 928 Starr's

staff investigated a total of twenty-one women whom the staff suspected might have been connected with Clinton sexually. 929
But there was no real evidence that Clinton, or anyone acting on his behalf, had tried to tamper with Lewinsky as a witness.
“No one ever asked me to lie,” she testified, “and I was never promised a job for my silence.” 930

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On November 19, Starr testified at a House Judiciary Committee hearing and argued that Clinton should be impeached. 931
Although the Committee had not yet examined the evidence--at the time they had only read Starr's referral and heard his
arguments in favor of impeachment--the Republican members of the Committee, including Chairman Henry Hyde, *288 gave
Starr a standing ovation at the end of his testimony. 932 The spontaneity of this gesture revealed not only the depth of the
Republicans' partisanship but also their obliviousness to the impression of partisanship that their behavior was creating in the
public mind.

Clinton's standing in the polls took a dip in August, 933 when he testified before Starr's grand jury and immediately afterward
made a statement on national television that many thought insincere. But from that point on, as the partisanship of the
Republicans alienated portions of the public, Clinton's approval ratings were nearly always favorable and continually grew

stronger, 934 in spite of (or perhaps because of) what the public saw the Republicans doing in the House Judiciary Committee,
on the floor of the House, and in the Senate. On December 15, four days before the House impeached Clinton, a Washington
Post/ABC News poll found 60% of the public against impeachment and 39% in favor, while by 57% to 36% the public favored
a congressional resolution censuring Clinton. 935

The public seemed to take a sophisticated view of impeachment, close to that of the drafters of the Constitution. 936 The polls
revealed that the public saw what Clinton had done--both adultery and perjury--as wrongs committed by Clinton as a private
person, not as an officeholder, and certainly not involving the abuse of official power. Though Clinton deserved some type
of punishment, removal from office seemed to the public to be unrelated to the offense. Republican arguments interpreting
the phrase “high Crimes and Misdemeanors” came off as formalistic and appeared to ignore the policy purposes behind the
impeachment provisions in the Constitution, which the public seemed to sense intuitively. That is why part of former Senator
Dale Bumpers's argument to the Senate on Clinton's behalf during the impeachment trial resonated so thoroughly. Before
entering politics, Bumpers had litigated hundreds of divorce cases in rural Arkansas. “In all those divorce cases,” he told the
Senate:
*289 I would guess that in eighty percent of contested cases, perjury was committed. . . . Do you know what it
was about? Sex. Extramarital affairs. But there is a very big difference between perjury about whether there was
marital infidelity in a divorce case and perjury about whether I bought the murder weapon. . . . And to charge
somebody with the first and punish them as though it were the second stands our sense of justice on its head. 937

At the center of the effort in the House to impeach Clinton had been Tom DeLay, then the Republican House Whip and later
the House Majority Leader. Beginning in August 1998, before Starr delivered his referral to the House, DeLay organized an
effort, which he and his staff called “The Campaign,” to get Clinton impeached.
In a conference room in the Capitol . . . [DeLay's staff] flood[ed] House Republicans with information and
provid[ed] a central booking agency for members who shared DeLay's conviction and were willing to go public
with calls for Clinton to resign. . . . A “message of the day” would be sent to every Republican member's office
to keep up the pressure. Sample press releases would be written for other Congressmen to release in their own
names . . . .

....
. . . DeLay [used] a network of conservative talk shows and party fund-raisers to generate pressure within the GOP. He would
go on as many as ten radio talk shows a day, and his staff would blast-fax talking points and tip sheets to perhaps two hundred
such programs at a time, revving up the conservative audiences that would then turn up the heat on their local congressmen. 938
That pressure could be substantial because most Republican Representatives were out of touch with the mainstream of public
sentiment.

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From the time the Republicans took control of the House after the 1994 elections, their majorities had been among the smallest
in American history. In fact, the Democratic majorities in the House for nearly all of the period from 1932 through 1994 were

enormous compared to the tiny margins available to the Republicans after 1994. 939 The Republicans ran the House as though
they had massive public support, which they did not. *290 They tended to get their news from The Washington Times 940

and Fox News. 941 Exposed to a narrow range of opinion, they expected the world to conform to their views, and did not feel
obligated, as generations of politicians before them had, to find practical solutions that worked and could satisfy a broad political
consensus. They were not afraid of losing general elections because their districts had been gerrymandered to have Republican
majorities, even if there were more Democrats than Republicans in the national population. What a Republican incumbent could
be afraid of was losing a primary election to an even more right-wing challenger who might be supported and bankrolled by
the very constituents that DeLay had aroused to badger their Representatives into voting for impeachment. 942

Before Starr testified, the Committee sent Clinton a demand that he answer eighty-one questions that the Republicans claimed
were necessary to the Committee's investigation. Few, if any, of the questions were *291 investigatory. The first was: “Do you
admit or deny that you are the chief law enforcement officer of the United States?” 943

No congressional judiciary committee could have been in any doubt about the answer to this question (and a number of the
others). Its purpose was to taunt Clinton and to generate an answer that would enable Republicans to proclaim that Clinton
admitted being the chief law enforcement officer of the land but still himself committed a felony. In 1974, if the Democratic
majority on the House Judiciary Committee had tried to send similar questions to Richard Nixon, the Republican minority
would have erupted in protests that the majority was behaving in a partisan manner. It was to avoid any conceivable appearance
of partisanship that the 1974 committee majority treated Nixon and his advocates with solicitous respect and treated the idea of
impeachment as a regrettable duty, to be undertaken only if absolutely unavoidable.
Throughout the proceedings in the House Judiciary Committee and on the floor of both the Senate and the House, Republicans
refused to call the subject of the proceedings “President Clinton” or “the President” or “Bill Clinton”--which was the only
name by which the public knew him. Instead, Republicans referred to him as “William Jefferson Clinton,” enunciating each
syllable in the tone that a bailiff might use while reading aloud an indictment during an arraignment in a criminal courtroom.
The purpose was to de-legitimize Clinton by treating him as though he were nearly already convicted and not a real president.
This tactic appeared to have an opposite effect on those of the public who noticed it. The Republicans, carried away with their
own partisanship, appeared to be the ones treating the office of the presidency with disrespect.
On almost entirely party-line votes, the House Judiciary Committee recommended four articles of impeachment on December

11 and 12. 944 On December 19, 1998, the House adopted two of the four articles, charging Clinton with perjury before the

grand jury, and with obstruction of justice by concealing evidence in the Paula Jones litigation. 945 The perjury article was

adopted 228 to 206 946 on a nearly party-line vote, with only 5 Democrats voting yea and only 5 Republicans voting nay. 947

The *292 obstruction of justice article was adopted by a vote of 221 to 212 948 --an extraordinarily close vote and again nearly
party-line, only 5 Democrats voting yea and 12 Republicans voting nay. 949 During the debate, Democrats protested that the

impeachment was a “partisan railroad job,” 950 and that it was hypocrisy to impeach a Democratic president for perjury after a

Republican secretary of defense had been indicted for perjury and then pardoned by the first President Bush. 951

Some in the House Republican leadership, especially Tom DeLay, believed that impeachment would enable them to make
large gains in the November 1998 congressional elections, because the elections would occur after the initial House Judiciary
Committee meetings on impeachment were nationally televised. In congressional elections occurring in a president's sixth
year, the party not in control of the White House has traditionally gained House seats--often in large numbers. At that point
in a presidency, an Administration's mistakes could look bigger than they did earlier while the president himself could appear
less attractive than he once was. This happened to Woodrow Wilson (whose party lost twenty-two House seats in 1918),
Franklin Roosevelt (seventy-two seats in 1938), the Roosevelt/Harry Truman Administration (fifty-four seats in 1946), Dwight
Eisenhower (forty-eight seats in 1958), the John F. Kennedy/Lyndon Johnson Administration (forty-five seats in 1966), and
the Richard Nixon/Gerald Ford Administration (forty-eight seats in 1974), though sometimes the damage could be lighter as
with Warren Harding/Calvin Coolidge (eight seats in 1926) and Ronald Reagan (five seats in 1986). 952 In 1998, Republican
ambitions were not as big as the historical average, but Republicans were nevertheless confident nonetheless of gains. On the

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day of the election, Republican House Speaker Newt Gingrich predicted his party would pick up twenty seats at the expense
of the Democrats. 953

Instead, the Republicans lost five seats because the Republican campaign to impeach Clinton had alienated voters. 954 The
Republicans retained control of the House, but more people actually voted for Democratic House candidates than for Republican
House candidates. This was the only time since Baker v. Carr rationalized House voting in 1962 by *293 requiring that

legislative districts be of equal size 955 that the party that lost the popular vote won a majority of the seats in the House. 956 The
Republicans won a majority only because of intense gerrymandering that was not possible before the invention of computers.
Table 4
Congressional Party Divisions after the Elections of 1996 and 1998 Together with Popular Vote for House Candidates
in the Same Elections
Senate Seats
Democrats
Republicans

1996

211
223
1

48.5
48.9

House Popular Vote 959
Democratic
Republican

45
55

206
228
1

House Seats 958
Democrats
Republicans
Others

1998

45
55

957

48.9
47.9

When the articles of impeachment were considered by the House on December 19, the Republican leadership refused to allow
a vote on a motion that would express the sense of Congress that Clinton had “dishonored” the Presidency and “deserves[] the
censure and condemnation of the American people and the Congress,” which Clinton would have had to acknowledge by his

signature on the resolution. 960 Peter Baker, who published the most exhaustive history of the Clinton impeachment, wrote that

“DeLay . . . crushed the possibility of a censure vote on the floor.” 961 On February 12, a few minutes after the Senate acquitted
Clinton, a Democratic Senator and a Republican Senator moved a similar censure resolution in the Senate. Even though a
fifty-six to forty- *294 three majority voted to consider the resolution, it failed because it was made outside the process for

ordinary business, which requires a two-thirds majority to suspend temporarily the Senate rules. 962 If it had not been necessary
to suspend the rules, the resolution obviously would have been adopted.

Everything changed when the House managers appeared in the Senate to present their case. After the mob psychology that
dominated their party in the House, the impeachment managers were stunned by the calm skepticism of a number of Republican
Senators, who could not be disciplined by their party leadership the way that House Members could, as well as by the
imperviousness to persuasion on the part of every single Democratic Senator. This should not have been a surprise to the House
managers. Conviction in an impeachment trial requires a two-thirds majority in the Senate. Nothing about the Senate of 1998
and 1999, and nothing about the articles of impeachment, or the evidence behind them, could have supported any rational hope
that Senators would have been more enthusiastic about convicting Clinton than the House of Representatives had been about
impeaching him.
On January 7, 1999, the Senate trial began. 963 Moderate Republican and Democratic Senators, with support from Senate
Republican Majority Leader Trent Lott, proposed that after four days of hearing arguments and debate, the Senate would take a
straw vote, and if that vote showed that the two-thirds majority needed to convict was unreachable, the Senate would table the
impeachment articles and instead consider censuring Clinton. 964 “However, a powerful backlash from strongly conservative
Republicans forced Lott to abandon the plan.” 965

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On January 27, Senator Robert Byrd made the impeachment equivalent of a motion to dismiss for failure to state a claim on

which relief can be granted, and forty-four Senators (all Democrats) voted to dismiss the articles of impeachment. 966 A Senator
who believes that neither article states an impeachable offense will not later vote to convict, no matter how amply later evidence
supports the allegations in that article. If forty-four Senators take the position that the allegations in the impeachment articles,
*295 even if they are later proved with evidence, would not constitute grounds for conviction, then the largest number who
could vote to convict after hearing the evidence would be fifty-six--far less than the sixty-seven votes needed for a conviction.
It thus became clear that Clinton could not be convicted. 967

Between February 1st and 3rd, Lewinsky, Vernon Jordan, and Sidney Blumenthal 968 were deposed, so that any Senator who

wanted to could watch their testimony on videotape. 969 This produced nothing new. The House impeachment managers wanted
Lewinsky to testify on the Senate floor, but the Senate rejected that plan by a thirty to seventy vote. The thirty aye votes were all

Republican but included virtually no senior Republicans. 970 Throughout the trial, it was the Republican House managers who
wanted to put as much testimony as possible before the Senate (and national television audiences), while Clinton's lawyers and
Senate Democrats argued that little or no evidence was necessary because the House had not alleged grounds for conviction.
This was the inverse of what happened in past impeachments, where the defendant has usually insisted that the House prove
its case factually. 971

On February 12, the Senate acquitted Clinton. 972 On neither article did even a simple majority of the Senate vote to convict. On
the perjury article, forty-five Senators voted to convict, and fifty-five voted to acquit. 973 On the obstruction of justice article,

the Senate split evenly, fifty Senators voting to convict and fifty to acquit. 974 Of the three high-profile partisan impeachments
to go to a Senate trial--Chase, Johnson, and Clinton--here the prosecution from the House fared the worst. In the Chase trial,
56% of the Senate voted to convict on one of the articles. 975 In the Johnson trial, 65% of the Senate voted to convict. 976 By
contrast, the best the House managers could get in the Clinton impeachment was 50% on one article and 45% on the other.
*296 On June 30, 1999, the Independent Counsel Act expired. It has not been reenacted. 977
Michael Gerhardt, the leading legal scholar on impeachment, wrote shortly after the Clinton trial:
[I]f a majority vote by the Senate to convict both Chase and Johnson could not save either's impeachment from
being regarded as illegitimate, the absence of a majority vote in the Senate [against] Clinton (coupled with other

criticisms of it) could be viewed as an even rounder rejection of the legitimacy of the House's case. 978 That may
be evidence of the House Republicans' partisanship, but it may also be evidence of how much their partisanship
blinded them to political realities. In both the Chase and Johnson impeachments, the impeaching political party
started with more than a two-thirds majority in the Senate--ample votes, in other words, to convict. In the Chase
impeachment, all the Federalists voted to acquit on the important articles, but that would not have been enough:

Chase was saved by defections among Jeffersonians who knew their party had overreached. 979 The same thing
happened in the Johnson trial. There, Republicans in the Senate had more than a two-thirds majority, the Democrats
all voted against impeachment, and Johnson was acquitted only because of the defections of Republicans troubled

by what their party was doing. 980 In 1999, Republicans started with only fifty-five of one hundred Senators. To
win, they would have to keep all of those votes and persuade at least twelve Democrats to join them. But the
partisanship of the House not only failed to persuade a single Democrat to vote to convict, but it also, as in the
Chase and Johnson trials, caused defections from their own party.

Elsewhere, Gerhardt has written that “[i]t is tempting but misguided to dismiss President Clinton's impeachment and acquittal as
having been driven largely by partisanship.” 981 His reasoning appears to have been that “Democrats arguably acted throughout

the proceeding in at least as partisan a fashion as their Republican counterparts.” 982 But nonpartisanship and bipartisanship are
possible only when the party with greater legislative power makes room for it. In 1974, many, though not all, Republicans were
*297 eventually able to see that their own president should be removed from office only because the Democratic majority
conducted the impeachment inquiry in a nonpartisan manner. Because in 1998 and 1999, the majority Republicans acted in a
highly partisan manner from the start, and because the impeachment was the culmination of many years of campaigning to de-

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legitimize Clinton and smear him and his family, it is not surprising that Democrats did not approach the issues with completely
open minds. The record actually demonstrates that many Democrats did seek to compromise, which the Republicans rejected-for example the Democratic proposals to censure Clinton. In both the House and Senate, a very large proportion of Democrats
made it clear that they were disgusted both with Clinton's behavior and with the Republican impeachment movement.
Individual members of the House Judiciary Committee did not impose on themselves in 1998 an evidentiary burden, 983 such
as the clear and convincing evidence standard used by most Committee members during the Nixon impeachment hearings in

1974. 984 The 1998 Committee did not form a bipartisan impeachment staff, which the 1974 Committee did when investigating
Nixon. In 1974, the “staff conducted a neutral, behind-closed-doors investigation and then presented Committee members in
closed sessions with evidence and legal analysis in a nonjudgmental fashion,” while in 1998, the Committee's “deliberations
were marked from the outset by open partisan conflict.” 985 In 1974, Leon Jaworski, as special prosecutor, merely turned his

evidence over to the Committee. 986 Because the evidence was so massive, Jaworski had to add a report that summarized it, but
he first showed the report to the federal judge who tried all the Watergate criminal cases to make sure that it did nothing other than
summarize the evidence and was devoid of conclusions and recommendations. 987 But in 1998, Starr “actively participated in

the Committee's impeachment hearings, strongly advocating President Clinton's impeachment.” 988 Unlike Cox and Jaworski,
who “[w]hile investigating Nixon . . . avoided any partisan political activities,” Starr and his investigation “acquired overtones
of political motivation.” 989

*298 Benjamin Wittes, a journalist, interviewed Starr at length after he resigned as independent counsel. 990 Primarily on the
basis of these interviews, Wittes concluded that Starr had not set out to destroy Clinton's Presidency but instead had conceived

of his role as that of a “truth commission.” 991 Starr told Wittes that the Independent Counsel Act required him to assume that
role. But the statute assigned to an independent counsel the responsibilities of determining whether evidence would support a
criminal conviction and, if it would, prosecuting to obtain that conviction; these are the functions of a prosecutor, not a grand
inquisitor. The principal author of the Act, Samuel Dash, has written that “an independent counsel . . . is no more and no less than
a federal prosecutor in the U.S. Department of Justice,” with the sole exception that an independent counsel makes prosecutorial

decisions without answering to the Attorney General. 992 Starr actually hired Dash to advise him and his staff about the Act.
But when Starr appeared before the House Judiciary Committee and advocated impeachment, Dash resigned in a letter that told
Starr “you have violated your obligations under the independent counsel statute and have unlawfully intruded on the power of
impeachment, which the Constitution gives solely to the House.” 993

What Starr said to Wittes has a very low degree of historical probativeness. It is part of the historical method that we view with
relentless skepticism what people say to justify their actions, and that we instead draw inferences primarily from what people do
and from what they say when they are not trying to justify themselves. 994 Starr initially was appointed to investigate whether
the Clintons had committed crimes in connection with the Whitewater real estate investment. In 1997, Starr had his office draft a
100-page referral recommending that Clinton be impeached over Whitewater, but he decided not to send it to the House because

he was not confident of his evidence. 995 Starr also (re)-investigated the death of Vince Foster, allegations about personnel
practices in the White House travel office, the disposition of FBI files, and every conceivable allegation about Clinton's sex
life. Each investigation lasted years, either because of an inability on the part of Starr and his staff *299 to reach closure on
anything or because the real purpose was to keep Starr's office in operation until something impeachable could be found. Then,
when Clinton finally perjured himself about Lewinsky in the Jones deposition, Starr and his staff suddenly gained speed that
they had never shown before. From the date of the deposition to the date Starr referred the matter to the House, his investigation
of the Lewinsky matter was completed in by far the shortest period of time for anything he investigated as independent counsel.
In 1974, individual members of the House Judiciary Committee worked hard and earnestly to develop an evidentiary standard
that would identify behavior justifying impeachment. Members disagreed with each other about what that test would be, but
nearly all focused on some version of a profound abuse of presidential power that damages the country. For example, the
ten Republicans on the 1974 Judiciary Committee who initially voted against impeachment but reversed themselves after the
smoking gun tapes were released signed a joint statement in which they said, among other things, that “the Framers . . .
intended that the President should be removable by the legislative branch only for serious misconduct dangerous to the system
of government established by the Constitution.” 996 One of those ten was Trent Lott. But in 1998, as Senate Majority Leader,

he took the position that impeachment would be justified if a president's “bad conduct” put the presidency in “disrepute.” 997
And in 1998, many other Republicans reverted to the formula used by Ford when he tried to have Douglas impeached--that “an

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impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history” 998 -which is not how Republicans insisted that Nixon be judged.
One of the leading scholars of the Johnson impeachment, Hans Trefousse, considers the Clinton and Johnson impeachments
to be essentially parallel:
In both cases, tremendous party pressure brought about the indictment; in both cases, the real cause of the
impeachment did not appear to be the ostensible one [recited in the impeachment articles]; and in both cases,
the President's bitter opponents . . . *300 particularly Kenneth W. Starr and his supporters in 1998, had been
pursuing the President for a long time. 999 Even Richard Posner called it part of “the Republicans' war against
Clinton.” 1000

IV. The Future of Partisan Impeachments and Threats of Impeachment
Certainly, nonpartisan and bipartisan impeachments will continue. Occasionally, though infrequently, it will be necessary to
impeach a corrupt official who refuses to resign. Will impeachments and threats of impeachment continue to be used in partisan
political manner, as they have since 1969? To explore that question, it is helpful to consider the relevance of the rhetoric on
perjury used during the Clinton impeachment to another dispute involving testimony by a federal official. In so doing, it will
be helpful to look at the rules (or lack thereof) on evidentiary burdens in impeachments in the House and Senate and the effect
of party insecurity on the use of impeachment and threats to impeach.
A. Thomas
“There is no excuse for perjury. Never, never, never,” Kenneth Starr told Diane Sawyer in a television interview during the
Clinton impeachment. 1001 Before the House Judiciary Committee, Starr argued that:

[N]o one is entitled to lie under oath simply because he or she does not like the questions or because he believes
the case is frivolous, or that it is financially motivated or politically motivated. . . .

History and practice support the conclusion that perjury is a high crime and misdemeanor. Perjury has been the basis, as the
committee knows, for the removal of several judges. As far as we know, no one has questioned whether perjury was a high
crime or misdemeanor in those cases. . . . And the House manager's report in the impeachment of Judge Walter Nixon, for
perjury, stated, “It is difficult to imagine an act more subversive to the legal process than lying from the witness stand.” *301
Witnesses tell the truth. It doesn't matter what the underlying subject matter is. Once you are in court under oath, you tell the
truth. That is the way judges look at the world, and perhaps that is why no judge being subjected to an impeachment for perjury
has dared suggest don't worry about it, it's not an impeachable offense. 1002

During the Senate Judiciary Committee hearings on his nomination to the Supreme Court, Clarence Thomas made numerous
statements of fact, under oath, that were viewed by many as not believable. For example, he testified that he did not know
until shortly before the hearings that a friend of his, Jay Parker, represented the South African government by lobbying against

sanctions that had been imposed because of that government's racist practices known as apartheid. 1003 The media immediately
afterward reported that when Thomas was Chairman of the Equal Employment Opportunity Commission he argued with
employees there and defended Parker's lobbying on behalf of the South African government, and one of those employees
contacted the Judiciary Committee to give the same account. 1004

Thomas denied under oath that he had prepared for the hearings in the manner customary for nominees to high-stakes positions,
with extensive coaching on what to say and how to say it. 1005 Given the importance of this nomination to the first President

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Bush's administration, many saw Thomas's claim as inherently incredible. Before the hearings, according to Andrew Peyton
Thomas, who has written the only full-length biography of Clarence Thomas:
Thomas . . . spent large blocs of time viewing videotapes of the Bork and Souter hearings, studying them and
taking notes. . . . [Thomas also prepared extensively through] “murder boards.” Held in Room 180 of the Old
Executive Office Building, the mock hearings featured lawyers from the White House and Justice Department
seated around a large, horseshoe-shaped conference table. Thomas held the seat of honor in the middle. *302
The panel bombarded him with hostile questions, mining his writings for the most offensive passages. . . . These
verbal sparring matches were intended not only to help him anticipate likely questions, but to deaden the pain that
these assaults would inflict on his pride and, possibly, to his reputation. 1006

On the issue of abortion and the precedential value of Roe v. Wade, 1007 Thomas testified as follows:
Senator Hatch: Have you made up your mind, Judge Thomas, on how you will vote when abortion issues are
before the Court as a Justice on the Court?

Judge Thomas: . . . I don't sit on any issues, on any cases, that I have prejudged. 1008
Senator Metzenbaum: [Do] you believe that the Constitution protects a woman's right to choose to terminate her pregnancy[?]
Judge Thomas: . . . I have no reason or agenda to prejudge the issue . . . . 1009
Senator Leahy: So it would be safe to assume that when [Roe] came down--you were in law school, you were in law school,
where recent case law is often discussed--that Roe v. Wade would have been discussed in the law school while you were there.
Judge Thomas: . . . Because I was a married student and I worked, I did not spend a lot of time around the law school doing
what the other students enjoyed so much, and that is debating all the current cases and all of the slip opinions. My schedule was
such that I went to classes and generally went to work and went home.
Senator Leahy: Judge Thomas, I was a married law student who also worked, but I also found, at least between classes, that we
did discuss some of the law, and I am sure you are not suggesting that there wasn't any discussion at any time of Roe v. Wade?
Judge Thomas: Senator, I cannot remember personally engaging in those discussions.
....
*303 Senator Leahy: Have you ever had discussion of Roe v. Wade, other than in this room, in the 17 or 18 years it has
been there?
Judge Thomas: Only, I guess, Senator, in the fact in the most general sense that other individuals express concerns one way
or the other, and you listen and you try to be thoughtful. If you are asking me whether or not I have debated the contents of
it, that answer to that is no, Senator.
....
Senator Leahy: . . . Have you made any decision in your own mind whether you feel Roe v. Wade was properly decided or
not, without stating what that decision is?
Judge Thomas: I have not made, Senator, a decision one way or the other with respect to that important decision. 1010

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Senator Brown: I would be interested to know if in your own mind you have come to a decision on the right to terminate a
pregnancy. I am not asking what that decision is, but I would like to know within your own mind if you are at a point where
you have decided that.
Judge Thomas: . . . I have no agenda. I am open about that important case. . . . 1011 “No one believes that,” wrote one author in
a typical response to Thomas's testimony. 1012 When Administration lawyers prepared Thomas for his testimony, 1013 he told
them that he had no position on abortion and had never discussed it with anyone, even his wife. 1014 Even the Administration

lawyers did not believe him. 1015 Roe has been, by far, the most divisive Supreme Court case, and abortion the most divisive
constitutional issue, in recent decades, and it seemed that a Supreme Court nominee who claimed to have no position on Roe
or abortion and further claimed not to have discussed the case or the issue was either unqualified for the Court or lying.
The format of a congressional hearing is not conducive to determining specific facts such as whether Thomas was telling the
truth. Investigation before a hearing often does not reveal issues that arise for the first time during the hearing--a process that,
compared with discovery in civil *304 litigation, is inadequate. Statements made during a hearing are not fully investigated
afterward or before the committee makes a decision. Witnesses are questioned by politicians who lack questioning skills, are
often unprepared, and frequently engage in rhetorical posturing rather than a methodical search for truth. Each questioner is
limited to a short time, such as ten minutes, which prevents any searching inquiry. Witnesses are allowed to testify to any “fact”
they please, even if they have no first-hand knowledge of it and are only guessing--or hoping--that it is true. And questioners
are allowed to ask questions designed to elicit such testimony. In general, in a congressional hearing the rules of evidence that
govern every trial court are ignored.
Despite all this, some evidence immediately began to appear suggesting that Thomas did have a position on Roe and abortion,
and had previously expressed it. Much more evidence might exist, but the committee did not conduct an exhaustive inquiry to
locate it. The evidence that appeared during the hearings included a report, signed by Thomas, recommending, among other
things, that the Administration nominate Supreme Court Justices who would vote to overrule Roe, 1016 as well as a speech
in which Thomas praised an article that argued that the natural law philosophy Thomas subscribes to creates a constitutional
right to life and that all abortion is unconstitutional. 1017 Thomas testified that he had not read the passages in the report that

discussed Roe. 1018 He also testified that he did not intend to endorse the article's position on abortion, even though the article
was titled The Declaration of Independence and the Right to Life: One Leads Naturally to the Other, and even though Thomas
said in the speech that the article, “on the Declaration of Independence and the meaning of the right to life[,] is a splendid
example of applying” natural law. 1019

After the hearings, it was reported that “Paul Weyrich [the founder of the Heritage Foundation and an influential right-wing
activist] remembered that Thomas had expressed an opinion on . . . abortion in prior meetings with him. He found Thomas's
lack of candor ‘disingenuous' and ‘nauseating.’ A man of probity . . ., Weyrich seriously considered withdrawing his support
of Thomas [but was talked out of it on the argument] that Thomas's responses were cagey but not false.” 1020 Even *305

Thomas's own mother told reporters that he had told her he was opposed to abortion. 1021

Nine months after being sworn in as a Supreme Court Justice, Thomas joined a concurring and dissenting opinion by

Rehnquist, 1022 as well as a concurring and dissenting opinion by Scalia in the same case, 1023 both of which argued that
Roe was wrongly decided. “We think,” the Rehnquist opinion posited, “that the Court was mistaken in Roe . . . . In our view,

authentic principles of stare decisis do not require that any portion of the reasoning in Roe be kept intact.” 1024 The Scalia
opinion derided the majority's reaffirmation of the essence of Roe as “outrageous.” 1025 These positions, taken so soon after

Thomas's confirmation hearings, created further doubts about his testimony's truthfulness. In another case, 1026 Thomas wrote

a dissent filling forty pages in the official reporter. 1027 The first sentence, speaking of Roe, stated: “In 1973, this Court struck
down an Act of the Texas Legislature that had been in effect since 1857, thereby rendering unconstitutional abortion statutes in
dozens of States. . . . As some of my colleagues on the Court, past and present, ably demonstrated, that decision was grievously
wrong.” 1028 He then cited to then-Justice Rehnquist's dissent in Roe 1029 and to Justice White's dissent in a companion case,
decided the same day as Roe. 1030 In every other case in which the constitutional right established in Roe, or the parameters
of that right, has been at issue, Thomas has voted against it. 1031 The uniformity and comprehensiveness of these views, and

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the unqualified language with which Thomas has expressed them, and subscribed to others' expression of them, suggest that
they were not arrived at after Thomas's confirmation testimony.
*306 After these hearings ended, a separate controversy arose, and the committee held a second round of hearings. Anita Hill
had been a lawyer supervised by Thomas first at the Department of Education and then at the Equal Employment Opportunity
Commission. Hill testified that at the Department of Education Thomas pressured her to date him, which she refused to do
because he was her supervisor. She further testified that during conversations ostensibly about her work assignments he subjected
her to sexual monologues.
Ms. Hill: He spoke about acts that he had seen in pornographic films involving such matters as women having
sex with animals, and films showing group sex or rape scenes. He talked about pornographic materials depicting
individuals with large penises, or large breasts involved in various sex acts.

On several occasions, Thomas told me graphically of his own sexual prowess. Because I was extremely uncomfortable talking
about sex with him at all, and particularly in such a graphic way, I told him that I did not want to talk about these subjects. . . .

My efforts to change the subject were rarely successful. 1032 Hill testified that after some time at the Department of Education
Thomas's behavior seemed to end. However, when Thomas became Chairman of the EEOC, she transferred to a job there, which
Thomas offered to her. After some time at the EEOC, Thomas's discussions of sex “began again:” 1033

Ms. Hill: The comments . . . ranged from pressing me about why I didn't go out with him, to remarks about my
personal appearance. . . .

He commented on what I was wearing in terms of whether it made me more or less sexually attractive. The incidents occurred
in his inner office at the EEOC.
One of the oddest episodes I remember was an occasion in which Thomas was drinking a Coke in his office, he got up from
the table, at which we were working, went over to his desk to get the Coke, looked at the can and asked, “Who has put pubic
hair in my Coke?”
On other occasions, he referred to the size of his own penis as being larger than normal and he also spoke on some occasions
*307 of the pleasures he had given women with oral sex. . . . I began to feel severe stress on the job.
....
In February 1983, I was hospitalized for 5 days on an emergency basis with acute stomach pain which I attributed to stress
on the job.
In the spring of 1983, an opportunity to teach at Oral Roberts University opened up. . . . I agreed to take the job, in large part,
because of my desire to escape the pressures I felt at the EEOC due to Judge Thomas.
When I informed him that I was leaving in July, I recall that his response was that now, I would no longer have an excuse for
not going out with him. . . . 1034 Thomas then testified:

Judge Thomas: I would like to start by saying unequivocally, uncategorically that I deny each and every single
allegation against me today that suggested in any way that I had conversations of a sexual nature or about
pornographic material with Anita Hill, that I ever attempted to date her, that I ever had any personal sexual interest
in her, or that I in any way ever harassed her. 1035

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Several employees and former employees of the EEOC testified on Thomas's behalf. The heart of their testimony would not have
been admissible in a court of law. Some were allowed to testify that they had never seen Thomas behave as Hill had described
and believed him incapable of it. 1036 Others testified to their own speculation that Hill was merely projecting her feelings onto
Thomas and that she only testified as she did because her supposed sexual interest in him had not been reciprocated. 1037

The Republicans claimed the Hill could not have been telling the truth because she did not file a complaint against Thomas;
she followed him to a second job; and she spoke with him by telephone several times after leaving that job. Hill responded
that she did those things because she *308 “hoped to maintain a professional relationship, for a variety of reasons.” 1038 She
claimed that she “could not afford to antagonize a person in such a high position.” 1039 Virtually all the empirical research on
the question shows that large numbers of victims of sexual harassment react just as Anita Hill said she did. 1040

Three witnesses testified that, during the time when Thomas supervised her, Hill told them she was being sexually harassed,

and a fourth testified that Hill had told him the same thing after she left the EEOC. 1041 One of these witnesses was a partner
in a Wall Street law firm, another was an administrative law judge, and a third was a law school professor. Although one of the
witnesses appeared somewhat shaken during cross-examination, collectively the four of them established that, before Thomas
was nominated to the Supreme Court, Hill had told others that he had harassed her.
The media had already begun to report Thomas's interest in pornography, 1042 and later journalists documented it thoroughly,
together *309 with Thomas's habit of talking about sex in ways that were entirely consistent with the conversations Hill had
described. 1043 About two years before Thomas was nominated to the Supreme Court, for example, the former corporation

counsel of the District of Columbia had seen Thomas “checking out pornographic videos.” 1044

Two other people offered to testify in corroboration of Hill's story. One “was willing to testify that [Thomas] had virtually
auditioned female employees to play the role of a potential mate.” 1045 The other, Angela Wright, was willing to testify that

Thomas had behaved similarly to her, discussing her anatomy and making comments like: “You need to be dating me.” 1046 A
third person was willing to testify that Wright had told her of the harassment contemporaneously with the time Wright claimed
it happened, “which on occasion had reduced Wright to tears.” 1047 Wright, employed at the EEOC as a publicist, had been

fired because she neglected to invite a key person to a press conference. 1048 But Thomas and his backers implied that she
had been fired because of character defects instead. 1049 Although Wright had been previously fired from other jobs and had

a reputation for tempestuousness, 1050 that alone does not mean that Thomas did not harass her. The committee, under intense
Republican pressure, decided not to call either Wright or her corroborating witness, although Republicans implied publicly that
Wright had backed out. 1051 The corroborating witness, who would have testified that Wright contemporaneously told her of
the harassment, later said, “These people didn't want to hear from us. . . . Thomas's supporters didn't want another woman,
especially one with some of the same looks, age, and brains, telling a similar story as Anita Hill.” 1052

The committee rushed through the sexual harassment hearings in three days, October 11 through 13, 1991--a Friday, Saturday,
and Sunday. The *310 Senate voted two days later, on October 15, to confirm Thomas's nomination by a vote of fifty-two to
forty-eight. 1053 Of the 115 Justices who have served on the Supreme Court, only one was confirmed by a closer vote: Stanley
Matthews, by a 24-23 vote, in 1861. 1054 Many of the Senators who voted against Thomas believed that he lied under oath
during the Judiciary Committee hearings. Garry Wills, normally the soberest and least excitable of commentators, wrote: “Now
we have a perjurer on the bench.” 1055

To salvage Thomas's reputation, David Brock was commissioned to write an article portraying Hill as emotionally unstable for
The American Spectator 1056 --the same magazine that later acted as a front for Richard Scaife's Arkansas Project. 1057 The
article grew into a book called The Real Anita Hill. 1058 The public perception of Hill was substantially influenced by what

Brock wrote, although all of his claims have since been refuted, 1059 and Brock later confessed that--in his own words--“I
was a liar and a fraud in a dubious cause”; that “Hill's testimony was more truthful than Thomas's flat denials”; that to protect

Thomas he and others engaged in “smears, falsehoods, and cover-ups”; and that he had “falsified the historical record.” 1060 “I
no longer believed in my own book,” he wrote in 2002. 1061 He found reading Hill's own book about the Thomas hearings 1062

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to be “too painful” because he finally understood how, having “attacked her, wrongly, as a liar[,] I made this woman's life a
living hell.” 1063

Perjury is a fertile field for future impeachments because of the opportunities to put ambitious people under oath. In part, this
is because of the increased use of litigation as a weapon of partisan politics. And in part it is because of the confirmation battles
that have come to accompany Supreme Court nominations, where a nominee testifies under oath and can be put to a choice
between fudging the truth and risking a seat on the Supreme Court. Because there is no statute of limitations on impeachments,
no official confirmed after testifying about disputed facts at *311 a confirmation can feel immune from a later impeachment
inquiry. And because of the Clinton impeachment, the perjury issues raised by the Thomas confirmation hearings will not fade
from memory for a very long time.
After Robert Bork's 1987 Supreme Court nomination failed in the Senate, and after Anthony Kennedy and David Souter were
confirmed without having built reputations among right-wing interest groups, and then started evolving into, respectively, a
swing vote and a liberal on the Court, it became clear to the lawyers who screened judicial nominations in the first President
Bush's administration that to get the kind of Supreme Court nominee they wanted through the Senate of 1991, they needed a

“black Bork” who would divide Democrats in general and African-Americans in particular. 1064 According to David Brock, “as
early as 1981--ten years before he was appointed, when he was scarcely thirty--a number of colleagues recalled [Thomas] setting
his sights on” the Supreme Court seat to which he was eventually nominated. 1065 Others also recounted similar conversations

in which the young Clarence Thomas described an ambition to sit on the Supreme Court. 1066 According to Brock, Clarence
Thomas worked with administration lawyers to develop the “black Bork” strategy and “was really the only” nominee who had
the basic qualifications of race and ideology to fulfill it. 1067

Justice Thomas has since then been inseparably associated with the impression that he was nominated only because he satisfied

this unique political strategy, and with the suspicion that he committed perjury 1068 in order to gain his confirmation. Electoral
fortunes swing from one side of the political spectrum to the other inevitably and unpredictably, while competition between
political parties often leads one party to adopt the other's tactics. Just as the Jeffersonian party adopted the impeachment tactics
of the Federalists and the modern Democrats adopted the *312 confirmation hearing tactics pioneered by the Republicans,
nothing other than self-restraint can prevent the Democratic Party from using impeachment, or the threat of impeachment, as
a partisan political weapon in the way Republicans have. If the Democrats ever adopt the Republican strategy of threatening
to impeach and, on occasion impeaching, to gain political advantage, the suspicion of perjury would make Justice Thomas, at
least in the abstract, vulnerable indefinitely. If the Democrats feel they must be able to fill his seat, as the Republicans felt they
must be able to fill the seats of Justices Fortas and Douglas, the suspicion of perjury may again become a public issue, all the
more so because the Republicans built an association of impeachment with perjury through the Clinton impeachment.
Can a person be impeached for private acts not committed in any official capacity? That issue was settled, at least in part, through
the impeachment trial of Judge Claiborne in 1986. Claiborne had earlier been criminally convicted for filing false tax returns.
The House then impeached him and the Senate convicted him of the purely private acts of making false statements on tax returns
and of the mixed, private and public, act of bringing his court into disrepute through his own criminal conviction. 1069

Can a person be impeached for acts committed before taking the oath of office? In his Treatise on Federal Impeachments,
Simpson considered this question and concluded that “if the offense is directly connected with the attainment of the office
he occupies while impeached, as a violation of the Corrupt Practices Act in relation to his nomination or election . . .,

the impeachment ought to prevail.” 1070 But Simpson also proposed the corollary that, “if the offense were the subject of
consideration, and the facts in regard to it were substantially known at the time of his election, or appointment and confirmation,
it should not again be brought forward.” 1071 However, the reason Simpson offered for the corollary shows that it was not
intended to limit the original conclusion:
It is within the memory of all of us [or was within memory in 1916, when Simpson wrote these words] that
a candidate for president was charged with and admitted during the campaign the commission by him of a
grave moral offence in his early life, yet, because during the years thereafter, he lived a life “void of *313
offence towards God and towards man,” he was wisely elected by the people, and became one of the best of our
presidents. 1072

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The issue did arise in the Archbald impeachment in 1912, although Simpson believed that “the matter cannot be said . . . to have
been decided in that case.” 1073 Among other things, Archbald was “charged with offences alleged to have been committed

while a district judge, though at the time of his impeachment he was a circuit judge.” 1074 The Senate acquitted him of those
charges but convicted him of others. On the charges that pre-dated Archbald's appointment to the Circuit bench, “some of the
votes for acquittal were because the offences were not deemed serious enough; some because the Senators were not certain”
that he could be convicted for acts pre-dating his current office and did not feel it necessary to settle the question “in view
of the respondent's conviction on other articles; and some of the Senators did not think he could properly be tried upon such
charges.” 1075 In any event, all the acts alleged to have occurred before Archbald became a circuit judge involved financial
corruption as a district judge, and none of them helped him obtain, or could have helped him obtain, the position he had when
impeached. 1076

It is that aspect of the Thomas perjury controversy that will keep it alive. Because of the closeness of his confirmation vote--fiftytwo to forty-eight-- there will always be a suspicion that Thomas obtained his seat on the Supreme Court through perjury that
swung the balance. Perjury during a Supreme Court confirmation hearing, especially perjury by the nominee himself, corrupts
government far more than perjury in a deposition in a private lawsuit. 1077
B. Evidentiary Burdens in the House and Senate
Not only has impeachment been used as a partisan political weapon in times of great conflict between branches of the federal
government (except in 1937) but members of the House and Senate have refused to adopt evidentiary rules applicable to
impeachment that would inhibit its partisan use. The common law mind cannot manage fact-finding without assigning *314
burdens requiring parties to introduce evidence of a specified degree of persuasiveness. In fact-finding throughout the common
law world, a party that does not carry its evidentiary burden loses. Both the House and the Senate have refused to adopt these
kinds of evidentiary burdens for impeachment.
How much evidence is needed to justify a decision to act? In courts, that depends on the nature of the decision under
consideration. To justify requiring a person to defend against a criminal accusation, the evidentiary burden is probable cause
to believe that the defendant has committed the crime specified in an indictment or information. This is a comparatively light

burden equaling “a reasonable ground for belief of guilt.” 1078 At trial, however, the defendant can be convicted only if the
evidence rises to proof beyond a reasonable doubt. This is the highest evidentiary burden known to the law, but it is notoriously
difficult to define. One of the better attempts appears in a typical jury instruction:
Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant's guilt. There are very
few things in this world that we know with absolute certainty, and in criminal cases the law does not require proof
that overcomes every possible doubt. If, based on your consideration of the evidence, you are firmly convinced
that the defendant is guilty of the crime charged, you must find him guilty. If on the other hand, you think there
is a real possibility that he is not guilty, you must give him the benefit of the doubt and find him not guilty. 1079

Between these two are the evidentiary burdens used in civil cases. On most issues, a plaintiff will prevail at trial if the finder
of fact is persuaded by a preponderance of the evidence, which means “the greater weight of evidence, evidence which is more

convincing than the evidence which is offered in opposition to it.” 1080 A few civil issues, however, require clear and convincing
evidence, which the Supreme Court has defined as evidence that makes a factual proposition “highly likely.” 1081 The law tends
to require clear and convincing evidence in a few non-criminal situations, where the consequences can be particularly grave,
such as involuntary commitments 1082 and disbarments.

The House of Representatives has never adopted an evidentiary standard that must be satisfied before the House will impeach.
Because *315 impeachment by the House is an accusation, vaguely analogous to a grand jury's indictment in a criminal case,
the lower evidentiary burdens of probable cause and preponderance of the evidence might seem at least superficially attractive

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in the House. However, an impeachment ties up both the House and the Senate, distracting them enormously from legislative
business. Additionally, if the person impeached is an elected president (one who did not succeed to the office through the death,
resignation, or disability of a prior President), an impeachment is an attempt to nullify a democratically held election. For
these reasons, when voting on the articles of impeachment against President Richard Nixon, most of the members of the House
Judiciary Committee individually announced that they adhered to the burden of clear and convincing evidence. 1083 Some even

thought they should not impeach a President unless persuaded beyond a reasonable doubt. 1084 But those sentiments are not
binding on future judiciary committees or on the House, and they were ignored when the House Judiciary Committee voted to
recommend impeachment and the House voted to impeach Bill Clinton.
The Supreme Court has held that the Senate has unlimited discretion to try an impeachment case any way it pleases. 1085
When the Senate chooses to invoke it, Senate Impeachment Rule XI permits testimony to be heard and evidence received by
a committee of Senators, “who shall report to the Senate in writing a certified copy of the transcript of the proceedings and
testimony had and given before such committee.” 1086 The rule's purpose is to make it possible for the Senate to dispose of
impeachments without allowing them to dominate the Senate chamber for weeks at a time while evidence is being taken.

After having been convicted based on a transcript generated in this way, Walter Nixon, the third of the trio of judges impeached
in the 1980s, challenged his conviction in federal court. On the theory that the concept of a trial necessarily involves direct
observation of witnesses by the trier of fact, Nixon argued that Rule XI violates the Impeachment Trial Clause's 1087 provision

that “[t]he Senate shall have the sole Power to try all Impeachments.” 1088 After dismissing this theory based on its interpretation
*316 of the provision in the Impeachment Clause, 1089 the Supreme Court held that conduct of an impeachment trial is beyond

judicial review. 1090 An inevitable corollary is that the House has unlimited discretion to conduct an impeachment inquiry in
any way it pleases, and that this too is beyond judicial review.

The Senate has never held itself to any particular evidentiary burden of persuasion, 1091 and the result is that each Senator
applies whatever burden of persuasion the Senator prefers--or no burden at all. Harry Claiborne, the first of the trio of judges
impeached in the 1980s, moved in his Senate trial for a determination that proof beyond a reasonable doubt is the standard of

persuasion in an impeachment trial. 1092 The Senate had never imposed this requirement on itself before, and the only authorities
Claiborne was able to offer in support of his position were individual and personal statements made by four Senators while the

House was considering impeaching President Nixon. 1093 The House managers prosecuting Claiborne in the Senate opposed
the motion and took the position that the appropriate burden of persuasion in an impeachment trial is proof by a preponderance
of the evidence. 1094 But the House managers made no motion to that effect, and so the only question before the Senate was
whether the burden of persuasion was proof beyond a reasonable doubt, which Claiborne's motion had put into issue. By a vote
of seventy- *317 five to seventeen, the Senate denied the motion. 1095 Of the four Senators quoted by Claiborne's lawyers,

two were still in the Senate at the time. 1096 One voted against Claiborne's motion, and the other did not vote. 1097

At various other times, individual Senators and House managers prosecuting impeachments in the Senate have argued in favor
of using each of the evidentiary burdens that could be used in court to support a judgment: preponderance of the evidence,

clear and convincing evidence, and proof beyond a reasonable doubt. 1098 Because the Senate has never adopted an evidentiary
standard in impeachment proceedings, each Senator is free to use any standard he or she wants. Even the denial of Claiborne's
motion does not prevent a Senator from adhering to a standard of proof beyond a reasonable doubt, or from persuading other
Senators to do so in a future impeachment trial. The burden of proof, as Senator Rudman said in the Hastings trial, “is what is
in the mind of every Senator. If you want to use clear and convincing, preponderance, if you want to use beyond a reasonable
doubt, I think it is what everybody decides themselves.” 1099

Courts use evidentiary burdens to regulate decision-making--to reduce the chances of arbitrary and inconsistent judgments
and to subject all litigants with similar types of issues to the same rules. Without uniform evidentiary requirements, analysis
of the evidence in an impeachment trial becomes nothing better than rhetoric. A Republican Representative or Senator who
wants to oust a Democratic office holder, for example, will argue for impeachment or conviction because the evidence satisfies
a preponderance standard. When the situation is reversed, and the office holder under attack is a Republican, that same
Representative or Senator may insist that impeachment requires clear and convincing evidence and that conviction requires
proof beyond a reasonable doubt.

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Nothing in the Constitution requires either the House or the Senate to consider evidence at all, much less subject it to burdens
of persuasion. The Senate, however, has generally expected an impeachment to be supported by evidence. Similarly, with three
exceptions, the House has always received sworn testimony and other evidence, and made findings of fact on that evidence
before impeaching. 1100 One of the exceptions occurred because the person being impeached (Claiborne) preferred for tactical
*318 reasons, to get to a Senate trial as quickly as possible. 1101 Another exception (Johnson) came about because there
was no dispute about whether the core fact-- his firing of Stanton--had occurred. The third exception arose in the Clinton
impeachment, where the “failure of the House to undertake any independent fact-finding . . . provided a basis upon which the
House's impeachment judgment could be attacked as partisan or unfair.” 1102
C. The Effect of Party Insecurity on the Partisan Use of Impeachment
When the Jeffersonians impeached Chase and when the Radical Republicans impeached Johnson, both were insecure political
movements--new to power, not certain how long they would be able to hold on to it, and driven to use what power they had
while they had it. In 1937, the Democrats neither considered, nor threatened impeachment for several reasons, one of which
was that the Democratic landslide of 1936 was the most lopsided since 1820, both in popular votes and in the composition of
Congress, and it has not been equaled since then. 1103 A party in that situation is less impatient about winning its victories as
fast as possible. It can look toward its future with confidence that problems can be solved with the passage of time rather than
by assaults on individual office holders, fueled by impatience to get quick results.

Even though the Republicans controlled both Houses of Congress almost continuously from 1995 to 2007 and have controlled
the executive branch since 2001, their margin of power throughout that period, measured by seats held in Congress and by the
popular vote in congressional and presidential elections, has been the thinnest in American history over any comparable period.
The Senate that confirmed the nominations of Chief Justice John Roberts and Justice Samuel Alito consisted of fifty-five
Republicans, forty-four Democrats, and one Independent who caucused with the Democrats. The Republicans claimed that the
will of the people gave them the power to *319 confirm these nominations. But measured by total popular vote, the Democrats

actually won the elections that produced that Senate. 1104 (Because Senators serve six-year staggered terms and only one-third
of the Senate is selected in an election, it takes three elections to produce any given Senate.)
Table 5
Popular Vote Through Which the 100 Senators in the 109th Congress Were Elected 1105
Popular Vote

Senators Elected

Election

Democratic

Republican

Democrats

Republicans

2000

35,773,958

35,773,720

17

14

2002

19,873,164

21,566,016

12

22

2004

44,010,807

39,920,562

15

19

Totals

99,657,929

97,260,298

44

55

The public thus voted for a Democratic Senate but got a Republican one. In individual elections, the disparity can be especially
deceptive. In 2004, the Republicans gained four Senate seats, from fifty-one to fifty-five, and 2004 was thus considered a
Republican victory. But in that year, as Table 5 shows, the Democrats received over four million more votes than the Republicans
did. That was possible because the Senate is constitutionally gerrymandered: each state, regardless of size, sends two Senators
to Washington. And Republicans have an advantage, though not a commanding one, in small states. Wyoming and California,
for example, are equally represented in the Senate, even though California's population *320 is sixty-nine times the size of

Wyoming's. 1106 Wyoming's Senator Enzi, a Republican, got 133,710 votes in his last election, while California's Senator Boxer,
a Democrat, got 6,955,728 votes.
The Republicans controlled the Senate from 1981 until 1987 1107 as a result of a 1980 electoral fluke in which, despite getting
nearly three million fewer votes than the Democrats, 1108 they gained twelve seats by winning an unusually large number of

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extremely close races. Most of the Republicans who won those races were defeated when they came up for reelection in 1986,
and the Senate then reverted to the Democrats. The Republicans controlled the Senate from 1995 to 2007, except for a year and

a half in 2001-2002. 1109 During those periods, they never had more than fifty-five seats and, at times, had to get by with only

fifty seats (out of one hundred), relying upon the Republican vice president to cast tie-breaking votes. 1110 By contrast, from
1959 to 1981 and from 1987 to 1995, when the Democrats controlled the Senate, they never had fewer than fifty-four seats, and
their average during those periods was sixty seats. For ten years, from 1959 to 1969, they never had fewer than sixty-four seats,
a huge difference in a legislative body of one hundred members. Viewed thus in historical perspective, Republican control of
the Senate has been by thin margins-- sometimes extraordinarily thin ones.
That is even truer in the House, as Table 6 shows. The Republicans controlled the House from 1995 to 2007 but never during
that time had more than 232 seats, while the Democrats never had less than 203 seats. *321 (The Independent listed under
“other” in Table 6 caucuses with the Democrats.) Never before in American history has a party controlled the House continually
through six consecutive elections by such razor-line margins, without ever achieving numerical dominance. In contrast, when
the Democrats controlled the House from the 1954 election to the 1994 election, they never had less than 232 seats, and had
as many as 291, 292, and 295 seats (which constitutes two-thirds of the House) at times when the Republicans had only 144,
143, and 140 seats. 1111
*322 Table 6
Party Divisions in the House of Representatives After the Elections of 1970 Through 2004 Together with Popular Vote
for House Candidates in the Same Elections
1970

1972

1974

1976

1978

1980

1982

1984

1986Seats 1112

Democrats

255

242

291

292

277

242

269

253

258

Republicans

180

192

144

143

158

192

166

182

177

54.6

Others

1

1

Popular Vote Percentage 1113
Democrats

53.4

51.7

57.6

56.2

53.7

50.4

55.3

52.3

Republicans

45.1

46.4

40.6

42.1

44.9

47.9

43.1

46.8

44.5

1988

1990

1992

1994

1996

1998

2000

2002

2004

Democrats

260

267

258

204

206

211

212

204

202

Republicans

175

167

176

230

228

223

221

229

232

1

1

1

1

1

2

1

1

Democratic

53.4

52.9

50.9

45.4

48.5

48.9

46.8

45.0

46.8

Republicant

45.5

44.9

45.5

52.4

48.9

47.8

47.0

49.6

49.4

Seats

Others
Popular Vote Percentage

When the Republicans took over the House in the 1994 election, they received a majority of the popular vote for House
candidates. But in the *323 five elections since then, the Republicans have been unable to get as much as 50% of the popular
vote. They actually lost the popular vote while retaining the House in 1998--the only time that has happened since Baker

v. Carr rationalized House popular voting by requiring that legislative districts be of equal size. 1114 In 1996 and 2000, the
House popular vote was nearly a tie, the parties being separated by less than half a percentage point. In contrast, when the
Democrats controlled the House during the period shown in Table 6, they routinely won between 50% and 58% of the popular
vote, and never less than 50%. The Republicans have been able to pick up and hold seats through relentless computer-aided
gerrymandering. For example, in 2004 the Democratic popular vote grew by nearly two percentage points and the Republican
popular vote fell very slightly. This should have translated into an increase in the Democratic seats in the House. But the opposite
happened. 1115 The Republican gains, however, were achieved entirely in Texas, where a court had drawn the congressional
districts after the 2000 census because the legislature and the Governor could not agree on a redistricting plan. After taking
control of the Texas legislature in 2002, the Republicans redrew the congressional districts again through a plan conceived

of and coordinated by the House Majority Leader Tom DeLay. 1116 Because of the DeLay redistricting plan, the Republicans

picked up five House seats in Texas alone, while in the other forty-nine states together the Republicans lost two seats. 1117
From 1995 to 2007, Congress was more rightist, but not much more so than it has been in the past. Until the 1980s a significant
number of Democrats were right-wing and a smaller but substantial group of Republicans were, by current standards, liberal. For

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example, the Congress with which John F. Kennedy began his presidency in 1961 1118 was on many issues controlled by rightwing Democrats, several of whom chaired key committees and subcommittees through seniority. Many of them had opinions

about African Americans that could be described in family newspapers only through euphemisms. They 1119 and others like
them have *324 disappeared from the Democratic Party. In the same Congress were a number of Republicans who were so
committed to civil rights, environmental protection, and measures to help the poor that they would be considered liberal today.

They 1120 and others like them have virtually disappeared from the Republican Party. Consolidating all right-wing legislators
in the Republican Party has created a coherent and disciplined bloc. But even with that advantage, the Republicans have not
been able to produce a commanding majority when they have won elections. In three of the four presidential elections since and
including 1992, the Republican candidate got fewer popular votes than the Democratic candidate, even though the Republicans
won one of the elections in which they lost the popular vote. 1121
*325 Table 7
Popular Vote in Presidential Elections 1992 Through 2004 1122
Election
1992
1996
2000
2004

Democratic
44,857,747
47,401,898
50,996,062
58,894,584

Republican
38,798,913
39,198,482
50,465,169
61,872,711

Others
20,943,706
9,789,438
4,141,789
1,451,863

Never has the post-New Deal Republican Party won a decisive popular mandate or achieved the status of a permanent majority
party, which the Democrats enjoyed for so long and which, if they had it, would allow the Republicans to govern with a confident
view of the future. This is a deeply frustrated party that has not achieved its goals. That frustration--combined with the insecurity
of governing with such thin margins--appears to have produced a party psychology similar to that of the Radical Republicans
of 1868, in which some elements of the party instinctively look for reasons to impeach or threaten to impeach.
V. Conclusion
Impeachment will be suspect as long as politicians are able to use it as a partisan weapon. Certainly, impeachment must exist
because there is no other way to remove an unfit president, vice president, or federal judge. And certainly it will always
have political ramifications because removal of a president, a vice president, or a justice of the Supreme Court has political
implications--and sometimes removal of a lower federal judge does as well. It is a political issue, for example, whether the
country would suffer more from the continuation in office of a given official or from that official's removal. But because even
that seemingly neutral question is so easily distorted by partisanship, it will be possible to manipulate impeachment for partisan
political ends unless Congress imposes on itself the self-discipline inherent in burdens of production and persuasion.
Michael Gerhardt has pointed out that the Clinton impeachment illustrates “the vulnerability of the federal judiciary to political
retaliation” *326 because “some of the most important factors that helped Clinton survive the threat of removal (i.e., public
support and media scrutiny) are absent from lower federal judges' impeachment proceedings . . . about which the public is

largely indifferent.” 1123 That might or might not be true if the impeachment is motivated by widely reported cases such as the
Ninth Circuit's decision in the Pledge of Allegiance case or the decisions of several federal judges not to order the reinsertion
of Terri Schiavo's feeding tube. 1124

Is the partisan use of impeachment or impeachment threats an effective political strategy? Of the four great confrontations
between or among branches of the federal government--from 1801 to 1808, from 1865 to 1868, in 1937, and since 1968-partisan political impeachment and impeachment threats played an important role in three of them. However, despite the appeal
of a strategy that attempts to drive political opponents from office through an accusatory procedure, or threatens to do so in
order to intimidate them, partisan political impeachment and impeachment threats generally fail to produce results.
Military people sometimes say that the long way around is often the shortest way there. Frontal assaults--attacks directly on an
adversary's position, like Picket's charge at Gettysburg--tend to succeed only when the attacker has overwhelming superiority
of force. The long way around might be envelopment through an adversary's rear, for example, or slow attrition from the sides.

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An impeachment, or a threat of impeachment, is a frontal assault. The Chase, Johnson, and Clinton impeachments all failed
for lack of an overwhelming superiority of force, and in each of them the attackers overestimated their forces in part because
they underestimated the extent to which moderates of their own party would desert them. In a strategic sense, the Clinton
impeachment was particularly unproductive because even if moderates had not defected, the necessary two-thirds to convict in
the Senate would still have been impossible, and the House leadership could have foreseen that even before the House voted
to impeach.
When the Federalists impeached Blount, they succeeded only in teaching the Jeffersonians how to use impeachment as a
political weapon against Chase. When the Jeffersonians then impeached Chase, they made themselves look like extremists.
The judiciary eventually became at least nominally Jeffersonian primarily because the short life expectancy of the era offered
frequent opportunities to replace Federalists through death and new appointments, although the Jeffersonian party itself became
less *327 Jeffersonian as time passed, absorbing some of the sensibilities of the moderate branch of the Federalist Party.
The Radical Republican impeachment of Andrew Johnson also accomplished virtually nothing. Within a year, Grant, who
shared Congress's view of Reconstruction, replaced Johnson through the electoral process. In historical memory, the Johnson
impeachment allowed the enemies of the Radical Republicans to portray them as oppressive and power-obsessed, rather than
as principled politicians whose goal was to complete the liberation of African-Americans. In both instances, the long way
around would have been to take advantage of other forces already in motion. After 1937, when no one considered impeachment,
Roosevelt got a New Deal Supreme Court despite the failure of his court-packing plan. There, the long way around was
deceptively simple and involved taking advantage of the fact that two of the Four Horsemen wanted to retire, and routine
legislation let them do it with a reasonable income. As for the Republicans, all their impeachment tactics and strategies have
produced only a single gain--a Supreme Court vacancy (Fortas's), in 1969. Everything since then has damaged their credibility.

Footnotes
a1

Professor of Law, Hofstra Law School. I am grateful for the valuable and kind help of librarians Connie Lenz and
Jennifer Wagner as well as the careful work of research assistants Elizabeth Brehm, Rachel Cherny, Marissa Goodman,
and Janet Shin.

1

See infra text accompanying notes 497-705.

2

See infra text accompanying notes 732-781.

3

See infra text accompanying notes 811-846.

4

See infra text accompanying notes 707-718, 740, 750-758, 823-826.

5

Tom DeLay, Letter to the Editor, Impeachment Is a Valid Answer to a Judiciary Run Amok, N.Y. Times, April 6, 1997,
at A18.

6

Joan Biskupic, Hill Republicans Target “Judicial Activism,” Conservatives Block Nominees, Threaten Impeachment
and Term Limits, Wash. Post, Sept. 14, 1997, at A1.

7

See infra text accompanying notes 849-997.

8

Newt Gingrich, Winning the Future: A 21st Century Contract with America 78 (2005) (referring to
United States Cong., 328 F.3d 466 (9th Cir. 2003), rev'd sub nom.
U.S. 1 (2004)).

Newdow v.

Elk Grove Unified Sch. Dist. v. Newdow, 542

9

Linda Greenhouse, Rehnquist Resumes His Call for Judicial Independence, N.Y. Times, Jan. 1, 2005, at A10.

10

Id.; see also Jonathan Ringel, 11th Circuit's Birch Keeps Them Guessing, Fulton County Daily Rep., Apr. 11, 2005
(discussing how Judge Birch was “the subject of impeachment calls from angry lawmakers”).

11

Ruth Marcus, Booting the Bench: There's New Ferocity in Talk of Firing Activist Judges, Wash. Post, Apr. 11, 2005, at
A19; see also Nina J Easton, Rift Emerges in GOP after Schiavo Case, Boston Globe, Apr. 9, 2005, at A1.

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12

Jason DeParle, In Battle to Pick Next Justice, Right Says Avoid a Kennedy, N.Y. Times, June 27, 2005, at A1.

13

Ann Althouse, Innocence Abroad, N.Y. Times, Sept. 19, 2005, at A25 (noting that Kennedy “endured calls for his
impeachment” because he cited foreign law); DeParle, supra note 12 (“[S]ome notable conservatives are calling for his
impeachment.”); Jesse J. Holland, DeLay Criticizes Justice Kennedy, ‘Activist’ Republican Judges, Associated Press,
Apr. 21, 2005, available at http://www.law.com/jsp/article.jsp?id=1113987908498; Dana Milbank, And the Verdict on
Justice Kennedy Is: Guilty, Wash. Post, Apr. 9, 2005, at A3; Marcus, supra note 11 (“What started as ‘Impeach Earl
Warren’... has now become ‘Impeach Tony Kennedy’ ....”).

14

See Jon D. Hanson & Adam Benforado, The Drifters: Why the Supreme Court Makes Justices More Liberal', Boston
Rev., Jan.-Feb. 2006, available at http://bostonreview.net/BR31.1/hansonbenforado.html.

15

Roper v. Simmons, 543 U.S. 551 (2005).

16

Lawrence v. Texas, 539 U.S. 558 (2003).

17

Romer v. Evans, 517 U.S. 620 (1996).

18

Lee v. Weisman, 505 U.S. 577 (1992).

19

Atkins v. Virginia, 536 U.S. 304 (2002).

20

Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992).

21

See infra Parts III(A)-(B).

22

See infra Part III(B).

23

See infra Part III(B).

24

See infra Part III(B).

25

See infra Part III(D).

26

See infra Parts III(E)(5), III(F)(2), and IV(B).

27

See infra Part III(F)(2).

28

See infra Parts III(F)(2) and IV(A).

29

See infra Part IV(C).

30

See infra Part IV(C).

31

Raoul Berger, Impeachment: The Constitutional Problems 1 (1973); see, e.g., id. at 2-3, 7-53. Berger's analysis of
impeachment history in general has been criticized, sometimes with sound reason. See, e.g., Peter Charles Hoffer &
N.E.H. Hull, Impeachment in America, 1635-1805, at 266-70 (1984). Where his views are idiosyncratic, they are ignored
here or are reported along with contrary opinions.

32

Berger, supra note 31, at 2.

33

Hoffer & Hull, supra note 31, at 6.

34

Id.

35

Id. at 7-8.

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36

Id.

37

Id. at 6-56.

38

Id. at 49-55.

39

Id. at 59.

40

Id.

41

Id.

42

Id. at 64, 68.

43

Id. at 77; see also id. at 78-95.

44

Keith A. Scarborough, Comment, “The Awful Discretion”: The Impeachment Experience in the States, 55 Neb. L. Rev.
91, 91 n.2 (1975); see also N.E.H. Hull & Peter Charles Hoffer, Historians and the Impeachment Imbroglio: In Search
of a Serviceable History, 31 Rutgers L.J. 473, 481-82 (2000); Impeachment can still play an important role in state
government. See Robert Jerome Glennon, Impeachment: Lessons from the Mecham Experience, 30 Ariz. L. Rev. 371
(1988); Scarborough, supra at 93.

45

See The Federalist No. 65 (Alexander Hamilton).

46

Hoffer & Hull, supra note 31, at 97; Michael J. Gerhardt, The Lessons of Impeachment History, 67 Geo. Wash. L. Rev.
603, 605 (1999).

47

U.S. Const. art. I, § 3, cl. 7.

48

Hoffer & Hull, supra note 31, at 4-5; Gerhardt, supra note 46, at 605.

49

U.S. Const. art II, § 4. It was not immediately clear what categories of persons in the pay of the United States were “civil
Officers,” except that military officers were not included. The first impeachment decided whether a Senator is a “civil
officer.” See infra text accompanying notes 91-150.

50

Hoffer & Hull, supra note 31, at 97; Gerhardt, supra note 46, at 605.

51

U.S. Const. art. I, § 3, cl. 6.

52

U.S. Const. art. II, § 4.

53

Gerhardt, supra note 46, at 605. This is different from a bill of attainder, which the U.S. Constitution forbids in Article
I, Section 9. A bill of attainder punishes a specific person through a statute--for example, Congress passing a statute
requiring that the artist sometimes known as Prince shall pay a fine of a million dollars unless he uses, for the rest of
his life, a first and a last name. An impeachment, on the other hand, is a trial conducted by a legislature. Because the
English Parliament refused to limit its jurisdiction to officeholders and to pre-defined offenses, and because English
impeachments could lead legislatively to criminal penalties, the House of Commons was free to impeach, and the House
of Lords to convict and imprison, an ordinary person for using only one name, even if no one had previously thought that
wrong. No English impeachment had ever gone anywhere near such an extreme, but the delegates to the Constitutional
Convention instinctively distrusted this kind of open-ended power in English government.

54

Id.

55

U.S. Const. art. II, § 2, cl. 1.

56

Gerhardt, supra note 46, at 605.

57

James Madison, The Writings of James Madison, Volume IV 244 (Gaillard Hunt ed., 1903).

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58

“Treason against the United States shall consist only in levying War against them, or in adhering to their Enemies, giving
them Aid and Comfort.” U.S. Const. art. III, § 3, cl. 1. Mason spoke on the grounds for impeachment on September 8,
1787, and the definition of treason had been settled on August 20. Madison, supra note 57, at 246-52, 407 (detailing
the proceedings on Aug. 20 and Sept. 8, 1787).

59

Warren Hastings, Governor General of the East India Company, whose tortuously complicated impeachment trial lasted
from 1788 to 1795. Hoffer & Hull, supra note 31, at 96-97.

60

U.S. Const. art. I, § 9; supra note 53 (discussing bill of attainders).

61

Madison, supra note 57, at 407 (chronicling the events of Sept. 8, 1787).

62

Id.

63

Id.

64

Id.

65

Id. at 409.

66

U.S. Const. art. II, § 4.

67

Charles L. Black, Jr., Impeachment, a Handbook 49 (1974); Alexander Simpson, Jr., A Treatise on Federal Impeachments
86 (1916) (Partially published in two parts as Alex Simpson Jr., Federal Impeachments, 64 U. Pa. L. Rev. 651, 803
(1916); citations here are to the book rather than to the articles, which are incomplete).

68

P.J. Marshall, The Impeachment of Warren Hastings, at xiv (1965).

69

Simpson, supra note 67, at 167.

70

Of the remaining impeachments, eighteenwere for “high treason,” and eight used a combination of the two phrases,
leaving only four impeachments based on grounds that did not make their way into the Constitution. Id. at 117-67.

71

Id.

72

Black, supra note 67.

73

See Berger, supra note 31, at 2.

74

Black, supra note 67, at 35, 39-40; Hoffer & Hull, supra note 31, at 101; Charles E. Hughes, The Supreme Court of the
United States 19 (1928); John R. Labovitz, Presidential Impeachment 27-31 (1978); 2 Joseph Story, Commentaries on
the Constitution of the United States §§ 796-800 (Melville M. Bigelow ed., 1891); John D. Feerick, Impeaching Federal
Judges: A Study of the Constitutional Provisions, 39 Fordham L. Rev. 1, 47-58 (1970); Paul S. Fenton, The Scope of
the Impeachment Power, 65 Nw. U. L. Rev. 719, 726-28 (1970); Gerhardt, supra note 46, at 609-10.

75

Gerhardt, supra note 46, at 610 (footnotes ommitted).

76

4 William Blackstone, Commentaries on the Laws of England 5 n.6 (1769).

77

Berger, supra note 31, at 53-102.

78

U.S. Const. art. III, § 1.

79

U.S. Const. art. II, § 4.

80

Id.

81

U.S. Const. art. III, § 1.

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82

See Emily Field Van Tassel & Paul Finkelman, Impeachable Offenses: A Documentary History from 1787 to the Present
passim (1999).

83

See supra text accompanying notes 77-78.

84

116 Cong. Rec. 11913-14 (1970); Van Tassel & Finkelman, supra note 82, at 59.

85

See infra text accompanying notes 518-523, 612-653.

86

The Federalist No. 65, at 381 (Alexander Hamilton) (Isaac Kramnick ed., 1987).

87

Id. at 398.

88

See infra text accompanying notes 1071-1092.

89

The Federalist No. 65 (Alexander Hamilton), supra note 86, at 380-81.

90

Van Tassel & Finkelman, supra note 82, at 10.

91

Id. at 86.

92

Buckner F. Melton, Jr., The First Impeachment: The Constitution Framers and the Case of Senator William Blount 3
(1998); see also Eleonore Bushnell, Crimes, Follies, and Misfortunes: The Federal Impeachment Trials 26-27 (1992);
David P. Currie, The Constitution in Congress: The Federalist Period 1789-1801, at 275-76 (1997).

93

Bushnell, supra note 92; Van Tassel & Finkelman, supra note 82, at 87.

94

Bushnell, supra note 92, at 27; Melton, supra note 92; Van Tassel & Finkelman, supra note 82, at 87.

95

The expulsion was an exercise of the Senate's power to expel a Member for misconduct under U.S. Const. art. I, § 5,
cl. 2, and had nothing to do with impeachment.

96

House Comm. on the Judiciary, 93d Cong., Impeachment: Selected Materials 125-28 (Comm. Print 1973) [hereinafter
Impeachment: Selected Materials]; Currie, supra note 92, at 277; Van Tassel & Finkelman, supra note 82, at 86.

97

Irving Brant, Impeachment: Trials and Errors 27 (1972).

98

Van Tassel & Finkelman, supra note 82, at 87.

99

Id.

100

Id. France was the first European power to claim the Louisiana territory. Melton, supra note 92, at 69. In 1763, Spain
acquired it. Id. Westerners feared that, to get French aid in their war against England, the Spanish would redeed Louisiana
back to the French. Van Tassel & Finkelman, supra note 82, at 87. That later happened, and when the French treasury
needed replenishing to support Napoleon's wars, the French sold Louisiana to Jefferson, who by then had become
President.

101

Melton, supra note 92, at 76-77.

102

Id. at 78-93.

103

Id.

104

Id.

105

Id. at 37, 235.

106

Currie, supra note 92, at 280; Hoffer & Hull, supra note 31, at 151.

107

Hoffer & Hull, supra note 31, at 4-5; Gerhardt, supra note 46.

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108

U.S. Const. art. II, § 4.

109

See Van Tassel & Finkelman, supra note 82, at 86-90.

110

Brant, supra note 97, at 24-45; Hoffer & Hull, supra note 31, at 151-63; Melton, supra note 92, at 104-74.

111

Melton, supra note 92, at 273-74. Congressional records were not well kept at the time, and not all tallies are included.
Id. at 273.

112

Id. The total number of Senators listed exceeds the membership in the Senate during the period because of changes in
personnel due to the 1798 elections.

113

Brant, supra note 97, at 33.

114

Id.

115

Bushnell, supra note 92, at 26.

116

Brant, supra note 97, at 46.

117

Id. at 28; Hoffer & Hull, supra note 31, at 158; Melton, supra note 92, at 170.

118

Currie, supra note 92, at 279.

119

U.S. Const. art. I, § 3, cl. 7.

120

U.S. Const. art. II, § 4.

121

Hoffer & Hull, supra note 31, at 158.

122

Brant, supra note 97, at 30-31.

123

Id. at 31; accord Hoffer & Hull, supra note 31, at 158.

124

U.S. Const. art. II, § 4.

125

Brant, supra note 97, at 36.

126

Id. at 37; see also Hoffer & Hull, supra note 31, at 158; Melton, supra note 92, at 210. The House managers also argued
that a Senator is a civil Officer, but they “placed all their emphasis upon the first point” that anybody can be impeached.
Brant, supra note 97, at 37. The details can be found in Brant, supra note 97, at 37-39, and Melton, supra note 92, at
210-14.

127

Brant, supra note 97, at 33.

128

Id. at 44; Melton, supra note 92, at 211.

129

Brant, supra note 97, at 44.

130

Id.

131

Hoffer & Hull, supra note 31, at 181.

132

See generally U.S. Const. art. I, § 3, cl. 4.

133

See U.S. Const. art. II, § 1, cl. 3; see also U.S. Const. amend XIX.

134

Brant, supra note 97, at 44.

135

Melton, supra note 92, at 237.

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136

Id.; see also Hoffer & Hull, supra note 31, at 158.

137

Disqualification from future federal office is one of the punishments that stem from an impeachment conviction, but
it is not automatic. After convicting, the Senate votes separately on collateral punishments. During this vote, a simple
majority is sufficient (rather than the two-thirds needed to convict). Sometimes, a convicted official is removed from
his current office but not barred from future federal offices. That happened after the convictions of Ritter and Hastings.
See infra text accompanying notes 612-653, 671-676; see also Van Tassel & Finkelman, supra note 82, at 158, 173.

138

Melton, supra note 92, at 211; see also Hoffer & Hull, supra note 31, at 151.

139

Jean Edward Smith, John Marshall: Definer of a Nation 252 (1996).

140

Richard E. Ellis, The Jeffersonian Crisis: Courts and Politics in the Young Republic 53-54, 57-58 (1971); Smith, supra
note 139, at 234.

141

Ellis, supra note 140, at 53.

142

Id. at 54.

143

See infra text accompanying notes 211-246. Cabot's family was the Boston Cabots, who, according to Massachusetts
folklore, spoke only to the Lodges, who spoke only to God.

144

Hoffer & Hull, supra note 31, at 162-63.

145

Brant, supra note 97, at 45.

146

Currie, supra note 92, at 280-81; Melton, supra note 92, at 232; Van Tassel & Finkelman, supra note 82, at 86-87.

147

Compare Melton, supra note 92, at 231-32, with Bushnell, supra note 92, at 36. Congressional record-keeping then was
much more haphazard than it is now.

148

Bushnell, supra note 92, at 36; see also Melton, supra note 92, at 231-32.

149

Van Tassel & Finkelman, supra note 82, at 88.

150

Bushnell, supra note 92, at 16; Melton, supra note 92, at 232.

151

Donald Grier Stephenson, Jr., Campaigns and the Court: The U.S. Supreme Court in Presidential Elections 243 (1999).

152

Brant, supra note 97, at 47; Noble E. Cunningham, In Pursuit of Reason: The Life of Thomas Jefferson 248 (1987);
Ellis, supra note 140, at 32; Robert M. Johnstone, Jr., Jefferson and the Presidency: Leadership in the Young Republic
171-72 (1978); 4 Dumas Malone, Jefferson and His Time 113 (1970); Van Tassel & Finkelman, supra note 82, at 91.

153

Cunningham, supra note 152; Ellis, supra note 140, at 15; Johnstone, supra note 152; 4 Malone, supra note 152.

154

Cunningham, supra note 152; Johnstone, supra note 152; 4 Malone, supra note 152.

155

Brant, supra note 97, at 47; 4 Malone, supra note 152, at 113-14; Van Tassel & Finkelman, supra note 82, at 91.

156

Brant, supra note 97, at 47.

157

5 U.S. (1 Cranch) 137 (1803).

158

4 Malone, supra note 152, at 114.

159

Hoffer & Hull, supra note 31, at 190.

160

Van Tassel & Finkelman, supra note 82, at 10.

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161

William H. Rehnquist, The Impeachment Clause: A Wild Card in the Constitution, 85 Nw. U. L. Rev. 903, 905 (1991).

162

Melton, supra note 92, at 237.

163

Brant, supra note 97, at 58.

164

Bushnell, supra note 92, at 25; accord 4 Malone, supra note 152, at 114.

165

Bushnell, supra note 92, at 44-45.

166

John Randolph is not to be confused with Edmund Randolph, a delegate to the Constitutional Convention, and Attorney
General and Secretary of State in George Washington's Administration. Edmund Randolph was widely respected for,
among other things, his nonpartisanship.

167

Hoffer & Hull, supra note 31, at 189.

168

Bob Barr, High Crimes and Misdemeanors: The Clinton-Gore Scandals and the Question of Impeachment, 2 Tex. Rev.
L. & Pol. 1, 9-20 (1997).

169

116 Cong. Rec. 11913-14 (1970); Van Tassel & Finkelman, supra note 82, at 59. See infra text accompanying notes
823-846.

170

Van Tassel & Finkelman, supra note 82, at 9.

171

Hoffer & Hull, supra note 31, at 206.

172

Id. at 182.

173

4 Malone supra note 152, at 115-16.

174

Id. at 116.

175

Id.; see also id. at 472.

176

Johnstone, supra note 152, at 180; Melton, supra note 92, at 238.

177

Ellis, supra note 140, at 69.

178

Johnstone, supra note 152, at 180; Van Tassel & Finkelman, supra note 82, at 91. In 1794, when he was Chief Justice
of the New Hampshire State Supreme Court, he had nearly been removed from office by the state legislature for similar
reasons. Hoffer & Hull, supra note 31, at 207.

179

Brant, supra note 97, at 48.

180

A modern replica of the statute can be found at

28 U.S.C. § 372.

181

Ellis, supra note 140, at 70.

182

Claude G. Bowers, Jefferson in Power: The Death Struggle of the Federalists 270 (1936); Ellis, supra note 140, at 70.

183

David P. Currie, The Constitution in Congress: The Jeffersonians 1801-1829, at 23-31 (2001); Impeachment: Selected
Materials, supra note 96, at 129-31; Van Tassel & Finkelman, supra note 82, at 93-94.

184

Brant, supra note 97, at 49; accord Ellis, supra note 140, at 72; Melton, supra note 92, at 238.

185

Brant, supra note 97, at 49.

186

Hoffer & Hull, supra note 31, at 212.

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187

Brant, supra note 97, at 49; Currie, supra note 183, at 25; Hoffer & Hull, supra note 31, at 214; Van Tassel & Finkelman,
supra note 82, at 95-96.

188

4 Malone, supra note 152, at 458; accord Van Tassel & Finkelman, supra note 82, at 91.

189

Bushnell, supra note 92, at 44-45; Van Tassel & Finkelman, supra note 82, at 91.

190

Emily Field Van Tassel, Resignations and Removals: A History of Federal Judicial Service--and Disservice--1789-1992,
142 U. Pa. L. Rev. 333, 370 (1993).

191

Bowers, supra note 182, at 270-71; Brant, supra note 97, at 49-57; Cunningham, supra note 152, at 273; Hoffer & Hull,
supra note 31, at 208-19.

192

Bushnell, supra note 92, at 45.

193

Brant, supra note 97, at 56; Bushnell, supra note 92, at 52; Johnstone, supra note 141, at 182; Van Tassel & Finkelman,
supra note 82, at 91. On the motion to convict, all the yeas were from Jefferson's party, and all the nays were cast by
Federalists, but on the subsequent motion to remove Pickering from office, one Federalist switched and voted yea. Van
Tassel & Finkelman, supra note 82, at 92. Seven Senators (five of them Jeffersonians) attended the trial but declined
to vote, perhaps uncomfortable convicting a person in an accusatory procedure for acts that seemed to be caused by
insanity. Ellis, supra note 140, at 74; Johnstone, supra note 152, at 181-82.

194

Ellis, supra note 140, at 75; Johnstone, supra note 152, at 182.

195

Hoffer & Hull, supra note 31, at 206; accord Bowers, supra note 182.

196

Melton, supra note 81, at 240; Van Tassel & Finkelman, supra note 82, at 101. Chase and Jefferson had been two of
the three members of the committee that drafted the Northwest Ordinance. Caleb Perry Patterson, The Constitutional
Principles of Thomas Jefferson 162 (1953).

197

See infra tbl. 1.

198

Party Division in the Senate, 1789-Present, http:// www.senate.gov/pagelayout/history/one_item_and_teasers/
partydiv.htm (last visited Apr. 18, 2007) [hereinafter Senate Party Divisions].

199

Party Divisions of the House of Representatives (1789 to Present), http://clerk.house.gov/art_history/house_history/
partyDiv.html (last visited Apr. 17, 2007) [hereinafter House Party Divisions].

200

Ellis, supra note 140, at 19-35, 83-95. Hamilton, Marshall, and Adams all agreed with this assessment. Id. at 26-27.
“[A]lmost all key appointments on the federal level during Jefferson's administrations went to people who were aligned
with the moderates..., while the radicals were generally proscribed.” Id. at 234. “None of the judges that Jefferson
appointed to the Supreme Court did anything to weaken the independence or influence of the national judiciary or to
espouse a radical brand of Jeffersonianism.” Id. at 241.

201

5 U.S. (1 Cranch) 299, 308 (1803).

202

U.S. Const. art. III, § 1.

203

Leonard W. Levy, Original Intent and the Framer's Constitution 77 (1988).

204

Ellis, supra note 140, at 44.

205

See infra text accompanying notes 556-570.

206

Judiciary Act of 1789, ch. 20, § 13, 1 Stat. 73.

207
208

Hylton v. United States, 3 U.S. (3 Dall.) 171 (1796).
Hayburn's Case, 2 U.S. (2 Dall.) 409 (1792).

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209

See Ellis, supra note 140, at 65-66; 1 Charles Warren, The Supreme Court in United States History, 1789-1835, at 232,
244, 248 (2d ed. 1926).

210

Levy, supra note 203, at 75.

211

Melton, supra note 92, at 240.

212

Hoffer & Hull, supra note 31, at 228-32.

213

Ellis, supra note 140, at 76; 4 Malone, supra note 152, at 464.

214

Bowers, supra note 182, at 273.

215

Hoffer & Hull, supra note 31, at 232.

216

Ellis, supra note 140, at 76-77.

217

Id. at 79.

218

Levy, supra note 203, at 65.

219

Van Tassel & Finkelman, supra note 82, at 102. “At this time, and for many years thereafter, the justices of the Supreme
Court... performed two separate roles. For a small part of the year, they were appellate judges sitting together in [the
national capital]. But for the rest of the year they were circuit justices assigned to” one or another region of the country.
William H. Rehnquist, Grand Inquests: The Historic Impeachments of Justice Samuel Chase and President Andrew
Johnson 21 (1992).

220

1 Trial of Samuel Chase, an Associate Justice of the Supreme Court of the United States, Impeached by the House of
Representatives for High Crimes and Misdemeanors before the Senate of the United States 5-9 (1970) (1805) [hereinafter
Trial of Chase]; Bushnell, supra note 92, at 60-61; Ellis, supra note 140, at 77-80; Hoffer & Hull, supra note 31, at
236-37; Van Tassel & Finkelman, supra note 82, at 103-07.

221

Ellis, supra note 140, at 79-80; Johnstone, supra note 152, at 183.

222

Ellis, supra note 140, at 79-80; Johnstone, supra note 152, at 183.

223

2 Trial of Chase, supra note 220, at 485-93; Bushnell, supra note 92, at 84-85; Van Tassel & Finkelman, supra note
82, at 102.

224

2 Trial of Chase, supra note 220, at 485-93; Bushnell, supra note 92, at 85; Van Tassel & Finkelman, supra note 82, at 102.

225

Melton, supra note 92, at 241. “Chase... never again dashed off a vitriolic political charge for a grand jury or used a
courtroom as a forum for his politics.” Hoffer & Hull, supra note 31, at 254; accord Bowers, supra note 182, at 292;
Ellis, supra note 140, at 105.

226

Bushnell, supra note 92, at 85; Ellis, supra note 140, at 101.

227

Brant, supra note 97, at 82; Bushnell, supra note 92, at 85-86.

228

Bushnell, supra note 92, at 86.

229

Id.; Edward Channing, The Jeffersonian System, 1801-1811, at 122 (1906); Ellis, supra note 140, at 106-07; Hoffer
& Hull, supra note 31, at 254. Until the Seventeenth Amendment in 1913, Senators were elected by state legislatures,
rather than by the people directly. U.S. Const. art. I, § 3, cl, amended by U.S. Const. amend. XXI.

230

Channing, supra note 229; Hoffer & Hull, supra note 31, at 254.

231

Bowers, supra note 182, at 291; Bushnell, supra note 92, at 87; Ellis, supra note 140, at 83-95, 103-04; Hoffer & Hull,
supra note 31, at 254; Michael J. Gerhardt, Chancellor Kent and the Search for the Elements of Impeachable Offenses,

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74 Chi.-Kent L. Rev. 91, 105 (1998). The Senate verdict “wreck[ed] the political future of John Randolph,” the most
visible of the House managers. Channing, supra note 229.
232

Ellis, supra note 140, at 106; Johnstone, supra note 152, at 186.

233

Johnstone, supra note 152, at 186.

234

Bowers, supra note 182, at 291.

235

Ellis, supra note 140, at 102.

236

Id. at 102-03.

237

Cunningham, supra note 152, at 274; Ellis, supra note 140, at 104; Johnstone, supra note 152, at 183-84.

238

Brant, supra note 97, at 59.

239

Berger, supra note 31, at 224.

240

Hoffer & Hull, supra note 31, at 260.

241

Id. at 254.

242

Id. at 262.

243

7 The Writings of Thomas Jefferson 256 (H.A. Washington ed., 1859); 10 The Writings of Thomas Jefferson 170 (Paul
Leicester Ford ed., 1905).

244

Bowers, supra note 182, at 292.

245

Leonard Baker, John Marshall: A Life in Law 434 (1974); accord Hoffer & Hull, supra note 31, at 260; David Robarge,
A Chief Justice's Progress: John Marshall from Revolutionary Virginia to the Supreme Court 277-78 (2000). Contra
Smith, supra note 139, at 344-45.

246

Baker, supra note 245at 432. Or at least among the next impeached. Hoffer & Hull, supra note 31, at 190.

247

See Hoffer & Hull, supra note 31, at 78-95, 146, 164-77, 191-205, 219-27, 256-61; see also Brant, supra note 97, at 60.

248

Hoffer & Hull, supra note 31, at 261.

249

Id.

250

Id. at 262.

251

Johnstone, supra note 152, at 180; 4 Malone, supra note 152, at 459.

252

4 Malone, supra note 152, at 459. Federalists cast all the votes to acquit. Hoffer & Hull, supra note 31, at 204.

253

Hoffer & Hull, supra note 31, at 192.

254

Id. at 196-97.

255

Id. at 197. Some other states provided for removal by joint address, as well as by impeachment. Id. at 197; 4 Malone,
supra note 152, at 462. The Jeffersonians in Congress liked to propose it, Ellis, supra note 140, at 72, although the
Federalist minority there was still large enough to prevent adoption of a constitutional amendment. 4 Malone, supra
note 152, at 462.

256

4 Malone, supra note 152, at 459.

257

Channing, supra note 229, at 113-14; Ellis, supra note 140, at 164; Hoffer & Hull, supra note 31, at 196.

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258

Ellis, supra note 140, at 168.

259

Channing, supra note 229, at 114; Ellis, supra note 140, at 165-66; Hoffer & Hull, supra note 21, at 189, 221; 4 Malone,
supra note 152, at 474.

260

Channing, supra note 229, at 114; Ellis, supra note 140, at 168; 4 Malone, supra note 152, at 474.

261

Ellis, supra note 140, at 168-69; 4 Malone, supra note 152, at 474.

262

Ellis, supra note 140, at 169-70; 4 Malone, supra note 152, at 474.

263

Channing, supra note 229, at 114; Hoffer & Hull, supra note 31, at 226; 4 Malone, supra note 152, at 474.

264

4 Malone, supra note 152, at 474.

265

Ellis, supra note 140, at 92; Van Tassel & Finkelman, supra note 82, at 103; John C. Yoo, The First Claim: The Burr
Trial, United States v. Nixon, and Presidential Power, 83 Minn. L. Rev. 1435, 1437 (1999).

266

4 Malone, supra note 152, at 476; Yoo, supra note 265, at 1439.

267

Bowers, supra note 182, at 278, 366-67; Channing, supra note 229, at 123; Ellis, supra note 140, at 92.

268

Channing, supra note 229, at 123-24; Ellis, supra note 140, at 92-93, 106.

269

Channing, supra note 229, at 123-24; Ellis, supra note 140, at 92-93.

270

Van Tassel & Finkelman, supra note 82, at 103.

271

See Stephenson, supra note 151, at 243-44.

272

U.S. Const. art. II, § 1, cl. 3.

273

2 Albert J. Beveridge, The Life of John Marshall 532-33 (1916); 3 Malone, supra note 152, at 492-502; Robarge, supra
note 245, at 231.

274

Cunningham, supra note 152, at 232; 3 Malone, supra note 273, at 497-504.

275

S. Rep. No. 72-26, at 5 (1932)S. Rep. No. 72-26, at 5 (1932).

276

Cunningham, supra note 152, at 232; 3 Malone, supra note 273, at 502.

277

Cunningham, supra note 152, at 235-37; Joseph J. Ellis, American Sphinx: The Character of Thomas Jefferson 175
(1997); 3 Malone, supra note 273, at 504; Robarge, supra note 245, at 232.

278

Cunningham, supra note 152, at 231.

279

Id. at 232-33; J. Ellis, supra note 277; 3 Malone, supra note 273, at 498.

280

3 Malone, supra note 273, at 498.

281

Johnstone, supra note 152, at 190; accord Ellis, supra note 140, at 47-48.

282

4 Malone, supra note 152, at 458.

283

Yoo, supra note 265, at 1439-41.

284

Cunningham, supra note 152, at 286-88; Johnstone, supra note 152, at 191.

285

Cunningham, supra note 152, at 290.

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286

Baker, supra note 245, at 448-518; 3 Beveridge, supra note 273, at 274-545 (1919); Robarge, supra note 245, at 280-82;
Smith, supra note 139, at 348-74; Francis N. Stites, John Marshall: Defender of the Constitution 97-109 (1981). After
the acquittal, “Burr retired to a life of exile and dissipation.” Stites, supra, at 108.

287

Stites, supra note 286, at 97; accord Yoo, supra note 265, at 1439.

288

Robarge, supra note 245, at 281; accord Channing, supra note 229, at 167; Cunningham, supra note 152, at 293-94.

289

Bowers, supra note 182, at 422 (emphasis added); Baker, supra note 245, at 514; Cunningham, supra note 152, at 294;
Robarge, supra note 245, at 281.

290

Baker, supra note 245, at 515; Bowers, supra note 182, at 422-23.

291

Baker, supra note 245, at 515.

292

Yoo, supra note 265, at 1446.

293

5 Malone, supra note 152, at 309.

294

Johnstone, supra note 152, at 172.

295

Id. at 175.

296

Ellis, supra note 140, at 59; Johnstone, supra note 152, at 175; 4 Malone, supra note 152, at 145.

297

Stuart v. Laird, 5 U.S. (1 Cranch) 299, 308 (1803);

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 153 (1803).

298

Brant, supra note 97, at 47.

299

Ellis, supra note 140, at 44; Johnstone, supra note 152, at 172-75.

300

Johnstone, supra note 152, at 179.

301

4 Malone, supra note 152, at 148.

302

3 Beveridge, supra note 273, at 385 (1919); Smith, supra note 139, at 360; Yoo, supra note 265, at 1441-42. “[T]he
chief reason for Federalist attachment to Burr, despite the fact that he killed Hamilton, was antipathy to Jefferson.” 5
Malone, supra note 152, at 302.

303

Yoo, supra note 265, at 1441-42.

304

Baker, supra note 245, at 477; Smith, supra note 139, at 365; Yoo, supra note 265, at 1442.

305

Yoo, supra note 265, at 1442.

306

1 Beveridge, supra note 273, at 126, 145.

307

Robarge, supra note 245, at 46 n.27; Smith, supra note 139, at 63-64, 549 n.197.

308

Robarge, supra note 245, at 160-61.

309

2 Beveridge, supra note 273, at 537.

310

Id. at 537-41; Robarge, supra note 245, at 231.

311

2 Beveridge, supra note 273, at 538; Robarge, supra note 245, at 231.

312

2 Beveridge, supra note 273, at 541-43; 3 Malone, supra note 152, at 496; Robarge, supra note 245, at 231-32.

313

Robarge, supra note 245, at 160-61, 278-79.

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314

Id. at 279.

315

1 Malone, supra note 152, at 441-45; Robarge, supra note 245, at 162.

316

Johnstone, supra note 152, at 176; Patterson, supra note 196, at 25, 123; Robarge, supra note 245, at 160.

317

Johnstone, supra note 152, at 206; 5 Malone, supra note 152, at 302; Robarge, supra note 245, at 281; Yoo, supra note
265, at 1444.

318

28 U.S.C. § 455(a) (2007) (“Any justice, judge, or magistrate judge of the United States shall disqualify himself in
any proceeding in which his impartiality might reasonably be questioned.”).

319

Baker, supra note 245, at 331-60; 2 Beveridge, supra note 273, at 485-564; James F. Simon, What Kind of Nation:
Thomas Jefferson, John Marshall, and the Epic Struggle to Create a United States 102-03 (2002); Smith, supra note
139, at 268-81.

320

2 Beveridge, supra note 273, at 560; accord Channing, supra note 229, at 117; Ellis, supra note 140, at 32.

321
322

See

28 U.S.C. § 455(a).

Id. § 455(b)(3).

323

Baker, supra note 245, at 354; Robarge, supra note 245, at 234.

324

Baker, supra note 245, at 355.

325

2 Beveridge, supra note 273, at 558-59.

326

Id. at 559.

327

Baker, supra note 245, at 359-60; 2 Beveridge, supra note 273, at 562; Cunningham, supra note 152, at 239; Ellis, supra
note 277, at 174; Simon, supra note 319, at 137, 173-75.

328

Ellis, supra note 277, at 170; accord Baker, supra note 245, at 359. It is not stated how a stage coach would have been
navigated before dawn in an era without electric lights, although, according to the National Aeronautics and Space
Administration, the moon had been full three and a half days earlier, in the afternoon on February 28. See Moon Phases:
1801 to 1900, http://sunearth.gsfc.nasa.gov/eclipse/phase/phases1801.html (last visited Apr. 17, 2007).

329

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 137-38 (1803); Channing, supra note 229, at 117; Ellis, supra note 140,
at 39, 43. A justice of the peace was not an Article III judgeship with lifetime tenure. When the Supreme Court finally
decided the case, Marbury's five-year term of office was nearly half over.
Marbury, 5 U.S. (1 Cranch) at 154, 162; 4
Malone, supra note 152, at 145. The Federalists had created thirty justices of the peace for the District of Columbia, id.,
at a time when Washington and Georgetown were villages, Ellis, supra note 277, at 171-73, which suggests that these
positions were sinecures to reward the party faithful.

330

14 U.S. (1 Wheat.) 304 (1816).

331

Simon, supra note 319, at 268.

332

Id. at 269.

333
334

28 U.S.C. § 455(b)(2) (2007).
Id. § 455(b)(4), (5)(iii).

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335

Simon, supra note 319, at 270.

336

See infra text accompanying notes 733-739, 766-781.

337

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 162 (1803) (emphasis added).

338

Channing, supra note 217, at 166.

339

Two decades later, Hay was appointed a U.S. district court judge by John Quincy Adams, the sixth President and John
Adams's son. 5 Malone, supra note 152, at 310. During the crisis over the 1800 election, when a rumor circulated that
Marshall thought himself entitled to the Presidency, Hay, under a pseudonym, wrote an open letter in protest to Marshall,
“which was copied far and wide” in pro-Jeffersonian newspapers. 2 Beveridge, supra note 273, at 542-43. “I understand
that you, Sir ... have given an opinion in exact conformity with the wishes of your party,” wrote Hay, daring Marshall
to “come forward and defend it.” Id. at 542. Marshall said nothing. Id. at 543.
Burr's defense team “outnumbered and outweighed” the three prosecutors. 5 Malone, supra note 152, at 310. Among
Burr's lawyers were Luther Martin, the attorney general of Maryland who also defended Chase in his impeachment trial,
and Edmund Randolph, former Governor of Virginia, the first Attorney General of the United States, and a Secretary
of State in the Washington Administration. Bowers, supra note 182, at 275, 279, 286, 403-04; 5 Malone, Second Term,
supra note 152, at 310; Smith, supra note 139, at 90, 112. When Jefferson went into politics in 1774, he turned his law
practice over to Randolph, and when Randolph was elected Governor of Virginia in 1786, he turned it over to Marshall.
Smith, supra note 139, at 90-91. “Bizarre as it may seem, Jefferson's law practice ultimately became John Marshall's.”
Id. at 91.

340

Smith, supra note 139, at 361. The letters are published at 10 The Writings of Thomas Jefferson 394-409 (Paul Leicester
Ford ed., 1905).

341

Smith, supra note 139, at 361. Those few of Jefferson's letters to Hay that were intended to be read into the record in
Marshall's court appear as measured and precise position-taking by a very intelligent and careful President. The rest-the overwhelming bulk of the correspondence--are intense venting by a President focused on Burr's trial to the point
of obsession. According to Dumas Malone, Jefferson's leading biographer, “[s]trongly partisan expressions are rare in
Jefferson's public utterances, which were characteristically measured and restrained. When he used extreme language
it was nearly always in a private communication to someone of whose loyalty to the party or to him personally he had
no doubt.” 5 Malone, supra note 152, at 304. Given Jefferson's historical image and his accomplishments in fields as
disparate as architecture, agronomy, education, and political philosophy, the effect of these letters on the modern reader is
not unlike the effect President Nixon's obscenities and paranoia, captured on audiotapes, had on his supporters (although,
throughout his correspondence with Hay, Jefferson retains a mind and character many, many times the value of Nixon's).

342

Smith, supra note 139, at 360.

343

Yoo, supra note 265, at 1442.

344

Although he had assembled a team of first-class lawyers, Burr made the motion and took the lead himself in arguing
it.

United States v. Burr, 25 F. Cas. 30, 30 (C.C.D. Va. 1807) (No. 14,692d) (“Mr. Burr then addressed the court.”);

United States v. Burr, 25 F. Cas. 187, 190 (C.C.D. Va. 1807) (No. 14,694) (“Colonel Burr renewed his application
for the production of the two letters ....”; “Mr. Burr said he could not be satisfied with a copy of part of the letter.”);
Yoo, supra note 265, at 1447.
345

Baker, supra note 245, at 477; 3 Beveridge, supra note 273, at 433, 443; Cunningham, supra note 152, at 291; Smith,
supra note 139, at 362, 638; Stites, supra note 286, at 105; Yoo, supra note 265, at 1446-47. Although the sources speak
of one letter, and sometimes two, from Wilkinson to Jefferson, three such letters at issue, although not simultaneously.
They are reprinted at Yoo, supra note 265, at 1474-77.

346

Yoo, supra note 265, at 1447.

347

Burr, 25 F. Cas. at 30-31 (No. 14,692d);
Burr, 25 F. Cas. at 190 (No. 14,694); Baker, supra note 245, at 477-78;
Cunningham, supra note 152, at 291-92; Yoo, supra note 265, at 1447; 5 Malone, supra note 152, at 321.

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348

Yoo, supra note 265, at 1447.

349

Cunningham, supra note 152, at 292.

350

The term “executive privilege” was unknown before the Eisenhower Administration. Mark J. Rozell, Executive
Privilege: The Dilemma of Secrecy and Democratic Accountability 44 (1994). George Washington was the first President
to claim an embryonic form of executive privilege, although Washington did not articulate the doctrine we have now
become familiar with. See Saikrishna Bangalore Prakash, A Critical Comment on the Constitutionality of Executive
Privilege, 83 Minn. L. Rev. 1143, 1177-85 (1999) (explaining the Washington precedents).

351

Raoul Berger, Executive Privilege: A Constitutional Myth 188-89 (1974).

352

353

354

Burr, 25 F. Cas. at 31 (No. 14,692d). Throughout the trial, an extensive correspondence occurred between Jefferson
and Hay. To carry these letters between Washington and Richmond, Jefferson used a courier, rather than the postal
system. Yoo, supra note 265, at 1443.
United States v. Burr, 25 F. Cas. 187, 190 (C.C.D. Va. 1807) (No. 14,694); Stites, supra note 286, at 106; Yoo, supra
note 265, at 1448, 1457-58.
Burr, 25 F. Cas. at 37 (No. 14,692d).

355

Id. at 69-70.

356

Yoo, supra note 265, at 1453.

357

Id. at 1462.

358

Id. at 1463.

359

United States v. Nixon, 418 U.S. 683, 707-08, 713-15 (1974), (relying in part on
187, 190-92 (C.C.D. Va. 1807) (No. 14,694)).

United States v. Burr, 25 F. Cas.

360

See infra text accompanying notes 683-690.

361

Yoo, supra note 265, at 1448, 1460-65.

362

United States v. Burr, 25 F. Cas. 55, 65 (C.C.D. Va. 1807) (No. 14,693) (emphasis added).

363

Baker, supra note 245, at 484-85; Smith, supra note 139, at 364-65; Yoo, supra note 265, at 1450.

364
365
366

United States v. Burr, 25 F. Cas. 30, 34 (C.C.D. Va. 1807) (No. 14,692d).
Id. at 34.
31 U.S. 515 (1832).

367

Robarge, supra note 245, at 299; Smith, supra note 139, at 518.

368

Baker, supra note 245, at 745.

369

Robarge, supra note 245, at 299; Smith, supra note 139, at 518.

370
371

United States v. Nixon, 418 U.S. 683, 714-16 (1974).
Ellis, supra note 277.

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372

Since 1993, the Clinton and George W. Bush Administrations have made wide claims of executive privilege--arguably
wider than anything claimed by the executive branch since the Nixon Administration. Mark J. Rozell, Executive
Privilege Revived?: Secrecy and Conflict during the Bush Presidency, 52 Duke L.J. 403 (2002); Mark J. Rozell,
Executive Privilege and the Modern Presidents: In Nixon's Shadow, 83 Minn. L. Rev. 1069, 1117-25 (1999); Mark J.
Rozell, A Response to Professor Johnsen, 83 Minn. L. Rev. 1191, 1191-94 (1999). Contra Dawn Johnsen, Executive
Privilege since United States v. Nixon: Issues of Motivation and Accommodation, 83 Minn. L. Rev. 1127, 1130-33
(1999).

373

Baker, supra note 245, at 485; 5 Malone, supra note 152, at 322; Akhil Reed Amar & Neal Kumar Katyal, Executive
Privileges: The Nixon and Clinton Cases, 108 Harv. L. Rev. 701, 718 (1995); Yoo, supra note 265, at 1450-53. This
was a personal rivalry, as well as a difference of opinion about constitutional law. “Who was more powerful? ... Who
could command the other's presence? Since 1801, when Thomas Jefferson had become President and John Marshall had
become Chief Justice, they had been heading toward this confrontation.” Baker, supra note 245, at 477.

374

United States v. Burr, 25 F. Cas. 55, 69 (C.C.D. Va. 1807) (No. 14,693). Hay put this letter into the record in open court.

375

Id. at 63.

376

Id.

377

Id. at 192.

378

The following appeared in the subpoena: “The transmission to the Clerk of this Court of the original letter of General
Wilkinson and of copies duly authenticated of the other papers and documents ... will be admitted as sufficient observance
of the process, without the personal attendance of any or either of the persons therein named.” Johnstone, supra note
152, at 203.

379
380

520 U.S. 681 (1997) (relying in part on

United States v. Burr, 25 F. Cas. 30 (C.C.D. Va. 1807) (No. 14,692d)).

Id. at 693-94, 703-04. And, as in United States v. Nixon, the Clinton Court once again misinterpreted Burr. It is
literally true, that “Chief Justice Marshall ... ruled that a subpoena duces tecum could be directed to the President.” Id.
at 703-04. However, Marshall also ruled that a President has a right to ignore such a subpoena. See Yoo, supra note
265, at 1466-68.

381

See infra text accompanying notes 917-920.

382

Johnstone, supra note 152, at 208.

383

Robarge, supra note 245, at 284-85.

384

See Hoffer & Hull, supra note 31, at 257.

385

Robarge, supra note 245, at 293. Even during Jefferson's Administrations, the radicals in his party were complaining of
this tendency to co-opt the Federalists by absorbing some of their ideology. Ellis, supra note 140, at 236.

386

Robarge, supra note 245, at 293. One elector in the electoral college voted against Monroe on the sole ground that only
George Washington should have the honor of a unanimous election.

387

17 U.S. (4 Wheat.) 316 (1819).

388

Paul Stephen Clarkson & R. Samuel Jett, Luther Martin of Maryland 280 (1970).

389

Ellis, supra note 277, at 48-49.

390

Id. at 49.

391

Cunningham, supra note 152, at 46-47.

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392

Id. at 47; Ellis, supra note 277, at 50.

393

Cunningham, supra note 152, at 47; Ellis, supra note 277, at 50.

394

Ellis, supra note 277, at 60.

395

Cunningham, supra note 152, at 47; Ellis, supra note 277, at 50.

396

Cunningham, supra note 152, at 349.

397

Id. at 329.

398

Id. at 330.

399

Id.

400

Simon, supra note 319, at 294.

401

Cunningham, supra note 152, at 331.

402

Id. at 331; Ellis, supra note 277, at 235-51.

403

Cunningham, supra note 152, at 274; Ellis, supra note 140, at 103.

404

Impeachment: Selected Materials, supra note 96, at 136-39; Van Tassel & Finkelman, supra note 82, at 107-14.

405

Bushnell, supra note 92, at 93-96; Van Tassel & Finkelman, supra note 82, at 108.

406

Bushnell, supra note 92, at 91-92.

407

Id. at 92-93.

408

Id. at 92-96.

409

Id. at 93-95, 100.

410

Brant, supra note 97, at 122; Bushnell, supra note 92, at 93; Van Tassel & Finkelman, supra note 82, at 108.

411

Bushnell, supra note 92, at 92, 96-97.

412

Id. at 14.

413

Id. at 14, 98.

414

Id. at 14.

415

18 U.S.C. § 401 (2007); see also Bushnell, supra note 92, at 112.

416

Bushnell, supra note 92, at 14; Impeachment: Selected Materials, supra note 96, at 140-42; Van Tassel & Finkelman,
supra note 82, at 115.

417

Brant, supra note 97, at 129.

418

Van Tassel, supra note 190, at 408 (Appendix Table 1).

419

Van Tassel & Finkelman, supra note 82, at 11.

420

Id. at 116.

421

On articles 1 and 5 of the impeachment, the Senate vote was thirty-nine to nothing to convict, while on other articles
there were scattered votes to acquit. Id. at 115. Instead of simply charging Humphreys with accepting a Confederate

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judgeship, the articles of impeachment also alleged, as separate grounds for removal, advocating secession from the
Union, opposing federal authority, failing to hold court, and so on. Id. at 117-19.
422

Joseph Borkin, The Corrupt Judge: An Inquiry into Bribery and Other High Crimes and Misdemeanors in Federal Courts
200, 247 (1962); 3 Asher C. Hinds, Hinds' Precedents of the House of Representatives § 2489; (1907-08).

423

Borkin, supra note 422, at 235; 3 Hinds, supra note 422, § 2500.

424

Borkin, supra note 422, at 225; 3 Hinds, supra note 422, § 2487.

425

Borkin, supra note 422, at 200-01, 237; 3 Hinds, supra note 422, § 2494.

426

Harry Innis, a district court judge in Kentucky, in 1808; Harry Toulmin, a Mississippi territorial court judge, in 1811-12;
Mathias B. Tallmadge, a district court judge in New York, in 1818-19; William P. Van Ness, a district court judge in New
York, in 1818-19; Charles Tait, a district court judge in Alabama, in 1822-23; Joseph L. Smith, a Florida territorial court
judge, in 1825-26; Buckner Thurston, a circuit judge in the District of Columbia, in 1825 and again in 1837; Alfred
Conkling, a district court judge in New York, in 1829-30; Benjamin Johnson, an Arkansas territorial court judge, in
1833; and John C. Watrous, a district court judge in Texas, after a series of investigations from 1852 to 1860. Borkin,
supra note 422, at 227, 234-36, 248-54; 3 Hinds, supra note 422, §§ 2488-99.
From the sketchy records now available, it is hard to tell which of these judges had done nothing wrong and which had
behaved in troubling but not impeachment-worthy ways. Judges are in the constant business of making people unhappy-usually losing litigants but also, at times, their lawyers as well-- and it takes only one Representative to introduce an
impeachment resolution that the rest of the House, without any knowledge of the merits, might be persuaded to refer to
a committee. In Watrous's case, we know that the House Judiciary Committee more than once recommended that he be
impeached, but the House never did so, apparently on the ground that the conflicts of interest alleged did not rise to the
level of impeachable offenses. 3 Hinds, supra note 422, §§ 2495-99.
Reminiscent of Blount in 1797 and Burr in 1807, the accusation against Innis in 1808 was of a “[p]lot with Spain to
seduce Kentucky from the Union.” Borkin, supra note 422, at 234-35.

427

Van Tassel, Resignations, supra note 190.

428

Id. at 370-71.

429

Id. at 371.

430

Historians poll each other on this frequently, and Lincoln is always at the top of every poll. See Henry J. Abraham,
Justices, Presidents, and Senators: A History of the U.S. Supreme Court Appointments from Washington to Clinton
373-76 (1999).

431

See T. Harry Williams, Lincoln and His Generals (1952); T. Harry Williams, McClellan, Sherman and Grant (1962).

432

Van Tassel & Finkelman, supra note 82, at 222.

433

Bushnell, supra note 92, at 128; Van Tassel & Finkelman, supra note 82, at 222.

434

Van Tassel & Finkelman, supra note 82, at 222.

435

See Michael Les Benedict, The Impeachment and Trial of Andrew Johnson 5 (1973).

436

Van Tassel & Finkelman, supra note 82, at 222.

437

Id.

438

Id. at 223.

439

1 Historical Statistics of the United States: Earliest Times to the Present, 1-213 (Susan B. Carter et al. eds., millennial
ed. 2006) [hereinafter Historical Statistics].

440

Id.

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441

See infra tbl 2.

442

Senate Party Divisions, supra note 198.

443

House Party Divisions, supra note 199.

444

Benedict, supra note 435, at 75.

445

Gerhardt, supra note 231, at 103.

446

James E. Sefton, Andrew Johnson and the Uses of Constitutional Power 130-31 (1980)Power 130-31 (1980).

447

Id. at 130; Hans L. Trefousse, Impeachment of a President: Andrew Johnson, the Blacks and Reconstruction 26 (1999).

448

Trefousse, supra note 447, at 28-29; Gerhardt, supra note 231, at 103.

449

Benedict, supra note 435, at 8.

450

Trefousse, supra note 447, at 43. The Radical Republicans had some other problems with the Supreme Court. In March
1868, Congress took the extraordinary step of abolishing the Court's jurisdiction to decide appeals growing out of the
Habeas Corpus Act of 1867. Ex parte
and Reconstruction Politics (1968).

McCardle, 74 U.S. 506, 508 (1869); see also Stanley I. Kutler, Judicial Power

451

See infra text accompanying notes 571-578.

452

Tenure of Office Act, ch. 154, 14 Stat. 430 (1867) (amended 1869, repealed 1887).

453

Id.

454

Id. On the history of the Act, see James Hart, Tenure of Office under the Constitution: A Study in Law and Public
Policy 230-32 (1930).

455

Fletcher Pratt, Stanton: Lincoln's Secretary of War ix (1953). See generally Benjamin P. Thomas & Harold M. Hyman,
Stanton: The Life and Times of Lincoln's Secretary of War (1962).

456

Trefousse, supra note 447, at 45.

457

Sefton, supra note 446, at 149.

458

Id.

459

Labovitz, supra note 74, at 57; Trefousse, supra note 447, at 99; Van Tassel & Finkelman, supra note 82, at 224.

460

Bushnell, supra note 92, at 136; Labovitz, supra note 63, at 57; Trefousse, supra note 447, at 125.

461

Trefousse, supra note 447, at 125-27. Though it is hard for us to imagine today, the federal government in 1868 was
so small that the War Department, the predecessor to the Department of the Army, could be administered from office
space with a single door.

462

Benedict, supra note 435, at 100; B.H. Liddell Hart, Sherman: Soldier, Realist, American 409-10 (1930); Trefousse,
supra note 447, at 128.

463

Michael Fellman, Citizen Sherman: A Life of William Tecumseh Sherman 242-43 (1995) (quoting Sherman, in a
letter to a Radical Republican: “I am not yet prepared to receive the negro on terms of political equality ....”); James
Merrill, William Tecumseh Sherman 142 (1971) (Sherman, in a letter to his wife: “Niggers won't work unless they
are owned ....”); Geoffrey Perret, Ulysses S. Grant: Soldier and President 413 (1997) (“Sherman did not believe in
Reconstruction.... He opposed nearly every Reconstruction measure.”).

464

Benedict, supra note 435, at 100; Trefousse, supra note 447, at 128.

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465

Benedict, supra note 435, at 100; accord Hart, supra note 462; Trefousse, supra note 447, at 128.

466

Benedict, supra note 435, at 100.

467

Id.; Bushnell, supra note 92, at 137; Trefousse, supra note 447, at 133-34; Van Tassel & finkelman, supra note 82, at 224.

468

Bushnell, supra note 92, at 137; Labovitz, supra note 74, at 57.

469

Brant, supra note 97, at 137; Labovitz, supra note 74, at 58-59; 1 Trial of Andrew Johnson, President of the United
States, Before the Senate of the United States, on Impeachment by the House of Representatives for High Crimes and
Misdemeanors 6-10 (1868) [hereinafter Trial of Andrew Johnson]; Van Tassel & Finkelman, supra note 82, at 227-36.

470

A. Johnson Impeachment Articles, http:// www.vw.vccs.edu/vwhansd/HIS269/Documents/ImpeachArticles.html (last
visited Apr. 21, 2007); see also Brant, supra note 97, at 137; Van Tassel & Finkelman, supra note 82, at 232; see also
Labovitz, supra note 74, at 61.

471

Labovitz, supra note 74, at 49-56; Trefousse, supra note 447, at 98-114.

472

3 Hinds, supra note 422, § 2503.

473

Id.

474

Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1 (2004); Charles Lane & David Von Drehle, Is Scalia Too
See
Blunt To Be Effective? Justice Out of Case About Which He Cares, Wash. Post, Oct. 17, 2003, at A27.

475

3 Hinds, supra note 422, § 2503.

476

Id.

477

Id.

478

Brant, supra note 97, at 137.

479

Trefousse, supra note 447, at 151.

480

Sefton, supra note 446, at 177.

481

Trefousse, supra note 447, at 170.

482

Brant, supra note 97, at 137; Trefousse, supra note 447, at 170-71.

483

Bushnell, supra note 92 at 159-60.

484

Trefousse, supra note 447, at 169.

485

Bushnell, supra note 92, at 139; Jonathan Turley, Senate Trials and Factional Disputes: Impeachment as a Madisonian
Device, 49 Duke L.J. 1, 87 n.412 (1999).

486

Turley, supra note 485, at 87 n.412.

487

Id. at 90 n.426.

488

Benedict, supra note 435, at 126-43; Van Tassel & Finkelman, supra note 82, at 227.

489

Benedict, supra note 435, at 183; Bushnell, supra note 92, at 160.

490

Bushnell, supra note 92, at 160.

491

Benedict, supra note 435, at 183; Bushnell, supra note 92, at 160.

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492

Bushnell, supra note 92, at 160.

493

Tenure of Office Act, ch. 10, 16 Stat. 6 (1869) (repealed 1887).

494

17 Stat. 284 (1872), reenacted 19 Stat. 80 (1876).

495

272 U.S. 52 (1926).

496

Rehnquist, supra note 219, at 265.

497

Report of the Nat'l Comm'n on Judicial Discipline & Removal, 152 F.R.D. 265, 296 (1993); see also Van Tassel &
Finkelman, supra note 82, at 12; Turley, supra note 485, at 53-56.

498

Van Tassel & Finkelman, supra note 82, at 192.

499

Bushnell, supra note 92, at 177; Turley, supra note 485, at 55.

500

Turley, supra note 485, at 55.

501

Black, supra note 67, at 51.

502

Judicial Discipline & Removal, 152 F.R.D. at 296; Borkin, supra note 422, at 201, 229; 3 Hinds, supra note 422, §§
2504-05; Van Tassel & Finkelman, supra note 71, at 119-23; Turley, supra note 485, at 58.

503

Judicial Discipline & Removal, 152 F.R.D. at 296; Borkin, supra note 422, at 201, 229; 3 Hinds, supra note 422, §§
2504-05; Van Tassel & Finkelman, supra note 82, at 119-20; Turley, supra note 485, at 58.

504

Borkin, supra note 422, at 203-04, 231-32; 6 Cannon's Precedents of the House of Representatives §§ 544-47 (1935)
[hereinafter Cannon's Precedents]; 3 Deschler's Precedents of the House of Representatives, ch. 14, § 16 [herinafter
Deschler's Precedents]; Van Tassel & Finkelman, supra note 82, at 144-52; Turley, supra note 485, at 58.

505

Bushnell, supra note 92, at 191; Turley, supra note 485, at 63.

506

Bushnell, supra note 92, at 191-92; Jacobus tenBroek, Partisan Politics and Federal Judgeship Impeachment since 1903,
23 Minn. L. Rev. 185, 188 (1938-1939).

507

Bushnell, supra note 92, at 192-93.

508

As a result of the problems caused by this procedure in the Swayne impeachment, it was replaced in 1912, during the
Archbald impeachment, with the practice of having the committee report at the same time both a recommendation to
impeach, and the draft articles of impeachment which, if the House were to vote for impeachment, would be forwarded
to the Senate. See Labovitz, supra note 74, at 114 n.34.

509

Bushnell, supra note 92, at 193.

510

Id. at 212; Van Tassel & Finkelman, supra note 82, at 124-25.

511

Bushnell, supra note 92, at 193.

512

The Florida population was 42% African-American in the 1890 census and 44% African-American in the 1900 census.
1 Historical Statistics, supra note 439. Only five states--Alabama, Georgia, Louisiana, Mississippi, and South Carolina-had, by percentage, larger African-American populations. Id. at 1-180 to 1-379.

513

See Henry Cabot Lodge, The Federal Election Bill, 151 N. Am. Rev. 257 (1890) “The Southern Democrats declare
that the enforcement of this or any other law will cause social disturbance and revolutionary outbreaks. As the negroes
now disenfranchised certainly will not revolt because they receive a vote, it is clear, therefore, that this means that the
men who now rule in those States will make social disturbances and revolution in resistance to a law of the United
States.” Id. at 259.

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514

See V.O. Key, Southern Politics in State and Nation (1949); J. Morgan Kousser, The Shaping of Southern Politics:
Suffrage Restriction and the Establishment of the One-Party South, 1880-1910 (1974); Michael Perman, Struggle for
Mastery: Disfranchisement in the South, 1888-1908 (2001); Thomas Adams Upchurch, Legislating Racism: The Billion
Dollar Congress and the Birth of Jim Crow (2004); C. Vann Woodward, The Strange Career of Jim Crow (1955).
The Jim Crow codes deprived Southern African Americans of equal participation in nearly every aspect of modern
life. Until the Civil Rights movement began after World War II, the Supreme Court held them to be constitutional. See
Plessy v. Ferguson, 163 U.S. 537 (1896).

515

42 U.S.C. §§ 1971-

1973i (2007).

516

Bushnell, supra note 92, at 191-92.

517

tenBroek, supra note 506.

518

Van Tassel & Finkelman, supra note 82, at 132.

519

Turley, supra note 485, at 64-65; see also Bushnell, supra note 92, at 217-42; Van Tassel & Finkelman, supra note 82,
at 132-52.

520

tenBroek, supra note 506, at 191. TenBroek was an unusual and interesting person. He was on the political science
faculty at the University of California at Berkeley. Although not a lawyer, he had a deep effect on several aspects of midtwentieth century constitutional scholarship, and, at one time, students in law school constitutional law courses would
have been familiar with his work. Perhaps his most valuable book was Equal Justice: The Origins of the Fourteenth
Amendment (1969). He was also the founder of the National Federation of the Blind and was an early and still cherished
advocate for the rights of the disabled. See Floyd Matson, Blind Justice: Jacobus tenBroek and the Vision of Equality
(2005).

521

Bushnell, supra note 92, at 220.

522

Id. at 237-38; Van Tassel & Finkelman, supra note 82, at 133.

523

Bushnell, supra note 92, at 239.

524

Id. at 245; Van Tassel & Finkelman, supra note 82, at 152.

525

Van Tassel & Finkelman, supra note 82, at 152-53.

526

Bushnell, supra note 92, at 246-47.

527

tenBroek, supra note 506, at 198.

528

Borkin, supra note 422, at 202, 245; 3 Hinds, supra note 422, § 2511.

529

Borkin, supra note 422, at 202, 226; 3 Hinds, supra note 422, § 2512.

530

Borkin, supra note 422, at 201-02, 230; 3 Hinds, supra note 422, §§ 2506-09.

531

Borkin, supra note 422, at 203, 232-33; 6 Cannon's Precedents, supra note 504, §526.

532

Borkin, supra note 422, at 203, 257; 6 Cannon's Precedents, supra note 504, § 528.

533

Borkin, supra note 422, at 255-57; 6 Cannon's Precedents, supra note 504, § 550.

534

6 Cannon's Precedents, supra note 504, § 535.

535

Jonathan Fraser Light, The Cultural Encyclopedia of Baseball 179 (1997); David Pietrusza, Judge and Jury: The Life and
Times of Judge Kenesaw Mountain Landis 195 (1998). The impeachment resolution alleged that the Commissioner's

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salary was $42,500, 6 Cannon's Precedents, supra note 504, § 535, but baseball historians presumably know more about
such things than contemporary Congressmen did.
536

Pietrusza, supra note 535, at 196-208; 6 Cannon's Precedents, supra note 504, § 535.

537

3 Herbert Hoover, The Memoirs of Herbert Hoover: The Great Depression 195 (1952).

538

See infra tbl.3.

539

6 Cannon's Precedents, supra note 504, § 541; 3 Deschler's Precedents, supra note 504, § 14.3; Turley, supra note 485,
at 76 n.364.

540

“Is there any other point to which you wish to draw my attention?”
“To the curious incident of the dog in the night-time.”
“The dog did nothing in the night-time.”
“That was the curious incident,” remarked Sherlock Holmes.... “Obviously the midnight visitor was someone the dog
knew well.”
Arthur Conan Doyle, Silver Blaze, in 1 The Complete Sherlock Holmes 413-15 (Jeffrey Broesche ed. 2003).

541

See infra tbl. 3.

542

Senate Party Divisions, supra note 198.

543

House Party Divisions, supra note 199.

544

Joseph Alsop & Turner Catledge, The 168 Days 15 (1938).

545

Abraham, supra note 430, at 377-81; C. Herman Pritchett, The Roosevelt Court: A Study in Judicial Politics and Values,
1937-1947, at 17 (1948).

546

1 Henry F. Pringle, The Life and Times of William Howard Taft 535 (1939).

547

David H. Burton, Taft, Holmes, and the 1920s Court 113-14 (1998); Robert K. Murray, The Harding Era: Warren G.
Harding and His Administration 12 (1969); Francis Russell, The Shadow of Blooming Grove: Warren G. Harding and
His Times 229 (1968); Paul Simon, Advice and Consent: Clarence Thomas, Robert Bork, and the Intriguing History of
the Supreme Court's Nomination Battles 225 (1992).

548

Pritchett, supra note 545, at 17-18; Simon, supra note 530, at 227.

549

David J. Danelski, A Supreme Court Justice Is Appointed 41-55, 87 (1964); Russell, supra note, at 507 n.5; Simon,
supra note 530, at 227; Eugene P. Trani & David L. Wilson, The Presidency of Warren G. Harding 49 (1977).

550

Trani & Wilson, supra note 549.

551

Simon, supra note 530, at 227.

552

Id..

553

Id. at 226-28; see also Russell, supra note at 507 n.5.

554

Pringle, supra note 546, at 955.

555

G. Edward White, The Constitution and the New Deal 19 (2000).

556

R.

R. Ret. Bd. v. Alton R. Co., 295 U.S. 330 (1935).

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557
558
559
560

A.L.A. Schecter Poultry Corp. v. United States, 295 U.S. 495 (1935) (the “sick chicken” case).
Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555 (1935).
Hopkins Fed. Sav. & Loan Ass'n v. Cleary, 296 U.S. 315 (1935).
United States v. Butler, 297 U.S. 1 (1936). Actually, the Court held that the tax at the heart of the AAA was
unconstitutional (rather than the entire statute), but without the tax, the AAA was an empty shell. Before the AAA was
enacted, Brandeis told Administration officials privately that he thought the bill would be economically destructive.
Through Adolf Berle, Brandeis wrote to Roosevelt and threatened--in Brandeis's words--“to hold the government's
control legislation unconstitutional from now on” if it continued to reward large businesses and farmers at the expense
of smaller economic actors (the NRA case had not yet reached the Supreme Court). Marian C. McKenna, Franklin
Roosevelt and the Great Constitutional War: The Court-Packing Crisis of 1937, at 128-30 (2002). In the summer of
1934, Administration officials visited Brandeis on Cape Cod, where he was vacationing, and tried to persuade him that
the AAA should be sustained when eventually litigated in the Supreme Court. Under the conflict-of-interest statute in
28 U.S.C. § 455(a).
effect today, all of this would have required Brandeis's recusal from Butler, the AAA case. See
Brandeis was quiet on the bench when Butler was argued and in conference when it was considered. McKenna, supra,
at 133. He wrote no opinion, only signing Stone's dissent from the decision to hold the AAA tax unconstitutional. The
only plausible explanation for this mute about-face would be a realization on Brandeis's part that he had said too much
earlier, and that if he voted with the majority, the Administration would complain that he had been behaving and thinking
unjudicially, which was true. Id.

561
562
563

Carter v. Carter Coal Co., 298 U.S. 238 (1936).
Ashton v. Cameron County Water Improvement Dist., 298 U.S. 513 (1936).
Ashwander v. Tenn. Valley Auth., 297 U.S. 288 (1936).

564

McKenna, supra note 560, at 189 n.28.

565

ch. 531, 49 Stat. 620 (1935).

566

ch. 372, 49 Stat. 449 (1935).

567

ch. 614, 49 Stat. 684 (1935).

568

William E. Leuchtenburg, The Supreme Court Reborn: The Constitutional Revolution in the Age of Roosevelt 95 (1995)
(quoting Ickes's diary).

569

Id.; McKenna, supra note 560, at 165-75.

570

The Fascist government in Italy and the Communist government in the Soviet Union predated the Depression.

571

Leonard Baker, Back to Back: The Duel between FDR and the Supreme Court 10 (1967); Leuchtenburg, supra note
568, at 109.

572

Message from the President of the U.S. Transmitting a Recommendation to Reorganize the Judicial Branch of the Fed.
Gov't, H.R. Doc. No. 75-142 (1937).

573

Alsop & Catledge, supra note 544, at 209.

574

Id. at 33; Baker, supra note 571, at 134; Leuchtenburg, supra note 568, at 120.

575

Alsop & Catledge, supra note 544, at 33.

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576

Id. at 33-36; Baker, supra note 571, at 134; McKenna, supra note 560, at 256-57, 268-69; Stephenson, supra note 151,
at 312.

577

McKenna, supra note 560, at 263.

578

See infra text accompanying notes 600-605.

579

Baker, supra note 571, at 133-34.

580

Morehead v. New York ex rel. Tipaldo, 298 U.S. 587 (1936).

581

Alsop & Catledge, supra note 544, at 139-40; Baker, supra note 571, at 175-76; McKenna, supra note 543, at 414.

582

Alsop & Catledge, supra note 544, at 140-41; Baker, supra note 571, at 176; McKenna, supra note 560, at 414.

583

W. Coast Hotel v. Parrish, 300 U.S. 379 (1937). After Felix Frankfurter was appointed to the Supreme Court, he heard
from Roberts an explanation for this about-face that Frankfurter urged Roberts to commit to writing. In the resulting
memorandum, Roberts claimed that in Tipaldo, the state of New York had not asked the Court to overrule an earlier
case,
Adkins v. Children's Hospital, 261 U.S. 525 (1923), that held minimum wage legislation unconstitutional, and
that as long as Adkins was good law, Roberts felt compelled to follow it, even though he thought it should be overruled.
Although New York had not done so in its brief or in oral argument, it did in its certiorari petition take the position that
the circumstances prevailing in 1936 “call for a reconsideration of the Adkins case.” Barry Cushman, Rethinking the
New Deal Court: The Structure of a Constitutional Revolution 96 (1998) (quoting the petition). The New York statute
had been enacted during the Depression, but the Washington State statute dated from 1913. Id. West Coast Hotel was
an appeal from a decision of the Washington State Supreme Court holding that Adkins had been impliedly overruled by
later decisions of the U.S. Supreme Court. But in the Supreme Court, the State of Washington did not argue that Adkins
should be overruled or treated as though it had already been overruled. Id. Thus, the explanation Roberts gave in the
memorandum is not entirely consistent with the procedural facts. And, a year after West Coast Hotel, Roberts joined in
Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), to overrule a much older and more widely followed precedent,
Swift v. Tyson, 41 U.S. 1 (1842), even though none of the parties had briefed, argued, or in any other way raised
the issue of whether Swift should be overruled. Moreover, overruling was not the only way around Adkins. A judge
who cannot distinguish into oblivion a precedent he does not wish to follow has not learned some basic analytical skills
taught beginning in the first year of law school. Cushman argues that Roberts might have been willing to vote to overrule
Adkins in Tipaldo except that he was under the impression that the votes to do so were lacking at the time because
Hughes had not said he would, and that the Tipaldo fiasco, for which the Court was severely criticized at the time, was
thus the result of miscommunication between Hughes and Roberts. Cushman, supra, at 100-03. Although this has a ring
of human realism to it, particularly because Tipaldo was decided “[a]t the end of the most fractious and exhausting term
of Hughes' tenure,” id. at 103, it is only a possibility for which there is no direct evidence. The memorandum Roberts
wrote at Frankfurter's suggestion is not persuasive, both because of the inconsistencies mentioned above and because
of general principles of historical analysis. Careful historians are usually not persuaded by what people say to justify
their actions. We learn more about why people have acted from the nature of their actions and the context in which they
acted and from what they have said in unguarded circumstances. It is not that historical figures should be assumed to lie
about their motivations (though some do lie). The problem is that the urge to rationalize and justify one's own behavior
can cause anyone to lose insight about themselves or not develop it. This is especially true of people who are worried
about how they will be remembered by history, and it may be even more true of lawyers and judges, whose everyday
business is rationalizing and justifying.

584

Wash., Va. & Md. Coach Co. v. NLRB, 301 U.S. 142 (1937);
Associated Press v. NLRB, 301 U.S. 103 (1937);
NLRB v. Friedman-Harry Marks Clothing Co., 301 U.S. 58 (1937); NLRB v. Fruehauf Trailer Co., 301 U.S. 49 (1937);
NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937).

585

Helvering v. Davis, 301 U.S. 619 (1937);

Charles C. Stewart Mach. Co. v. Davis, 301 U.S. 548 (1937);

Carmichael v. S. Coal & Coke Co., 301 U.S. 495 (1936).

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THE REVIVAL OF IMPEACHMENT AS A PARTISAN..., 34 Hastings Const....

586

Leuchtenburg, supra note 568, at 220.

587

Alsop & Catledge, supra note 544, at 208; Stephenson, supra note 151, at 160.

588

28 U.S.C. § 371 (2007)); see also David N. Atkinson,
Act of March 1, 1937, ch. 21, 50 Stat. 24 (current version at
Leaving the Bench: Supreme Court Justices at the End 3-4 (1999); Charles Evans Hughes, Autobiographical Notes
of Charles Evans Hughes 302-04 (David J. Danelski & Jos. S. Tulchin eds., 1973); Baker, supra note 571, at 229;
Stephenson, supra note 151, at 160. Previously, Congress had granted pensions to Supreme Court Justices but could
reduce them, as it did with Holmes after he retired, cutting his pension in half for the sake of economy. Hughes, supra,
at 303; McKenna, supra note 560, at 35.

589

Cushman, supra note 583, at 15.

590

Leuchtenburg, supra note 568, at 281.

591

Cushman, supra note 583, at 15; McKenna, supra note 560, at 335.

592

Alsop & Catledge, supra note 544, at 77; Cushman, supra note 583, at 15; McKenna, supra note 560, at 335.

593

Atkinson, supra note 588, at 105; Baker, supra note 571, at 229; McKenna, supra note 560, at 454-60.

594

Alsop & Catledge, supra note 544, at 209.

595

Atkinson, supra note 588, at 106; Hiughes, supra note 588, at 302.

596

Leuchtenburg, supra note 568, at 154.

597

See supra text accompanying notes 211-242; infra text accompanying notes 732-781, 811-846. Bills were introduced to
alter the jurisdiction of the Court and in other ways limit its ability to declare statutes unconstitutional, but never passed
in either the House or the Senate. See Cushman, supra note 583, at 12.

598

Alsop & Catledge, supra note 544; Baker, supra note 554; Leuchtenburg, supra note 568; McKenna, supra note 560.
The Leuchtenburg and McKenna studies are more thoroughly researched than the others.

599

Cushman, supra note 583; Leuchtenburg, supra note 568; White, supra note 555.

600

See Anthony J. Badger, The New Deal: The Depression Years, 1933-1940 (1989); James MacGregor Burns, Roosevelt:
The Lion and the Fox (1956); Paul Conklin, The New Deal (1967); Kenneth S. Davis, FDR: The New Deal Years
1933-1937, A History (1986); Kenneth S. Davis, FDR: Into the Storm 1937-1940, A History (1993); Daniel R. Fusfield,
The Economic Thought of Franklin D. Roosevelt and the Origins of the New Deal (1956); William E. Leuchtenburg, The
FDR Years: On Roosevelt and His Legacy (1995); William E. Leuchtenburg, Franklin D. Roosevelt and the New Deal,
1932-1940 (1963); John Major, The New Deal (1967); Ronald A. Mulder, The Insurgent Progressives in the Senate and
the New Deal (1979); Arthur M. Schlesinger, The Politics of Upheaval, 1935-1936 (1960); Arthur M. Schlesinger, The
Coming of the New Deal, 1933-1935 (1959).

601

Danelski, supra note 549, at 42.

602

Dennis J. Hutchinson & David J. Garrow, Foreward to John Knox, The Forgotten Memoir of John Knox, at xx (Dennis
J. Hutchinson & David J. Garrow eds. 2002).

603

Id. at xix.

604

Leuchtenburg, supra note 568, at 121.

605

Atkinson, supra note 588, at 113.

606

Id. at 112.

607

See supra text following note 20.

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608

This view is common among the historians cited in note 600, including Leuchtenburg, supra note 568, and, to a lesser
extent, McKenna, supra note 560.

609

Cushman, supra note 583; White, supra note 555; Richard D. Friedman, Switching Time and Other Thought
Experiments: The Hughes Court and the Constitutional Transformation, 142 U. Pa. L. Rev. 1891 (1994). For a
debate between the two sides in this controversy, see Laura Kalman, The Constitution, the Supreme Court, and
the New Deal, 110 Am. Hist. Rev. 1052 (2005), available at http:// www.historycooperative.org/journals/ahr/110.4/
kalman.html; William E. Leuchtenburg, Comment on Laura Kalman's Article, 110 Am. His. Rev. 1081 (2005),
available at http:// www.historycooperative.org/journals/ahr/110.4/leuchtenburg.html; G. Edward White, Constitutional
Change and the New Deal: The Internalist/Externalist Debate, 110 Am. Hist. Rev. 1094 (2005), available at http://
www.historycooperative.org/journals/ahr/110.4/white.html.

610

Baker, supra note 571, at 229; Cushman, supra note 583, at 230-31; Hughes, supra note 588, at 303.

611

See, e.g., Drew Pearson & Robert S. Allen, The Nine Old Men (1936).

612

Bushnell, supra note 92, at 269.

613

Id.

614

Id.

615

Id. at 271.

616

Id. at 272.

617

Id.

618

Id.

619

Van Tassel & Finkelman, supra note 82, at 158, 165-67.

620

Id. at 158.

621

tenBroek, supra note 506, at 200.

622

Id.

623

Id.

624

Id. at 198-204.

625

See infra text accompanying notes 811-846.

626

116 Cong. Rec. 11914 (1970); Van Tassel & Finkelman, supra note 82, at 59.

627

Van Tassel & Finkelman, supra note 82, at 158-60.

628

Id. at 158.

629

3 Deschler's Precedents, supra note 504, §18.1.

630

Id. §§ 18.5-.10; Van Tassel & Finkelman, supra note 82, at 159.

631

3 Deschler's Precedents, supra note 504, §§ 18.17-.18.

632

A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935) (the “sick chicken” case).

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633

William E. Leuchtenburg, When the People Spoke, What Did They Say?: The Election of 1936 and the Ackerman
Thesis, 108 Yale L.J. 2077, 2079-81 (1999).

634

Id. at 2081-87.

635

See

Ashton v. Cameron County Water Improvement Dist., 298 U.S. 513 (1936) (invalidating the Municipal

Bankruptcy Act);

Carter v. Carter Coal Co., 298 U.S. 238 (1936) (invalidating the Bituminous Coal Conservation

Act);
Jones v. SEC, 298 U.S. 1 (1936) (comparing the SEC to the Star Chamber);
U.S. 1 (1936) (invalidating the Agricultural Adjustment Act).

United States v. Butler, 297

636

Leuchtenburg, supra note 633, at 2084-96.

637

Burns, supra note 600, at 295.

638

Id. at 293.

639

Alsop & Catledge, supra note 544, at 25-37; Samuel Hendel, Charles Evans Hughes and the Supreme Court 249 (1951);
McKenna, supra note 560, at 268-69, 281.

640

Burns, supra note 600, at 294.

641

S. Comm. on the Judiciary, Reorganization of the Fed. Judiciary, S. Rep. No. 75-711, at 11 (1937)S. Rep. No. 75-711,
at 11 (1937) [hereinafter Reorganization of the Fed. Judiciary].

642

See infra text accompanying note 598.

643

Reorganization of the Fed. Judiciary, supra note 641, at 15.

644

Id. at 23.

645

See supra text accompanying notes 505-527.

646

See supra text accompanying notes 528-536.

647

See 84 F.2d v-x (1936); 15 F. Supp. v-x (1936).

648

Alsop & Catledge, supra note 544; Baker, supra note 571; Leuchtenburg, supra note 568; McKenna, supra note 560.

649

See supra text accompanying note 543.

650

Van Tassel & Finkelman, supra note 82, at 158.

651

See supra text accompanying note 542.

652

Van Tassel & Finkelman, supra note 82, at 158.

653

Id.

654

Borkin, supra note 422 at 27-29, 38-82.

655

Id. at 232.

656

Id. at 240.

657

Id. at 41-86; 3 Deschler's Precedents, supra note 504, § 14.10.

658

H.R. Rep. No. 79-1639 (1946)H.R. Rep. No. 79-1639 (1946).

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659

Report of the Nat'l Comm'n on Judicial Discipline & Removal, 152 F.R.D. 265, 326 (1993). “This appears to be the first
time a sitting judge was effectively forced from office as the result of a criminal conviction.” Id.

660

Van Tassel, Resignations, supra note 190, at 337, 392.

661
662

United States v. Collins, 972 F.2d 1385, 1395 (5th Cir. 1992).
Judicial Discipline & Removal, 152 F.R.D. at 300; Van Tassel, Resignations, supra note 190, at 338.

663

United States v. Aguilar, 994 F.2d 609 (9th Cir. 1993).

664

Judicial Discipline & Removal, 152 F.R.D. at 300.

665

922 F. Supp. XXIII (1996).

666

Judicial Discipline & Removal, 152 F.R.D. at 327.

667

Van Tassel, Resignations, supra note 179, at 337.

668

Impeachment of Judge Harry E. Claiborne, H.R. Rep. No. 99-688 (1986)H.R. Rep. No. 99-688 (1986).

669

Proceedings of the U.S. Senate in the Impeachment Trial of Harry E. Claiborne, S. Doc. No. 99-48 (1986).

670

See Bushnell, supra note 92, at 289-306.

671

Judicial Discipline & Removal, 152 F.R.D. at 326.

672

Id. at 327.

673

Mary L. Volcansek, Judicial Impeachment 107 (1993); see also Impeachment of Judge Alcee L. Hastings, H.R. Rep.
No. 100-810 (1988)H.R. Rep. No. 100-810 (1988).

674

Volcansek, supra note 673, at 114.

675

Id. at 115; see also Bushnell, supra note 92, at 307-14.

676

Volcansek, supra note 673, at 116.

677

Report of the Nat'l Comm'n on Judicial Discipline & Removal, 152 F.R.D. 265, 327 (1993).

678

Id.

679

Id. at 140; see also Impeachment of Walter L. Nixon, Jr., H.R. Rep. No. 101-36 (1989)H.R. Rep. No. 101-36 (1989);
Bushnell, supra note 92, at 307, 314-18.

680

Bushnell, supra note 92, at 318.

681

Berger, supra note 31, at 3.

682

All the published accounts of the Watergate scandal support, without exception, the narrative in this and the following
paragraphs. See Marlyn Aycock et al., Cong. Quarterly, Watergate: Chronology of a Crisis (1999); Fred Emery, Watergate
(1995); Stanley I. Kutler, The Wars of Watergate: The Last Crisis of Richard Nixon (1992); Michael Schudsen, Watergate
in American Memory: How We Remember, Forget, and Reconstruct the Past (1993).

683

“Nixon Bugged Himself” was the New York Post headline the next day. The headline alone occupied almost the entire
first page of the newspaper.

684

Leon Jaworski, The Right and the Power: The Prosecution of Watergate (1976); see also Watergate Special Prosecution
Force, Report (1975).

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685

United States v. Nixon, 418 U.S. 683 (1974); see also Philip Allen Lacovara, United States v. Nixon: The Prelude,
83 Minn. L. Rev. 1061 (1991).

686

See Impeachment of Richard M. Nixon, President of the U.S., Rep. of the Comm. on the Judiciary of the House of
Representatives, H.R. Rep. 93-1305, at 359-528 [hereinafter House Jud. Comm. Rpt. on Nixon].

687

Michael J. Gerhardt, The Federal Impeachment Process: A Constitutional and Historical Analysis 55 (2d ed. 2000).

688

See id.

689

3 Deschler's Precedents, supra note 504, ch. 14, § 15; Van Tassel & Finkelman, supra note 82, at 11.

690

House Jud. Comm. Rpt. on Nixon, supra note 686, at 1-3.

691

Id. at 335; Van Tassel & Finkelman, supra note 82, at 259.

692

Compare House Jud. Comm. Rpt. on Nixon, supra note 686, at 335 (comparing to the party affiliation listed at ii).

693

Id. at 359-528.

694

Id. at 3-4.

695

Id. at 336; Van Tassel & Finkelman, supra note 82, at 259.

696

House Jud. Comm. Rpt. on Nixon, supra note 686, at 336 (comparing to the party affiliation listed at ii).

697

Id. at 359-60.

698

Id. at 4.

699

Id. at 337; Van Tassel & Finkelman, supra note 82, at 259.

700

House Jud. Comm. Rpt. on Nixon, supra note 686, at 337 (comparing to to the party affiliation listed at ii).

701

Id. at 217-26, 338-39; Van Tassel & Finkelman, supra note 82, at 259.

702

See Richard M. Cohen & Jules Witcover, A Heartbeat Away: The Investigation and Resignation of Vice President Spiro
T. Agnew (1974).

703

3 Deschler's Precedents, supra note 504, ch. 14, § 14.17.

704

Id.

705

See infra text accompanying notes 982-984, 1071-1092.

706

John F. Kennedy, Profiles in Courage 115-38 (1955).

707

Bruce H. Kalk, The Carswell Affair: The Politics of a Supreme Court Nomination in the Nixon Administration, 42 Am.
J. Legal Hist. 261, 263 (1998); William G. Ross, Attacks on the Warren Court by State Officials: A Case Study of Why
Court-Curbing Movements Fail, 50 Buff. L. Rev. 483, 506 (2002).

708

Ross, supra note 707, at 506 n.114.

709

347 U.S. 483 (1954); see also

Brown v. Bd. of Educ. (Brown II), 349 U.S. 294 (1955).

710

See Frank T. Read & Lucy S. McGough, Let Them Be Judged: The Judicial Integration of the Deep South (1978).

711

See Lucas A. Powe, Jr., The Warren Court and American Politics (2000).

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712
713

See e.g.,
See, e.g.,

Reynolds v. Sims, 377 U.S. 533 (1964);

Miranda v. Arizona, 384 U.S. 436 (1966);

Wainwright, 372 U.S. 335 (1963);
714
715
716
717

Baker v. Carr, 369 U.S. 186 (1962).
Escobedo v. Illinois, 378 U.S. 478 (1964);

Gideon v.

Mapp v. Ohio, 367 U.S. 643 (1961).

See, e.g.,

Stanley v. Georgia, 394 U.S. 557 (1969).

See, e.g.,

Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964).

See, e.g.,

Sch. Dist. v. Schempp, 374 U.S. 203 (1963);

See

Engel v. Vitale, 370 U.S. 421 (1962).

Roe v. Wade, 410 U.S. 113 (1973).

718

See Joseph A. Aistrup, The Southern Strategy Revisited: Republican Top-Down Advancement in the South 8-9 (1996);
Numan V. Bartley & Hugh D. Graham, Southern Politics and the Second Reconstruction (1975); Reg Murphy & Hal
Gulliver, The Southern Strategy (1971); Kevin P. Phillips, The Emerging Republican Majority (1970).

719

Before 1968, only one Supreme Court nominee in the twentieth century, John J. Parker in 1930, had been rejected by the
Senate. Norman Vieira & Leonard Gross, Supreme Court Appointments: Judge Bork and the Politicization of Senate
Confirmations 44-45 (1998).

720

The parties have realigned since then, and right-wing Southern legislators are now Republicans.

721

Abraham, supra note 430, at 54; J. Myron Jacobstein & Roy M. Mersky, The Rejected: Sketches of the 26 Men
Nominated for the Supreme Court but Not Confirmed by the Senate 8-9 (1993).

722

Jacobstein & Mersky, supra note 721, at 8 (quoting Jefferson's words).

723

Joshua Spivak, Opinion: Judicial Nomination: Battles Are Not New, Nat'l L.J., Mar. 7, 2005, at col. 1. Different
commentators report different numbers because sometimes there is ambiguity about whether a nomination should be
counted as having actually been made or whether it has been truly rejected. For example, Washington nominated William
Paterson for the Supreme Court in 1793. Paterson co-authored the Judiciary Act of 1789, and “the first nine sections
of the seminal statute, establishing federal district and circuit courts, were in Paterson's handwriting.” Abraham, supra
note 430, at 57. But when nominated, Paterson was still a Senator in the Congress that created the positions of Justices
on the Supreme Court. The Constitution established the Court in Article III, section 1, but the Judiciary Act of 1789
created the individual jobs. And Article I, section 6, of the Constitution provides that “No Senator or Representative
shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United
States, which shall have been created... during such time.” When Washington realized his mistake, he quickly withdrew
Paterson's nomination. Id.; Jacobstein & Mersky, supra note 721, at 171. Many failed nominations are withdrawn when
the impossibility of their being approved by the Senate becomes clear. A commentator could reasonably count Paterson's
as a failed nomination, or not. As soon as Paterson's Senate term ended four days after Washington's initial attempt to
nominate him, Washington sent his name to the Senate again, and the Senate immediately approved. Abraham, supra
note 430, at 57; Jacobstein & Mersky, supra note 721, at 171.

724

Spivak, supra note 723, at col. 1.

725

Abraham, supra note 430, at 74; Jacobstein & Mersky, supra note 721, at 28-29.

726

Abraham, supra note 430, at 75; Jacobstein & Mersky, supra note 721, at 30.

727

Abraham, supra note 430, at 75; Jacobstein & Mersky, supra note 721, at 30.

728

David Greenberg, Filibustering Judicial Appointments Is Unprecedented?, Hist. News Net., May 6, 2005, available at
http:// hnn.us/articles/11754.html.

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729

Jacobstein & Mersky, supra note 721, at 35-41.

730

Abraham, supra note 430, at 136-37.

731

Id. at 30-31.

732

See supra text accompanying notes 666-705.

733

James F. Simon, In His Own Image: The Supreme Court in Richard Nixon's America 102 (1973).

734

Justices Brandeis and Douglas, and Chief Justices Fred Vinson and Roger Taney had also quietly given advice to
Presidents while serving on the Supreme Court. Bruce Allen Murphy, Fortas: The Rise and Ruin of a Supreme Court
Justice 593 (1988).

735

John Ehrlichman, Witness to Power: the Nixon Years 131-33 (1982).

736

Murphy, supra note 734, at 499-500.

737

Laura Kalman, Abe Fortas: A Biography 351 (1990).

738

28 U.S.C. § 455 (2007).

739

Kalman, supra note 737, at 352.

740

Simon, supra note 733; Melvin Small, The Presidency of Richard Nixon 166 (1999).

741

Mallory v. United States, 354 U.S. 449 (1957).

742

Murphy, supra note 734, at 426; see also Kalman, supra note 737, at 340; Robert Shogan, A Question of Judgment: The
Fortas Case and the Struggle for the Supreme Court 170 (1972). Thurmond was so excited that the transcript misses
some of what the videotape recorded. Compare the words in the text with those in Nominations of Abe Fortas and Homer
Thornberry: Hearings Before the S. Judiciary Comm., 90th Cong. 191 (1968) (statement of Sen. Strom Thurmond,
Member, S. Judiciary Comm.) [hereinafter Nominations of Fortas and Thornberry].

743

Murphy, supra note 734, at 522-27.

744

Fred P. Graham, Critics of Fortas Begin Filibuster, Citing ‘Propriety,’ N.Y. Times, Sept. 26, 1968, at A1.

745

Robert C. Albright, Fortas Debate Opens With A Filibuster, Wash. Post, Sept. 26, 1968, at A1.

746

Id.

747

Graham, supra note 744.

748

Stephenson, supra note 151, at 185; Artemus Ward, Deciding to Leave: The Politics of Retirement from the
Supreme Court 173 (2003). Even the Senate website says that the Fortas nomination was filibustered. Supreme Court
Nominations, (1789-present), http:// www.senate.gov/pagelayout/reference/nominations/Nominations.htm (last visited
Apr. 21, 2007).

749

George J. Mitchell, The Not-So-Secret History of Filibusters, N.Y. Times, May 10, 2005, at A17.

750

John W. Dean, The Rehnquist Choice: The Untold Story of the Nixon Appointment That Redefined the Supreme Court
3-5 (2001).

751

See supra text accompanying note 578.

752

Dean, supra note 750, at 5-6.

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753

Murphy, supra note 734, at 551; see also Kalman, supra note 737, at 362; Murphy, supra note 734, at 549; Shogan,
supra note 742, at 226.

754

Murphy, supra note 734, at 551.

755

Id. at 553; Small, supra note 740, at 167. Without the evidence supplied by the Justice Department, Life did not have
enough material to publish a story at all. Kalman, supra note 737, at 364; Murphy, supra note 734, at 553, 555.

756

Murphy, supra note 734, at 554; see also Kalman, supra note 737, at 362-63.

757

Ehrlichman, supra note 735, at 116.

758

Atkinson, supra note 588, at 141; Dean, supra note 750, at 9; Ehrlichman, supra note 735, at 116; Kalman, supra note
737, at 368; Murphy, supra note 734, at 562-63; Shogan, supra note 742, at 248-49; Simon, supra note 733; James F.
Simon, Independent Journey: The Life of William O. Douglas 396 (1980) [hereinafter Simon, Independent Journey].

759

Murphy, supra note 734, at 566-75.

760

Dean, supra note 750, at 10.

761

See Murphy, supra note 734, at 566.

762

In the short period between the publication of the Life article and Fortas's resignation, one Congressman “announced
that he had [already] prepared articles of impeachment.” Id.

763

Nominations of Fortas and Thornberry, supra note 742, at ii.

764

Murphy, supra note 734, at 566; Shogan, supra note 742, at 262.

765

See infra text accompanying notes 837-846.

766

Abraham, supra note 430 at 10.

767

Shogan, supra note 742,, at 263. In March 2007, Kenneth Starr argued a case before the Suprene Court even though Starr
is the dean of the Pepperdine University School of Law and Pepperdine employs Justices Antonin Scalia and Samuel
Alioto Jr. to teach in the school's overseas summer programs. Tony Mauro, High Court Advocate Ken Starr Is Justices'
Summer Employer, Legal Times, March 26, 2007. A Justice who accepts even short-term employment from an entity
supervised by a lawyer who appears before the Justice could reasonably be said not only to have violated the federal
judicial conflict-of-interest statute,

28 U.S.C. § 455, but also to have put what Fortas did into perspective.

768

Kalman, supra note 737, at 322-25; Simon, supra note 733; Simon, Independent Journey supra note 758, at 395.

769

Kalman, supra note 737, at 323-24; Murphy, supra note 734, at 195-97; Simon, supra note 733.

770

Fortas's law clerk played a significant role in awakening him to this problem. Kalman, supra note 737, at 325; Murphy,
supra note 734, at 208-09.

771

Murphy, supra note 734, at 209. Fortas waited some time before returning the fee. In the interim, Wolfson was indicted,
and his health and that of his wife deteriorated. Kalman, supra note 737, at 360; Murphy, supra note 734, at 209. Fortas
told his law partner, Paul Porter, that he delayed returning the money because he did not want to “kick this guy in the
teeth under these circumstances ....” Murphy, supra note 734, at 209. Finally, in December 1966, Fortas sent Wolfson a
check for $20,000 to avoid the income tax liability that would accrue on January 1, 1967. Id.

772

Kalman, supra note 737, at 369; Shogan, supra note 742, at 263.

773

Murphy, supra note 734, at 196.

774

Arnold, Fortas & Porter, now Arnold & Porter.

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775

Shogan, supra note 742, at 192-93.

776

Murphy, supra note 734, at 197, 593.

777

See, e.g., Richard K. Neumann, Jr., On Strategy, 59 Fordham L. Rev. 299, 310 n.28 (1990) (explaining how Fortas
devised a winning litigation strategy that forestalled a legal challenge to Lyndon B. Johnson's eighty-seven-vote primary
victory in the 1948 Texas election for the U.S. Senate).

778

Kalman, supra note 737, at 365; Shogan, supra note 742, at 236.

779

Kalman, supra note 737, at 367.

780

Murphy, supra note 734, at 562-63.

781

Id. at 565.

782

Shogan, supra note 742, at 270.

783

Abraham, supra note 430, at 10-11; Shogan, supra note 742, at 270.

784

Small, supra note 740, at 168; see also Shogan, supra note 742, at 270-71; Simon, Independent Journey, supra note 758,
at 400-01; Vieira & Gross, supra note 719, at 46.

785

See Richard K. Neumann, Conflicts of Interest in Bush v. Gore: Did Some Justices Vote Illegally?, 16 Geo. J. Legal
Ethics 375, 380-81 (2003).

786

Id. In a law school graduation speech in 1975, which was also published as a law review article, Haynsworth said that
a lawyer “serves his clients without being their servant... the lawyer must never forget that he is the master... It is for
the lawyer to decide what is morally and legally right... the lawyer must serve the client's legal needs as the lawyer sees
them, not as the client sees them. During my years in practice, I never had any problem in this respect, although some
lawyers today say they do.” Clement F. Haynsworth, Jr., Professionalism in Lawyering, 27 S.C. L. Rev. 627, 628 (1976).

787

Abraham, supra note 430, at 10.

788

Id.; Shogan, supra note 742, at 271; Small, supra note 740, at 168.

789

Small, supra note 740, at 168.

790

Ross, supra note 707, at 262.

791

Jacobstein & Mersky, supra note 721, at 152.

792

Abraham, supra note 430, at 11.

793

Nomination of George Harrold Carswell to be Assoc. Justice of the Supreme Court of the U.S.: Hearings Before the
Senate Comm. on the Judiciary, 91st Cong. 238-54 (Comm. Print 1970); see also Abraham, supra note 430, at 12.

794

Abraham, supra note 430, at 12.

795

See, e.g., Small, supra note 740, at 169 (quoting William Safire (“[the nomination was] one of the most ill-advised public
acts of the early Nixon Presidency”)); Ross, supra note 707, at 282 (quoting Jeb Stuart Magruder (“few of us thought
he was qualified”) and Clark Mollenhoff (“[I] wouldn't have defended him under any circumstances”)).

796

Small, supra note 740, at 169; see also Abraham, supra note 430, at 11-12; Shogan, supra note 742, at 272.

797

Abraham, supra note 430, at 11.

798

Id.; Shogan, supra note 742, at 272; Vieira & Gross, supra note 719, at 47.

799

Abraham, supra note 430, at 11.

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800

Small, supra note 740, at 169; see also Shogan, supra note 742 at 271-72.

801

Abraham, supra note 430, at 11.

802

Id. at 12; Dean, supra note 750, at 21; Simon, Independent Journey, supra note 758, at 403; Small, supra note 740, at
170; Vieira & Gross, supra note 719, at 47.

803

Abraham, supra note 430, at 12; Small, supra note 740, at 170.

804

See Read & McGough, supra note 710.

805

Jack Bass, John Minor Wisdom and the Impact of Law, 69 Miss. L.J. 25, 26-27 (1999) (quoting Burke Marshall).

806

Id. at 38, 52, 54.

807

Abraham, supra note 430, at 13; Shogan, supra note 742, at 273.

808

Murphy, supra note 716, at 580; Small, supra note 740, at 171.

809

Abraham, supra note 430, at 13; Brant, supra note 97, at 92.

810

Small, supra note 740, at 170.

811

Id.

812

Id.

813

Simon, Independent Journey, supra note 758, at 402.

814

Id. at 392; Small, supra note 740, at 170.

815

Simon, Independent Journey, supra note 758, at 392.

816

See id. at 404.

817

Id. at 397.

818

Brant, supra note 97, at 95.

819

Id.

820

Assoc. Justice William O. Douglas: Final Rep. of the Special Subcomm. on H.R. Res. 920 of the Comm. on the Judiciary,
91st Cong. 236-49 (Comm. Print 1970) [hereinafter Final Report].

821

Id. at 245, 248.

822

Simon, Independent Journey, supra note 758, at 404.

823

Murphy, supra note 734, at 579.

824

Simon, Independent Journey, supra note 758, at 398; see also Murphy, supra note 716, at 579; Small, supra note 740,
at 170.

825

Ehrlichman, supra note 735, at 122; Small, supra note 740, at 168. “Ford had been working privately on the case before
the administration asked him to take the lead.” Small, supra note 740, at 170.

826

Ehrlichman, supra note 735, at 116.

827

Simon, Independent Journey, supra note 758, at 401.

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828

Id. at 580.

829

Id.

830

116 Cong. Rec. 11916 (1970). Ford also mentioned Bugsy Siegel, Meyer Lansky, and Ice Pick Willie Alderman, id.,
none of whom had any connection with Douglas. Final Report, supra note 820, at 176; Simon, Independent Journey,
supra note 758, at 404.

831

116 Cong. Rec. 11915 (1970). The article was on folk singing. Id.; Simon, Independent Journey, supra note 758, at 404.

832

116 Cong. Rec. 11918 (1970).

833

Brant, supra note 97, at 96; Simon, Independent Journey, supra note 758, at 405.

834

Brant, supra note 97, at 96.

835

116 Cong. Rec. 11915-16 (1970); Simon, Independent Journey, supra note 758, at 404-05.

836

Brant, supra note 86, at 98; Final Report, supra note 820, at 172-74.

837

Simon, Independent Journey, supra note 758, at 405.

838

Brant, supra note 97, at 90; see also Simon, Independent Journey, supra note 758, at 405.

839

Brant, supra note 97, at 90; Simon, Independent Journey, supra note 758, at 405.

840

Brant, supra note 97, at 90; Simon, Independent Journey, supra note 758, at 409; see also Final Report, supra note 820,
at III.

841

Final Report, supra note 820; see also Brant, supra note 97, at 89; 3 Deschler's Precedents, supra note 504, §§ 14.14-.16;
Simon, Independent Journey, supra note 758, at 409.

842

Brant, supra note 97, at 91; Simon, Independent Journey, supra note 758, at 409.

843

Final Report, supra note 820, at 351-52.

844

Brant, supra note 97, at 91; Simon, Independent Journey, supra note 758, at 409.

845

Simon, Independent Journey, supra note 758, at 405.

846

Murphy, supra note 734, at 579.

847

Atkinson, supra note 588, at 146-49.

848

See Vieira & Gross, supra note 719, at 3-181.

849

See, e.g., William J. Bennett, The Death of Outrage: Bill Clinton and the Assault on American Ideals (1998); Ann
Coulter, High Crimes and Misdemeanors: the Case against Bill Clinton (1998); David P. Schippers, Sell Out: The Inside
Story of President Clinton's Impeachment (2000).

850

See supra text accompanying notes 74-78.

851

The Iraq War that began in 2003 is not the only set of facts to meet this description. Congress was deceived into passing
the Tonkin Gulf Resolution of 1965, which was claimed to be the legal justification for the Vietnam War. Eric Alterman,
When Presidents Lie: A History of Official Deception and Its Consequences 160-237 (2004); Joseph C. Goulden, Truth Is
the First Casualty: The Gulf of Tonkin Affair, Illusion and Reality (1969); Edwin Moise, Tonkin Gulf and the Escalation
of the Vietnam War (1996).

852

Both Houses passed resolutions condemning John Tyler and James Polk--the latter for, in Congress's words, “a war
unnecessarily and unconstitutionally begun by the President of the United States.” Van Tassel & Finkelman, supra note

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82, at 203. And the Senate censured Andrew Jackson for removing the government's deposits from the Bank of the
United States. Id. at 201-02, 204-20; see also Michael J. Gerhardt, Putting the Law of Impeachment in Perspective, 43
St. Louis U. L.J. 905, 927-28 (1999).
853

The Impeachment and Trial of President Clinton: The Official Transcripts from the House Judiciary Committee Hearings
to the Senate Trial 451, 467 (Merrill McLoughlin ed., 1999) [hereinafter Impeachment and Trial of President Clinton].
When these motions were made, they were objected to on the grounds that they amounted to unconstitutional bills of
attainder. That is wrong both precedentially and analytically. The precedents are in the preceding footnote. The analytical
reasons are explained at Gerhardt, Impeachment Process, supra note 687, at 186-87.

854

David Brock, Blinded by the Right 79 (2002).

855

Id. at 80; see also Joe Conason & Gene Lyons, The Hunting of the President 107 (2000).

856

See David Brock, The Real Anita Hill: The Untold Story (1993); see also infra text accompanying notes 1049-1056.

857

Brock, supra note 854, at 295-98, 321-22, 326.

858

Id. at 129.

859

Id. at 189.

860

Id. (alteration in original) (quoting Scaife).

861

Id. at 193-214.

862

Id. at 205-07.

863

Id. at 206.

864

Id. at 210.

865

Id. at 151.

866

Id. at 154.

867

Id. at 323-24.

868

Id. at 157.

869

Id. at 152.

870

Id. at 179.

871

Id.

872

Id. at 185; Michael Isikoff, Uncovering Clinton: A Reporter's Story 49, 179 (1999); Jeffrey Toobin, A Vast Conspiracy
25 (1999).

873

Brock, supra note 854, at 185.

874

Brock, supra note 854, at 184; Toobin, supra note 872, at 134-36.

875

Brock, supra note 854, at 180-83; Conason & Lyons, supra note 855, at 302; Toobin, supra note 872, at xi, 41, 136. At
the time, Coulter had just begun to work also as a political commentator and had not yet published High Crimes and
Misdemeanors: the Case against Bill Clinton (1998); Slander: Liberal Lies about the American Right (2002); Treason:
Liberal Treachery from the Cold War to the War on Terror (2003); How to Talk to a Liberal (If You Must): The World
According to Ann Coulter (2004); and Godless: The Church of Liberalism (2006).

876

Jones v. Clinton, 990 F. Supp. 657 (E.D. Ark. 1998), appeal dismissed, 161 F.3d 528 (8th Cir. 1998).

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877

Brock, supra note 854, at 307; see also Toobin, supra note 872, at 393.

878

Toobin, supra note 872, at xvii; Van Tassel & Finkelman, supra note 82, at 267.

879

Brock, supra note 854, at 190.

880

Conason & Lyons, supra note 855, at 132.

881

28 U.S.C.A. §§ 591-99 (West 2007). Although the authority to appoint new independent counsel expired when the
Act was not reauthorized in 1999, the remainder of the Act continued in effect so that independent counsels already
appointed could finish their work. See id. § 599.
The Act was adopted in 1978 because the Watergate special prosecutors had gotten their authority from executive
department orders and regulations and hence were vulnerable to being fired, as Cox was, by the people they were
investigating. See supra text accompanying notes 683-684. During the Reagan and Bush Administrations, independent
counsels investigated and prosecuted Republicans in the executive branch. Because of that, Republicans in Congress
“mounted an attack on the statute so fierce that they succeeded in blocking its re-authorization even though Republicans
comprised a minority of Congress.” Samuel Dash, Independent Counsel: No More, No Less a Federal Prosecutor,
86 Geo. L.J. 2077, 2079 (1998). Then, as soon as an opportunity arose to investigate Clinton, Republicans reversed
their position and “enthusiastically joined with then reluctant Democrats in Congress to pass the independent counsel
Reauthorization Act of 1994... so that an independent counsel would be available to investigate the President's
involvement in the Whitewater matter.” Id.
It is an indication of the deterioration of political behavior in the last several decades that the Independent Counsel
Act was originally needed because Republican partisanship had threatened to overwhelm prosecutorial integrity in the
Nixon Administration and that the Act was then destroyed by the Republican partisanship that infected Kenneth Starr's
work as independent counsel. To illustrate this, it is enough to observe that permanent independent special prosecutors-ready to prosecute government officials and employees when a regular prosecutor would have a conflict of interest or
be politically suspect--have been in operation in Sweden and Finland for hundreds of years without any controversy
over whether their behavior has been infected by partisanship. The Swedish justitiekansler (JK) was created in 1713,
and the first Swedish justitieombudsman (JO) in 1809 (there are now four). (Finnish law has historically derived from
Swedish law and has adopted the same institutions.) The JK and JO primarily do other work, but when needed, they
prosecute or supervise prosecution in situations where U.S. law has allowed ad hoc appointment of special prosecutors
(under the Attorney General's inherent authority) or independent counsel (under the Independent Counsel Act from 1978
to 1999 and under the Attorney General's inherent authority since then). The Swedish legislation uses the terminology
that American law has historically used: a special prosecutor (särskild åklagare). And the Swedish media use the same
term to refer to independent counsel acting as special prosecutors in the United States, as in this headline in a story
about independent counsel Patrick Fitzgerald's investigation of the Bush Administration's involvement in the Valerie
Plame affair: “Särskild åklagare utreder läckor från Vita huset” (“Special Prosecutor Investigates Leaks from the White
House”). Sveriges Radio, Dec. 31, 2003, http://www.sr.se/ekot/arkiv.asp? DagensDatum=2003-12-31&Artikel=345885
(last visited Apr. 21, 2007).
“When acting as a special prosecutor, a Justitieombudsman may prosecute an official who, in disregard of the obligations
of his office or commission, has committed a criminal offense....” 6 § Lag med instruktion för Riksdagens Ombudsmän
[JO-instruktionen] [Law with Instructions for the Riksdag's Ombudsmen] [1986:765], available at http://www.jo.se. “A
Justitieombudsman has a duty to commence and prosecute legal proceedings that the Committee on the Constitution
has decided to institute against a Minister pursuant to § 12:3 of the Instrument of Government....” Id. § 10. “The
Justitiekansler may, as a special prosecutor, begin prosecutions against government employees who have committed
criminal acts in disregard of the obligations of their office or commission.” 5 § Lag om justitiekanslerns tillsyn [Law on
the Justitiekansler's Authority] [1975:1339], available at http:// www.justitiekanslern.se. “No special prosecutor other
than the Justitiekansler or a Justitieombudsman may begin or continue a prosecution in the Supreme Court.” 7 ch. 8 §
Lag om ändring I rättegångsbalken [Law Amending the Procedure Code] [SFS 2001:280], available at http:// 65.95.69.3/
SFSdoc/01/010280.pdf.

882
883

28 U.S.C. § 49(c) (expired 1999).
Conason & Lyons, supra note 855, at 131.

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884

Id. The pathologists Fiske consulted told him that the evidence was so unequivocal that it was “one of the easiest cases”
in their experience. Benjamin Wittes, Starr: A Reassessment 83 (2002) (quoting Fiske).

885

Brock, supra note 854, at zx; Conason & Lyons, supra note 837, at 131; see also Toobin, supra note 872, at 70.

886

Toobin, supra note 872, at 71.

887

Id. at 71-72.

888

Conason & Lyons, supra note 855, at 132.

889

Toobin, supra note 872, at 73.

890

Id. at 72.

891

Conason & Lyons, supra note 855, at 132-33.

892

Toobin, supra note 872, at xiii, 72; Van Tassel & Finkelman, supra note 82, at 267.

893

In re Madison Guar. Sav. & Loan Ass'n, No. 94-1, 1994 WL 913274, *1 (D.C. Cir. Aug. 5, 1994).

894

Conason & Lyons, supra note 855, at 357.

895

Id. at 195-96.

896

Toobin, supra note 872, at 71.

897

Id. at 73.

898

Conason & Lyons, supra note 855, at 132.

899

See supra text accompanying notes 151-371; see also Cass R. Sunstei et al., Are Judges Political? An Empirical Analysis
of the Federal Judiciary (2006).

900

Deborah Sontag, The Power of the Fourth, N.Y. Times Mag., Mar. 9, 2003, at 38; see also Sunstein et al., supra note 899.

901

Andrew Peyton Thomas, Clarence Thomas: A Biography 319, 354-56 (2001).

902

Peter Baker, The Breach: Inside the Impeachment and Trial of William Jefferson Clinton 24, 33, 38, 94, 107-08, 127,
140, 170, 172, 200 (2000); Susan Schmitt & Michael Weiskopf, Truth at Any Cost: Ken Starr and the Unmaking of Bill
Clinton 8-12, 94-95, 101, 134, 145-48, 153-56, 191, 226-27, 246, 276 (2000).

903

Barr, supra note 168.

904

Brock, supra note 854, at 299.

905

H.R. Res. 304, 105th Congress (1997).

906

Brock, supra note 854, at 300-01.

907

Mark Halprin, Impeach, Wall St. J., Oct. 10, 1997, at A22.

908

Paul Gigot, A Stolen Election, Wall St. J., Oct. 17, 1997, at A22.

909

Brock, supra note 854, at 285.

910

Id. at 186.

911

Schmitt & Weiskopf, supra note 902, at 17-20.

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912

Schmitt & Weiskopf, supra note 902, at 35-36, 45.

913

Office of the Indep. Counsel, Appendices to the Referral to the U.S. House of Representatives Pursuant to Title 28, U.S.
Code, Section 595(c), Part 1, H.R. Doc. No. 105-311, at 6-7 (1998) [hereinafter Indep. Counsel Appendecies]; Toobin,
supra note 872, at xx.
Whoever drafted the Special Division's order--whether it was Starr's office or the Special Division itself--tried to hide
the fact that the real target was Clinton. The order expanded Starr's jurisdiction to “whether Monica Lewinsky or
others suborned perjury, obstructed justice, intimidated witnesses, or otherwise violated federal law....” Indep. Counsel
Appendecies, supra, at 6 (emphasis added). Starr later admitted that it was unwise for him to have asked for an enlarged
jurisdiction. John Rogers, Starr Has Mixed Feelings for Clinton, AP Online, Sept. 16, 1999; Kenneth Starr, What We've
Accomplished, Wall. St. J., Oct. 20, 1999, at A26. He did not admit that his own partisanship undermined the credibility
of his investigation, or that he had collaborated with Paul Jones's lawyers to set a trap for Clinton.

914

28 U.S.C. § 593(c) (1994); see also Ken Gormley, An Original Model of the Independent Counsel Statute, 97 Mich.
L. Rev. 601, 662-65 (1998); Karen A. Popp, The Impeachment of President Clinton: An Ugly Mix of Three Powerful
Forces, 63 L. & Contemp. Probs. 223, 228-31 (2000).

915

See Bob Woodward & Susan Schmidt, Starr Probes Clinton Personal Life, Wash. Post., June 25, 1997, at A1 (Starr's
office and FBI agents working under the office's direction “have questioned Arkansas state troopers in recent months
about their knowledge of any extramarital relations Bill Clinton may have had while he was Arkansas governor...
including Paula Corbin Jones.”).

916

Conason & Lyons, supra note 855, at 357.

917

Toobin, supra note 872, at xx.

918

Schmitt & Weiskopf, supra note 902, at 35-36, 45, 48.

919

Id. at 47-48.

920

See supra text accompanying notes 869-877.

921

Baker, supra note 902, at 427; Toobin, supra note 854, at xxi; Van Tassel & Finkelman, supra note 82, at 270. Clinton
testified at the White House, and on videotape, which was later shown to the grand jury. Van Tassel & Finkelman, supra
note 82, at 270.

922

Robert W. Gordon, Legalizing Outrage, in Aftermath: The Clinton Impeachment and the Presidency in the Age of Public
Spectacle 97, 105 (Leonard V. Kaplan & Beverly I. Moran eds., 2001).

923

Baker, supra note 902, at 427; Toobin, supra note 872, at xxi; see also Referral from Indep. Counsel Kenneth W. Starr
in Conformity with the Requirements of Title 28, U.S. Code, Section 595(c), H.R. Doc. No. 105-310 (1998).

924

Van Tassel & Finkelman, supra note 82, at 272.

925

Toobin, supra note 872, at 328-29; Van Tassel & Finkelman, supra note 82, at 273.

926

Toobin, supra note 872, at 328.

927

Gordon, supra note 922, at 106-07.

928

Baker, supra note 902, at 137.

929

Id. at 138.

930

Id. at 325.

931

Id. at 429; Toobin, supra note 872, at xxii.

932

Baker, supra note 902, at 174.

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933

Polling data from the period are compiled on the Polling Report website at http://www.pollingreport.com/wh-hstry.htm.
See Molly W. Andolina & Clyde Wilcox, Public Opinion: The Paradoxes of Clinton's Popularity, in The Clinton Scandal
and the Future of American Government 171 (Mark J. Rozell & Clyde Wilcox eds., 2000).

934

Id. The only serious exception was the polls taken for Fox News, which purported to show the public disapproved of
Clinton in virtually every poll Fox took from August 1998 until the end of Clinton's Presidency, even though every other
organization's polls, except in August 1998, showed the exact opposite. See infra note 941.

935

Baker, supra note 902, at 224.

936

See supra text accompanying notes 62-78.

937

Toobin, supra note 872, at 381.

938

Baker, supra note 902, at 45, 179.

939

See infra text accompanying notes 1093-1106.

940

The Washington Times was created in 1982 by the Rev. Sun Myung Moon, and has been heavily subsidized by his
organizations, to present right-wing views in competition with The Washington Post. A typical Washington Times story
on the Clintons claimed that Hillary Clinton is bisexual, and that Bill and Hillary Clinton “have had a pact for decades:
He gets to fool around with women, and she gets to fool around with women (plus the occasional man like Vince
Foster).” Jack Wheeler, Harry Potter and Bill Clinton, Wash. Times, June 30, 2004, at A17. The Washington Times has
frequently been challenged as deliberately inaccurate for political purposes, distorting facts to favor Republicans and
harm Democrats. See Dante Chinni, The Other Paper: The Washington Times's Role, Colum. Journalism Rev., Sept.Oct. 2002; Allen Freedman, Washington's Other Paper: Is the Time Right for the Times?, Colum. Journalism Rev., Mar.Apr. 1995.

941

The Fox News Channel was created by Rupert Murdoch, who owns the largest media empire in the world. Murdoch
hired as Fox News's chief executive officer Roger Ailes, a media strategist to the presidential campaigns of Richard
Nixon (1968), Ronald Reagan (1984), and George Bush (1988). Ken Auletta, Vox Fox: How Roger Ailes and Fox News
Are Changing Cable News, The New Yorker, May 26, 2003, at 58. According to former employees of Fox News, news
writers and reporters receive a daily memo instructing them on what to say about particular stories, often before the
staff has investigated those stories. Outfoxed: Rupert Murdoch's War on Journalism (Carolina Productions 2004). “I've
never heard of any other network or any legitimate news organization doing that,” said Walter Cronkite, the anchor for
CBS Evening News from 1962 to 1981, who believes Fox News is “a far right-wing organization.” Id. A former Fox
News reporter told Greenwald that his supervisors made it clear to him that Fox is not “a news gathering organization
so much as a proponent of a point of view,” and that “any ad-lib that made the Democrats look stupid or made the
Republicans look smart would get an ‘attaboy,’ a pat on the back, a wink and a nod.” Id. According to another former
Fox News staffer, “[w]atching Fox News at the end of [the] Clinton [administration], where it was all attack mode... and
then Bush takes power” in January 2001 “and they're like lap dogs. It was like night and day. It was a party line shift.”
Id. Although Fox News adopted a deferential tone toward the White House after Bush's inauguration, the network's
attitude toward the Clintons did not change. “Guess who's giving sympathy to illegal immigrants linked to terrorists,”
said a Fox News announcer in a typical story on Feb. 11, 2003, as footage of Hillary Clinton appeared on the screen:
“You're looking at her.” Auletta, supra.

942

Baker, supra note 902, at 225.

943

Id. at 251, 443.

944

Impeachment of William Jefferson Clinton, President of the U.S., Rep. of the Comm. on the Judiciary to Accompany
H.R. Res. 611, H.R. Rep. 105-830, at 2, 128-134; Baker, supra note 902, at 430.

945

Baker, supra note 902, at 430, 438-42; Turley, supra note 485, at 96-98.

946

144 Cong. Rec. H12040 (daily ed. Dec. 19, 1998).

947

Toobin, supra note 872, at 367; Turley, supra note 485, at 97 n.463.

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948

144 Cong. Rec. H12041-12042 (daily ed. Dec. 19, 1998).

949

Toobin, supra note 872, at 367; Turley, supra note 485, at 98 n.464.

950

Impeachment and Trial of President Clinton, supra note 853, at 174 (quoting Congressman Jerrold Nadler).

951

Id. at 170, 175.

952

House Party Divisions, supra note 199.

953

Baker, supra note 902, at 435.

954

Toobin, supra note 872, at 344.

955

369 U.S. 186, 192-95, 237 (1962).

956

1 Historical Statistics, supra note 439, at 5-193.

957

Senate Party Divisions, supra note 198.

958

House Party Divisions, supra note 199.

959

1 Historical Statistics, supra note 439, at 5-193.

960

Baker, supra note 902, at 251, 443.

961

Id. at 229.

962

Id. at 411-12, 444-45.

963

Id. at 431; Toobin, supra note 872, at xxii; Turley, supra note 485, at 101.

964

Charles Tiefer, The Senate Impeachment Trial for President Clinton, 28 Hofstra L. Rev. 407, 414 (1999).

965

Id.

966

Baker, supra note 902, at 360; Susan Low Bloch, A Report Card on the Impeachment: Judging the Institutions That
Judged President Clinton, 63 L. & Contemp. Probs. 143, 143-155 (2000); Tiefer, supra note 964, at 415.

967

Baker, supra note 902, at 361; Turley, supra note 485, at 106.

968

Blumenthal was a Clinton advisor accused of trying to smear Lewinsky.

969

Baker, supra note 902, at 432; Tiefer, supra note 964, at 416.

970

Tiefer, supra note 964, at 416.

971

Id. at 425-26.

972

Toobin, supra note 872, at xxii.

973

145 Cong. Rec. S1458 (daily ed. Feb. 12, 1999); Baker, supra note 902, at 438-42.

974

145 Cong. Rec. S1458-1459 (daily ed. Feb. 12, 1999); Baker, supra note 902, at 438-42.

975

Van Tassel & Finkelman, supra note 82, at 102.

976

Id. at 226.

977

See supra note 881.

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978

Michael J. Gerhardt, The Historical and Constitutional Significance of the Impeachment and Trial of President Clinton,
28 Hofstra L. Rev. 349, 368 (1999).

979

See supra text accompanying notes 227-242.

980

See supra text accompanying notes 482-488.

981

Gerhardt, supra note 687, at 175.

982

Id. at 176.

983

Gerhardt, supra note 978, at 369.

984

See supra text accompanying note 705; infra text accompanying note 1077.

985

Fred H. Altshuler, Comparing the Nixon and Clinton Impeachments, 51 Hastings L.J. 745, 746 (2000); see also id. at
747-48.

986

Id. at 747.

987

Baker, supra note 902, at 62.

988

Altshuler, supra note 985, at 746-47; see also id. at 748.

989

Van Tassel & Finkelman, supra note 82, at 268.

990

Wittes, supra note 884, at viii.

991

Id. at xi-xii, 26-28. The phrase “truth commission” is Wittes's, but Starr agreed with the concept and did not disagree
with the phrase. Id. at 212 n.69.

992

Dash, supra note 881, at 2081; see also Wittes, supra note 884, at 46-47, 66.

993

The Testing of a President; Letter of Resignation From Ethics Adviser, and Starr's Letter in Response, N.Y. Times, Nov.
21, 1998; see also Wittes, supra note 884, at 164-65.

994

See supra last five sentences of note 566.

995

Wittes, supra note 884, at 171-172, 207 n.27.

996

House Jud. Comm. Rpt. on Nixon, supra note 686, at 365.

997

Juliet Eilperin & John F. Harris, House GOP Pushes Wide Clinton Probe; President Wants Time and Subject Limits,
Wash. Post., Sept. 30, 1998, at A1.

998

116 Cong. Rec. 11913-11914 (1970); Van Tasssel & Finkelman, supra note 82, at 9, 59.

999

Trefousse, supra note 447, at x.

1000

Richard A. Posner, An Affair of State: The Investigation, Impeachment, and Trial of President Clinton 260 (1999).

1001

Gordon, supra note 922, at 108.

1002

Impeachment Inquiry: William Jefferson Clinton, President of the U.S., Hearing before the House Judiciary Comm.
Pursuant to H.R. Res. 581, Appearance of Indep. Counsel, 105th Cong. 18, 30, 113 (Comm. Print 1998).

1003

Nomination of Judge Clarence Thomas to be Assoc. Justice of the Supreme Court of the U.S., Hearings before the Senate
Judiciary Comm., 102d Cong., Part 1 253-54, 381-82, 481 [hereinafter Thomas Hearings, Part 1].

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1004

Id. at 381-82, 481; see also Timothy M. Phelps & Helen Winternitz, Capitol Games: Clarence Thomas, Anita Hill, and
the Story of a Supreme Court Nomination 68, 82-84, 89-90, 116-17, 146 (1992).

1005

Thomas Hearings, Part 1, supra note 1003, at 260-61, 610-11.

1006

Thomas, supra note 901, at 354-55.

1007

410 U.S. 113 (1973).

1008

Thomas Hearings, Part 1, supra note 1003, at 172-73 (emphases added).

1009

Id. at 180 (emphases added).

1010

Id. at 222-23 (emphases added).

1011

Id. at 244 (emphasis added).

1012

James M. Wall, Hidden Treasures: Searching for God in Modern Culture 109 (1997).

1013

See supra text accompanying note 999.

1014

Thomas, supra note 901, at 355.

1015

Id.

1016

Thomas Hearings, Part 1, supra note 1003, at 129-131.

1017

Id. at 127-129, 146

1018

Id. at 129-130.

1019

Id. at 128, 146, 389.

1020

Thomas, supra note 901, at 376-77.

1021

Jane Meyer & Jill Abramson, Strange Justice: The Selling of Clarence Thomas 55 (1994).

1022

1023
1024
1025
1026
1027
1028
1029
1030

Planned Parenthood of Se. Penn. v. Casey, 505 U.S. 833, 944 (1992) (Rehnquist, J., concurring in part, dissenting
in part).
Id. at 979 (Scalia, J., concurring in part, dissenting in part).
Id. at 953-54 (Rehnquist, J., concurring in part, dissenting in part).
Id. at 981 (Scalia, J., concurring in part, dissenting in part).
Stenberg v. Carhart, 530 U.S. 914 (2000).
Id. at 980-1020 (Thomas, J., dissenting).
Id. at 980.
Roe v. Wade, 410 U.S. 113 at 171-78 (Rehnquist, J., dissenting).
Doe v. Bolton, 410 U.S. 179, 221-23 (1973) (White, J., dissenting).

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1031

See

Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320 (2006); Voinovich v. Women's Med. Prof'l Corp.,

523 U.S. 1036 (1998) (Thomas, J., dissenting from denial of certiorari);

Lambert v. Wicklund, 520 U.S. 292 (1997);

Leavitt v. Jane L., 518 U.S. 137 (1996);
Janklow v. Planned Parenthood, Sioux Falls Clinic, 517 U.S. 1174, 1176
(1996) (Thomas, J., joining Justice Scalia's dissent to denial of certiorari).
1032

Nomination of Judge Clarence Thomas to be Assoc. Justice of the Supreme Court of the U.S., Hearings before the Senate
Judiciary Comm., 102d Cong., Part 4 38 [hereinafter Thomas Hearings, Part 4].

1033

Id. at 38-39.

1034

Id. at 39.

1035

Id. at 157. Thomas repeated the denials at other points in his testimony. See, e.g., id. at 6, 162-63, 185, 201, 218.

1036

Id. at 337-515; see also Fed. R. Evid. 404 (“Evidence of a person's character or a trait of character is not admissible for
the purpose of proving action in conformity therewith on a particular occasion,” with exceptions not relevant here).

1037

Thomas Hearings, Part 4, supra note 1032, at 354-56; see also Fed. R. Evid. 602 (“A witness may not testify to a matter
unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.”).

1038

Thomas Hearings, Part 4, supra note 1032, at 105.

1039

Id.

1040

U.S. Merit Sys. Prot. Bd., Sexual Harassment in the Federal Workplace: Trends, Progress, and Continuing Challenges 29
(1995) (“The single most common response of employees who are targets of sexual harassing behaviors... has been, and
continues to be, to ignore the behavior or do nothing”); Nina Burleigh & Stephanie B. Goldberg, Breaking the Silence:
Sexual Harassment in Law Firms, 75 A.B.A. J. 46, 48, 51 (1989) (“[O]ne of the reasons women lawyers don't report
harassment is that they feel inadequate for not being able to cope with it on their own.... A lot of women won't object to
harassment because they're afraid of alienating their mentors.”); Louise F. Fitzgerald et al., Why Didn't She Just Report
Him? The Psychological and Legal Implications of Women's Responses to Sexual Harassment, 51 J. Soc. Issues 117
(1995); Louise F. Fitzgerald, Science v. Myth: The Failure of Reason in the Clarence Thomas Hearings, 65 S. Cal. L. Rev.
1399 (1992); Joanna L. Grossman, The Culture of Compliance: The Final Triumph of Form Over Substance in Sexual
Harassment Law, 26 Harv. Women's L.J. 3, 23-26, 51-57 (2003); Joanna L. Grossman, The First Bite is Free: Employer
Liability for Sexual Harassment, 61 U. Pitt. L. Rev. 671, 723-28 (2000); James F. Gruber & Michael D. Smith, Women's
Responses to Sexual Harassment: A Multivariate Analysis, 17 Basic & Applied Psych. 543 (1995); James E. Gruber,
How Women Handle Sexual Harassment: A Literature Review, 74 Soc. Sci. Res. 3 (1989); James E. Gruber & Lars
Bjorn, Women's Responses to Sexual Harassment: An Analysis of Sociocultural, Organizational, and Personal Resource
Models, 67 Soc. Sci. Q. 814 (1986); Linda Hamilton Krieger, Employer Liability for Sexual Harassment-Normative,
Descriptive, and Doctrinal Interactions: A Reply to Professors Beiner and Bisom-Rapp, 24 U. Ark. Little Rock L. Rev.
169, 175-84 (2001); David E. Terpstra & Douglas D. Baker, The Identification and Classification of Reactions to Sexual
Harassment, 10 J. Org. Behav. 1, 12 (1989). For the reasons the Republicans argued, Andrew Peyton Thomas, however,
believes that Hill was not credible; although his citations are confused, it appears that he was relying in part on David
Brock's book, which Brock later repudiated, and on rumor disseminated by the Republicans. See Thomas, supra note
901, at 392, 447, 634.

1041

Thomas Hearings, Part 4, supra note 1032, at 273-333.

1042

Steven Roberts, The Crowning Thomas Affair, U.S. News & World Rep., Sept. 16, 1991 (describing how he liked to
watch “x-rated movies”).

1043

Meyer & Abramson, supra note 1021, at 55 (“By the time he reached Yale Law School, Thomas was known for not
only for the extreme crudity of sexual banter, but also for avidly watching pornographic films and reading pornographic
magazines, which he would describe to friends in lurid detail.”). See Brock, supra note 854, at 237-38, 242-45.

1044

Meyer & Abramson, supra note 1021, at 330, 335 (1994); see also id. at 327-31.

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1045

Id. at 333.

1046

Thomas, supra note 901, at 402.

1047

Meyer & Abramson, supra note 1021, at 330, 335; see also id. at 327-31.

1048

Thomas, supra note 901, at 266.

1049

Meyer & Abramson, supra note 1021, at 321-27; Thomas, supra note 901, at 438.

1050

Thomas, supra note 901, at 265.

1051

Meyer & Abramson, supra note 1021, at 342-43. Contra Thomas, supra note 901, at 442.

1052

Meyer & Abramson, supra note 1021, at 343.

1053

Id. at 348.

1054

Supreme Court Nominations (1789-present), supra note 748.

1055

Simon, supra note 530, at 142 (quoting Garry Wills).

1056

Brock, supra note 854, at 87-120.

1057

See supra text accompanying notes 861-862.

1058

Brock, supra note 856.

1059

See Meyer & Abramson, supra note 1021.

1060

Brock, supra note 854, at 247-48.

1061

Id. at 295.

1062

Anita Hill, Speaking Truth to Power (1997).

1063

Brock, supra note 854, at 295.

1064

Id. at 89.

1065

Id. at 18, 151.

1066

Thomas, supra note 901, at 179-80, 208, 316, 318-19.

1067

Brock, supra note 854, at 89.

1068

Under the federal perjury statute, “[w]hoever... having taken an oath before a competent tribunal, officer, or person, in
any case in which a law of the United States authorizes an oath to be administered, that he will testify... truly... willfully
and contrary to such oath states or subscribes any material matter which he does not believe to be true... is guilty of
perjury and shall, except as otherwise expressly provided by law, be fined under this title or imprisoned not more than
five years, or both.” 18 U.S.C. § 1621(1) (2007). Any congressional committee, and “[a]ny member of either House of
Congress” is authorized to administer oaths to witness testifying before any body of Congress. 2 U.S.C. § 191 (2007).
Lying under oath before a congressional committee will support a conviction for perjury.
346 U.S. 374 (1953);

United States v. Debrow,

United States v. Norris, 300 U.S. 564 (1937).

1069

See supra text accompanying notes 666-670.

1070

Simpson, supra note 67, at 60.

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1071

Id. at 61.

1072

Id. This kind of circumlocution was a Victorian device for avoiding mentioning sex. Simpson was referring to Grover
Cleveland, who was accused of having fathered a child out of wedlock but was nevertheless twice elected President.
His political opponents chanted, “Pa! Pa! Where's my Pa? Gone to the White House--hah, hah, hah!”

1073

Id.

1074

Id.

1075

Id.

1076

Id. at 207-13 (emphasis added).

1077

See Gerhardt, supra note 231, at 120 n.134.

1078

Ybarra v. Illinois, 444 U.S. 85, 91 (1979).

1079

Fed. Judicial Ctr., Pattern Criminal Jury Instructions, at Instruction 21.

1080

Hale v. Dep't of Transp., FAA, 772 F.2d 882, 885 (Fed. Cir. 1985).

1081
1082

Colorado v. New Mexico, 467 U.S. 310, 316 (1984).
Addington v Texas, 441 U.S. 418 (1979).

1083

Labovitz, supra note 74, at 192-93; Stanley N. Futterman, The Rules of Impeachment, 24 U. Kan. L. Rev. 105, 136
(1975); Ronald D. Rotunda, An Essay on the Constitutional Parameters of Federal Impeachment, 76 Ky. L.J. 707, 719
(1987-88).

1084

House Jud. Comm. Rpt. on Nixon, supra note 686, at 359, 377, 380-81.

1085

Nixon v. United States, 506 U.S. 224, 238 (1993).

1086

Senate Impeachment Rule XI, in Senate Manual, S. Doc. No. 101-1, 186 (1989).

1087

U.S. Const. art. I, § 3, cl. 6.

1088
1089

1090

Nixon, 506 U.S. at 228.
Id. at 229-33. The Impeachment Trial Clause does impose three requirements on the Senate. First, each Senator must
take an oath or affirmation to try the case faithfully. Second, the Impeachment Trial Clause requires that “[w]hen the
President of the United States is tried, the Chief Justice shall preside ....” And third, a super-majority of two-thirds is
required to convict. U.S. Const. art. I, § 3, cl. 6.
Nixon, 506 U.S. at 238.

1091

See Gerhardt, supra note 687, at 40-42, 112-13.

1092

Proceedings of the U.S. Senate in the Impeachment Trial of Harry E. Claiborne, a Judge of the U.S. Dist. Court for the
Dist. of Nev., S. Doc. No. 99-48, at 47, 105-08 (1986).

1093

Senator Sam Ervin, Jr.: “In a case of this kind, if we are called upon to try an impeachment, I would not hope for
conviction on any charge unless I was satisfied beyond a reasonable doubt of the truth of the charges.” Id. Senator Strom
Thurmond: “The penalty of impeachment is severe. It is not a criminal penalty, but I know of no penalty that would be
more severe than to remove once again a President from office. And therefore I believe the evidence should be beyond

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a reasonable doubt.” Id. Senator John C. Stennis: “Where any party is charged with an impeachable offense, and is tried
by the Senate..., be it a so-called minor official on up to the highest official under our Constitution, then I think the
proof required ought to be beyond a reasonable doubt....” Id. The fourth Senator, Robert A. Taft, Jr., was quoted only
indirectly and only in a somewhat confusing way in oral argument. Id. at 107. Citations for these statements were not
provided in the motion or in oral argument, and it is impossible to tell whether they were made on the Senate floor, to
reporters, or in some other setting.
1094

Id. at 107-08.

1095

Id. at 150.

1096

Id. (Thurmond and Stennis).

1097

Id. (Thurmond voted nay, and Stennis did not vote.)

1098

Gerhardt, supra note 687, at 42.

1099

Id. at 209 n.69.

1100

Michael J. Gerhardt, The Impeachment and Acquittal of William Jefferson Clinton, in The Clinton Scandal and the
Future of American Government, supra note 933, at 142, 146.

1101

Id.

1102

Id.

1103

Popular votes for President were not tabulated before 1824. Since then, only one presidential candidate has won a larger
percentage of the popular vote than Roosevelt's 60.80%. In 1964, Lyndon Johnson received 61.05%. But Roosevelt
carried more states and received more electoral votes than Johnson did. (The most respected and accessible source of
presidential election statistics is Dave Leip's Atlas of U.S. Presidential Elections, http://www.uselectionatlas.org (last
visited Apr. 21, 2007)). More importantly, as a result of the 1936 elections, the Democrats controlled the Senate and
House by much greater margins than after the 1964 elections, or at any other time since the early 1820s, when there
was only one real political party.

1104

See infra tbl. 5.

1105

Clerk of the House of Representatives, Statistics of the Presidential and Congressional Election of Nov. 2, 2004, at 38,
65 (2005) (including, in New York, minor party votes for major party candidates) [herinafter Nov. 2, 2004 Presidential
Statistics]; Clerk of the House of Representatives, Statistics of the Presidential and Congressional Election of Nov. 5,
2002, at 53 (2003); Clerk of the House of Representatives, Statistics of the Presidential and Congressional Election of
Nov. 7, 2000, at 43, 76 (2001) [herinafter Nov. 7, 2000 Presidential Statistics] (including, in New York, minor party votes
for major party candidates, but not including the Missouri vote because the successful 2000 candidate was deceased on
election day, resulting in an appointed Senator who was defeated in a 2002 special election).

1106

Population by State based on 2000 Census, at http:// factfinder.census.gov/servlet/GCTTable?_bm=y&geo_id=01000US&-_box_head_ nbr=GCT-PH1-R&-ds_name=DEC_2000_SF1_U&-format=US-9S (last visited Apr.
21, 2007).
In a state legislature, this would violate the Equal Protection Clause of the Fourteenth Amendment.
Baker v. Carr,
369 U.S. 186 (1962) (unconstitutional for a voter in one Tennessee county to have 23 times as much power in choosing
legislators as a voter in another county). The Senate is exempt from the Equal Protection Clause in this respect because
of a compromise at the Constitutional Convention that created an upper house of Congress, the Senate, as an assembly of
states in which all states were equal, regardless of size. This compromise was considered necessary to induce the smaller
of the original thirteen states to ratify the Constitution. But of those original small states, only three are still small. The
others have since become medium-sized states and are now hurt by the compromise intended to benefit them. The states
that now benefit from it were almost entirely admitted to the Union later, most of them more than a century after the
Constitutional Convention. A Senate apportioned this way is not an essential feature of a federal form of government.
In Canada, provinces are more autonomous than U.S. states are, but in the Canadian Senate provinces are represented
in proportion to their populations. To a lesser extent, so are German states in the German federal parliament.

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1107

Senate Party Divisions, supra note 198.

1108

1 Historical Statistics, supra note 439, at 5-194.

1109

Senate Party Divisions, supra note 198.

1110

Id.

1111

House Party Divisions, supra note 199.

1112

Id.

1113

1 Historical Statistics, supra note 439, at 5-193 (for 1970 through 2000 elections); Clerk of the House of Representatives,
Statistics of the Presidential and Congressional Election of Nov. 5, 2002, at 31-33, 51-52 (2003) (for 2002 election)
(including, in New York, minor party votes for major party candidates); Clerk of the House of Representatives, Statistics
of the Presidential and Congressional Election of Nov. 2, 2004, at 39-41, 66-67 (2005) (for 2004 election) (including,
in New York, minor party votes for major party candidates).
For elections before the late 1960s, aggregating popular votes nationally for the House is of limited statistical validity
because most affected states were not yet in compliance with the Voting Rights Act of 1965,

42 U.S.C. §§

1971- 1973i, which greatly increased voting in the South, and with
Baker v. Carr, 369 U.S. 186 (1962), which
required legislative districts (other than those of the U.S. Senate) to be of equal size.
1114

369 U.S. 186 (1962).

1115

See supra tbl. 6.

1116

Ralph Blumenthal, After Bitter Fight, Texas Senate Redraws Congressional Districts, N.Y. Times, Oct. 13, 2003, at A1.

1117

Grace York, Comparison of House of Representatives, 109th and 108th Congresses (2004), http://www.lib.umich.edu/
govdocs/congress/hou05c.pdf.

1118

87th Congress, 1st Session.

1119

Senators Harry Byrd (Virginia), James Eastland (Mississippi), Allen Ellender (Louisiana), Spessard Holland (Florida),
Olin Johnston (South Carolina), Everett Jordan (North Carolina), John McClellan (Arkansas), Willis Robertson
(South Carolina), Richard Russell (Georgia), George Smathers (Florida), John Sparkman (Alabama), John Stennis
(Mississippi), Herman Talmadge (Georgia), and Strom Thurmond (South Carolina). If the Representatives who fit this
description were listed here, this footnote would fill the page and continue onto the next one.

1120

Senators George Aiken (Vermont), J. Glenn Beall (Maryland), J. Caleb Boggs (Delaware), John Butler (Maryland),
Clifford Case (New Jersey), John Cooper (Kentucky), Jacob Javits (New York), Kenneth Keating (New York), Thomas
Kuchel (California), Winston Prouty (Vermont), Leverett Saltonstall (Massachusetts), Hugh Scott (Pennsylvania), and
Margaret Chase Smith (Maine). For why it is impractical to list here the Representatives who fit this description, see the
last sentence of the preceding note. After long careers in elective office, Case, Javits, and Kuchel were defeated not in
general elections, but in Republican primaries by right-wing opponents as their party shifted to the right.

1121

See infra tbl. 7.

1122

Nov. 2, 2004 Presidential Statics, supra note 1105, at 64; Nov. 7, 2000 Presidential Statistics, supra note 1105, at 74
(2001); Clerk of the House of Representatives, Statistics of the Presidential and Congressional Election of Nov. 5, 1996,
at 79 (1997); Clerk of the House of Representatives, Statistics of the Presidential and Congressional Election of Nov.
3, 1992, at 83 (1993).

1123

Gerhardt, supra note 1100, at 144.

1124

See supra text accompanying notes 8-12.

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56 Fla. L. Rev. 541
Florida Law Review
July, 2004
Article

Stephen A. Siegel a1
Copyright (c) 2004 Florida Law Review; Stephen A. Siegel

THE CONSCIENTIOUS CONGRESSMAN'S GUIDE TO THE ELECTORAL
COUNT ACT OF 1887
*542 I. Introduction
Electoral vote counting is the oldest activity of the national government and among the oldest questions of constitutional law. 1

It was Congress's first task when a quorum appeared in the nation's new legislature on April 6, 1789. 2 It has happened every
four years since then. Yet, electoral vote counting remains one of the least understood aspects of our constitutional order.
The Electoral Count Act of 1887 (ECA) lies at the heart of this confusion. In enacting the ECA, Congress drew on lessons

learned from its twenty-five previous electoral counts; 3 it sorted through innumerable *543 proposals 4 floated before and

after the disastrous presidential election of 1876; 5 and it thrashed out the ECA's specific provisions over fourteen years of

sustained debate. 6 Still, the law invites misinterpretation. The ECA is turgid and repetitious. Its central provisions seem

contradictory. 7 Many of its substantive rules are set out in a single sentence that is 275 words long. 8 Proponents of the law
admitted it was “not perfect.” 9 Contemporary commentators were less charitable. John Burgess, a leading political scientist
in the late nineteenth century, pronounced the law unwise, incomplete, premised on contradictory principles, and expressed in
language that was “very confused, almost unintelligible.” 10 At least he thought the law was constitutional; 11 others did not. 12

*544 Over the nearly 120 years since the ECA's adoption, the criticisms faded, only to be renewed whenever there was

a close presidential election. 13 Our ability to misunderstand the ECA has grown over time. During 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. The Supreme Court, for example,
mistakenly believed that the Supreme Court of Florida's erroneous construction of its election code would deny Florida's electors

the ECA's “safe harbor” protection; 14 Florida Governor Jeb Bush's hasty submission of his state's Certificate of Ascertainment

was untimely under the Act; 15 and Democratic members of Congress framed their objections to accepting Florida's electoral

vote on the wrong grounds. 16 Even Al Gore, the *545 presidential candidate contesting the election's outcome, misread the
federal deadline for seating Florida's electors. 17

The purpose of this Article is to explain the provisions of the Electoral Count Act of 1887 as it was understood by the

Congresses that debated and enacted it. Although the ECA has been the subject of scholarly interpretation, 18 no prior work has
studied the Act by embedding it in a comprehensive exploration of its legislative history, the history and theory of electoral vote
counting, and the legal and political assumptions of the Congresses that framed it. No prior study has focused on the interplay
between the ECA's various sections and its substantive and procedural provisions. Indeed, the ECA's procedural provisions
have never before been subject to sustained analysis.

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As a foundation for interpreting the ECA, Part II of this Article sets forth the background assumptions and experiences of the
Congresses that struggled, for fourteen years, with electoral count reform. 19 Part III then, explicates the ECA in light of its
legislative history, its underlying assumptions, and the history of Congress's previous electoral counts.

In undertaking this analysis, the Article does not discuss whether the ECA is constitutional 20 or whether congressional action
under it is subject to judicial review. 21 Neither does it discuss the related question of whether the ECA is a statute that binds

Congress or simply a joint rule adopted in statutory form to give it greater prominence and political, but not legal, permanence. 22
This Article does discuss the complex views the framers of *546 the ECA had on these subjects to the extent they impact
the Act's interpretation.
The focus of this Article is on what the ECA's framers meant by its various provisions. This issue is preliminary to assessing
many questions concerning the ECA's constitutionality and whether there is judicial review. Determining whether the ECA is
unconstitutional because it purports to bind Congress, for example, turns on whether the Act does in fact bind Congress on

any issue. 23 How the ECA's framers understood the Act is also preliminary to any instance of judicial review because it helps
determine whether Congress's application of the ECA complies with its mandates. 24

The issue of whether the Act is a binding statute or only a joint rule enacted in statutory form matters, of course, if Congress
or either House wishes to alter or rescind it. If the ECA is a binding statute, altering or rescinding it requires a majority vote in

both houses of Congress and the President's approval, or passage over his veto. 25 If the ECA is a joint rule, it can be altered by
congressional action without presidential presentment, or it can be rescinded by unilateral action of one house. 26 But whether
Congress, or one of its houses, should amend or rescind the ECA turns, in part, on what it provides.

Moreover, to members of Congress, until a majority of at least one house wishes to amend or rescind the ECA, the issue of
whether it is a statute or a joint rule does not matter. Whether the ECA is a statute or a joint rule, it provides the regulations that
currently govern Congress when it is called upon to count electoral votes. Until a majority of at least one house votes to rescind
it, members of Congress are bound by it as they are bound by any other rule of congressional practice.
Consequently, this Article is written for the conscientious congressman who wishes to know what the ECA provides for purposes
of applying it, should the occasion arise. Members of Congress can implement the ECA only if they understand its provisions.
The interested public, as well as the judiciary, can assess Congress's compliance only if they too understand its terms. Assuming
the ECA is constitutional, this Article provides a guide *547 to the current rules that govern Congress when, every four years,
it is called upon to count electoral votes in a presidential election.
II. The Premises of the Electoral Count Act
The Congresses that debated and passed the ECA appreciated that few matters of statecraft were more important than public

“confidence” 27 in the “legitima[cy]” 28 of the “transmission of the supreme executive authority from one person to another.” 29
Yet, in enacting a statute for “a quiet, orderly, accepted, lawful method of deciding [the] vexed and troublesome question” of

electoral vote counting, 30 Congress faced a fundamental dilemma. On the one hand, in determining the outcome of a closely
contested presidential election, Congress knew that there had to be a final decision-maker, be it a person, tribunal, or institution.
As Senator Thomas Bayard reminded his colleagues near the outset of Congress's long struggle to enact the ECA, “[e]very
human dispute, every human right, however important, must reach a finality to be controlled by human methods.” 31 On the
other hand, Congress also knew that in a close presidential election, no decision-maker, be it a person, tribunal, or institution,
could be trusted to render a neutral decision according to rules laid down in advance. 32
Fundamental to the difficulty in framing the ECA was the knowledge that:
It has been demonstrated time and again that the political conscience is a flexible and elastic rule of action that
readily yields to the slightest pressure of party exigencies . . . . When *548 the great office of President is at
stake, with the immense patronage at its disposal, it would be expecting too much of human nature, under the

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tyranny of party, to omit any opportunity to accomplish its ends, more especially under that loose code of morals
which teaches that all is fair in politics, as in war or in love. 33

From recent, firsthand experience, Congress knew that when the presidency hung in the balance, all were partisan. Senator
Benjamin Hill, a Democrat from Georgia, reminded his colleagues that during the Hayes-Tilden election dispute of 1876-77:
[Rather than] rise above party and remember [their] country and only [their] country, . . . [a]ble men, learned men,
distinguished men, great men in the eyes of the nation, seemed intent only on accomplishing a party triumph,
without regard to the consequences to the country. That is human nature. That is, unfortunately, party nature. 34

Representative Thomas Browne, a Republican from Indiana, was equally convinced that whether final authority was held by
state or federal legislators, judges, executive officials, or administrators, when a presidential election was disputed, all were
affected by party spirit. 35 When the issue was “the title to the Presidential office, the incumbent of which holds within his
grasp more than 100,000 offices, with hundreds of millions of patronage,” Browne
assum[ed] the fact to have been demonstrated that, whether in a legislative body or in a judicial tribunal, we shall
find judges and legislators on the side of their party-not always; but it is tendency of human nature. I am not
attacking anybody; I am not attacking the providence or wisdom of almighty God that has created us with our
feelings of prejudice and sympathy. 36

Browne concluded that he would even “fear myself . . . if I were supreme judge upon such a question. I should fear to take upon
myself the responsibility of settling a question of this character; I should fear that my judgment might be found in the line of
my political convictions and party prejudices.” 37

*549 Resolving this dilemma took Congress fourteen years of sustained effort. 38 During that time, the Senate passed five

bills and one proposed joint rule, only to see them die in the House of Representatives. 39 Congressmen from both houses and

both parties universally described the ultimately successful law as a bipartisan measure 40 and as a matter in *550 which all

sides compromised on deeply held principles. 41 Those compromises, and the ECA as enacted, rely on a network of premises
about the role and powers of Congress in relation to the electoral system-premises which are useful to review before exploring
the ECA in detail. In addition, the compromises and the ECA as enacted reflect certain preconceptions about election law and
administrative law that were widely shared by nineteenth-century lawyers and politicians. As these nineteenth-century views
are not widely known to modern legal commentators, it is useful to review them as well.
A. Congress's Role in the Presidential Electoral System
In enacting the ECA, Congress relied on three fundamental premises concerning its role in presidential elections: Congress,
organized as two independent houses, has the right to count electoral votes; Congress's right to count votes includes the right
to settle disputes over whether a vote is entitled to be counted; and Congress can regulate how it counts electoral votes through

legislation, concurrent rule, or joint rule. 42 Throughout the nineteenth century, these premises were quite controversial. Many
nineteenth-century congressmen doubted them, including some who voted for the ECA. 43
*551 1. Congress's Power to Count Electoral Votes
That Congress, organized as two independent houses, has the right to count the states' electoral votes was the subject of intense

controversy and debate throughout the nation's first century. 44 The Constitution treats several aspects of the presidential election

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system with clarity and detail. For example, the Constitution clearly commits the power to appoint presidential electors to “Each
State” to be exercised “in such Manner as the Legislature thereof may direct.” 45 It specifies the electors' qualifications 46 and

narrates at length when, where, and how they are to exercise their office, 47 including the requirement that each state's electors
“transmit” the result of their balloting “sealed to the seat of the government of the United States, directed to the President of

the Senate.” 48 But when it comes to collating and counting the electors' votes, the Constitution turns remarkably cryptic: “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.” 49

Over the course of the nation's first century, five strongly defended interpretations developed around this enigmatic provision.

According to these varying views, the power to count electoral votes was lodged in: (1) the President of the Senate; 50 (2)
the House of Representatives (for presidential electoral votes) and the Senate (for vice-presidential electoral votes); 51 (3) the
House and Senate with each congressman having one vote; 52 (4) the House and Senate with each chamber having one vote; 53
and *552 (5) no one, until Congress designates a vote counter by concurrent rule or legislation. 54

The standard history of electoral vote counting is that the “President of the Senate” theory 55 prevailed in the early years of the
Republic, that the “casus omissis” theory 56 prevailed from 1821 to 1861, and that the “Congress organized as two separate

houses” theory 57 has prevailed since 1865. 58 I believe that Congress asserted control and the right to count electoral votes

from very early on, certainly by 1800. 59 But whatever the history of the dominant theory, two points are clear. First, all of the

theories had staunch defenders in and out of Congress until the passage of the ECA in 1887. 60 The proponents of the ECA had
to contend with advocates of all of these theories and their many variants.
Second, although each theory had substantial arguments in its favor, by the 1880s, history and politics had awarded the palm

of victory to the theory that Congress, organized as two independent houses, had ultimate vote counting authority. 61 In 1865,
Congress had swept aside all ambiguity about the locus of the counting power with the passage of the 22d Joint *553 Rule. 62
The 22d Joint Rule provided that “no [electoral] vote objected to shall be counted, except by the concurrent votes of the two

houses [of Congress].” 63 With the 22d Joint Rule, the two houses of Congress unmistakably asserted their power to determine
all questions regarding electoral votes.
Congress adopted the 22d Joint Rule specifically to allow itself to refuse to count electoral votes which might be proffered

by the southern states that were just then ending their rebellion. 64 Although Louisiana and Tennessee submitted packets of

electoral votes, Vice President Hannibal Hamlin did not present them to Congress when it met to count the vote. 65 Thus,
Congress did not have occasion to use the 22d Joint Rule to exclude any votes in the year of its adoption. But in 1873, with the
22d Joint Rule still in effect, the two houses did reject electoral votes from the fully reconstructed states of Georgia, Louisiana,
and Arkansas on the following *554 grounds: Georgia's electors had voted for a constitutionally disqualified candidate; the
Louisiana electors' credentials were not based on a canvass by the state's lawful returning board; and there had been no lawful
election in Arkansas. 66

The Senate unilaterally rescinded the 22d Joint Rule in early 1876, well before that year's close and controverted election. 67
After the election, Congress was faced with multiple sets of returns from Florida, Louisiana, South Carolina, and Oregon, and

objections to a number of electoral votes from other states. 68 In response, Congress not only reasserted its right to determine
which votes were proper, but also created a bipartisan Electoral Commission, composed of five senators, five representatives,

and five Supreme Court justices, to help settle the multiple-return disputes. 69 By the 1880s, congressmen who located the
counting power somewhere other than in Congress (organized as two independent houses) were a noisy and persistent lot, albeit
a distinct minority. 70

Proponents of the “Congress organized as two separate houses” theory knew the practical shortcomings of their approach. The
theory Congress adopted was problematic because of the frequency in which a final tribunal composed of two decision-makers
might disagree and, therefore, produce a tie result. 71 The effect of a tie, or how to avoid a tie, became one of the major issues

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of the ECA debate. 72 Bicameralism was a blessing in the slow *555 and deliberate process of law creation, but it was a curse
in electoral vote counting when dispatch and clear results were needed.
Also troubling was the effect of giving final decision-making authority to an institution with insufficient time and organizational
capacity for exacting inquiry into the many factual and legal matters on which the legality of an electoral vote might turn. This
problem, too, shaped the ECA debate. 73 Indeed, it is unclear whether the failure to legislate some tribunal other than Congress
as the ultimate arbiter of the electoral count was because Congress believed, as a matter of policy, it should not move it elsewhere,
or because Congress believed that in the absence of a constitutional amendment, it could not move the responsibility elsewhere.
In light of Congress's institutional shortcomings, many of the ECA's proponents longed for an arbiter armed with “judicial”

procedures and powers to referee disagreements between the houses. 74 Others did not want an arbiter, believing that the nation's
two ultimate representative political bodies were the appropriate forum of last resort for contested presidential elections. 75
They regarded the only arbiter that had ever been appointed-the Electoral Commission of 1877 on which five Supreme Court

justices held the deciding votes-as a dismal failure never to be repeated. 76 As Senator George Hoar, one of the ECA's main
proponents, concluded: “[I]n the present state of political and public sentiment,” it was “impossible to expect an agreement
on . . . an arbiter between the two branches” of Congress. 77 There was simply no person or institution that could be trusted. 78

*556 In sum, despite prudential concerns, the theory that the Constitution designated Congress, organized as two independent
houses, to count the states' electoral votes predominated by the 1860s, if not much earlier. That theory was a premise of the
ECA. 79

2. Congress's Power to Determine Which Electoral Votes to Count
Closely related to the issue of who had the power to count electoral votes, and even more contentious, was the issue of the scope
of the vote-counting power. 80 That the power to count electoral votes included the power to determine whether a vote ought to
be counted was a subject of sharp dispute during the nation's first century. Throughout that time, some congressmen claimed that
Congress had to count whatever electoral votes came in from the states with the appropriate authenticating documentation. 81
These congressmen argued that the electors would authenticate their own acts and the states' right to appoint electors included
the power to determine all questions regarding the legality of their vote. 82 Congress's duty as vote counter was ministerial; 83
it was simply an arithmetical endeavor.

Throughout the same period, there were other congressmen with a more nationalist perspective who conceived presidential

elections as a federal matter. 84 According to these congressmen, Congress properly had a role in *557 assessing the legality
of the electoral votes that came before it, even to the extent of going behind the returns to ensure that the true voice of the people
of a state was properly heard, and to prevent fraud in one state from marring or determining an election where all the states were
concerned. 85 Some congressmen went so far as to assert that in all cases “it was the intention of the framers . . . to leave it to
the discretion of the two Houses, who represent the States and the people, to count the vote at every election in such manner

as they may think accords with justice on the particular occasion.” 86 Still other congressmen were more circumspect, arguing

that Congress's power varied with the type of objection raised against the reception of a particular electoral vote. 87

Because the question implicated controversial issues of states' rights and national power, Congress spent the larger part of
the nineteenth century avoiding taking a stand on the scope of its vote counting power. 88 Up until 1865, Congress governed

electoral counts by passing concurrent resolutions for each count. 89 Frequently framed with the anticipated problems of each

count in mind, the resolutions sought to sidestep problems rather than resolve them. 90 In 1865, with the adoption of the 22d Joint
Rule, Congress asserted unfettered discretion to reject electoral votes when only one house of Congress objected to receiving the
votes. 91 In the *558 mid-1870s, however, Congress drew back from the prudence, if not the constitutionality, of the 22d Joint
Rule's approach. 92 Post-Reconstruction congressmen saw themselves as attempting to strike the proper balance between the
states' right to appoint electors and have their electoral votes counted, and the federal interest in counting only “legal votes.” 93
The ECA debates show Congress struggling to flesh out a more nuanced approach to its power to reject electoral votes. 94

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That approach turned on whether Congress received single or multiple sets of electoral votes from a state, on whether the state
had attempted to resolve any controversy over its electors' election, and on the type of objection made to the acceptance of
electoral votes by Congress. 95

Thus, understanding the ECA turns on differentiating among the different types of disputes that might arise when Congress
meets to count electoral votes. The Congresses that debated the ECA were familiar with the full range of electoral vote counting
disputes because they all had arisen either during the twenty-five vote counts that preceded the ECA's adoption or were
anticipated by congressmen debating the Act. 96 Generically, there are four types of disputes:

1) whether the electoral votes come from individuals entitled to hold the office of presidential and vice-presidential
elector;

2) whether the individuals entitled to the office of elector have properly performed their duties;

3) the consequences of rejecting an electoral vote on the number of votes required to elect a President or VicePresident; and

4) the procedures of the joint meeting that counts the electoral vote. 97

*559 More specifically, disputes over an individual's title to the elector's office might involve questions concerning: (1) whether

the territory he or she represents was a state of the American union entitled to participate in presidential elections; 98 (2) whether
the individual elector was actually elected to that position according to the laws of the state in a free and fair election; 99 and
(3) whether the individual, even though appointed according to the laws of the state, was constitutionally qualified to hold the
electoral office. 100

Disputes over whether electors have properly exercised their office include issues as to whether the electors conducted

themselves as the Constitution or federal statute requires, 101 and whether they acted free from monetary corruption or physical

intimidation. 102 Controversies over the consequences of rejecting an electoral vote involve the issue of whether the number of
votes required to elect a President or Vice President is reduced when Congress rejects an electoral vote. 103 Conflict over the
procedures of *560 the meeting involve the President of the Senate's conduct of the meeting, parliamentary practice when the
houses separate to discuss an objection to receiving an elector's vote, and the meaning of the result of the houses' decisions. 104

The ECA provides clear answers to some of these types of disputes, while it responds to others ambiguously or not at all. 105
Appreciating the ECA's elements of clarity and ambiguity involves, however, appreciating two more premises of the Congress
that adopted that law.
3. Congress's Power to Regulate How It Counts Electoral Votes Through Legislation, Joint Rule, or Concurrent Rule,
and the Consequences of Equality Between the House of Representatives and the Senate
It is a postulate of constitutional law that one Congress cannot bind another. 106 An application of this maxim is that Congress's
internal rules are not binding, even when expressed in legislation that has received presidential approval. 107 The difference

between binding legislation and a nonbinding internal rule given statutory form is not always distinct, 108 and it was less
clear to nineteenth-century legislators. Nevertheless, it was clear enough to provoke wide-ranging discussion in the Congresses
that debated the ECA. Many congressmen spoke in opposition to the ECA on the grounds that legislating the matter was

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an unconstitutional attempt to bind Congress's discretion. 109 It was unconstitutional, they said, because *561 enacting and
amending legislation required presidential approval (or an extraordinary majority in Congress), and thus improperly involved
the President in implementing the rules for determining presidential elections. 110 In addition, one Congress could never bind
another in this matter. 111 Congress could govern itself, they reasoned, by enacting concurrent rules for each vote count, or a

continuing joint rule which the houses could amend at any time. 112

Many other congressmen believed that electoral vote counting was a proper subject for binding legislation. Congress's rulemaking authority governed its own proceedings, and the ECA was properly legislative because through it the two houses

adopted rules to govern each other's actions. 113 Moreover, the power to count electoral votes was a power vested in the national

government, 114 and the Sweeping Clause allows Congress to “make all Laws which shall be necessary and proper for carrying
into Execution . . . all . . . Powers vested by this Constitution in the Government of the United States, or in any Department . . .
thereof.” 115 These congressmen pointed to how Congress might properly pass laws determining, for example, what credentials
would be acceptable to establish that someone was a foreign ambassador and thus amenable to the Supreme Court's original

jurisdiction under Article III, 116 or how the *562 judicial branch was to govern itself. 117 The ECA, properly understood, was
similar because it established the evidence by which Congress would govern its actions when it met not in legislative conclave,
but rather to count electoral votes. 118

A final argument supporting the ECA's status as binding legislation was tied to the constitutional postulate of equality between
the House of Representatives and the Senate. Recognizing the equality of the houses of Congress, the authors of the ECA
presumed that, under the Constitution, Congress could not count an electoral vote unless both the House and the Senate agreed

that it should be counted. 119 Given the frequency of houses of Congress being controlled by different political parties, 120
frequent tie votes and the inability to decide questions raised during the count were ever-present threats when Congress met to
count electoral votes. The inherent delays of bicameralism may be a benefit to the thoughtful enactment of legislation, but it
is a searing problem for deciding questions regarding presidential elections: “The failure of the Constitution, the casus *563
omissus, is the failure to provide an arbiter when [the houses of Congress] disagree. The provision for such an arbiter . . . comes
within the legislative power committed to Congress” by the Sweeping Clause. 121 The ECA, in effect, arbitrated differences
between the houses by “reduc[ing] to a minimum the cases where any difference [between the houses] can properly arise.” 122

Other congressmen did not go this far. They believed that Congress's legislative power was wholly confined to resolving

disagreement between the House and the Senate. 123 They approved the legislation governing electoral vote counting only “so

far as it was necessary to meet the contingency of a divided vote of the two houses.” 124

Most interesting was the position of congressmen, including some who assumed leading positions in the ECA's passage, 125
who voted for the law, and urged others to do so, even though they believed the Act was not binding on Congress. These

congressmen assumed that Congress's electoral count decisions were not subject to judicial review. 126 Because they believed
that “[n]o power in this Government can or ever will set aside and annul the declaration of who is elected President . . . when

that declaration is made in the presence of the two Houses of Congress,” 127 their view was that a “law will be as a cobweb . . .

as against the power of [Congress to] . . . wilfully violate[] . . . destroy[] . . . and trample[] it under foot.” 128 As Senator John
Morgan explained to his colleagues, as the ECA proceeded to its final passage:
*564 There is a power in this country existing in most of the tribunals which no one has a right to question or
disregard. A decision of the Supreme Court of the United States might be made as a result of bribery, yet there is
no power in the country that can set it aside; that is the supreme tribunal. . . . So [Congress when met as] this joint
tribunal may vote down the voice of the State's electors, or it may sustain one set of certified votes in preference
to another, and after the act has been done the power to revoke it, even the power to question it, has passed beyond
human control; the only answer is, in such a case, ita lex scripta est. 129

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Yet, to these congressmen, an unenforceable law was better than no agreement at all. 130 In addition, they believed an
unenforceable law was better than a joint rule because of the law's greater ability to bind Congress's conscience and create a
moral obligation to abide by its terms: “[W]hatever law we may pass . . . we do no more than to impose upon the consciences
of members a sentiment of obedience to law.” 131 Senator Morgan concluded:

I will vote for this bill . . . I vote for it for the sake of quietude and peace and reconciliation in this country,
believing that perhaps when the bill has passed and been signed by the President, if it should be so signed, it will
be a little harder to get rid of than even a concurrent resolution; that there will be men to be found in the two
Houses when the count . . . shall take place . . . who will be more reluctant to part with a rule which in itself I
conceive to be entirely wise than they would be if it had only received the sanction of the two Houses. 132

It is important to appreciate that the Congresses that debated the ECA struggled with the binding law/internal rule dichotomy
and chose to set forth their handiwork in the form of law because of that form's greater (though perhaps ultimately limited)
ability to bind. Congress understood that even if the ECA enacted rules of only moral obligation, it nonetheless would constrain
behavior both outside 133 and inside 134 Congress.

*565 In addition, knowing that some supporters of the ECA considered its provisions as only binding on Congress's conscience
may affect our understanding of congressional debate, and therefore, of the ECA's various provisions. It is important to know
that some congressmen conceived the ECA as a joint rule, and therefore, that a majority vote in Congress could implicitly set it
aside because those sentiments sometimes get entwined with their discussion of what the ECA rules were supposed to mean. 135
At all times, we must be sensitive to separate whether a particular provision was meant to be binding, if only as an internal rule,
from whether it was meant to be entirely discretionary. 136

It is, of course, impossible to know how many congressmen voted for the ECA believing they were enacting binding law as

compared to the number of members who accepted the “rules of moral obligation” approach. 137 Whether the ECA is a statute
or a joint rule enacted in statutory form is ambiguous. In truth, both theories underlay its enactment.
The difference between the two theories disappears, however, to the extent that the ECA involves political questions not subject
to judicial review. 138 The difference between the two theories also disappears to the extent that Congress self-enforces its own
internal rules. 139 The houses of *566 Congress do take their in-house rules seriously, if only because it is in the long-term

interest of the individual members and the leadership to do so. 140 Perhaps the uniqueness, the stress, and the enormous prize
involved in the outcome of a contested presidential election presents an exceptional situation in which the traditional norms of
congressional behavior will be suspended. Traditional norms of judicial behavior seem to have constrained neither the justices
who sat on the 1877 Electoral Commission, 141 nor the Court that decided Bush v. Gore. 142 If so, with or without judicial

review, the ECA may not bind. 143

The congressmen who debated and enacted the ECA, by living through the contested Hayes-Tilden election, knew the pressures
of close presidential elections. Their opinion was that putting the ECA in statutory form would give it more binding force than
adopting it as a joint rule. 144 But whether the ECA is a statute or a joint rule, it contains the regulations Congress adopted to
govern its vote counting sessions and is Congress's last word on the subject. As with all of Congress's internal rules, let alone

obligatory statutes, the ECA has the capacity to influence and guide, if not govern, the conduct of the two houses. 145 Even if
it does not bind, Congress needs to understand the ECA's provisions.
*567 B. Relevant Premises of Nineteenth-Century Election Law and Administrative Law
Congress's debates and committee reports make it evident that enacting the ECA required congressmen to take positions on
Congress's power to count electoral votes, the scope of that power, and whether that power was subject to legislative control.
Frequently, these were the subjects under discussion. In contrast, it is less evident that enacting the ECA required congressmen to
draw from their understanding of nineteenth-century election and administrative law. As compared to the ECA's other premises,

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nineteenth-century election and administrative law were the overt subjects of discussion far less often. 146 Rather, Congress's
understanding of nineteenth-century election and administrative law influenced the ECA debates by providing the concepts
and terms for analyzing important aspects of the subject with which Congress was dealing. Nineteenth-century election and
administrative law's influence is reflected less in what Congress talked about than in what Congress assumed when it was
debating.
Nineteenth-century election and administrative law did not determine the content of the ECA. Presidential elections have so
many unique aspects that Congress, at least to some extent, decided to govern them with sui generis rules. Congress certainly
decided that, even when it is counting electoral votes, it is not an administrative tribunal entirely subject to administrative
norms. 147 In counting electoral votes, Congress considered itself the nation's ultimate political tribunal canvassing both the

sovereign states' appointment of presidential electors and the electors' exercise of their unique office. 148 To be sure, some

congressmen considered Congress's role in electoral vote counting as a ministerial administrative function. 149 Others deemed

it wholly political, subject to no rule other than the “justice [of] the particular occasion.” 150 Most congressmen fell *568
somewhere in between and crafted an electoral vote counting regime influenced by diverse norms. 151

Nevertheless, Congress's understanding of nineteenth-century election and administrative law shaped Congress's imagination of
what it might do. It also shaped Congress's understanding of the regulations it enacted. Recovering the premises of nineteenthcentury election and administrative law is necessary to interpret various ECA provisions.
It is, for example, frequently said that in the nineteenth century, as in the modern era, elections were administrative proceedings

with no right to judicial review. 152 That is true, but misleadingly so. In the nineteenth century, the executive branch's
administration of elections almost invariably was subject to judicial review at the behest of interested parties, be they executive
branch officials, defeated candidates, or even voters. 153 Knowing the broad outlines of nineteenth-century election law and
administrative law is fundamental to recovering Congress's understanding of the ECA.
1. Nineteenth-Century Election Law
A simplified version of an uncontested nineteenth-century election is that the voters balloted at local polling stations where

administrative officials determined if they were qualified and, if they were, accepted their ballots. 154 After the polls closed,
the local election officials tallied the votes, 155 which sometimes involved discretionary judgments as to the legality of the

ballot 156 and for whom it was cast. 157 The local officials then forwarded the results of their tally to the county canvassing

officials, who *569 added the various local tallies together when a race covered multiple polling precincts. 158 The county

returning board forwarded the results of their canvass to the state canvassing board. 159 That board checked the county returns

for proper form and added the county returns together when a race was statewide or covered multiple counties. 160 When all the

tallies were complete, the state canvassing board certified the outcome of each race. 161 Based on that certification, the state's
governor 162 issued certificates of election to the candidates that the administrative canvass showed to have a plurality of the
votes, or a majority when that was required. 163

Should the result of the election as certified by the administrative apparatus be challenged, the fundamental rule of nineteenth-

century election law was that the voters' ballots entitled someone to elective office, not the governor's certificate. 164 In the
nineteenth century, election outcomes as declared by election administrators, and as certified by the governor, almost always
were subject to challenge in court. 165

*570 In England, the writ of quo warranto was used to subject elections to judicial review. 166 In the early nineteenth century,
American courts adapted quo warranto into a proceeding where state attorneys general, unsuccessful candidates, or any voter
could challenge the right of a candidate to exercise the office to which the governor's certificate of election said he was

entitled. 167 In several celebrated cases, even the governor's claim to office was held subject to challenge through quo warranto

proceedings. 168 Following English practice, the only exception was legislative office because, by common-law tradition, the
legislature itself is the appropriate tribunal for determining the elections and qualifications of its own members. 169

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The courts' jurisdiction to try an officeholder's right to the position through quo warranto had a common law, not a constitutional,
basis. Legislatures could deny their courts quo warranto jurisdiction without enacting any substitute. 170 Typically this was

not done. 171 Rather, throughout the nineteenth century, legislatures sought to modernize election challenges by creating

election contest laws to supplement quo *571 warranto actions. 172 Legislatures could make the streamlined election

contest proceedings the exclusive means to challenge election outcomes. Typically, they chose not to. 173 When courts
addressed the issue of whether a legislature intended its election contest law to entirely supplant quo warranto proceedings,

they created the general rule that “ousting” the courts' quo warranto jurisdiction required a clear legislative statement. 174
Generally, then, unsuccessful candidates (other than candidates for legislative office) had two avenues for judicial review of the
election administrators' decisions and the propriety of the governor's certificate of election: quo warranto and election contest
proceedings. 175

For the purposes of this Article, it would not matter if legislatures had entirely supplanted quo warranto proceedings with

election contest laws. Although they did not have to be, election contests, like quo warranto, were judicial proceedings. 176 The

point is that nineteenth-century elections were not merely administrative affairs entirely governed by the executive branch. 177

That the governor's certificate of election was not conclusive did not mean that it was of no value. The governor's certificate

gave its holder a prima facie right to office. 178 Until any challenge to that right was successfully completed, the candidate was

entitled to hold office, exercise its powers, and receive its emoluments. 179 The candidate with the prima facie right was an

officer de facto. 180 His acts in office could not be attacked on the grounds that he was not, in fact, entitled to the office. 181
A public official's right to office could be questioned only in a direct challenge to his title to office through quo warranto or
election contest proceedings. 182

*572 The important lessons to draw from this sketch of nineteenth-century election law is that the governor's certificate of
election, issued as the official statement of an election's outcome after completion of the administrative process, did not give
the successful candidate a conclusive right to office. A perfected title to office, so to speak, required judicial proceedings that
reviewed all aspects of the underlying election and administrative process. 183 However, the governor's certificate did entitle
the candidate who possessed that credential to hold office until a successful challenge to his title had been completed.
What these precepts meant for presidential elections when electoral votes were received and challenged before Congress was a
subject of contentious debate in the Congresses that developed the ECA. The contending positions will be reviewed in Part III

when the ECA is analyzed in detail. 184 On one point, however, the congressmen debating the ECA were in general agreement:
that the only people entitled to exercise the electors' office and have their electoral votes counted by Congress were the people

who were electors de facto on the date the electors balloted for President. 185 In other words, only the people who had the
governor's certificate of election were entitled to cast electoral votes unless a successful challenge had been completed by elector
balloting day. 186 An unsuccessful candidate for the elector's office who had not completed his challenge could not possibly
cast an electoral ballot that would be counted. This was because, in Congress's view, in order to do an official act, one had to
be (at least) an officer de facto on the date that act needed to be done. 187

For nineteenth-century presidential elections, Congress's view of the “officer de facto” doctrine gave unusual electoral
significance to the outcome of the state's administrative process. Until the passage of the *573 ECA, there were only twenty-

nine days between election day and elector balloting day. 188 In the turbulent elections of 1872 and 1876, twenty-nine days had
proven insufficient time to complete even the trial phase of an election challenge. 189 Part of the problem, Congress was quick
to note, was that although the states could have extended their expeditious election contest laws to presidential elections, they

had not done so. 190 Prior to the ECA, presidential elections were subject to judicial scrutiny, but only through the procedurally
less efficient writ of quo warranto. In 1872 and 1876, quo warranto proceedings had been brought to review the presidential
election in various states, but none of them even had their trial phase completed before the electors balloted. 191

Congress's understanding of the officer de facto doctrine did not mean that the candidate who had the appropriate credentials
on elector balloting day was entitled to have his vote counted by Congress. Although Congress felt it could not retroactively

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seat another candidate and count his vote, the heart of the ECA debate concerned under what conditions Congress could reject
the vote of a credentialed elector when Congress believed he had been seated improperly. 192

From an election law perspective, then, in debating the ECA, the issues before Congress included whether (and how) Congress
should encourage the states to extend their election contest laws to presidential elections, and the extent to which Congress
had (or should have) the power to reject electoral votes that had been cast by credentialed electors, who were officers de facto,
on elector balloting day.
2. Nineteenth-Century Administrative Law
In many ways, when Congress debated its power to reject electoral votes cast by credentialed electors, it did so with a mindset
framed by the norms of nineteenth-century administrative law. Most important was the fundamental principle that ministerial
administrative acts were subject to judicial review, but discretionary administrative acts generally were not. 193 *574 There
was an exception to this principle: discretionary administrative decisions made by administrators who were acting on matters

outside their jurisdiction, or whose decisions were tainted by fraud or corruption, could always be set aside in a court of law. 194
A fraudulent decision, or a decision made without jurisdiction, was no decision at all and could be ignored. Stated another way,
when a tribunal or decision-maker made a discretionary decision within his jurisdiction, that decision was not subject to judicial
revision for mere error, gross error, or any error that did not support a finding of corruption, fraud, or lack of jurisdiction.
If these norms of administrative law applied without translation to Congress's counting of electoral votes, it would mean that
Congress could go behind the governor's certificate, the state returning board, and the local returning boards because, typically,
they acted ministerially. It also meant that Congress could not challenge the conduct of the election at the precinct level because,
absent fraud, the decisions made there were discretionary judgments about voter qualification and ballot reading.
But Congress was not a court reviewing the administrative process of an election. Congress was a political body reviewing, on
behalf of the nation and all the states, the states' appointment of their electors under constitutional provisions that firmly and
exclusively delegated the power of appointment to the states. Some nationalistic congressmen took this difference to mean that
Congress was not bound by the norms of administrative law and could go behind both ministerial and discretionary decisions of
state officials to police the purity of national elections. 195 Other trenchantly states' rights congressmen took this difference to

mean that Congress could not even go behind the ministerial action of the states' administrative officials. 196 The states spoke
to Congress through the credentials issued by their duly-constituted officials. For Congress to challenge the officials' decisions
was to intrude improperly into the states' right to appoint electors. 197

*575 There were, of course, various positions in between. The play of these norms in the Hayes-Tilden election controversy of
1876 shows how many different ways they could be elaborated and applied in complex disputes. Consider, as one example, the
analysis given by Justice Joseph Bradley in casting the votes that decided all the controversies before the Electoral Commission
of 1877. 198

To resolve the disputed election of 1876, Congress created an Electoral Commission with the “same powers, if any, now
possessed” by Congress to accept or reject electoral votes from the four states that submitted multiple packets of electoral votes
from competing slates of electors. 199 To Justice Bradley, this meant that only the electors who had the governor's certificate

of election on elector balloting day plausibly had a right to have their ballots counted. 200 In Florida, Louisiana, and South
Carolina, the Republican electors had the governor's certificate of election, meaning that they had a prima facie right to have their

ballots counted, not that they should have their ballots counted. 201 In every case, Justice Bradley went behind the governor's
certificate because it was ministerial to determine whether the governor properly acted at the direction of the state returning

board. 202 In the cases of Florida, Louisiana, and South Carolina, the *576 governor had issued certificates to the electors that
the returning boards determined had won. 203 So, that is where the matter ended.

For Justice Bradley, the matter ended with the determination of the state returning boards even though, in Florida and Louisiana,

the decisions of the state boards were themselves subject to challenge. 204 The state returning boards were charged with having

produced a Republican majority by fraudulently rejecting local returns favorable to the Democratic electors. 205 Justice Bradley,

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however, refused to go behind the actions of the state returning boards because he determined that those boards, under the
unique laws of their states, exercised discretionary powers in determining whether to accept returns from the county canvassing

authorities. 206 In Florida and Louisiana, rejecting local returns was a discretionary decision which Justice Bradley, representing

Congress, would not overturn in the absence of fraud. 207

In responding to the fraud allegation, Justice Bradley did not say that fraud never vitiated a returning boards' discretionary
decisions. Nor did he say that fraud always did. Rather, Justice Bradley took a middle course and acknowledged that Congress
was in a unique position. Without having enacted legislation to aid itself, Congress had limited time and institutional capacity
to conduct a quasi-judicial investigation into the facts of the alleged frauds. 208 Therefore, under the Constitution, Congress's
inherent power was limited to setting aside returns only for “manifest fraud.” 209 “Manifest fraud” was fraud that was so
notorious that it “did not require an *577 investigation on the part of the [Congress] to ascertain by the taking of evidence
the truth of the case.” 210 In Bradley's view, if the Florida and Louisiana returning boards had erred at all, it was that their

“proceedings . . . were . . . based on erroneous principles and findings.” 211 A discretionary administrative decision could not
be set aside for mere error.
However, Justice Bradley determined that the governor of Oregon had not issued his certificate of election as directed by the

state canvassing authority. 212 Oregon's canvassing authority had determined that the Republican electors had the most votes

and certified them. 213 One of the Republican electors, however, was constitutionally ineligible because he was a United States

postmaster. 214 For that reason, Oregon's governor, who was a Democrat, refused to issue a certificate of election to the ineligible
elector. 215 Instead, the governor gave his certificate to a Democratic elector on the grounds that that elector had received the
next highest number of votes. 216

Responding to these facts, Justice Bradley ruled that under Oregon law the governor had no authority to make such a

decision. 217 In credentialing the Democratic elector, Oregon's governor was acting beyond his jurisdiction. 218 The governor's

only power was ministerial, to credential whomever the state canvassing authority anointed. 219 Therefore, Justice Bradley

concluded, the Democratic elector was never properly seated; his vote was not to be counted. 220 The Republican elector who
filled the vacancy created when the ineligible elector resigned was properly in office on elector balloting day; that elector's
vote was the one to receive. 221 With all disputed electoral votes awarded to Republican electors, Rutherford Hayes won the
Presidency by one electoral vote. 222

*578 Of course, the Democrats on the Election Commission had opposing analyses that deployed the norms of nineteenthcentury election law and administrative law to argue their respective positions. Justice Stephen Field, for example, held that the
Florida board had no discretion, as their “duty . . . was ministerial, involving only the exercise of such judgment as was required
to determine whether the papers returned were genuine.” 223 Justice Field also believed that Oregon law did clothe its governor
with authority to refuse to issue a certificate of election to a candidate whose ineligibility was “a fact of public notoriety.” 224

While the governor had no right to grant a certificate of election to the next runner-up, 225 neither did the remaining Republican
electors have the right to fill the vacancy created by their colleague's ineligibility. 226 Oregon, therefore, had validly appointed
only two electors, rather than three. 227

Obviously, there was no single perspective on what the norms of nineteenth-century election law and administrative law
suggested about Congress's power to count electoral votes. The importance of these norms is that they were part of the world
view with which Congress, from 1873 to 1887, discussed the various bills that finally emerged as the Electoral Count Act
of 1887. The norms of election law and administrative law neither determined Congress's view of its electoral vote counting
power, nor settled what the ECA should provide. The norms did, however, help frame the debate. Having them in mind will
help to understand the debate's outcome.
III. The Electoral Count Act of 1887
The seven sections of the Electoral Count Act of 1887 attempt to do five things. They are (with the relevant section indicated):

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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);
*579 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);
3) publicize and place on the record the states' determination of the outcome of their elector appointment process (Section 3);
4) minimize congressional involvement in resolving controversies over elector appointment not authoritatively resolved by the
states (Section 4); and
5) settle procedural issues for conducting the joint session at which Congress counts the states' electoral votes (Sections 4-7).
A. Section 1: Giving the States Enough Time to Settle Controversies over the Appointment of Their Presidential
Electors 228

When Congress, in 1792, first exercised its authority to “determine the Time of chusing [sic] the Electors, and the Day on
which they shall give their Votes,” 229 it selected the first Wednesday in December as the day for the electors to ballot, 230

and allowed the states to appoint their electors at any time “within thirty-four days preceding” that date. 231 Not anticipating
controversies over who had been selected as an elector, Congress was concerned with minimizing the time between elector
appointment and elector balloting. Its concern, paralleling the Framers', was in minimizing the chance that the citizens selected

for the responsibility of electing the President would be subject to corrupting influences after their identities were known. 232
Some congressmen wanted an even shorter time frame, but they recognized that Congress had to allow sufficient time for the
electors to be notified of their appointment and assemble in an era and at a time of year when communications and travel were
difficult. 233

In 1845, Congress shifted to having the states appoint electors on a uniform day. 234 It selected “the Tuesday next after the first

Monday in the month of November” as election day 235 but did not change the date for elector balloting. 236 This left twentynine days between the date for elector *580 appointment, which almost universally was by popular election, and the date the
electors would ballot. Congress's decision to leave only twenty-nine days between election day and the day the electors balloted
reflected a failure to focus on the problems of resolving elector election disputes, probably because of a lack of experience
with such disputes. Prior to 1845, the main controversies that had arisen during Congress's electoral vote counting sessions
concerned exogenous factors, such as whether the appointed slate came from a territory that had been admitted to the Union
as a state. 237 These problems did not raise issues whose resolution involved time-consuming factual determinations that had
to be settled to determine who the proper electors were.
From 1845 until 1872, there were bitter controversies, but none involved conflicting claims as to who had title to the electors'
office. Rather, they continued to involve exogenous problems. 238

In 1872, Congress's good fortune ended. There were a series of controversies, most of which did not raise questions of the identity
of a state's elector. 239 However, one dispute, involving Louisiana's electoral vote, did present a dispute between competing

slates, each claiming to be the state's authentic electors. 240

*581 In the controversy over Louisiana's 1872 electoral vote, Congress immediately perceived that a new problem had arisen
and part of the problem was that the states had insufficient time to resolve controversies over elector selection. In 1872, the
results of Louisiana's November 5 election were tied up in litigation over which of several contending state canvassing boards
was the legal one. 241 A federal judge asserted jurisdiction under Reconstruction-era legislation and enjoined counting the

popular vote because of claims of racial discrimination. 242 The federal judge took until December 6 to determine the proper

returning board. 243 Unfortunately, elector balloting day in 1872 was Wednesday, December 4. 244 On that day, no slate of

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electors had been certified as elected by a legal canvass of Louisiana's election. 245 Consequently, although two different slates
of Louisiana electors submitted electoral votes to Congress, one of which was certified by the governor and the other by the
secretary of state, both houses of Congress agreed that neither of the competing slates held office as presidential electors as a
result of a “lawful” canvass on December 4, the date elector ballots had to be cast. 246

The problem of multiple elector slates, each claiming to be the lawful electors, was repeated in 1876. This time there were
controversies in three states over the identity of the elector slate that had received the most votes, 247 and unlike the 1872

election, the presidential election turned on the disputes' outcome. 248 Once again, the short time between election day *582
and elector balloting day was at the heart of the problem. Twenty-nine days had once again proved too short for the states to
sort out whether the Republican or Democratic electors had garnered the most votes even though timely quo warranto actions
were filed in Florida and South Carolina. 249

In 1876, election day was Tuesday, November 7 and elector balloting day was Wednesday, December 6. Perhaps for strategic
reasons, Florida's administrative canvass of the election results was not completed until early morning on Wednesday, December
6, the day the electors balloted. 250 That canvass, by a Republican-controlled board, refused to count various returns favoring

Democratic electors and ruled that the Republican electors had carried the state by 924 votes. 251 The defeated Democratic
electors immediately commenced a quo warranto proceeding. 252 The quo warranto was not resolved at the trial level until

January 25. 253 Although the trial court, presided over by Judge Pleasant White, a Democratic partisan, ruled in favor of the
Democratic electors and overturned the returning board's action, 254 the Republican electors filed an appeal which the Florida

Supreme Court set for argument at its regular session in June 1877. 255 That was about four months after Congress had counted

Florida's electoral votes for Hayes. 256 Prominent among the reasons given by the Republican-dominated Electoral Commission
for counting Florida's Republican *583 electors was that they were the certified electors on December 6, which was elector
balloting day. 257

South Carolina's administrative canvass, which like Florida's favored the Republican electors, was also subject to a quo warranto
proceeding. 258 The South Carolina canvassing board finished its work, and the governor certified the Republican electors on
November 22. 259 On December 2, the Democratic electors commenced a quo warranto proceeding directly in the Supreme

Court of South Carolina. 260 The court did not decide the case until January 26, at which time it dismissed the action for a

pleading error which the court, not the Republican electors, raised. 261 Probably sensing futility, the Democratic electors never
refiled.
Drawing from this experience and wanting to enable the states to settle controversies over their own elector elections through
judicial processes, Senator George Edmunds wrote an article suggesting that Congress move election day to September 1 and
elector balloting day to January 1, a separation of 122 days. 262 The following year he submitted a bill to reform Congress's

electoral vote counting process. 263 It was the first version of what eventually became the ECA. 264 The bill's first and third
sections moved election day to “the first Tuesday in October” and set elector balloting for “the second Monday in January,” 265
a separation of ninety-seven to 104 days depending on how the calendar broke. As Edmunds explained: “The object of . . .
sections 1 and 3 is to produce a longer period of time between the choice of electors . . . and the meeting of the electors, *584
in order to dispose of any dispute or question that may arise in respect of who have been chosen as the electors.” 266

Edmunds's 1878 bill passed the Senate but never came to a vote in the House. 267 Without further commentary, all subsequent
predecessors of the ECA left election day on “the Tuesday next after the first Monday in the month of November” 268 but set

elector balloting, as Edmunds had suggested, on “the second Monday in January.” 269 That is what the ECA provided when

it finally passed in 1887. 270

Due to differences in how the calendar breaks, in four out of seven presidential elections, the ECA allowed sixty-nine days
between election day and elector balloting; in the other three elections the spacing reduced to sixty-two days. Thus, the first step

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in the ECA's reformation of the electoral vote counting process was to more than double the time the states had to determine
the outcome of their elector elections. 271

B. Section 2: Encouraging the States to Establish Mechanisms for Resolving Contests over the Appointment of
Presidential Electors Prior to Elector Balloting Day 272

Having increased the time available for settling presidential election controversies, Congress sought in section 2 of the ECA to
encourage the states to use the time to settle any controversy over their appointment of *585 presidential electors before the
day for elector balloting. In the late nineteenth century, clearly established law in almost all states permitted the state judiciary

to review election results through quo warranto proceedings. 273 Experience showed, however, that those proceedings were too
time-consuming for the short deadline required by presidential elections. Even with the extended calendar adopted by the ECA,
courts would have difficulty completing quo warranto proceedings in time. 274 What Congress wanted was for the states to

develop, or apply, their existing, more streamlined election contest laws to presidential elections. 275 As Senator Oliver Morton
observed at the outset of the fourteen-year campaign to enact the ECA, the fundamental problem was that although:
[e]very State provides by law for contesting the elections for governor and other State officers and members of
the legislature, . . . no provision is made for contesting the election of electors; and whatever returns shall be
made up, although produced in whole or in part by fraud or violence, must stand and the vote be counted upon
them if returned in time. 276

The ECA's sponsors hoped that “[i]f the disputes touching the constitution of the Electoral Colleges in the States could be
disposed of in advance of their action, the counting of the electoral votes at the seat of government . . . would usually be little
more than a formal ceremony.” 277

In urging the states to develop or apply their election contest procedures to presidential election disputes, Congress felt it was
trenching all that it could on states' rights. On the one hand, Congress felt that, absent a constitutional amendment, it could not
command the states to adopt such *586 mechanisms. 278 Some states' rights-oriented congressmen bristled even at the idea

that Congress might legislate an incentive to encourage the states to enact presidential election contest laws. 279 On the other
hand, Congress felt it was either unconstitutional or simply unwise to try presidential elector contests before Congress or the

federal courts. 280 Consequently, to encourage the states to develop procedures for settling their own elector election disputes,
Congress offered a momentous incentive, “a concession never before offered to the States in the matter of electing the Chief
Executive of the United States”: 281 that Congress would be “conclusive[ly]” bound by a state's “final determination” of any

controversy concerning the identity of its presidential electors. 282

Prior to 1887, Congress debated, but never abjured, its discretion to reject electoral votes due to underlying defects in the
electors' appointment to office. 283 In 1873, Congress had rejected Louisiana's and Arkansas's electoral votes due to qualms

about their electors' election. 284 Although *587 both houses joined in rejecting Louisiana's and Arkansas's votes, the fact
is that from 1865 to 1876, Congress's 22d Joint Rule allowed a majority vote of a single house to reject any state's electoral

vote. 285 Now, in what was to be “the groundwork . . . of the whole system of the [electoral] count,” 286 Congress adopted
a law “framed upon the proposition that the power to adjudge and to decide upon the validity of the appointment of electors
resides in the States, and may be completely and finally exercised through tribunals created by State laws and regulated in their
procedure by State laws.” 287

As finally enacted, section 2 reads:
If any State shall have provided, by laws enacted prior to the day fixed for the appointment of the electors, for its
final determination of any controversy or contest concerning the appointment of all or any of the electors of such
State, by judicial or other methods or procedures, and such determination shall have been made at least six days
before the time fixed for the meeting of the electors, such determinations made pursuant to such law so existing

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on said day, and made at least six days prior to said time of meeting of the electors, shall be conclusive, and shall
govern in the counting of the electoral votes as provided in the Constitution, and as hereinafter regulated, so far
as the ascertainment of the electors appointed by such State is concerned. 288

The meaning of section 2 was explained by Senator Hoar, floor leader during much of the fight for the ECA and Chairman

of the Senate committee managing its final passage: 289 “The bill provides that where the State has created a tribunal for the

determination of [elector appointment controversies,] the proceedings of that tribunal shall be conclusive . . . .” 290 *588 The
thought that justifies section 2 was also straightforwardly set out by Senator James Pugh, floor leader during the unsuccessful

effort to pass the ECA in 1882: 291 “[I]t is better and safer to trust the States with the settlement of their own contests and
disputes, according to their own laws to ascertain what was really done by the State itself . . . and for the two Houses to accept
the proof of the result . . . as conclusive,” than to leave “the whole field . . . open as it is now,” entirely subject to congressional
discretion. 292

The ECA debates are replete with comments like Hoar's and Pugh's in every session where the bill was discussed, from its
initial proposal in 1878 to final passage in 1887. They make it quite clear that the theory of section 2 is that the states are the
proper locus of authority to determine elector election controversies and, for that reason, the final determination by a state's
duly appointed tribunal should bind Congress. 293 This was the centerpiece of the ECA's solution to the quagmire that elector
election disputes presented for Congress's electoral vote counting.

There were, of course, many congressmen who objected to section 2's solution to the problems of electoral vote counting.
Congressmen who held strong nationalist tenets objected to section 2 and proposed amendments to allow a concurrent vote of

both houses of Congress to set aside a state's final elector determination. 294 Their amendments did not pass. Other congressmen
with strong states' rights convictions objected to section 2 for the opposite reason: the bill's recognition of conclusive authority
in a state *589 was not broad enough. These congressmen felt the state should bind the national government whenever the

state presented but one return, even if it had not been subject to a section 2 final determination process. 295 The House, in 1886,

adopted this view endorsing states' rights, but receded from it in conference with the Senate. 296

In the end, the idea that Senator Edmunds had suggested as far back as 1877 prevailed. Giving state determinations of elector
election contests conclusive effect was the key to his hope of disposing of elector appointment controversies before Congress

met, rendering the joint session “little more than a formal ceremony.” 297 The debate engendered by the objectors to section 2
only served to create an extensive legislative record supporting section 2's textual commitment.
Thus, section 2's text and legislative history are clear. In section 2, Congress precommitted not to review an elector's election.
Nevertheless, Congress's commitment to accept electoral votes submitted by electors who claim section 2 status is not unlimited.
It is subjected to express and implied limitations that substantially hedge section 2's overt promise. An exploration of section
2's limitations gives us a more nuanced understanding of the ECA's solution to the problems of electoral vote counting.
In overview, the express and implied limitations of section 2 frame the grounds for Congress, consistent with the ECA, to refuse
counting electoral votes that claim section 2 status. Claiming section 2 status is different from having it. Congress may, consistent
with section 2's commitment, refuse to count an electoral vote that claims section 2 status when that claim is invalid. 298 Section
2 also contains grounds for refusing to count votes even when the claim is meritorious. Some grounds for denying section 2
status, or refusing to count an electoral vote that merits it, follow from conditions that are expressed in the text of section 2.
Others follow from assumptions underlying the ECA. I first review section 2's express limitations and then turn to those that
are implicit in the ECA's assumptions.

Obviously, one condition is that the tribunal issuing the final determination of the elector election contest must have been granted
such *590 authority under the state's law. 299 Another is that the tribunal's ruling was “final.” 300

Section 2's text expressly states that Congress will be bound only if the state's law designating the “final determination” tribunal

and establishing its presidential election contest process was enacted “prior” to the presidential election. 301 Congress specified

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this limitation for two reasons. First, the limitation was designed to prevent states from creating electoral commissions “for
a particular election or a particular purpose to aid the friends of one candidate rather than another according to the political
disposition of the Legislature.” 302 Second, Congress believed that:

Unless you provide beforehand that State laws establishing these tribunals or conferring jurisdiction on tribunals
already established shall be passed in advance of the election, no State will take the trouble to pass such laws. If
the States know that they can, whenever a case arises, convene the legislature and pass a bill to dispose of each
electoral question, you remove all probability of the passage of such laws. 303

*591 Requiring states to designate their final electoral authority prior to the election is an obvious protective measure, although
it is one that the minority of the House committee tried unsuccessfully to remove as an undue intrusion on the states' plenary
power to appoint electors as their legislatures saw fit. 304

Less obvious as a protective measure is section 2's stipulation that the final settlement of any elector appointment controversy

be made “at least six days before” the day set for elector balloting. 305 The origin of the six-day limit is mysterious. Senator
Edmunds's original 1878 bill allowed a state's final determination process to bind Congress even if it took up to the “time fixed
for the meeting of the electors.” 306 So did his 1880 and 1882 proposals. 307 When Senator Hoar reintroduced the measure in

the forty-eighth Congress in 1884, he described it as verbatim to what was passed in the last Congress. 308 Yet Hoar's 1884

bill had the six-day provision in it. 309 Even though the six-day provision cut down the time that the states could settle election

contests and conclusively bind Congress by almost a full week, the reason for the change was never discussed. 310

In 1886, as the ECA approached final passage, the six-day provision was the subject of some discussion when the minority on
the House committee guiding its passage moved to delete that particular proviso. 311 Their cogent argument was that:

*592 [I]f there is any fraud or any neglect of duty, if there is any hiatus, any unforseen occurrence whereby the
vote of a State is likely to be lost by reason of conflict, we contend that the State should have the full period up to
the time of the casting of the electoral vote in order to repair that difficulty, to make that determination, to save her
vote. As [we] have already shown, the State has complete control of the matter. It is a field into which Congress
has no right to enter. That being the case, the State should have until that time to repair any disaster which may
interfere with or interrupt the casting of her vote by the proper electors. 312

Unfortunately, the minority's complaint was never answered because it was mixed in with the minority's protest against forcing
the states to enact their contest procedures before the presidential election had taken place. 313 The ECA's proponents preferred

to refute the more outlandish part of the minority's protest and never addressed the minority's other, sounder critique. 314 Had
they done so, they might have revealed their reasons for enacting the six-day proviso.

Most likely, the six-day provision was understood as a measure encouraging “fair and orderly” electoral procedures. 315 As will
be discussed, the ECA's third section requires every state's governor to give the appointed electors a certificate of their election
“on or before” the day on which they ballot. 316 The six-day provision allows time for communicating the result of any election
contest to the victorious electors, for the governor to execute the necessary paperwork, and for the duly appointed electors to
gather and receive their credentials before balloting. 317

*593 Whatever the origins 318 and purpose of the six-day provision, it was meant as a “safe harbor” and not as the end point for

state-conducted election contests. 319 As Representative John Eden explained in refuting the minority of the House committee's
objections to the six-day provision:

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If any State neglects to use the means within its power to identify who are its legally appointed electors, the two
Houses of Congress . . . are to resort to other provisions of the bill to determine who are the legally appointed
electors of the State. The bill contemplates no exclusion of electoral votes from the count because of the failure
of a State to settle disputes as to the lawful vote of the State. 320

The only consequence of settling election disputes less than six days before elector balloting day was that Congress would
not be conclusively bound by the state tribunal's decision of the identity of the electors. Should a state not subject its electors
to a section 2 process, or should that process be concluded less than six days before the electors' ballot, Congress had more
discretion, under section 4 of the ECA, to reject the electors' vote. 321

Section 2's final express limitation is that it is conclusive only as to the “ascertainment of the electors.” 322 Controversies
over how the electors *594 exercise their office, or whether the electors were qualified under the Constitution to hold the

electors' office, remain subject to congressional review. 323 The ECA envisions presidential elections as consisting of three
stages: appointing electors; casting electoral ballots; and aggregating and counting electoral votes at the seat of government. In
general, the Congresses that debated and passed the ECA regarded the appointment stage as wholly committed to the states;
the aggregation and counting stage as wholly committed to the federal government; and the ballot casting stage as a period of
mixed state and federal jurisdiction. 324

As a consequence, although the states may well have had jurisdiction to police how their electors conduct themselves in

office, 325 in passing the ECA Congress retained its authority to scrutinize and reject electoral ballots cast corruptly 326 or in

violation of constitutional rules. 327 Because a section 2 determination preceded the casting of electoral ballots, it could not
preclude Congress from rejecting electoral votes that were not cast by ballot; not cast on the day required by federal law; cast
for a President and Vice President who were both citizens of the same state as the elector; cast for a constitutionally ineligible
candidate; or cast as a result of elector bribery or corruption. 328

*595 Neither did Congress mean to preclude itself from rejecting votes cast by individuals who were not constitutionally

qualified to hold the elector's office. 329 This was a more controverted decision because the facts involved in determining
whether an individual appointed to the elector's office suffered a constitutional disqualification preceded the section 2
determination and could have already been adjudicated. It does, to some extent, countermand the state's final determination
of who is entitled to the elector's office (though it does not directly countermand the determination of who won the election).
Although this exception may be textually supported by saying that constitutional disqualifications are outside the scope of the
word “ascertained” as used in the ECA, it may also be supported as the first implied limitation to section 2.
Whether expressed in the text or not, the ECA's legislative history and its underlying assumptions support the notion that
Congress, under section 2, retained power to reject votes submitted by electors who were not constitutionally eligible to hold
the elector's office. In contrast to the language ultimately adopted, earlier versions of section 2 extended the conclusive effect of
the state's final determination to the electors' lawful title to office. 330 Determining the electors' “lawful title to office” arguably

encompassed a decision on whether the electors suffered from any constitutional disabilities. 331 But the ECA proponents

always intended to recognize only the state's right to identify who it selected to cast its electoral votes. 332 The electors'
qualifications for office were constitutional requirements, not matters committed to state discretion. As Senator Morgan argued
in 1878, “The Constitution expressly declares certain grounds of ineligibility which operate ex proprio vigore so as to annul
any appointment of such persons.” 333 Eventually, in 1886, the Senate committee changed section 2 to read that a “final

determination” was *596 “conclusive” only as to the “ascertainment” of the electors. 334 Substituting “ascertainment” for
“lawful title to office” stated more clearly the understanding that a section 2 determination established the electors' identity
under state law, not their eligibility under the federal Constitution.
Indeed, in the view of the Congresses that debated and passed the ECA, constitutional ineligibilities were more encompassing
than the personal disqualifications listed in Article II, section 1 of the Constitution. It included, for example, the judgment

that the votes came from a territory that was a state of the American union entitled to electoral votes. 335 It included, in the

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view of Representative Andrew Caldwell, Chairman of the House committee managing the bill's final passage, the judgment
that the state had a republican form of government or that the state's electoral vote total should not be reduced, under the

Fourteenth Amendment, “in proportion as that State shall have denied the right to vote to its citizens of color.” 336 Constitutional
prerequisites were the foundation of the elector's (or the state's) right to vote. Congress's grant of conclusive effect to section 2
determinations was not meant to bar Congress from rejecting votes that lacked the basic predicate for the votes' constitutional
status as electoral votes. Constitutional infirmities may be said to be the second implied limitation to Congress's section 2
commitment. 337

The third implied exception to Congress's section 2 commitment involves the nature of the section 2 authority. Senator
Edmunds's original bill, and the bill as resubmitted in succeeding Congresses, required the states to designate judicial
tribunals for the “trial and determination” of elector appointment controversies if they wanted the final determination to bind
Congress. 338 During the 1886 floor debate, however, Senator William Evarts objected to requiring judicial proceedings.
Presidential elections, he said, were “from the beginning to the end, . . . a political transaction to be governed by” the political

branches. 339 The Framers, he *597 believed, preferred certainty and efficiency in presidential elections and wanted the

process to be “as little impeded and as little interrupted as possible.” 340 Because Evarts's objection built on concerns that

other senators had about any judicial involvement in electoral processes, 341 or about dictating anything to the states on elector

appointment matters, 342 the ECA's managers thought it best to recommit the bill. 343 The bill emerged from committee with
language to meet Senator Evarts's concern. Now, the bill gave conclusive effect to a state's final determination made “by judicial
or other methods or procedures.” 344

With that change, the bill allowed the states to designate any “State functionar[y]” as its section 2 “authority.” 345 At the states'
option, contests over elector elections could be conclusively settled by judicial, executive, or legislative officers. The final
authority might be the legislature, the governor, or the very returning board that canvassed the election in the first place. Yet,
as an analysis of the ultimate wording of section 2 shows, it is likely that the ECA's leadership was reconciled to the change
because, even as amended, the ECA still required that, whatever state functionary was designated, its final determination had
to involve at least a quasi-judicial process. 346

The bill that emerged after recommittal in the Senate required that, in order to bind Congress, the state's “final determination”

authority had to address “any controversy or contest” concerning the electors' election. 347 Addressing “any controversy or
contest” implies more than merely declaring that the original canvass is final. It implies more than merely recounting the accepted
ballots. These ministerial tasks frequently precede an election controversy or conflict. What responding to any controversy or
conflict requires is a re-evaluation of the facts of the election in light of the applicable law. 348 Even if not carried out by the
judiciary with the full panoply of courtroom due process, this re-evaluation is inherently a judicial or quasi-judicial proceeding.
As Senator Hoar explained earlier in the 1886 ECA debates (though not in response to Evarts's criticism):
[W]hoever is taken, it is a person who is taken for the purpose of exercising a judicial function. I do not mean
by “a judicial *598 function” one of the functions usually assigned to courts, but I mean judicial in regard to
the nature and character of the act to be performed; that is, you are to have a tribunal which is to determine the
existing fact and the existing law, in contradistinction from determining the law or creating the fact according
to his own desire. 349

In agreeing to modify section 2 to allow states to bind Congress without having a judicial settlement of elector election
controversies or contests, Hoar was not abandoning the ECA's bedrock principle that whoever or whatever the state designated
as it final authority, that authority had to respond with at least quasi-judicial review processes that could review and redetermine
the factual and legal judgments made by election administrators. 350

Perhaps the point can be made most clearly if we imagine a state designating as its final authority the very same returning
board that canvassed the election in the first place. In the original canvass, that board typically acts ministerially: it receives
the returns from the various local boards, checks their formal regularity, and adds them together. In contrast, in responding to
any controversy or contest brought about by the election, the returning board must then critically review what it and the local

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election boards and officials have done. It may be called upon to make complex factual determinations and apply ambiguous
law to them. It might find itself reviewing the propriety not only of all of its own original actions, but also all the actions and
decisions of the local boards and election judges. Unless the state authorizes its final authority to engage in some irreducible
minimum of discretionary fact finding and law application, the state has not, in any fair sense of the phrase, “provided . . . for
[the] . . . determination of any controversy or contest concerning the appointment of all or any of the electors of such State.” 351
All it has done is repeat the original ministerial canvass. 352

*599 As Senator Edmunds indicated just before submitting his original bill to Congress, in the presidential election process,

ministerial decisions should be prima facie binding; only judicial determinations may bind “finally.” 353 Congress, however,
was ill-prepared to perform the quasi-judicial function, and section 2 of the ECA encourages the states to do it. Edmunds's belief
was that “[t]he experience of governments seems to have proved that, on the whole, judicial tribunals are best calculated to hear
and decide disputed questions of law and fact, although they may involve inquiries extending into the domain of politics and
the decision of the fact of an election.” 354 His preference was for the states to “provide by law for the immediate decision,

by [their] own highest court[s], of all contests touching the choice of Electors.” 355 Ten years later, in securing passage of the
ECA, Edmunds was willing to compromise on the form, but not the essence of his belief. He would accept any state-designated
authority, so long as it was empowered to hear and decide “disputed questions of law and fact” 356 concerning elector election
contests.
Given that section 2 final determination tribunals had to employ at least quasi-judicial methods, Congress may be empowered
to ensure that the tribunals did not act fraudulently-the fourth implied exception to Congress's section 2 commitment.
What if there were no election in the state, but a corrupt tribunal, as part of the conspiracy, nonetheless gave a section 2 validation
to certain individuals as electors? Would Congress be bound by such enormities? Senator Bayard answered in the negative
because
[A] fraudulent judgment is no judgment. Prove fraud, and you have proved that which is a universal solvent and
which absolutely destroys the form of fact which it has set up. Therefore there is nothing to prevent the two Houses
of Congress from penetrating a judgment obtained by fraud, because that would be no judgment at all, and so far
from *600 invading the right of the State it would be a direct decision in favor of the State. 357

In this, Bayard echoed Senator Morgan, who had earlier argued that the benefit of section 2 was that “[e]very State can save its
vote, if it will do so, against the power of [Congress] lawfully to exclude it for any cause except for the constitutional disability
of the electors or for fraud in the action of the State tribunal that determines the validity of its appointment.” 358 No one in the
Senate ever countered Bayard's and Morgan's remarks. 359 The power of fraud to undo otherwise-binding transactions was a
fundamental assumption of Anglo-American law that permeated late nineteenth-century political/legal culture. 360

The House of Representatives, however, had a different understanding of section 2. In 1884, when House opponents of the

Senate bill attacked it for requiring Congress to accept section 2 determinations even when rendered by a “bribe[]” 361 or a
“venal” 362 tribunal, none of the bill's proponents responded that section 2 countenanced a fraud exception. 363

In 1886, as the ECA proceeded to final passage, the House more clearly indicated its understanding that there was no fraud
exception to section 2's conclusivity principle. The 1886 House debate opened with Representative Caldwell, Chairman of the

House committee in charge of the legislation, presenting the Senate bill with amendments proposed by the House committee. 364
Among the committee's amendments was one drafted to prevent Congress from rejecting any “electoral vote or votes from any
State from which but one . . . return has been received”-even when there had *601 been no section 2 final determination. 365

Speaking in support of the amendment, Representative William Cooper, a member of the House committee, 366 praised it for
going
[T]o the utmost verge of safety in providing against any possible invasion of the right of a State, for [it provides]
that, where there is but one certificate from a State, no matter whether every single member of each House

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considering it may believe, or may know, that not one of the men named in that certificate has been duly elected,
yet they shall have no right to throw it out, but it must be counted. 367

Cooper's remarks provoked a telling response from Representative George Adams, who favored the Senate bill:
The conclusive presumption of validity established by the provision of the Senate bill . . . is established in a case
where the question at issue has been submitted to and decided by the State tribunal provided for in section 2 of the
bill. The decision of this State tribunal may be regarded as a judicial determination of the question by a court of last
resort. To give conclusive effect to such a judicial determination is . . . a very different thing from the provision of
the proposed amendment, since the latter gives the same conclusive presumption in favor of a mere alleged return
which has never been judicially passed upon and may be known to be a forgery by every member of each House.

. . . [T]he provision of the Senate bill . . . is not . . . so dangerous as the provision of the House amendment that a
single return, or a paper purporting to be a return, shall be conclusively presumed to be the legal and valid vote of
a State, even though all the members of both Houses (to use the *602 illustration of my friend [Rep. Cooper])
are firmly convinced that the return is a rank forgery. 368

Adams's remarks clearly reveal an expectation that there was no fraud exception to both the House committee's proposal and
section 2, as it then stood, and as it eventually passed into law. 369

From this legislative history it is possible to conclude that the Congress that adopted the ECA did not intend a fraud exception to

section 2's conclusivity principle. Senator Morgan's and Senator Bayard's remarks were made in 1878. 370 Morgan and Bayard
were both Democrats, and their remarks reflected the Democratic position on how to deal with the Republican returning boards
that had, they thought, improperly certified Republican electors in the 1876 election. 371 It is possible that as the 1876 conflict
receded, all parties began to appreciate the importance of making no exception to the principle of keeping elector election
disputes out of Congress, especially when there had been a determination of the matter by quasi-judicial procedures. There
always had been an undercurrent of opinion in Congress that the power of elector appointment was so completely vested in

the states that Congress had to accept whatever returns came from the states' duly designated authorities. 372 That opinion had
never dominated. But, as Representative Adams's remarks suggest, perhaps it reflected majority sentiment when combined with
section 2's *603 novel suggestion of interposing a state quasi-judicial tribunal to review the state's election.

It is also possible to conclude that the Senate and House simply disagreed on whether there was a fraud exception to Congress's
section 2 commitment. Throughout the ECA's long gestational period, the House was more inclined towards states' rights than
the Senate. 373 It is plausible that the two chambers' differing views on the balance of national interest and states' rights in
electoral vote counting created differing views on the implied fraud exception to section 2. If so, the ECA is ambiguous on
whether there is an implied fraud exception to section 2's promise that state “final determinations” would be “conclusive.” 374

Finally, it is also possible to conclude that section 2 contemplates a fraud exception, but is ambiguous as to how extensive
the fraud must be before Congress may appropriately decide to deny that a proper section 2 final determination was rendered.
Section 2 was designed to prevent Congress from having to revisit and review troubled elections, but there may well be implied
limits to that commitment. There was, after all, a strong sentiment in Congress that ultimately the ECA could not constitutionally

bind a Senate and House that concurred in refusing to count particular electoral votes. 375 Many proponents of the ECA voted for
it intending to give the ECA's approach to electoral vote counting as much binding moral force as possible, but acknowledging
that it could be set aside when appropriate. 376

Recall also that the discussion of nineteenth-century administrative law showed that some nineteenth-century constitutionalists
distinguished between degrees of fraud. 377 Justice Bradley's rulings while on the Election Commission illustrate that there

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were some constitutionalists who held that Congress could not overturn state discretionary judgments for mere fraud, yet felt

Congress could do so when confronted with “manifest fraud.” 378 Indeed, Justice Bradley felt that some fraud might be so
extensive as to undermine the existence of the constitutional facts that were necessary to support the state tribunals' assertion of
jurisdiction. 379 That would be a *604 species of constitutional infirmity, and Congress clearly intended an implied exception
to section 2 for constitutional infirmity. 380 Under this view, it would be appropriate to conclude that fraud did vitiate section
2 final determinations, though perhaps not in all instances of fraud.
In the end, in light of section 2's text and the legislative history, what is certain is that Congress meant section 2's conclusivity

principle to encompass and protect final determinations that were merely erroneous. 381 In the Anglo-American tradition, errors

in judgment did not vitiate discretionary decisions made by tribunals acting within their jurisdiction. 382 If there is an implied
fraud exception to section 2's conclusivity principle, it was not intended to impugn this fundamental understanding.

In addition to section 2's implied exceptions, section 2's conclusivity principle is limited by an implicit understanding that
underlies every application of section 2 when Congress meets to count electoral votes. When Congress receives an electoral

vote, or set of electoral votes, claiming to have section 2 status, Congress decides whether the claim is meritorious. 383 Since
“Congress” means the Senate and the House of Representatives acting concurrently, deciding that an electoral vote merits section
2 status requires both houses of Congress to agree that it does. Each house might manifest its agreement through acquiescence.

However, should an objection be made to counting an electoral vote that claims section 2 status, 384 the electoral vote would
not be received as conclusive *605 if either the Senate or the House of Representatives sustains the objection. There is, in
effect, a one-house veto over an electoral vote achieving section 2 status. 385

The “Congress decides/one house veto” understanding follows from the constitutional postulate of equality between the House

of Representatives and the Senate and its corollary that Congress acts only when its two chambers concur. 386 For the Congresses
that debated and passed the ECA, this postulate meant that counting an electoral vote required the assent of both houses of
Congress. 387 Congress could provide otherwise through statute or joint or concurrent rule. 388 But unless Congress did, 389
no electoral vote could be counted if one house objected to its reception. 390

The ECA's theory, then, is that under the Constitution, without supplemental legislation, no electoral vote may be counted unless
both *606 houses of Congress agree to count it. 391 In the ECA, Congress granted away much of that power, leaving, in Senator

Hoar's view, “only [a] remnant.” 392 As we shall see, the Senate and House of Representatives agreed in section 4 that when a
state submitted one set of electoral votes, those votes would be counted unless both chambers concurred in rejecting it. 393 In
section 2, the Senate and House of Representatives agreed that if the states designated tribunals to determine elector election
contests, both chambers would be conclusively bound by those tribunals' decision. 394 But in the ECA, Congress nowhere
limited its power to determine whether a return truly deserved section 2 status.

In other words, under the terms of the ECA, when a return comes before Congress, even if it is the only return from that state,
the most it can do is claim to have section 2 authentication. It does not have section 2 authentication until Congress agrees that
it does. Only if both houses agree that a return merits section 2 status will the return be entitled to it.
Of course, if there is judicial review of Congress's electoral vote counting, a court might reverse Congress for blatantly incorrect

rulings on whether a return was validly authenticated by the state's final determination authority. 395 But absent judicial review,

the ECA requires the concurrent vote of both houses for a return to obtain (or be recognized as having) section 2 status. 396

In short, unlike other provisions of the ECA, section 2 does not alter Congress's normal voting rule. That Congress's
normal voting rule applies to the determination of whether an electoral vote merits section 2 status is critically important to
understanding the ECA's structure and coherence. This principle solves the problem that section 2's grant of “conclusive”
effect to a state's “final determination” 397 is unconstitutional as an instance *607 of “one Congress binding another.” 398
The present Congress, by agreeing to give an electoral vote section 2 status, manifests its view that the state's determination is

conclusive. 399 This principle also, as will be discussed, reconciles an otherwise irreconcilable conflict with the voting rules set
out in section 4 of the ECA that apply to a state that submits one set of electoral returns. 400 It helps us understand the voting

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rules set out in section 4 that apply to a state that submits multiple sets of returns. 401 Finally, it is the bedrock for understanding
the ECA's procedural provisions, particularly the role of the President of the Senate as presiding officer of the electoral vote
counting session. 402

To sum up this long discussion of section 2: section 2 essentially encourages the states to craft post-election contest procedures
for their presidential elections by pledging Congress to accept the states' identification of their duly appointed electors.
Congress's commitment is subject to express and implied limitations. Those limitations frame the grounds that Congress,
consistent with section 2's pledge, may refuse to grant section 2 status to electoral votes that claim it, and may refuse to count
electoral votes that have it.
When electors claim section 2 status, Congress is not to ask, at least initially, “Are these the electors who won the election?”
Rather, Congress should ask: (1) Have these electors been confirmed by the state's final determination process?; (2) Was
the state law creating that process enacted prior to election day?; (3) Did the process use quasi-judicial methods?; (4) Was
the determination final at least six days before the day set for elector balloting?; and, perhaps, (5) Was the determination
nonfraudulent?
Electors who claim section 2 status have it only when all these questions are answered affirmatively. In answering these questions
affirmatively, Congress acts bicamerally. The questions can be answered affirmatively only if both the House and Senate concur.
Absent judicial review, electors claiming section 2 status receive it only when both chambers of Congress agree that they merit it.
If either chamber answers negatively to any of the questions, the electors' votes may still be the appropriate votes to count and
they may be *608 counted, but not because of section 2's conclusivity principle. Section 2 is a “safe harbor,” not the only
ground for accepting and counting electoral ballots. 403

If both Houses answer affirmatively to all of these questions, Congress may still refuse to count the votes of any electors who
(1) represent a territory not entitled to participate in the Electoral College; (2) suffer a personal constitutional disqualification
from holding the elector's office; (3) voted in violation of constitutional requirements; or (4) voted corruptly. Thus, section 2's
pledge is inherently limited. It was not meant to cover anything beyond the state's determination of the identity of the electors
it appointed to cast its electoral votes.
In deciding to accept or reject the votes of electors who merit section 2 status, Congress is governed by section 4 of the ECA. 404

Section 4's provisions, and their relation to section 2, are discussed later. 405 The analysis thus far has dealt only with the
decision to accord electoral votes section 2 status and the conditions and limitations of that decision. Section 2 is, as Professor
Burgess said, “the groundwork . . . of the whole system of the [electoral] count.” 406 Still, it is preliminary to a consideration
of the rules set out in section 4 by which electoral votes are actually counted.
C. Section 3: Authenticating and Publicizing the States' Appointment 407
Focused as it was on resolving problems concerning the identity of the states' electors, Congress in section 3 of the ECA extended
federal requirements for authenticating and publicizing the states' choice of electors. The Constitution originally required the
electors to authenticate their own acts: After balloting and making a list of the persons voted for and the number of votes each
person received, the Constitution directed the electors to “sign and certify” the list and “transmit” it “sealed to the Seat of the
Government, directed to the President of the Senate.” 408 In 1792, in the only legislation enacted before 1887 affecting the
electoral ballot counting process, Congress set further requirements for authenticating the *609 electors' status as electors and
their vote tallies. 409 Congress's 1792 statute required the electors to make out their certified lists in triplicate and certify on the
outside of each of the sealed packets that the packet contained their state's list of electoral votes. 410 The statute also required
the electors to appoint a messenger to hand-deliver one packet to the Senate President, send one packet by mail to the Senate
President, and deliver the third packet to the local federal district judge. 411

In addition, the Act of 1792 directed the governor of each state to “cause three lists of the names of the electors of such state

to be made and certified and . . . delivered to the electors on or before” the day set for elector balloting. 412 The electors

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were to “annex” one of the governor's lists “to each of the lists of their votes.” 413 With this provision, Congress shifted the
authentication of who were the state's electors from the electors themselves to the governor of the state.
Some congressmen were troubled by the provision requiring the governor to execute certificates naming his state's electors. It

was “degrading” to require him to participate, and there was nothing that could be done should the governor refuse to comply. 414
However, most congressmen thought the provision was an appropriate method for regulating how the states “exercis[ed] this
privilege” of casting electoral ballots. 415

In all probability, Congress viewed the requirement as an exercise of its authority under Article IV of the Constitution to

prescribe the manner in which state “Acts, Records and Proceedings shall be proved.” 416 That is how later Congresses saw
it. 417 The governor is the officer who speaks for the state to the rest of the Union. He seems to be the appropriate person to
inform Congress as to the identity of his states' presidential electors.

The ECA, as originally proposed by Edmunds and as reintroduced in subsequent Congresses, carried forward the 1792
certification requirements, making clear that the governor was to make out the *610 certificate after the electors' final

determination. 418 During the 1886 debates, Senator Evarts proposed additional safeguards: “After the final act of the State
in the process of elections,” the governor should execute a certificate “under the seal of State” setting forth “who had been

appointed and what votes had been given or cast for every person voted for for that place.” 419 This certificate, “as soon as
practicable after the final act of the State in the electoral appointment,” should be sent to the United States Secretary of State to
“publish[] to the whole world what was declared by each State as the result, and not merely a certificate of a conclusion, but a
statement of the final act of election itself-that is, the canvass and declaration of the polls.” 420 Senator Evarts also suggested

that three copies of this enlarged gubernatorial certificate should be given to the electors to be annexed to their list of votes. 421

What Evarts wanted, “neither more nor less than [what] is required for the security of elections in our own States,” was “an

open and public declaration under the authority of high official duty of the result.” 422 He thought that this more complete
official statement of the electors' election might justify section 2's conclusive effect. The certificate required by the 1792 law
was only “a certificate of a conclusion.” 423 Evarts saw his certificate as “a statement of the final act of election itself” that

gave a certainty of knowledge on the subject. 424 With this certainty of knowledge published to the world and communicated
openly to Congress well before *611 it counted the electoral vote, Evarts thought giving conclusive effect to a section 2 final
determination might be justified.
Perhaps, then, it would be considered entirely right that no vote that was communicated under these sanctions
and with this ascertainment could properly be challenged by either House or brought into question unless both
Houses should concur in some grave, some post hoc occurrence that should disparage the absolute control given
to this ascertainment. 425

In truth, Evarts's proposal accomplished nothing, given that by 1887 the result of every state's election was publically known as

it was reached. 426 Accordingly, Senator Hoar at first resisted it. 427 His mind began to change, though, when Senator Edmunds
spoke on its behalf. In Senator Edmunds's view:
[T]he two Houses of Congress would be informed as to who it appeared from this certificate of the governor had
been elected electors . . . and who it appeared if a tribunal in that State-which is the great security, after all-had
decided, if there was any doubt or dispute, was the true electoral college of that State. That would enable the
two Houses of Congress to be advised in advance of the state of the official circumstances that had taken place
in that State. 428

With Senator Edmunds's support, Senator Evarts's proposed expansion of the governor's certificate was drafted into section 3
by the Senate committee during the bill's recommittal. 429

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In adding a more elaborate gubernatorial certification to the states' electoral vote packets, Congress did not mean to make any
substantive change in the law of the electoral count. 430 Over the course of the *612 nineteenth century, a few congressmen

had argued that the governor's certification should be definitive as to the identity of the state's electors. 431 However, that never
was the sentiment of the vast majority of Congress. In 1801, 1809, and 1873, Congress accepted electoral votes transmitted
by electors without any gubernatorial certification. 432 Conversely, in 1873 and 1877, Congress rejected votes backed by the

governor's formal certificate. 433 For most congressmen, the presence or absence of the governor's certificate was a factor to
be considered, but because the governor's certification of an elector's appointment to office was a ministerial act, it was not
conclusive. 434

In making his proposal for an expanded gubernatorial certificate, Senator Evarts clearly focused on the fact that, under the

ECA, the governor's certificate might be authenticating the state's section 2 final determination. 435 He wanted to give that

fact more publicity, and he wanted Congress to have earlier notice of it. 436 But he was not altering the legal effect of the
governor's certificate per se. We will see that ECA section 4 does, under certain circumstances, give the governor's certificate

legal import. 437 The point here is that historically the governor's certification had little or no effect on an electoral vote's validity
and section 3 did not alter that tradition.
*613 D. Section 4: The Substantive Electoral Count Provisions 438
In adopting the 22d Joint Rule in 1865, Congress made its position on the Constitution's default rules for electoral vote counting
crystal clear: When the Senate and House concurred in counting an electoral vote, it would be counted; when they concurred
in not counting an electoral vote, it would not be counted; when they disagreed in counting an electoral vote, it would not

be counted. 439 There was, in effect, a one-house veto over counting an electoral vote. Also, in 1865, in adopting the joint
resolution barring Congress from counting electoral votes submitted from states that had joined the Confederacy, Congress
made clear its view that it had the power to alter the default vote counting rules by concurrent rule, joint rule, or statute. 440

In section 2 of the ECA, Congress used its power to commit itself to accepting the state's determination of the identity of its
electors whenever the Senate and House agreed that the electors' appointment had been adjudicated by a proper section 2 final
determination process. 441 Given the conditions that hedged whether electors merited section 2 status, Congress knew section

2 did not guarantee that every state would always submit electoral votes that merited section 2 treatment. 442 In addition, given
section 2's limitations, Senate and House agreement that certain electors deserved section 2 status did not mandate counting
their votes. 443

Congress saw section 2 as a great aid, but not as a complete solution, to the problems of the electoral count. In section 4, Congress
addressed the rules which, while meshing with section 2, would actually determine whether or not to count an electoral vote. 444

*614 Section 4 is a rather long and turgid provision that covers some of the procedures of Congress's vote counting session

and the substantive counting rules. 445 The substantive rules themselves require 394 words and are communicated, in part, with
a sentence that is 275 words in length. This nightmare for interpretation breaks the situations confronting Congress into four
generic situations and provides vote counting rules for each one. The generic situations are:
(1) when Congress receives only one set of electoral votes from a state;

(2) when Congress receives two or more sets of electoral votes from a state and one of them claims to have been
authenticated by a section 2 proceeding;

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(3) when Congress receives two or more sets of electoral votes from a state and two or more of them claim to
have been authenticated by a section 2 proceeding; and

(4) when Congress receives two or more sets of electoral votes from a state and none of them have been
authenticated by a section 2 proceeding.

The remainder of this Part explores section 4's treatment of the four generic situations. After discussing section 4's approach to
single submissions from a state, this Part groups the problem of multiple submissions and analyzes them together.
1. When Congress Receives Only One Set of Electoral Votes from a State
From 1865 to 1876, Congress's sentiment for states' rights was at an historic low ebb. In those years, Congress governed electoral
vote counts through the 22d Joint Rule which allowed Congress to reject any electoral vote, even if a state had submitted only
one return, when a single house of Congress voted to reject it. 446 By the mid-1870s, there was general dissatisfaction with

this approach, which some congressional leaders began to describe as unconstitutional. 447 In 1875, the Senate began passing
bills that cabined Congress's power to reject electoral votes when a state submitted only one return. Under the Senate bills,
Congress retained unfettered discretion to reject electoral votes from a state that submitted *615 one set of returns but only

“by the affirmative vote of the two houses.” 448 And beginning in 1878, the Senate bills further qualified Congress's discretion

by requiring Congress to accept electors authenticated by a section 2 proceeding as the states' true electors. 449

From 1875 until 1886, all of the Senate bills died in the House. 450 In 1886, however, the House responded to the Senate bill with
a counter-proposal that was more deferential to states' rights. The House agreed with the Senate that section 2 determinations
conclusively bound Congress as to the electors' identity. 451 But the House also wanted Congress, in the absence of a section 2
determination, to be conclusively bound as to the electors' identity when a state presented only one set of returns and the electors'
appointment to office was attested to by the governor's certificate called for by section 3. 452 The House provision read: “[N]o
electoral vote or votes from any State which shall have been regularly given by electors whose appointment has been certified

to according to section 3 of this act, from which but one return has been received, shall be rejected.” 453 At conference, the
Senate and House of Representatives compromised. The conference accepted the House's amendment, but conditioned it on the
requirement that electors have been “lawfully certified” by the governor. 454

As compared to the provision that passed the House, the provision that emerged from conference, and passed into law, was
lengthier and more repetitious than might be expected for such a slight change. Representative Caldwell, the Chairman of the
House committee, attributed the extra length to the desire “to express in words what is of clear implication . . . thus leaving
nothing to doubtful construction” about the extent of Congress's commitment to accept electoral returns when a state presented
only one set of electors. 455 As enacted, the relevant part of section 4 provided:

[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 three of this act from which but one return has been received
shall be rejected, but *616 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. 456

In the end, then, Congress reserved for itself the power to reject, by concurrent vote, the electoral vote of a state that presented
one set of electors. However, Congress limited its power to do so to when: (1) the electors' votes were not “regularly given;”
or (2) the governor had not “lawfully certified” the electors' appointment.

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a. When the Single Set of Electoral Votes Claims Authentication by a Section 2 Process
Since this part of section 4 literally applies to all instances where a state submits one set of electoral votes, it seems to apply
regardless of whether the state's return has been authenticated by a section 2 final determination proceeding. In covering the
submission of section 2 authenticated returns, this part of section 4 seems to contradict section 2's pledge to give “conclusive”

effect to a state's “ascertainment” of its electors. 457 By allowing a concurrent vote of the houses of Congress to reject a state's
single set of electoral votes, section 4 seems to conflict with section 2's pledge.
The conflict, however, is more apparent than real. Section 2's pledge does not extend to the electors' post-ascertainment conduct,

nor to any constitutional infirmities in their status as electors or in the votes they cast. 458 It applies only to the identity of
the electors the state appointed. As to all those matters not within the scope of section 2's conclusivity principle, section 4
complements, rather than contradicts, section 2 by providing the rule that governs whether some defect properly bars counting
the votes of the duly ascertained electors.
Still, section 2 does have some scope. In section 2, Congress committed itself to not reject electoral votes merely because it
thought that the electors authenticated by a proper section 2 process had not actually won the state's presidential election. 459
With this in mind, it is possible to see how section 4 both meshes with, and controls, section 2. 460

*617 On the one hand, given that electors claiming section 2 status do not, in fact, have section 2 status unless both the Senate
and the House of Representatives concur, both houses of Congress voting against counting an electoral vote expresses the view
that the elector casting that vote either:
(1) merits section 2 status but for some valid reason beyond section 2's scope does not merit having his vote counted; 461 or
(2) does not merit section 2 status, and for some valid reason, to be discussed in our analysis of section 4, does not merit having
his vote counted. In either situation, section 2's pledge and section 4's rule for counting electoral votes from states that submit
only one set of returns work together and do not conflict.
On the other hand, it is always possible that the elector whose vote was rejected under section 4 by Congress's concurrent vote
did in fact qualify for section 2 status and there was no valid reason for rejecting that vote. It is possible that both the Senate and
the House of Representatives adopted option (1) or (2) pretextually, or merely erroneously. 462 In that case, as Senator Edmunds
told the Senate when submitting his original bill in 1878, Congress's action would not be “rightful.” 463 Edmunds thought that

if Congress shirked its section 2 commitment, the courts might intervene. 464 Most congressmen disagreed, thinking that in

electoral vote counting, Congress was the nation's ultimate tribunal. 465 In their view, when the *618 presidency was closely

contested, judges, even Supreme Court justices, might succumb to party spirit. 466 Electoral vote counting was a political, not
judicial, affair. Yet, thinking of the judiciary was useful because, as Senator Morgan reminded his colleagues when the ECA
debate drew to a close:
Senator [Edmunds] from Vermont remarked recently in debate that there is a point beyond which you can not
bind the human conscience. . . . A decision of the Supreme Court of the United States might be made as a result
of bribery, yet there is no power in the country that can set it aside; that is the supreme tribunal. . . . So [Congress]
may vote down the voice of the State's electors, . . . and after the act has been done the power to revoke it, even
the power to question it, has passed beyond human control. 467

The Congresses that debated and passed the ECA believed that: in all governmental arrangements, there was no escaping the
problem of human fallibility; in electoral vote counting, the Constitution made Congress the nation's tribunal of last resort; and,
absent judicial review, section 4's voting rule controlled section 2's conclusivity principle. 468

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b. When the Single Set of Electoral Votes Does Not Claim Authentication by a Section 2 Process
In debating section 4's voting rule for situations where a state submitted one set of electoral votes, Congress generally assumed

that it would faithfully self-enforce section 2's pledge. 469 Consequently, most of the discussion of this part of section 4 focused
on counting returns from a state *619 that submitted one set of electoral votes that did not claim authentication by a section
2 procedure. 470 In that situation, without any potential conflict with section 2's conclusivity principle, the Senate and House

of Representatives agreed to count a state's single set of electoral votes unless both houses concurred in rejecting them. 471 In
addition, the Houses of Congress agreed to limit the rightful grounds for rejecting a state's single set of electoral votes to when
the votes were not “regularly given by electors whose appointment has been lawfully certified to according to section three.” 472

In preserving its right to reject non-section 2 authenticated electoral returns that were not regularly given or lawfully certified,
Congress meant to encompass all the express and implied exceptions to counting electoral votes that were discussed as part of

section 2. 473 A vote not “regularly given” included all improprieties in the electors' conduct in office. 474 A vote not “lawfully

certified” included Congress's power to reject electoral votes due to preexisting constitutional infirmities. 475 All of the prior
analyses of constitutional infirmities that justify rejecting section 2 authenticated returns apply here with even greater force since

we are discussing returns that have not been subject to quasi-judicial scrutiny. 476 In addition, in 1886, when Representative
Caldwell explained section 4 to the House of Representatives, his illustrations of a return that was not lawful were instances of
constitutional infirmity. 477 It was, he said, *620 “certainly absurd to try to deny to Congress the power to remedy an unlawful

return, although it might be the only return.” 478

In other words, in limiting its discretion to reject electoral returns under section 4, Congress sensibly intended non-section
2 authenticated returns to be at least as vulnerable to congressional rejection as a return that had section 2's additional
stamp of authenticity. In fact, Congress intended non-section 2 authenticated returns to be more vulnerable to congressional

rejection. 479 Finding a vote to be “lawfully certified” encompasses additional grounds for rightful rejection: that the governor
issued his section 3 certificate to electors who were not entitled to it under state law; or that state election officials had acted
fraudulently. 480

Congress's power, when both Houses concurred, to reject votes from electors whose gubernatorial certification was not
authorized by state law is well supported by section 4's legislative history and the ECA's assumptions. Recall that in 1873 and
1877, Congress had rejected votes given by electors whose appointment was certified by their state governor. 481 Congress in
one case, and the Electoral Commission on behalf of Congress in the other, had done so because they had determined that the

governors had issued their certificates to electors who were not entitled to them under state law. 482 In 1886, Senator Sherman
reminded Congress why these decisions were proper. A governor's certificate, he said, “is only prima facie evidence of the facts
contained in it; it is not at all conclusive.” 483

The propriety of Congress's action in 1873 and 1877, and the support for Sherman's remark, lie in the nineteenth-century legal
culture's assumptions about administrative law and election law. In particular, Congress's action and Sherman's remarks rely
on the view that a state governor acts ministerially, not discretionarily, when he certifies the outcome of an election. 484 A

governor's “ministerial” certificate gives its recipient a “prima facie” right to office and makes him an officer de *621 facto. 485
The governor's certificate was evidence of office that, by the norms of administrative law and election law, could be reviewed,
shown to be erroneous, and overturned. 486 In short, the governor's certificate issued under section 3 of the ECA was like any
other ministerially issued credential: Congress could set aside the governor's action for mere error. 487

In reserving power under section 4 to reject a state's single set of electors when those electors' only authentication is the
governor's section 3 certificate, Congress clearly retained power to review the bonafides of the governor's ministerial decision
to favor one set of electors over another. Unfortunately, section 4's legislative history is ambiguous on how far behind the
governor's certificate Congress could go. Could Congress “go to the bottom of everything” 488 and reverse the entire election
based on mere error in any part of its administration?

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To appreciate the issue, recall the simplified sketch of election administration set out earlier in the Article. 489 In that sketch,
precinct-level administrative officials first made discretionary decisions about voter qualification, the legality of ballots, and for
whom they were cast, and then made ministerial decisions in tallying the votes. Drawing from the precinct officials' tally sheets,
the county and state returning boards made ministerial decisions in aggregating the precinct and county returns and forwarding
them to the governor with an indication of the victorious candidate.
In debating the ECA, Congress focused on the governor's actions but not on the other boards in the election administration
hierarchy. 490 Consequently, although the ECA debates define Congress's oversight of the governor's role in presidential
elections, they provide scant insight regarding Congress's oversight of the state, county, and precinct election boards and
officials.

If we attempt historically informed speculation, two positions seem the most plausible. 491 On the one hand, there is the position

that Justice *622 Bradley elaborated in deciding the Electoral Commission cases in 1877. 492 This position is grounded in

the constitutional principle that the Constitution vests the power of elector appointment entirely in the states. 493 According
to Justice Bradley, because the state boards were “part of the machinery for ascertaining the result of the election,” 494 they
were part of the state's plenary appointment power and immune from congressional intrusion. 495 Although Justice Bradley
countenanced Congress's “go[ing] behind the governor's certificate,” he thought Congress “can only do so for the purpose of
ascertaining whether he has truly certified the results to which the board arrived. [Congress] cannot sit as a court of appeals
on the action of that board.” 496

On the other hand, there is the position grounded in the principles of nineteenth-century administrative law and election law

that pervaded late nineteenth-century legal-political culture. 497 Under those principles, which allowed erroneous ministerial
decisions, but not erroneous discretionary decisions, to be overturned, Congress, in deciding on the lawfulness of the governor's

certificate, could review administrative acts back to the last decision that required discretionary judgment. 498 If so, Congress
could review the ministerial decisions of all the state returning boards and overturn them for erroneous applications of state law.
But Congress could not similarly review and overturn the discretionary decisions of the local precinct administrators, nor could it
reject presidential electors based on other erroneous discretionary election decisions, like ballot design or voter roll purging. 499

Of course, to stay true to nineteenth-century norms, we have to add a fraud exception to both Justice Bradley's and the

administrative-election law approaches. 500 At some point, the conduct of a state's election may be sufficiently heinous to be
disqualified on the grounds of fraud. This raises, as it did in our discussion of section 2, the ambiguous scope of the fraud

*623 exception. Did it encompass all acts of fraud, or only “manifest fraud?” 501 The ECA's legislative history provides no
clear answer.
Nevertheless, in one important regard section 4's fraud exception is more settled than section 2's. Here, because we are not
dealing with a congressional pledge that a state's determination is conclusive, there is no legislative history questioning whether
the fraud exception should exist. Indeed, Representative Adams's protest against the House committee's proposal to extend
section 2's conclusivity principle to all situations in which a state submitted a single set of electoral votes implies that, should
the House recede from that proposal (as it eventually did), all non-section 2 authenticated electoral votes were subject to a fraud
exception. 502 The ambiguous issue for section 4's treatment of non-section 2 authenticated returns is not the existence of the
fraud exception, but solely its scope.

Still, even with a fraud exception added in the mix, Congress's power to determine whether the governor lawfully certified the

state's single set of electors does not go very far into probing the validity of most elector elections. 503 Either Justice Bradley's
approach, which limits Congress to scrutinizing only the governor's action, or the administrative-election law approach, which
allows congressional review to penetrate further into the chain of ministerial decisions, may be adopted and stay true to the
purposes of section 4's treatment of electoral votes submitted by a state that returned one slate of electors authenticated only
by a governor's section 3 certificate and not by a section 2 final determination. Congress itself struggled over whether the word
“lawful” should appear in this part of section 4, fearing that including it “‘may afford a pretext for usurpation by Congress of

the power to disfranchise a State.”’ 504 Although Congress eventually decided to include the word, by doing so it did not intend

to give Congress “arbitrary power” to accept or reject electoral votes “where but one return was received from a State.” 505

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In sum, when a state submits one set of electoral votes, section 4 specifies that Congress may reject any or all of them only
by a concurrent vote of its two chambers. In addition, while section 2 provides the proper grounds for rejecting electoral votes
that Congress thinks validly claim section 2 authentication, section 4 provides the proper grounds for *624 rejecting electoral
votes that do not claim, or incorrectly claim, section 2 status. 506

When a state submits a single set of electoral votes that are not entitled to section 2 status, the proper grounds for rejecting any

or all of them include all the proper grounds for rejecting electoral votes that merit section 2 status. 507 In addition, Congress
can go behind the electors' section 3 certification and, by concurrent vote, reject any or all of their votes based on improprieties
or mistakes in the governor's administrative decision to issue his certificate. Arguably, Congress may also reject the electors'
votes because of errors by other election officials in making the ministerial decisions on which the governor relied. Regardless
of whether Congress may review the ministerial decisions of election officials below the gubernatorial level, Congress may
review all election decisions, whether ministerial or discretionary, for fraud. Whether the fraud exception applies to all acts that
amount to fraud, or only those that are so notorious to qualify as manifest fraud is not clear. In the end, judging whether the
governor lawfully certified his state's electors should not “afford a pretext for usurpation by Congress of the very power which
the [ECA] intends to repudiate;” 508 that is, the power to reopen all aspects of the elector's election.

In short, when a state submits one set of electoral returns, this part of section 4, in conjunction with section 2, provides the rules
for counting electoral votes and frames and guides Congress's discussion of whether the votes ought to be counted. 509
*625 2. When Congress Receives Multiple Sets of Electoral Votes from a State
The ECA provisions providing congressional rules for counting electoral votes from states which submit a single packet of

returns reflect Congress's decision to accord those single packets a presumption of regularity. 510 That is why, when Congress
deals with a state that has submitted a single return, the ECA requires the House and Senate to concur before any vote from
a single-return state is rejected. 511

The ECA provisions providing congressional rules for counting electoral votes from states which submit multiple packets of
returns reflect a different presumption. Underlying the ECA is the view that when multiple returns are submitted from a state,

no return can enjoy a presumption of regularity. 512 In the abstract, when there are multiple returns from a state, any of them
may be the state's “true return,” 513 reflecting the state's “true voice.” 514

*626 Accordingly, when the Senate first began addressing electoral count reform in the mid-1870s, it passed bills, submitted
by Senator Morton, that refused to count any electoral vote from a state submitting multiple returns unless the House and Senate
concurred as to which packet of electoral votes was the “true and valid return.” 515

When Senator Edmunds assumed leadership of the electoral count reform movement, he modified Senator Morton's approach

to reflect his interest in encouraging the states to resolve presidential election disputes through their own contest procedures. 516
Senator Edmunds's 1878 bill, and all subsequent drafts through 1884, addressed the problem of multiple returns from a state
through a three-step process that turned on whether any of the returns had been authenticated through the state's section 2 “final

determination” process. 517 First, the bills provided that if there were multiple returns, Congress should count the votes cast “by
the electors who are shown by the determination mentioned in section 2 of this act to have been appointed, if the determination

in said section provided for shall have been made.” 518 Second, the bills anticipated that multiple tribunals might claim to be the
state's final determination authority and have authenticated different sets of electors. In that instance, the bills directed Congress
to count the votes cast by the electors credentialed by the tribunal that the two houses concurred was “the tribunal of such
State so authorized by its laws.” 519 Third, if no set of electors claimed to have been credentialed by *627 the state's final
determination process, or if the houses did not concur as to the identity of the final determination tribunal, the bills instructed
Congress to count the votes cast by the electors “which the two Houses, acting separately, shall concurrently decide to be the
lawful votes of the legally appointed electors of such State.” 520

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In each instance, the bills conditioned Congress's obligation to count the electors' votes on their having been regularly given,
which allowed Congress to reject electoral votes when the electors' conduct in office violated constitutional or statutory

requirements. 521 Though it was never discussed, it can be inferred that Congress also retained the power to reject the vote of
any properly elected elector that both houses agreed was not eligible to hold the elector's office, or, perhaps, if the section 2
authentication was fraudulent. 522

Thus Senator Edmunds's approach to addressing the problems of multiple returns from a single state directed Congress away
from an open-ended search for the proper return, and towards the simpler issues of identifying the state's final determination

authority and whether that institution had reached its decision according to the terms and conditions of section 2. 523 Only when
the state had no identifiable authority, or when that authority did not comply with section 2's limitations, was Congress to face
the messy problem of determining for itself which set, if any, of dueling electors had been duly elected. 524

After years of debate, Congress eventually adopted Senator Edmunds's approach to the problem of multiple returns, with one
exception. In this part of section 4, as elsewhere in the ECA, Congress adopted Senator Edmunds's preference for deferring to

the state's section 2 authority when it was identifiable and when it had complied with section 2 requirements. 525 But when (1)
none of the multiple sets of electors claimed authentication by a section 2 process, (2) the Senate and House disagreed as to the
identity of the state's section 2 authority, or (3) the Senate and House disagreed on whether the authority's decision complied
with section *628 2's conditions, Congress ultimately decided to allow the state's governor to determine the identity of the
state's proper set of electors. 526

In the view of many congressmen, Senator Edmunds's third step for handling the electoral votes from states that submitted

multiple returns was problematic. Multiple returns, they noted, could easily be “manufactur[ed],” 527 allowing one house of

Congress, for partisan advantage, to pretextually disagree with the other house on the identity of a state's true electors. 528 This
disagreement would be fatal to counting any return. These congressmen were concerned that, in the presence of multiple returns,
a single chamber of Congress might block the counting of a state's entire vote, altering the result of an election. 529

With this ploy in mind, some congressmen voiced fears that the House, in particular, had an incentive to reject votes because
it might, by rejecting enough votes to reduce all candidates below the constitutionally required majority, throw the election to

itself for final resolution. 530 In addition, states' rights oriented congressmen objected to Senator Edmunds's system allowing
a sovereign state to be entirely disfranchised by the vote of a single house of Congress. In their view, Senator Edmunds's third
step to the problem of multiple returns from a single state allowed Congress too much discretionary involvement in the state's
choice of electors. 531

Accordingly, as the bill approached final passage, Senator Hoar suggested a change in the ECA's ultimate provision for handling
multiple returns. From the floor, Senator Hoar proposed that when there was no proper section 2 determination, or when the
House and Senate could not agree, the electors to whom the governor had given his section 3 certificate should be accepted as
“the truly chosen board” unless “rejected . . . by the *629 concurrent vote of the two Houses.” 532 Senator Hoar's proposal
provoked substantial opposition in the Senate. Senator Sherman, for example, objected passionately that Senator Hoar was
[S]eek[ing] to avoid the difficulty . . . which is manifest to every one, the danger of allowing either of the two
great political bodies [i.e., either House of Congress] to reject the vote of a State; and he now proposes to leave
that question to be finally settled by the governor of the State.

. . . It seems to me he is jumping out of the frying-pan into the fire. Are we willing to leave to one man, who, being
the governor of a State, and therefore necessarily a party in the contest that has occurred in the State, to decide this
question in which he probably from political feeling or otherwise is more interested than any other mortal man?

. . . [T]o leave the question in dispute to be decided by the governor of a State, it seems to me only involves this
matter in greater difficulty. In cases which may arise where honesty of opinion and sincerity of conviction may

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exist in both parties, where there is a real dispute as to who have been elected electors for a particular State, it
seems to me to select the governor of the State to decide the question is . . . not a remedy at all, but only aggravates
the disease. 533

*630 The Senate, apparently agreeing with Senator Sherman, never put Senator Hoar's proposal to a vote, preferring to pass

the bill as it originally stood. 534

Nonetheless, when the Senate bill came to the floor of the House, the committee responsible for the bill suggested amending

it to include Senator Hoar's proposal. 535 To maintain that position, the House of Representatives had to beat back a proposal
from a substantial minority of the Committee to make the governor's certificate control absolutely, even over the concurrent

objection of both houses. 536 After debate, the House of Representatives adopted the Committee majority's proposal. 537 At

conference, Senator Hoar accepted it on behalf of the Senate. 538 Although the conferees adopted the House's amendment, they
“remodel[led] . . . the language . . . so as to clear up any ambiguity . . . and define accurately the meaning of Congress . . . when
there has been no determination of the question in the States by making certain the counting of votes cast by lawful electors
appointed by the laws of the State.” 539 The Conference Committee's rewritten provision, which passed into law, read:

[A]nd in such case of more than one return or paper purporting to be a return from a State, if there shall have been
no such determination of the question in the State aforesaid, then those votes, and those only, shall be counted
which the two Houses shall concurrently decide were cast by lawful electors appointed in accordance with the
laws of the State, unless the two Houses, acting separately, shall concurrently decide such votes not to be the
lawful votes of the legally appointed electors of such State. 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 *631 have been
certified by the Executive of the State, under the seal thereof, shall be counted. 540

As summarized by the Conference Committee, this provision meant that when there are multiple returns and “there has been no
determination of the question in the State[] . . . in the case of the two Houses disagreeing, then the electors whose appointment
has been certified by the executive of the State shall be counted.” 541

According to this part of section 4, then, when there are multiple returns, one of them will be accepted as the state's true return
unless both the Senate and the House of Representatives agree that none of them are valid, or the houses disagree and none

of the electors have been certified by the governor, 542 or multiple governors have certified different returns. 543 In addition,
once a return is accepted as the state's true return, it takes a concurrent vote of both houses to reject a vote based on the electors'
post-appointment behavior. 544

Under this system, the ECA gives the state governor extraordinary power when there are multiple returns. That position was

controversial in *632 its time. Senator Sherman condemned it, 545 as did Professor Burgess. 546 Nevertheless, it had defenders

who felt that the decision was more appropriately and safely made in the states and by state officials. 547 Maybe, modern
Americans are less concerned about disfranchising a state. Yet in 1886, Congress's debates focused on it and passing the ECA
turned on it. 548

In the 2000 election, we witnessed the problem of giving this tie-breaking power to the state's usually partisan governor when
Jeb Bush signed and forwarded his section 3 certification to the President of the Senate even as his state's election contest was

still proceeding. 549 One wonders what Jeb Bush would have done had his state supreme court been permitted to finish its work

outside the safe harbor time period but still before the electors balloted. 550

In giving this power to the states' governors, the congressmen who adopted the ECA cannot be said to have been insensitive to
such concerns. They had before them the warnings of Senator Sherman and others. They also had the historical experience of the

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fraudulent certification granted by Governor Warmoth of Louisiana in 1872, which both houses agreed to reject. 551 Moreover,
they had the experience of their most recent presidential election, the election of 1884. That election turned on the outcome of
the New York vote, which was very close and subject to contest. 552 Ultimately, the New York election was settled by 1149
votes, 553 and Governor Grover Cleveland certified the Democratic electors, awarding the presidential election to himself. 554
As everyone in Congress *633 that passed the ECA knew, sometimes the governor of a state might not only be partisan, but

he might also be the candidate. 555

In sum, the governor's certificate as a fail-safe to prevent state disfranchisement was a very conscious, if controversial, choice.

Without it, the ECA would not have been passed. 556 Perhaps nineteenth-century views about whether presidential elections
were national or state concerns are different from late twentieth-century views; perhaps concerns about congressional or House
aggrandizement were different; perhaps Congress wanted to remove itself as much as possible from ultimate responsibility.
Whatever the reason, granting the state governor his tie-breaking authority clearly was the choice Congress made. 557

The end result of this analysis of the substantive provisions of the ECA is that the ECA specifies the Senate and House's
agreement on the proper grounds for refusing to count electoral votes. In addition, the ECA provides that whenever Congress's
two houses concur in counting a vote, it will be counted, and whenever they concur in not counting a vote, it will not be counted.
When the two chambers disagree on whether or not to count a vote, the ECA provides a set of bright-line rules that determine
whether or not the vote should be counted. These bright-line rules are the Senate and House of Representatives' agreement as
to how to handle instances where the branches of Congress disagree. They vary the Constitution's default rule of bicameral
concurrence for electoral vote counting. At least until one house withdraws from the ECA, they govern the electoral count. 558

*634 Given the strength of states' rights sentiment in the Congresses that debated and passed the ECA, a necessary feature
of the ECA's electoral vote counting system is that when the chambers of Congress disagree about whether to count a state's
electoral vote, the only time a state is excluded from the Electoral College is when the state's governor does not certify any
slate of electors. 559

E. Sections 4-7: The Procedural Provisions 560
Having dispensed substantive guidance to itself in sections 1-4, Congress, in the remainder of section 4 and in sections 5-7,
settled the procedures for the electoral count sessions. These provisions were not the subject of any discussion during the fourteen
years the ECA was debated. This is unfortunate given the potential for procedural issues to affect not only the substantive
outcome of Congress's electoral vote counting, but the public perception of the count's regularity. As the Congresses that debated
and adopted the ECA knew, it was procedural concerns, centered on the Senate President's 561 conduct of Congress's vote

counting sessions, that in 1857 and 1869 led to “unseemly scene[s],” 562 “great uproar,” 563 and days of acrimonious debate. 564
And in those years, the presidential election outcomes were entirely lopsided and not at all in doubt. 565

The ECA's procedural provisions have two purposes. The first is to facilitate an expeditious meeting so that difficulties in

electoral vote counts can be resolved, and a new President elected, before the current President's term ends. 566 The second
is to drain away as much power as possible from *635 the Senate President, whom the ECA appoints to preside at the joint
session when Congress counts the votes. 567

When the ECA was passed, the President's term ended on March 4. 568 To ensure a timely electoral count, section 4 of the
ECA sets Congress's vote counting session for “the second Wednesday in February,” 569 approximately two to three weeks
before the new President's term begins. 570 Section 4 also called for the electoral returns from the states to be presented in

alphabetical order. 571 No debate is allowed in, and no question may be put to, the joint session. 572 If there are any objections
to a state's vote, section 4 requires that it “be made in writing” and “be signed by at least one Senator and one Member of the
House of Representatives.” 573 After all the objections to the vote of a particular state are received, the Senate returns to its

own chamber and the two houses independently debate and rule on the objections. 574 Section 6 of the ECA limits debate at
the separate meetings. Each congressman may speak only once, for up to five minutes, and the entire debate must end after

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two hours. 575 Section 7 of the ECA limits recesses. No recess is allowed unless the houses are meeting separately to decide
an objection. 576 At that time, each house may decide to recess, but must be back in session the following day by 10:00 A.M.
(Sundays excepted). 577 If the vote counting session lasts five days, no further recesses are permitted. 578

Most of the ECA provisions governing the timeliness of the meeting were taken from earlier concurrent or joint rules or from

the 1877 Electoral Commission law. 579 Commentators have pronounced them satisfactory for allowing Congress to conclude
its work in time to inaugurate a President or elect one in the House of Representatives if it becomes necessary. 580

*636 The provisions governing the President of the Senate's conduct of the meeting are another matter. Some of greatest

acrimony in Congress's nineteenth-century vote counting sessions concerned the Senate President's conduct of the meeting. 581
Jack Maskell's observation that “[t]here are questions . . . as to the role and authority of the presiding officer in making any initial
determinations, rulings or ‘instructions' in the joint session, and . . . how any final determination or ruling is implemented” is
a masterpiece of studied understatement. 582

Given the history of some support for the proposition that the Constitution granted the Senate President total power to count
electoral votes, one goal of the ECA was to “settle” that “the power to count the vote” is held by Congress, organized as two

separate houses, and “is not in the President of the Senate.” 583 Congress could have accomplished this goal by confining the
Senate President's participation in the joint session to the constitutional minimum. The Constitution designates the President of
the Senate as the person to whom the electors should send the sealed packets containing their electoral votes, and it specifies

that he is to “open” them “in the presence of the Senate and House of Representatives.” 584 What happens after the Senate
President opens the votes is, under the theory of the ECA, a subject of legislative discretion. With the opening of the votes, the
Senate President has reached the end of his constitutional role in the presidential election process. 585

Yet, following tradition, the ECA designated the Senate President as the “presiding officer” of the joint session at which the

Senate and House count the electoral vote. 586 The question left open in the ECA is how much *637 substantive power over
electoral vote counting the Senate President acquired because of that statutorily conferred role. 587

Sketching an answer requires separating the Senate President's role as custodian of the returns from his role as presiding officer
of the joint session. As custodian of the returns, the Senate President plays a crucial gatekeeping function. He is instructed by the
Constitution to “open all the certificates,” 588 which section 4 of the ECA describes as “all the certificates and papers purporting

to be certificates of the electoral votes.” 589 Prior to the ECA, on three occasions the Senate President received papers relating
to the electoral count that he did not present to the joint session. In 1865, the Senate President did not present electoral returns
from Louisiana and Tennessee on the grounds that Congress had adopted a joint resolution, which President Lincoln had signed

but not yet promulgated, excluding the Confederate states from participating in the Electoral College. 590 In 1873, the Senate
President did not present one packet of returns from Arkansas on the ground that they “did not in any respect comply with the
requirements of the law on the subject.” 591 He explained:

The informal returns were signed by three out of the six electors, and they stated that they could not obtain the
certificate of the governor . . . . They were not sealed or indorsed on the back. The Chair opened them on the
distinct understanding that they were informal, because they were directed to him as any other letter might be. 592

In 1877, the Senate President refused to receive a supposed second packet of electoral returns from Vermont on the grounds
that it had been presented to him after the date specified by law for all packets to be received. 593

*638 On other occasions, the Senate President has presented questionable returns. In 1801, the Senate President presented the

only packet of returns from Georgia even though they clearly did not comply with formal federal requirements. 594 In 1877, he

presented a clearly “burlesque” 595 certificate from Louisiana because its envelope specified that it was the “Vote of electoral

college of the State of Louisiana.” 596 And in 1889, at the first electoral count after the ECA's enactment, the Senate President

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presented a second set of returns from Oregon 597 that, apparently as a practical joke, had been sent in by Samuel MacDowell,
claiming to be Oregon's “Governor de jure.” 598

In two of these situations, the presentation of the certificates mattered. In 1801, the return from Georgia, which was presented
by Vice President Jefferson, gave Jefferson four electoral votes. Without those votes, Jefferson would not have had sufficient
votes to be elected President; the election would have been thrown into the Federalist-dominated House; and Adams would have

been re-elected President. 599 In 1877, if the Senate *639 President had presented the second set of returns from Vermont,
Vermont's multiple returns would have been sent to the Electoral Commission for initial consideration, a move which could have
postponed concluding Congress's vote counting session-and electing the President-to past the inauguration date. Under the law
at the time, the House Speaker would have become acting President and a special election would have been held in the Fall. 600

Thus, the Senate President's role as gatekeeper does matter. His decision to present a return affects whether there are one or

multiple returns before Congress, which affects certain decisional rules under the ECA. 601 Whether the Senate President, as
presiding officer, can be required by a concurrent vote of both houses to present, or not present, some paper is an open question.

I think he can be so required. The Constitution makes the Senate President the custodian of papers. 602 Pre-ECA electoral count

precedent supports the proposition that Congress governs what papers are submitted to it for consideration. 603 On the other
hand, I think it is also clear that the Senate President's decision to present, or not present, material cannot be reversed if the
houses disagree. 604 When the houses disagree, Congress has not spoken.

Aware of the inherent power lodged in gatekeepers, Congress, in section 4 of the ECA, instructed the Senate President to present

not only “all the certificates,” but also “all . . . papers purporting to be certificates of the electoral votes.” 605 Clearly, the authors
of the ECA were attempting to make the Senate President's constitutional role of custodian and presenter of electoral certificates
a ministerial function. However, even ministerial officials have an irreducible amount of discretionary or interpretive authority.
The ECA's goal was to reduce the Senate President's discretionary power as gatekeeper to the absolute minimum, by specifying
his obligation to present “all . . . papers purporting to be certificates of the electoral votes.” 606 Phrasing the Senate President's
*640 obligation this way removes most of his discretion to affect whether Congress receives one or multiple returns from

a state. 607

The ECA had the same goal in mind with regard to the Senate President's role as presiding officer. Presiding officers of
parliamentary bodies traditionally have a fair amount of discretionary power. They recognize speakers, rule on points of order,
rule motions in or out of order, interpret rules (with the help of a parliamentarian), and keep order. 608 Procedural rules inevitably

have gaps and ambiguities requiring interpretation. 609 It is impossible to divine all the scenarios that might occur in close
presidential elections and how the Senate President may utilize his power as presiding officer to affect the outcome of Congress's
vote counting session. But the ECA's procedural rules seem designed to drain as much power as possible away from the Chair
and give it to the two houses.
Under the ECA, the House of Representatives and Senate each appoint two tellers. The Senate President is instructed to proceed
through the states in “alphabetical order,” and to “hand[] . . . all the . . . papers” to the tellers “as they are opened.” 610 Most

crucially, it is the tellers who “make a list of the votes as they shall appear from the said certificates.” 611

The ECA also requires the House and Senate to consider one state at a time. 612 Although the ECA is not free from ambiguity
on this point, electoral count precedent, both before and after the ECA's passage, is that the Senate President submits all the
papers pertaining to the state under consideration to Congress before he “call[s] for objections” to any of that state's returns. 613
All objections to counting a state's electoral vote must be *641 made when that state is under consideration, not after the
joint session has moved on to counting another state. 614 Objections must be “made in writing” and “signed by at least one

Senator and one [House] Member.” 615 When all objections to the papers pertaining to one state have been submitted, the ECA
instructs the Senate President to entertain a motion to withdraw so that the houses may separately consider and respond to the
objections. 616 The ECA specifies that no debate is allowed in Congress's joint session. 617 The Senate President may only

“put” questions to the two houses “on a motion to withdraw.” 618 After the House and Senate reach their separate decisions, the
joint session reconvenes and the ECA authorizes the Senate President “to announce the decision of the questions submitted.” 619

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As proposed by Senator Edmunds in 1878, at the conclusion of the vote counting session, the tellers were to “deliver[]” their tally
to the Senate President who was empowered to “thereupon announce the state of the vote, and the names of the persons, if any,
elected, which announcement shall be deemed a sufficient declaration of the persons elected President and Vice President.” 620
As the bill approached final passage in 1886, the House deleted the words that allowed the Senate President to declare “the

*642 names of the person, if any, elected.” 621 At conference, the Senate accepted the change, and the Conference Report
explained that:
[T]he effect of [the amendment] is to prevent the President of the Senate from doing more than announcing the
state of the vote as ascertained and delivered to him by the tellers; and such announcement shall be deemed a
sufficient declaration of the persons, if any, elected President and Vice-President. 622

Two things about the House of Representatives's change should be noted. First, Congress was unwilling to allow the Senate
President any minimal ability to interpret the outcome of the vote count. Second, the Conference Committee Report asserts
that it is the tellers-mere minions of the two houses-who ascertain the vote. The Conference Report confirms that the Senate
President is meant to be something of an automaton.
If the Senate President's role as presiding officer gives him power to influence the outcome of Congress's electoral count, it
flows from two sources: (1) his ability to announce, when the joint session reconvenes, the decision reached by the House of
Representatives and the Senate in their separate sessions; and (2) his ability to declare substantive objections and procedural
motions out of order. 623

Does the Senate President's power to “announce the decision of the questions submitted” 624 to the Senate and House of
Representatives when they separate to consider objections made to a state's electoral vote give him power to influence the
outcome of the proceedings? In the House and the Senate, the presiding officer has the power to announce not only the vote

totals, but also whether the question carries. 625 Before the ECA, *643 Senate Presidents announced both the way the Senate
and House had ruled on objections and the import of those decisions for whether a vote was to be counted under the existing
rules. 626 On one occasion, the Senate President's power to declare the import of the Senate and House's decision gave him

power to determine how certain electoral votes would be counted. 627 That was in 1869, and, exacerbated by other rulings, it

led to that year's “uproar[ious]” electoral count session. 628

Does the Senate President retain this power under the ECA? In the only precedent since the ECA's passage, the 1969 debate

on North Carolina's “faithless elector,” Senator Richard Russell, presiding as Senate President pro tempore, 629 continued the
pre-ECA tradition. After the Senate and House of Representatives considered the objection to counting the “faithless elector's”
vote, the joint session reconvened, and the Secretary of the Senate and Clerk of the House reported that each house had rejected
the objection, 630 Senator Russell then said:

Under the statute in this case made and provided, the two Houses having rejected the objection that was duly filed,
the original certificate submitted by the State of North Carolina will be counted as provided therein.

Tellers will now record and announce the vote of the State of North Carolina . . . in accordance with the action
of the two Houses referred to and pursuant to the law. 631

Russell's actions set the precedent that the Senate President's pre-ECA tradition of announcing the legal effect of the separate
House of Representatives and Senate decisions continues. It is not left for the tellers, who, being from different houses and
perhaps differing parties, might disagree on the legal import of the two houses's disposition of the objection. This tradition

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gives the Senate President power to interpret the import of the House and Senate's disposition of objections when the houses
disagree. 632

*644 Russell's precedent is fully consistent with the ECA's purposes. If the substantive provisions of the ECA are interpreted
as this Article suggests, the Senate President's power to declare the import of the Senate and House of Representatives's separate
decisions should not, as it was in 1869, be the cause of dissension. In 1869, the problem was that Congress's electoral vote
counting session was governed by both the 22d Joint Rule and another concurrent rule adopted that year for handling expected
problems with Georgia's electoral vote. 633 When Representative Benjamin Butler objected to counting Georgia's vote on

grounds different from those that had been expected, 634 the interpretive problem was whether the 22d Joint Rule or the specially
adopted concurrent rule applied to this complex situation. 635 The Senate President first allowed Butler's objection, implying

that the 22d Joint Rule applied. 636 But when the House of Representatives sustained Butler's objection, and the Senate overruled

it, the Senate President decided to count Georgia's vote according to the terms of the specially adopted concurrent rule. 637
Since under the 22d Joint Rule, a state's electoral vote should not have been counted if one house sustained an objection to it,

Butler and many other congressmen were outraged. 638 Of course, the ensuing debate showed that other congressmen would

have been outraged by the opposite decision. 639

Under the ECA, however, an 1869-type problem should not arise because the Senate President, in deciding on the import of the
Senate and House's separate decisions, has only the modicum of interpretive authority, which even the most ministerial officials
always have. When the Senate and House separate to consider objections to counting a state's electoral vote, they have many

difficult and ambiguous questions to resolve, both of law and of the law's application to the situation at hand. 640 In contrast to
*645 the discretionary decisions made by Congress's two chambers, the legal import of the Senate and House's separate votes
are entirely bright-line and almost self-applicable. Once the Senate President has performed his gatekeeping function, it is clear
whether a state has submitted one or multiple returns. If there is one return, the House and Senate must concur to reject it. 641

If there are multiple returns, the houses must concur to accept one of them. 642 If the houses disagree in their disposition of a
state's multiple return, it should be clear if one of the returns reasonably purports to be certified by the state governor under the
state's great seal, and whether the Senate and the House of Representatives concurred in rejecting it. Thus, interpreting the legal
import of the Senate and House of Representatives's decisions is rather straightforward. 643

If the Senate President's power to declare the import of the Senate and House of Representatives's separate votes does not
give him the ability to influence the outcome of Congress's electoral count, does his power to rule substantive objections and

procedural motions out of order give him that capacity? 644 Before the ECA, Senate Presidents, on several occasions, prevented

substantive objections and procedural motions by ruling them out of order. 645 Two of these occasions involved substantive
objections made to a state's vote after that state had already been counted and the joint session had moved on to other states. The
Senate President, on both occasions, ruled that the objections were not timely. 646 Those rulings *646 involved an exercise
of interpretive discretion. On both occasions, the objectors supported their motions with minimally rational arguments as to

why they were not time-barred. 647 Another occasion involved the Senate President's refusal to allow an appeal from his ruling

interpreting the legal import of Congress's disposition to an objection to a state's electoral vote. 648 Does the Senate President
continue to have the power, under the ECA, to rule objections and other motions out of order?
To some extent he does, but substantive objections and procedural motions need to be considered separately because of
their differing textual bases. With regard to substantive objections, section 4 of the ECA expressly imposes two bright-line
requirements on congressmen who wish to object to counting a state's electoral vote. The first is that the substantive objection

must be in writing and signed by at least one senator and one member of the House of Representatives. 649 The second is that
all objections to counting a state's electoral vote must be presented when the state is under consideration, not before or after. 650

Beyond the bright-line requirements of form and timing, the ECA imposes one requirement on substantive objections that is
not expressed in the ECA text. As in all parliamentary assemblies, efficiency requires that the Senate President have authority
to disallow all motions that are merely dilatory. Discretion to rule dilatory motions out of order must be implied from necessity.
Otherwise, a persistent minority, even as small as one senator and one representative, could hamstring Congress's entire *647

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proceeding. 651 But if an objection is timely, presented in proper form, and not dilatory, the Senate President must allow it, and
the Senate and House must separate to consider it.
This conclusion applies not only to substantive objections to a state's electoral vote, but also to procedural questions concerning
the Senate President's conduct of the meeting. Admittedly, it is not entirely clear that the ECA's framers intended to allow
procedural motions, including appeals from the Senate President's rulings. The ECA's only textual support for procedural
motions and appeals is section 6's passing remark:
That when the two Houses separate to decide upon an objection that may have been made to the counting of any
electoral vote or votes from any State, or other question arising in the matter, each Senator and Representative
may speak to such objection or question five minutes, and not more than once . . . . 652

Procedural motions and appeals from the presiding officer's rulings are a normal part of parliamentary procedure. 653 However,
pre-ECA vote counting precedent is mixed regarding whether procedural motions and appeals from the Senate President's
rulings are permitted at Congress's electoral vote counting sessions. 654 Two of these precedents were set in 1849 and 1857
when the concurrent rule typically adopted for each vote counting session made no provision for substantive objections or
procedural motions of any kind. 655 The third pre-ECA precedent was set in 1865 under the newly adopted 22d Joint Rule.

That rule contained *648 language that allowed procedural motions, 656 and the Senate President relied on it to rule that

procedural motions were in order. 657 Nonetheless, during the “uproar [ious]” 1869 vote counting session, 658 which was also
governed by the 22d Joint Rule, the Senate President refused-without explanation-to allow appeals from his ruling interpreting

the legal import of the Senate and House's split over whether to count Georgia's electoral vote. 659 In the contentious debate
that followed, House Speaker Schuyler Colfax supported the Senate President's refusal to allow appeals from his rulings. His
reason, which seems plainly incorrect, was that allowing appeals would require a vote to be taken in the joint session on a per
capita basis, and this was impermissible. 660

In the only post-ECA precedent, Vice President Al Gore, presiding as Senate President at the 2001 electoral vote counting
session, ruled out of order a slew of procedural motions, including an appeal of his rulings, on the grounds that, although they
were in writing and signed by members of the House of Representatives, they were not also signed by a senator as the ECA

requires. 661 In making these rulings, Vice President Gore, relying on the advice of the Senate and House Parliamentarians,
extended the ECA's formal requirements for substantive objections to procedural motions and appeals. “[R]eading” the ECA
substantive and procedural provisions “as a coherent whole,” he said, requires “the Chair [to] hold[] that no procedural
question . . . is to be recognized by the presiding officer in the joint session unless presented in writing and signed by both
a *649 Representative and a Senator.” 662 Gore's reasoning implies that if the procedural motions and appeals 663 met the
ECA's formal requirements, they would be allowed, and the Senate and House of Representatives would have to separate to
consider them. 664

To require the Senate President to allow procedural motions and appeals to his rulings when they are (1) timely, (2) meet the
ECA's formal requirements, and (3) not dilatory, helps to effectuate the ECA's basic tenet that Congress, not the Senate President,

counts the state's electoral votes. 665 Allowing appeals of the Senate President's rulings is an especially important means to
limit the Senate President's influence over the outcome of Congress's vote counting. But, allowing appeals does not eliminate
the Senate President's influence. Sustaining an appeal requires a concurrent vote by the Senate and House. If the houses do not

agree, the Senate President's ruling stands. 666 Nevertheless, allowing appeals constrains the *650 Senate President's power,
while, at the same time, vindicates the principle that when the Senate and House of Representatives are in agreement, they
govern the vote count.
The spirit of the ECA, if not its letter, mandates that the Senate President's substantive and procedural rulings be subject to
review and reversal by a united Congress. This is especially important with regard to the Senate President's interpretation
of the legal import of the Senate and House of Representatives's separate decisions on substantive objections to counting a
state's electoral vote. As ministerial as the Senate President's ruling may be, the ECA's basic principles require that the Senate

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President's substantive and procedural rulings be subject to appeal. Otherwise, the Senate President's views may determine the
outcome of an electoral count even when both the Senate and House oppose his decision.
That the Senate President's rulings, if subject to an appeal, are sustained whenever the Senate and House of Representatives
disagree, highlights the importance of this Article's conclusion that the Senate President has no power to rule a congressman's

objection to counting a state's electoral vote out of order on substantive grounds. 667 It is for the Senate and House of
Representatives to determine which objections are good or bad, and it is section 4's vote counting rules that determine whether
a state's electoral vote will be received; the Senate President is not supposed to exert any influence.
In sum, it is likely that the Congresses that debated and adopted the ECA intended to require the Senate President to accept all
substantive objections to counting a state's electoral vote, procedural motions, and appeals to his rulings that were timely, in
writing, signed by a senator and a member of the House of Representatives, and not dilatory. This approach may, on occasion,
delay the proceedings because only a few substantive objections and procedural motions should fail the ECA's general bright*651 line requirements. But the problem of lengthier proceedings is more than offset by the Senate President's diminished
ability to influence the outcome of Congress's electoral vote counting session. The ECA's fundamental principles require this
trade-off. 668

Thus the Senate President's power to interpret the import of the Senate and House of Representatives's separate decisions on
objections to counting a state's electoral votes, and his power to rule substantive objections, procedural motions, and appeals
out of order, give him only minimal, and reviewable, power to influence the outcome of Congress's electoral vote counting.
As Representative Caldwell, Chairman of the House committee managing the ECA, said when he introduced the bill to the
House of Representatives in 1886:
[The bill] will decide, first, that the power to count the vote is not in the President of the Senate.

Second, that it is in the two Houses of Congress, not ministerially merely, not as witnesses, . . . but with power to
count, and the consequent power to decide upon the legality of the votes to be counted.

Third, that the action of the two Houses shall be separate and concurrent upon all questions of contest arising
under the count, but joint as to results, thus preserving the dignity and rights of the two bodies by conceding to
each equal and concurrent powers in counting and judging of the validity of electoral votes without merger of the
lesser body into the numerically greater. 669

The ECA was written to allow Congress, not the Senate President, to count the state's electoral votes.
IV. Conclusion
The ECA provides a framework for Congress's consideration of the states' electoral votes, specifies the proper grounds for
members of Congress who wish to object to counting any or all votes from a state, and provides decisional rules for cases where
the Senate and House of Representatives disagree about whether to count a vote. Under the ECA, whenever the Senate and
House agree on counting or rejecting a vote, their *652 concurrence governs. When the Senate and House disagree, the ECA
specifies the votes, if any, that will be counted. The ECA minimizes the ability of the Senate President to influence the outcome
of Congress's vote counting session because of his constitutional role as custodian of the states' electoral packets, or because
of his statutory role as presiding officer at the vote counting session.
The ECA requires that if a state submits one set of electoral votes, it will be counted unless both the Senate and the House of
Representatives agree to reject them, or some part of them. If a state submits multiple sets of electoral votes, the set that the

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Senate and House agree to count will be counted. 670 If the houses of Congress cannot agree to accept a particular set, the votes
that were certified by the state's governor will be counted, unless the houses agree to reject them. 671

The ECA's delimitation of the grounds for rejecting electoral votes revolves around whether any of the returns submitted by
the state were contested before the state's final determination authority in a process that meets the requirements of section 2.
In all cases Congress may reject the votes of electors who were constitutionally ineligible to hold the elector's office, who
balloted corruptly, or who balloted in a way that violated post-appointment constitutional or statutory requirements. The votes
of electors whose appointment is authenticated only by their governor's section 3 certificate may be rejected on two additional
grounds: that the electors' gubernatorial certification resulted from ministerial error; 672 or that the electors' election was itself
so irregular as to be fraudulent or violate constitutional norms.

The votes of electors whose appointment is authenticated by a section 2 process are more secure. In section 2, Congress pledged
itself to be “conclusively” bound to regard electors authenticated by the state's final determination process as duly appointed
under state law. Their underlying election may not be inquired into, and Congress may not disregard the section 2 tribunal's
decision because of mere error. Whether section 2's conclusivity principle is subject to a fraud exception is unclear, as is the

scope of that exception, if it exists. 673 However, it is clear that not every *653 electoral slate that claims section 2 status
actually merits it. Section 2 establishes conditions that must be met if Congress is to accept electors authenticated by that process
as conclusively determined. It is for Congress to decide whether the state's section 2 “final determination” process meets the
ECA's requirements. And Congress can acknowledge section 2 status only through bicameral concurrence.
As interpreted by this Article, the ECA is a coherent enactment. The ECA's coherence does not mean that it is a complete
response to the problems of Congress's electoral vote counting. 674 The ECA's sponsors said it was. 675 Nevertheless, should
Congress reject an electoral vote, the ECA does not address whether, or under what circumstances, the number of electoral
votes required for the President's election is reduced. To be elected President, the Constitution requires a candidate to receive
“a majority of the whole number of Electors appointed.” 676 The provision was adopted to prevent states from hamstringing

the federal government by simply not participating in the presidential election. 677 When Congress rejects an electoral vote, the
effect that decision has on the denominator that determines whether a candidate has more than fifty percent of the electoral vote
is an entirely open issue, and congressional precedent is split. Should the number always remain the same? Should it always be
reduced pro tanto? Should the effect on the number vary with the reason for Congress's exclusion? 678

Senate leaders raised this issue while the ECA was under consideration, and they gave differing answers to the question. 679
Good arguments were raised on all sides of the question. Perhaps because the diversity of strongly held views might imperil
the delicate web of compromises supporting the *654 ECA, Congress avoided addressing the issue in the ECA. If a future
Congress were to exclude votes under the ECA, it is possible that one chamber of Congress would conclude that the leading
candidate did not receive a majority of the relevant pool of electoral votes, while the other chamber will conclude that he or
she did. 680 The Senate President's role is limited by the ECA to receiving the tellers' lists and “announc[ing] the state of the

vote.” 681 According to the ECA, the Senate President's announcement “shall be deemed a sufficient declaration of the persons,
if any, elected President and Vice-President of the United States.” 682 Well, not always.

If the ECA's coherent treatment of Congress's electoral vote counting is not entirely comprehensive, neither is it entirely

wise. 683 Whether the governor's certificate should play its crucial tie-breaking role was, and still is, questionable policy. The
decision not to run election contests in the federal courts is also debatable. The time frame for election contests may always
have been too short. It certainly is too short now that the period between election day and elector balloting day has been reduced
to only forty-one days. 684

In addition, the rule that section 2's safe harbor provision disappears six days before the electors ballot may no longer serve any
purpose, if it ever did. The existence and scope of the fraud exceptions to section 2 final determinations, and to the electors'
election when it is authenticated only by the governor's section 3 certification, may be questionable from the perspective of
jurists who value certainty and minimal congressional *655 interference with presidential elections, and from the opposite
perspective of jurists who value electoral integrity and national oversight.

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Among the ECA's other problems is the question of whether it is a statute or a joint rule enacted in statutory form. Fundamental
questions beyond the scope of statutory interpretation turn on this issue, potentially embracing the ECA's constitutionality,
whether Congress's application of it is subject to judicial review, or simply, how it can be amended or rescinded.
In addition, the ECA's coherence does not tell us whether it should be applied as its framers intended. Statutory meaning is as

much a matter of jurisprudence as historical analysis. 685 Communications in the modern world are far faster and better than
they were in the nineteenth century. Principles of federalism and the balance of federal and state interests in national elections
have evolved since the Gilded Age. The world, not just the nation, is vitally interested in the outcome of America's presidential
elections. Modern Congresses, armed with new technologies, motivated by different vital principles, and responding to new
historical circumstances, may sensibly and rightfully act as nineteenth-century Congresses could not, or would not.
Perhaps fidelity to the rule of law requires that the ECA's bright-line rules be applied as they were intended. These rules include
the use of the governor's certificate as the ultimate tie-breaker when the houses of Congress cannot agree to reject the votes they
certify. However, fidelity to the rule of law does not mean that modern Congresses are bound to apply the ECA as its framers
intended in every specific instance. Modern Congresses might not be bound by nineteenth-century views about whether an

electoral vote is regularly given when it is cast for a candidate to whom the elector is not pledged. 686 Maybe modern Congresses
should not be bound by nineteenth-century views of whether electors are lawfully certified when their title to office is first
established by an election contest that ended after elector balloting day. 687 Neither are modern Congresses *656 necessarily
bound by nineteenth-century views about how far Congress may go behind the governor's ministerial certificate and about the
scope of the fraud exception to an elector's election when the electors' appointment is authenticated only by the governor's
lawful certification. For similar reasons, the existence and scope of a fraud exception to section 2's conclusivity principle may
not be settled by historical analysis alone.
Still, even if historical analysis of the views of the ECA's framers does not bind, it does matter. Historical analysis sheds light
on the problems the Senate and the House of Representatives confront when they meet to count electoral votes, and it provides
a fuller understanding of the agreement they reached over a century ago to frame and implement their response. Historical
analysis provides a starting point, but not an end point. According to some scholars, the value of historical analysis is not to
bind contemporary decision-makers to the framers' specific intent, but to ensure that in departing from that intent, they evolve
the law knowingly, thoughtfully, and with due regard to the limits of their rightful creativity (as that scholar defines it). 688

Whatever the value of historical analysis, this Article has studied the views of the framers of the ECA so that modern members
of Congress and informed citizens can understand the law (or joint rule) as the Senate and House of Representatives understood
it over 100 years ago. That is a step towards clarifying, changing, or simply not being afraid to utilize the ECA next time
a presidential election is close and partisanship runs rampant-as the ECA authors knew it would-when the presidency of the
United States turns on a few votes cast somewhere in America's far-flung domain.
Unfortunately, clarifying, changing, and implementing the ECA can never remedy the electoral count's most fundamental
problem: When Congress counts the states' electoral votes, the results of the electors' voting are already known. No matter what
substantive criteria and processes Congress adopts for judging the propriety of each state's electoral vote, in a close presidential
election, when each state's vote is known beforehand, partisans on every side will usually be able to game the system to figure
out grounds to reach the result they want. Because the basic facts and decisional standards of the electoral count are known
before the count begins, any electoral count system that works within the present constitutional structure can be manipulated
by partisans earnestly asserting colorable claims.
*657 Think back to the 2000 election. Suppose the Florida Supreme Court finished its work within the safe harbor period
and ruled in favor of the Democratic electors. As a slate of electors claiming safe harbor status, the Democratic electors would
have been entitled to have their votes counted unless there were sufficient grounds (e.g. fraud) for denying them section 2
status. Surely the history of the electoral count shows that partisan commitments may decisively influence whether a member
of Congress or the interested public argues for or against the existence of the fraud exception and whether the Supreme Court
of Florida's decision was so flawed as to be within it. 689 Surely, partisan considerations would influence, and perhaps even
dictate, the earnestly asserted positions that members of Congress and the interested public would take on these questions.
The problem that the results of the electors' balloting are known before the electoral count occurs is one of the inherent
weaknesses of the Constitution's presidential election system. It is possible to believe that the framers did not anticipate the

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difficulty because they expected the electors to exercise an independent vote by secret ballot. In such circumstances, when
the electors forwarded the results of their balloting in sealed packets to Congress, the packets' contents would not be known
beforehand. In this scenario, the rise of political parties derailed the framers' presidential election system because political
parties selected electors based on their known support for particular candidates.
It is also plausible that the framers anticipated the problem and that the rise of political parties only exacerbated it. Even if
the electors exercised an independent choice by secret ballot, the constitutional system still contemplated each state's electors
counting their own electoral votes and sending only the certified totals to Congress. Inevitably, even in the earliest elections,

word of how each state's electors voted reached the nation's capital before the packets were opened. 690 A neutral counting of
unknown results at the seat of government was doomed from the start.
The ECA's framers knew all this. In 1876, they experienced firsthand the strife and posturing that follows a close presidential
election. Their response was to create an electoral count system that sought to minimize the conflicts that would reach Congress,
to confine and define Congress's discretion to reject what the states had done, and to resolve disagreements between the Senate
and the House of Representatives through bright-line vote counting rules. Unable to agree on any constitutional amendment,
*658 Congress attempted, through the ECA, “to remove, as far as it is possible to be done by legislation . . ., a difficulty which
grows out of an imperfection in the Constitution itself.” 691

Footnotes
a1

Distinguished Research Professor and Associate Dean for Research and Scholarship, DePaul University College of
Law. B.A. 1967, Columbia College; J.D. 1971, LL.M. 1972, Harvard Law School. I thank Lawrence Arendt, Mark
Siegel and Professors Robert Bennett, David Rabban, John Roberts, and Mark Weber for reading drafts of this Article.
They improved it immensely. I am indebted beyond measure to the librarians at the DePaul University College of Law,
particulary Mark Giangrande and Maria Wilmer. I also thank the DePaul University College of Law Summer Research
program for its generous support.

1

Given how states' rights influenced the eighteenth- and nineteenth-century Congresses' approach to electoral vote
counting, see infra text accompanying notes 196, 278-79, 710, we might say that electoral vote counting is the specific
instance of Justice O'Connor's claim that federalism is “perhaps our oldest question of constitutional law.”
v. United States, 505 U.S. 144, 149 (1992).

New York

2

1 Annals of Cong. 15-18 (Joseph Gales & William W. Seaton eds., 1789).

3

See, e.g., 18 Cong. Rec. 48 (1886) (statement of Rep. Cooper) (discussing previous electoral vote counts); 15 id. at
5453 (1884) (statement of Rep. Hart) (same); 13 id. at app. 539 (1882) (statement of Rep. Updegraff) (same); see also
Subcomm. on Compilation of Precedents, Counting Electoral Votes, H.R. Misc. Doc. No. 44-13, at 521-22, 533 (1877)
(statement of Sens. Bayard and Morton). H.R. Misc. Doc. No. 44-13 is a compendium of all congressional floor debates
and action involving electoral counts and electoral count reform proposals up to early 1876. Id. at VII-VIII. It is drawn
verbatim from the Annals of Congress, the Register of Debates, the Congressional Globe, and the Congressional Record.
It was produced by order of Congress to help it approach the task of counting the 1876 electoral vote. Id. Congress's
interest in publishing and distributing this volume indicates a substantial degree of interest in the history of electoral
vote counting. For convenience, this Article cites to H.R. Misc. Doc. No. 44-13 rather than the Annals, Register, Globe,
and Record when discussing congressional electoral vote counting activity prior to 1877.

4

See, e.g., H.R. Rep. No. 47-1207 (1882)H.R. Rep. No. 47-1207 (1882) (discussing alternate legislative proposal); 13
Cong. Rec. 5143-49 (1882) (same); 10 id. at 3652-63, 3682-704, 4386-507, 4540-41 (1880) (discussing joint rule
proposal); Herman Ames, The Proposed Amendments to the Constitution of the United States During the First Century
of its History 88-89, 91, 94-98, 104-05, 110-11, 113, 118-22, 123-25, 128 (photo. reprint 1970) (1897) (discussing
proposed constitutional amendments). Of the many constitutional and statutory proposals, the Electoral Count Act
(ECA) was the only one enacted into law. See Electoral Count Act of 1887, ch. 90, 24 Stat. 373 (current version at
3 U.S.C. §§ 5-

6, 15-18 (2000)).

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5

In the 1876 presidential election, Samuel Tilden and Rutherford Hayes were separated by one electoral vote. See Charles
Fairman, Five Justices and the Electoral Commission of 1877 xv-xvi (1988). Four states sent Congress multiple electoral
returns. Id. at xvi; Paul Haworth, The Hayes-Tilden Disputed Presidential Election of 1876 at 57-168 (1906). Congress
created an Electoral Commission, composed of five senators, five representatives, and five Supreme Court justices, to
help sort through the mess. Fairman, supra, at xv; Haworth, supra, at 220-21. The election was not resolved until March
2, 1877, two days before Inauguration Day. Haworth, supra, at 280-82. For recent discussions, see Roy Morris, Jr.,
Fraud of the Century: Rutherford B. Hayes, Samuel Tilden, and the Stolen Election of 1876 (2003); William Rehnquist,
Centennial Crisis: The Disputed Election of 1876 (2004).

6

See infra notes 38-39 (tracing the effort to pass the ECA).

7

Compare Electoral Count Act of 1887 § 2 (a state's “final determination” of its electors binds Congress), with Electoral
Count Act of 1887 § 4 (Congress may reject any state's electoral vote).

8

See section 4 of the ECA, which is a mammoth section some 814 words in length.

9

17 Cong. Rec. 1060 (1886) (statement of Sen. Teller); see also 18 id. at 50 (statement of Rep. Eden); 17 id. at 1019
(statement of Sen. Hoar).

10

John W. Burgess, The Law of the Electoral Count, 5 Pol. Sci. Q. 633, 643 (1888). For Burgess's other criticisms, see
id. at 637-39, 645-46, 648, 650-51. For another contemporary commentator's criticisms, see J. Hampden Dougherty,
The Electoral System of the United States 214-49 (1906) (mixing description with criticism). Judge Richard Posner
recently described the ECA as “maddeningly complex.” Richard A. Posner, Breaking the Deadlock: The 2000 Election,
the Constitution, and the Courts 141 n.88 (2001).

11

Burgess, supra note 10, at 634.

12

See, e.g., 18 Cong. Rec. 828 (1887) (statement of Sen. Wilson); 17 id. at 1058-59 (1886) (statement of Sen. Wilson);
Dougherty, supra note 10, at 241, 246.

13

See Vasan Kesavan, Is the Electoral Count Act Unconstitutional?, 80 N.C. L. Rev. 1653, 1694-1792 (2003) (finding
that the ECA is unconstitutional); L. Kinvin Wroth, Election Contests and the Electoral Vote, 65 Dick. L. Rev. 321 &
n.2, 344-53 (1961) (finding that the ECA is constitutional, but defective). 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. See infra
text accompanying notes 66, 69, 198, 562 (discussing the 1857, 1869, 1873, and 1877 vote counts). 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. Jack Maskell, et
al., Cong. Research Serv., Electoral Vote Counts in Congress: Survey of Certain Congressional Practices 23-29 (2000)
(surveying all electoral vote counts from 1889 to 1997); Kesavan, supra, at 1691-94 (describing smooth handling of
electoral vote objections in 1961 and 1969); Wroth, supra, at 337 (noting no objections to electoral votes from 1887
to 1961). Underneath the surface, all is different. Perhaps there have been no disputes in Congress because no election
has turned on Congress's electoral vote counting. One wonders what would have happened had the 2000 presidential
election not been settled by the Supreme Court before it went to Congress. One of the few compliments for the Supreme
Court's intervention and opinion in
Bush v. Gore, 531 U.S. 98 (2000), is that the Court took a bullet by preventing
Congress from embarrassing itself. See, e.g., Posner, supra note 10, at 4, 137-45, 184; Michael J. Glennon, Nine Ways
to Avoid a Train Wreck: How Title 3 Should Be Changed, 23 Cardozo L. Rev. 1159, 1160 (2002).

14

See
Bush, 531 U.S. at 120-21;
Bush v. Palm Beach County Canvassing Bd., 531 U.S. 70, 77-78 (2000); see also
infra note 303 (discussing effect of mistakes in judicial conduct of election contests). This assumes the Supreme Court
of Florida was incorrectly interpreting the state's election code. I take no position on that question.

15

See infra notes 420, 549 (discussing Governor Bush's action and the time for submitting certificates of ascertainment).

16

See infra note 462 (discussing the objections of members of Congress to counting Florida's electoral votes).

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17

See Contesting the Vote: Comments from Gore on the Florida Election, N.Y. Times, Nov. 29, 2000, at A28 (Vice
President Gore saying December 12 was the “deadline for seating electors”); infra notes 319, 687 (discussing the federal
deadline); see also Jack Maskell, Cong. Research Serv., Counting Electoral Votes in Congress-Multiple Lists of Electors
from One State 8-11 (2001) (mistaking, as discussed infra in Appendix II, when to turn to the governor's certificate);
Contesting the Vote: Update; Matter of Dates and Disputes, N.Y. Times, Nov. 29, 2000, at A25 (New York Times's
editors saying “Mr. Gore . . . is facing a Dec. 12 federal deadline for selecting Florida's 25 electors”); Jeffrey Rosen,
The Supreme Court Puts Itself in Harm's Way, New Republic, Dec. 11, 2000, at 16 (mistaking 3 U.S.C. § 2 (2000) for
part of the ECA).

18

See Burgess, supra note 10, and Wroth, supra note 13, for particularly insightful explorations and critiques.

19

These Congresses also experienced and settled the most fractious presidential election this country has ever witnessed,
the 1876 Hayes-Tilden election. See Haworth, supra note 5 (discussing the Hayes-Tilden election dispute).

20

For an extensive analysis of the ECA's constitutionality, see Kesavan, supra note 13. Kesavan says the Act is
unconstitutional, while admitting that the “prevailing wisdom, in the Supreme Court and elsewhere, is that the Electoral
Count Act is constitutional.” Id. at 1660.

21

It may well be a “political question” committed to Congress's discretion. See Erwin Chemerinsky, Federal Jurisdiction
143-67 (4th ed. 2003) (discussing the political question doctrine). This Article does not discuss issues dependent on the
political question doctrine, like who might have standing to bring these questions into court and when it might be ripe
to do so. See id.at 56-125 (discussing standing and ripeness doctrines).

22

See infra text accompanying notes 42, 107 (defining “joint rule” and discussing congressional rules adopted in statutory
form).

23

See, e.g., infra text accompanying notes 383, 644 (discussing whether section 2 of the ECA binds Congress to accept a
state's slate of electors and discussing the Senate President's power to rule objections and motions out of order).

24

This Article does not assert that the framers' intent determines its current meaning. See infra text accompanying note
685 (discussing statutory interpretation).

25

U.S. Const. art. I, § 7, cl. 2.

26

Maskell, supra note 17, at 3 (explaining the Senate's and House's ability to depart from various aspects of the ECA);
infra text accompanying notes 67, 92 (discussing the Senate's unilateral rescission of Congress's 22d Joint Rule).

27

8 Cong. Rec. 161 (1878) (statement of Sen. Bayard).

28

Subcomm. on Compilation of Precedents, Counting Electoral Votes, H.R. Misc. Doc. 44-13, at 346 (1877) (statement
of Sen. Morton).

29

8 Cong. Rec. 72 (1878) (statement of Sen. Morgan); see also H.R. Misc. Doc. No. 44-13, at 346 (statement of Sen.
Morton); 17 Cong. Rec. 1058 (1886) (statement of Sen. Evarts); 15 id. at 5462 (1884) (statement of Rep. Springer); id.
at 5076 (statement of Rep. Eaton); 8 id. at 161 (1878) (statement of Sen. Bayard).

30

8 Cong. Rec. 161 (1878) (statement of Sen. Bayard).

31

Id. at 159; see also id. (“We must have finality at some point or time, and in some human hand and some human heart
and brain the power of decision must ultimately be reposed.”); id. at 73 (statement of Sen. Edmunds) (“You must elect
a President; you must count the vote; and if the question arises on counting of the vote somebody must decide it.”);
George Edmunds, Presidential Elections, 12 Am. L. Rev. 1, 9 (1877).

32

See 17 Cong. Rec. 1022 (1886) (statement of Sen. Sherman) (governors); id. (statement of Sen. Hoar) (President of the
Senate); 15 id. at app. 311 (1884) (statement of Rep. Findlay); id. at 5462 (statement of Rep. Springer) (state tribunals);
id. at 5079 (statement of Rep. Browne) (Congress); id. at 5078 (statement of Rep. Eaton) (state judges); 13 id. at 5144
(1882) (statement of Rep. Bowman) (judiciary); id. 2646-47 (statement of Sen. Pugh) (state legislatures and Congress);
8 id. at 168 (1878) (statement of Sen. Hoar) (Congress); id. at 167 (statement of Sen. Hill) (state judiciary).

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33

15 id. at app. 311 (1884) (statement of Rep. Findlay).

34

8 id. at 168 (1878) (statement of Sen. Hill).

35

13 id. at 5145 (1882) (statement of Rep. Browne).

36

Id.

37

Id.

38

The effort to pass the ECA dates from January 6, 1873, when, in response to the various problems stemming from
the 1872 election, Senator Oliver Morton offered a resolution “[t]hat the Committee on Privileges and Elections be
instructed to examine and report . . . upon the best and most practicable mode of electing the President . . . and providing
a tribunal to adjust and decide all contested questions connected therewith.” Subcomm. on Compilation of Precedents,
Counting Electoral Votes, H.R. Misc. Doc. No. 44-13, at 335 (1877). Senator Morton gave a lengthy speech on the
subject eleven days later. Id. at 345-55. The proposals that Morton guided through the Senate in 1875 and 1876 contained
many aspects of the eventually successful law. Wroth, supra note 13, at 334-35. When Morton died in 1877, leadership
on the issue passed to Senator George Edmunds. See, e.g., 17 Cong. Rec. at 122 (1885) (Edmunds introducing the bill
that was enacted into law); 8 id. at 51 (1878) (Sen. Edmunds introducing electoral count legislation). Edmunds's 1878
bill was in most respects the proposal that passed the Senate in 1878, 1882, 1884, and 1886. See, e.g., 15 id. at 430
(1884) (Sen. Hoar saying the bill is the same as passed by the Senate in the last Congress); 13 id. at 859 (Sen. Hoar
saying “this bill is the one originally . . . reported by the Senator from Vermont [Edmonds] . . . in 1878”). In guiding
the ECA through the Senate, Edmunds eventually shared leadership with Senator George Hoar, with whom he had a
widespread political and personal affinity. 18 id. at 133 (1886) (Sen. Edmunds and Sen. Hoar appointed two of the three
Senate conferees on the bill); 17 id. at 863 (1886) (Sen. Morgan saying that Sens. Edmunds and Hoar are in charge of
the bill); 15 id. at 430 (1884) (Sen. Hoar introduces bill).

39

Bills passed the Republican Senate in 1876, 1878, 1882, and 1884, only to die in the Democratic House of
Representatives. Wroth, supra note 13, at 330-31, 334 n.58. In 1875 and 1884, both houses were Republican, but still,
Senate bills failed to pass in the House. Id. In 1880, both houses were Democratic, but a Democratic joint rule that
passed the Senate was filibustered by House Republicans. 10 Cong. Rec. at 4386-99, 4487-4507, 4540-41 (1880) (House
debates joint rule, which is eventually tabled); id 3052 (Sen. Morgan introducing joint rule); Wroth, supra note 13, at
334 n.58. All during this time, there were proposed constitutional amendments, none of which passed either House.
See Ames, supra note 4, at 106-11. The effort to pass a law to govern electoral vote counting actually dates back to
1800 when different measures passed both houses of Congress but could not be reconciled. H.R. Misc. Doc. No. 44-13,
at 16-29, 691-702. In 1824, a Senate bill died in the house. Id. at 57-60. A consequence of Congress's failure to pass
legislation was that from the founding until 1865, Congress governed electoral counts by adopting a concurrent rule
for each count. See, e.g., id. at 44-46, 65-66, 86-87 (the concurrent rules for 1817, 1829, and 1857). In 1865, Congress
adopted a joint rule that continued to govern electoral counts until it was unilaterally rescinded by the Senate in early
1876. Id. at 223-38, 782-94. The electoral count in 1877 was governed by a statute enacted for just that year. See Act
of Jan. 29, 1877, ch. 37, 19 Stat. 227. From 1880 until 1887, Congress reverted to the practice of adopting a concurrent
rule for each count. See 16 Cong. Rec. 622, 1037, 1052, 1073, 1220 (1885); 11 id. at 1129-41, 1257-62 (1881).

40

See, e.g., 18 Cong. Rec. 75 (1886) (statement of Rep. Herbert) (commenting on near-unanimity in the Senate); id.
at 47 (statement of Rep. Dibble) (commenting on unanimity of House committee on most aspects of the bill); 17 id.
at 1019 (statement of Sen. Hoar) (commenting that the bill has passed Senate three times almost unanimously); id.
at 867 (statement of Sen. Morgan) (commenting that electoral count bills have passed the Senate in both Democratic
and Republican hands, and have “never been a party question”); 15 id. at 5547 (1884) (statement of Rep. Herbert)
(commenting on bipartisan genesis of bill). When the bill finally passed, the House was Democratic and the Senate was
Republican. Wroth, supra note 13, at 334.

41

17 Cong. Rec. 868 (1886) (statement of Sen. Morgan); 15 id. at 5077 (1884) (statement of Rep. Eaton); 13 id. at 2650
(1882) (statement of Sen. Morgan).

42

By concurrent rule, this Article means a rule that is passed by each house of Congress under the Constitution's Rule
Making Clause, U.S. Const. art. I, § 5, cl. 2, for the particular Congress in which it is adopted. A concurrent rule is
distinct from a concurrent resolution which, according to the Constitution, is a form of statute requiring presidential
approval. Id. art. II, § 7, cl. 3. When this Article refers to a rule adopted by both houses, which is intended to continue

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from Congress to Congress until amended or repealed, it will be called a joint rule because that is how nineteenthcentury Congresses denominated it. See, e.g., H.R. Misc, Doc. No. 44-13, at 223-25 (adopting the 22d Joint Rule); 10
Cong. Rec. 3052 (1880) (Sen. Morgan introducing a proposed joint rule to govern the electoral counts). A joint rule is,
in effect, a continuing concurrent rule. When this Article refers to an enactment that requires presidential presentment,
it will be called a statute or concurrent resolution. That comports with constitutional usage. See U.S. Const. art. I, § 7,
cls. 2-3. In conventional parlance, a concurrent resolution is also called a joint resolution, but the use of this latter term
will be avoided to prevent confusing it with a joint rule, as the term is used in this Article.
43

18 Cong. Rec. 51 (1886) (statement of Rep. Adams); 17 id. at 868 (statement of Sen. Morgan); 13 id. at 2650 (1882)
(statement of Sen. Morgan).

44

It still is subject to dispute. See Kesavan, supra note 13, at 1709-10, 1723-29 (arguing that the Constitution requires
Congress to count electoral votes organized as a unicameral legislature with each senator and congressman having one
vote).

45

U.S. Const. art. II, § 1, cl. 2.

46

Id. (“[N]o Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be
appointed an Elector.”).

47

Id. art. II, § 1, cls. 2-4.

48

Id. art. II, § 1, cls. 2-4; id. amend. XII.

49

Id. amend. XII. The text of the original Constitution was identical. See id. art. II, § 1, cl. 3.

50

See Subcomm. on Compilation of Precedents, Counting Electoral Votes, H.R. Misc. Doc. No. 44-13, at 694 (1877)
(statement of Sen. Pinckney); 18 Cong. Rec. 74 (1886) (statement of Rep. Baker); 17 id. at 1058 (statement of Sen.
Wilson); id. at 1057 (statement of Sen. Evarts); id. at 1025 (statement of Sen. Ingalls); 15 id. at 5465-68 (1884) (statement
of Rep. Browne).

51

See, e.g., 17 Cong. Rec. 817 (1886) (statement of Sen. Sherman); 15 id. at 5076-79, 5548 (1884) (statement of Rep.
Eaton). This theory is my favorite-not that I agree with it-because of the surprising force of its argument and logic: The
House is there to witness whether it needs to elect a President because no one received an electoral college majority.
Similarly, the Senate's power to elect a Vice President arises whenever no one has a majority of the vice-presidential
electoral vote.

52

See, e.g., 17 id. at 1063, 2428-29 (1886) (statement of Sen. George); 15 id. at app. 311 (1884) (statement of Rep. Findlay)
(citing 2 George Bancroft, History of the Formation of the Constitution of the United States of America 184 (New York,
D. Appleton & Co. 1882)); id. at 5096 (statement of Rep. Pryor); Alexander H. Stephens, The Count of the Electoral
Vote for President and Vice-President, 5 Int'l Rev. 102, 107 (1878). Stephens was a congressman from Georgia before
and after the Civil War, and the Vice President of the Confederacy during that War. eHistory.com, Alexander Hamilton
Stevens, at www.ehistory.com/world/PeopleView.cfm?PID=69 (last visited Feb. 15, 2004).

53

18 Cong. Rec. 75 (1886) (statement of Rep. Herbert); id. at 50 (statement of Rep. Adams); id. at 46 (statement of Rep.
Dibble); 15 id. at 5547 (1884) (statement of Rep. Herbert). This is the ECA's theory.

54

See, e.g., H.R. Misc. Doc. No. 44-13, at 52 (statement of Rep. Clay). This theory originates with Henry Clay's analysis
of electoral vote counting in 1821 when there was a dispute over whether Missouri was a state entitled to participate in
presidential elections at the time of the 1820 election. See id. at 51-56 (reporting the debate).

55

See supra text accompanying note 50.

56

See supra text accompanying note 54.

57

See supra text accompanying note 53.

58

See Dougherty, supra note 10, at 58, 76-77.

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59

The Presidential Counts ix-xliii (New York, D. Appleton & Co. 1877) presents a good summary of the evidence; see also
Dougherty, supra note 10, at 61-62 (quoting The Presidential Counts, supra, at xl). Congress asserted its authority by
1800 because both houses passed different versions of the “Grand Committee” bill. See David P. Currie, The Constitution
in Congress: The Federalist Period, 1789-1801 at 288-91 (1997) (providing an overview of the bill); see also 18 Cong.
Rec. 50 (1886) (statement of Rep. Adams) (stating that within a decade of the adoption of the Constitution the “President
of the Senate” theory was supplanted).

60

Electoral vote counting is a remarkably important and sustained example of nonjudicial, constitutional interpretation.

61

13 Cong. Rec. 2645 (1882) (statement of Sen. Pugh).

62

Wroth, supra note 13, at 328.

63

Subcomm. on Compilation of Precedents, Counting Electoral Votes, H.R. Misc. Doc. No. 44-13, at 148 (1877) (House
of Representatives); id. at 224 (Senate).

64

Wroth, supra note 13, at 328 n.34.

65

Vice President Hamlin's refusal to submit the electoral votes of Louisiana and Tennessee relied on a Joint Resolution
which President Lincoln had just signed (giving it the force of law) stating that the Confederate states were “not entitled
to representation in the electoral college . . . and no electoral votes shall be received or counted from said States.” H.R.
Misc. Doc. No. 44-13, at 149. President Lincoln's comments are also set out in 10 Cong. Rec. 3654 (1880). When
questioned by Congressman Yeaman, Vice President Hamlin said he would submit the Louisiana and Tennessee votes
if “either branch of Congress shall be disposed.” H.R. Misc. Doc. No. 44-13, at 228. In the end, no one objected to Vice
President Hamlin's decision because it would have unnecessarily prolonged the meeting by requiring a separation of the
two houses to discuss and vote on the issue. Id. at 228.
In light of the Joint Resolution on which Vice President Hamlin relied, Congress enacted the 22d Joint Rule as a backup
measure to ensure that no Confederate states participated in the 1864 presidential election. See id. at 416. Congress's
concern was that President Lincoln might not sign the Joint Resolution, or might not sign it in time for that year's electoral
count. Id. at 229-30 (message from Pres. Lincoln discussing his qualms about signing the Joint Resolution). President
Lincoln did sign it at the very last minute, so late that his action had not been officially promulgated. Id. at 228. Vice
President Hamlin knew about the President's action on his own knowledge. Id. at 228.
This is significant for the question of whether Congress regulates its electoral vote counting by law (and therefore
whether the ECA is a binding statute). In signing the Joint Resolution, Lincoln stated his view:
[T]he two houses of Congress . . . have complete power to exclude from counting all electoral votes deemed by them
to be illegal; and it is not competent for the Executive to defeat or obstruct that power by a veto, as would be the case
if his action were at all essential in the matter.
Id. at 229-30. Lincoln indicated that he signed the Joint Resolution “in deference” to Congress and he denied “any
opinion” on whether his signature was required. Id.

66

H.R. Misc. Doc. No. 44-13, at 335-408. Georgia's electors had voted for Horace Greeley who had died after election day
but before elector balloting day. Id. at 365-67. Later Congresses, wishing to minimize the import of Congress's action
in the 1873 Arkansas dispute, claimed that its action was predicated on an alternative ground: the mistaken claim that
the Arkansas vote was certified with an improper seal. Id. at 395-95, 399-406.

67

Id. at 782-94.

68

5 Cong. Rec. 1195-98, 1503-05, 1703-04, 1720-23, 1728-31, 1917-19, 1938-39, 1945-46, 2021-22, 2055 (1877)
(counting objections raised to electoral votes from Florida, Louisiana, Michigan, Nevada, Oregon, Pennsylvania, Rhode
Island, South Carolina, Vermont, and Wisconsin, respectively). It should be mentioned that Congress dealt with the
multiple-return states with the help of a statutorily created Electoral Commission, and that in dealing with objections to
votes from the single-return states, Congress always decided to count the vote. See Burgess, supra note 10, at 642.

69

See Act of Jan. 29, 1877, ch. 37, 19 Stat. 227. The Electoral Commission is recounted in Haworth, supra note 5, at 220-84.

70

In 1881, the Senate adopted a joint resolution officially rejecting the “President of the Senate” theory. 11 Cong. Rec.
1160-74, 1205-11 (1881); see also 17 id. at 1019 (1886) (statement of Sen. Hoar) (stating that it is “settled for this

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generation . . . that the President of the Senate is not clothed by the Constitution with the power to count the electoral
vote”); 13 id. at 2645 (1882) (statement of Sen. Pugh).
71

17 id. at 2427 (1886) (statement of Sen. Hoar); id. at 1063 (statement of Sen. George); id. at 818 (statement of Sen.
Sherman) (pointing out that more than half the time Congress's two Houses have been controlled by different political
parties); Edmunds, supra note 31, at 16.

72

See 18 Cong. Rec. 50 (1886) (statement of Rep. Eden); 17 id. at 867 (statement of Sen. Morgan); 15 id. at 5547 (1884)
(statement of Rep. Herbert); Edmunds, supra note 31, at 16; Wroth, supra note 13, at 344-45.

73

See 18 Cong. Rec. 50 (1886) (statement of Rep. Eden) (commenting on problem of Congress making “spur of the
moment” decisions about electors “amid the excitement of party contests”); Edmunds, supra note 31, at 18 (commenting
on Congress's inability to fairly adjudicate the elections of its own members).

74

See, e.g., 17 Cong. Rec. 1019 (1886) (statement of Sen. Hoar); Edmunds, supra note 31, at 17-18, 19-20.

75

See, e.g., 17 Cong. Rec. 864-68 (1886) (statement of Sen. Morgan); 15 id. at 5455 (1884) (statement of Rep. Hart).

76

17 id. at 1024 (1886) (statement of Sen. Ingalls) (describing the Electoral Commission of 1877 as “a contrivance that
will never be repeated in our politics. It was a device that was favored by each party in the belief that it would cheat the
other, and it resulted, as I once before said, in defrauding both.”); 13 id. at 5144 (statement of Rep. Browne) (describing
the party-line vote); 13 id. at 2647 (1882) (statement of Sen. Pugh); 8 id. at 69 (1878) (statement of Sen. Morgan).

77

17 id. at 1020 (1886). Hoar's comments were against his interest as he personally favored designating the senior Supreme
Court justice as arbiter, and his comments were made in that context. Id.

78

See id. at 2647 (statement of Sen. Pugh) (observing that Congress could find no uncorruptible institution); 13 id. at 5145
(1882) (statement of Rep. Browne).

79

This premise of the ECA has been disputed recently by Kesavan, supra note 13, at 1709-10, 1723-29 (arguing for
unicameralism with each congressman having one vote). If the “Congress organized as two separate houses” theory is
wrong, the ECA may be unconstitutional and of no effect. Id. at 1723-29. I say “may” be unconstitutional because it is
possible that the Constitution ab initio lodges the vote counting power somewhere else-for example, with the President
of the Senate-but allows Congress to move it elsewhere by subsequent legislation. See 1 James Kent, Commentaries
on American Law 258-59 (photo reprint 1971) (1826). As stated, supra text accompanying note 20, this Article does
not explore whether the ECA is constitutional. It assumes the post-Civil War Congresses' view was correct and that
the Constitution does lodge, or permits subsequent legislation to lodge, the electoral vote counting power in Congress
organized as two separate houses.

80

The two questions are quite integrated because concerns about who counts electoral votes might well depend on the
scope of that power. For example, one might allow the President of the Senate to count the vote if the power is purely
ministerial.

81

See, e.g., Subcomm. on Compilation of Precedents, Counting Electoral Votes, H.R. Misc. Doc. No. 44-13, at 691-702
(statement of Sens. Baldwin and Pinckney in 1800); 18 Cong. Rec. 46-47 (1886) (statement of Rep. Dibble); 10 id.
at 4390 (1880) (statement of Rep. Updegraff); id. at 3683 (statement of Rep. Teller); 8 id. at 72-73 (1878) (statement
of Sen. Jones).

82

See sources cited supra note 81.

83

Even under the “ministerial” theory, Congress still had the power to determine: (1) whether a submitted vote came from
a state rather than from some other entity not entitled to vote; and (2) whether the person certifying the vote actually
was the state's governor. See 18 Cong. Rec. 47 (1886) (statement of Rep. Dibble); Kesavan, supra note 13, at 1795-96.

84

See, e.g., 18 Cong. Rec. 30 (1886) (statement of Rep. Caldell); 15 id. at 5461 (1884) (statement of Rep. Springer); id.
at 5099 (statement of Sen. Pryor).

85

See, e.g., 18 id. at 48 (1886) (statement of Rep. Cooper); 13 id. at 2650 (1882) (statement of Sen. Morgan); id. at 2645
(statement of Sen. Pugh); 10 id. at 4492 (1880) (Rep. Hutton).

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86

13 id. at 2650 (1882) (statement of Sen. Morgan); see also 15 id. at 5099-101, 5105 (1884) (statement of Sen. Pryor).

87

See, e.g., 18 id. at 50-51 (1886) (statement of Rep. Adams) (discussing various types of objections). See infra text
accompanying note 97, for a discussion of the types of objections.

88

Twice, Congress almost took a stand. In 1800, substantially similar bills passed the House of Representatives and the
Senate, but failed to be reconciled over the issue of whether rejecting electoral votes should require the vote of one or
both houses. See Subcomm. on Compilation of Precedents, Counting Electoral Votes, H.R. Misc. Doc. No. 44-13, at
16-28, 691-702 (1877); Currie, supra note 59, at 288-91; Dougherty, supra note 10, at 62-73. In 1824, a bill that allowed
the rejection of electoral votes only when both houses agreed passed the Senate, but was not acted upon in the House.
H.R. Misc. Doc. No. 44-13, at 65-68; Dougherty, supra note 10, at 73.

89

See, e.g., H.R. Misc. Doc. No. 44-13, at 35, 76 (reprinting the resolutions for 1805 and 1841).

90

See, e.g., id. at 71-75 (avoiding the issue of whether Michigan was entitled to electoral votes by providing an alternate
count); id. at 49-56 (avoiding the same issue for Missouri). The Houses also chose to ignore various problems entirely. Id.
at 73 (ignoring whether some Michigan electors were disqualified); id. at 46-47 (ignoring whether Indiana was entitled
to electoral votes); id. at 37-38 (ignoring whether electors from Massachusetts were properly elected).

91

Id. at 223-25. In 1872, Congress had asserted its authority under the 22d Joint Rule by rejecting votes from Georgia,
Louisiana, and Arkansas. Id. at 357-406. In each instance, however, both houses concurred in rejecting the votes. See
id., for a recount of Congress's proceedings during the 1873 electoral count.

92

In 1876, the Senate refused to renew the 22d Joint Rule, effectively repealing it. See id. at 444-58, 782-94. Senator
Morton described the Rule's approach as unconstitutional. Id. at 444 (statement of Sen. Morton). He thought that rejecting
single returns from a state required a concurrent vote of both houses. Id. Only in the presence of multiple returns was
Congress required to accept a return by concurrent vote. Id. at 527.

93

18 Cong. Rec. 30 (1886) (statement of Rep. Caldwell); see also 10 id. at 4388 (1880) (statement of Rep. Bicknell); 8
id. at 70-71 (1878) (statement of Sen. Morgan).

94

See sources cited supra note 93.

95

See infra text following notes 402, 445.

96

Twelve of the twenty-five electoral counts had some problem that was either addressed or ignored. See Maskell et al.,
supra note 13, at 7-23; infra note 599 and accompanying text (discussing 1797 and 1801 electoral count). Only four
vote counts since the adoption of the ECA had similar problems. Maskell et al., supra note 13, at 23-29; infra text
accompanying notes 661-64 (discussing the 2001 electoral count).

97

See 18 Cong. Rec. 50-51 (1886) (statement of Rep. Adams) (mentioning all of these types of disputes except the
last because he was talking about receiving electoral votes). The latter two types of disputes do not involve the issue
of accepting electoral votes, per se. But they are disputes that may arise during the joint session counting the votes.
Disputes over the consequences of rejecting a vote were anticipated by Congress, but never resolved. See infra text
accompanying note 678. In contrast, disputes over procedures were quite notorious, as some of the sharpest prior
controversies had involved the President of the Senate's conduct of the joint meeting. See H.R. Misc. Doc. No. 44-13,
at 237-334 (recounting a three-day debate on the conduct of the 1869 vote count); id. at 87-144 (a two-day debate over
the conduct of the 1857 vote count); infra text accompanying notes 561-65, 633-39 (discussing procedural conflicts).

98

See, e.g., H.R. Misc. Doc. No. 44-13, at 230-36, 244-63 (questioning Georgia's status in 1869); id. at 149-228
(questioning same for the Confederate states in 1864); id. at 70-75 (questioning same for Michigan in 1836); id. at 49-56
(questioning same for Missouri in 1820); id. at 46-47 (questioning same for Indiana in 1816).

99

See, e.g., id. at 357-407 (questioning the appointment of electors in Louisiana and Arkansas in 1872); id. at 237-44
(questioning the validity of the electors' election in Louisiana in 1868); id. at 37-38 (questioning the appointment of
electors from Massachusetts in 1808); 5 Cong. Rec., pt. 4 (1877) (questioning the same for Florida, Louisiana, South
Carolina, and Oregon in 1876).

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100

See, e.g., H.R. Misc. Doc. No. 44-13, at 72-73 (questioning constitutional eligibility of a Michigan elector in 1836); 5
Cong. Rec., pt. 4, 249-51, 264-66 (1877) (questioning same of an Oregon elector in 1876).

101

See H.R. Misc. Doc. No. 44-13, at 395-401 (discussing the failure of governor to certify Arkansas's certificate); id. at
87-144 (questioning whether Wisconsin's electors balloted on the proper day in 1856); id. at 63-65 (questioning the
certificates submitted by electors in 1824); 10 Cong. Rec. 1386-87 (1880) (discussing the same for Georgia in 1880);
see also 115 id. at 145-71, 197-246 (1969) (recounting the debate on whether to count the vote of a “faithless elector”).

102

See 8 Cong. Rec. 163 (1878) (statement of Sen. Merrimon) (raising the possibilities of bribery, intimidation, fraud,
material irregularity, and ineligibility); see also 10 id. at 3691 (1880) (colloquy between Sens. Morgan and Edmunds
debating whether majority requirement was reduced when three electors died before balloting in 1820).

103

See 18 id. at 49 (1886) (statement of Rep. Cooper); 17 id. at 820, 1057, 1061, 2428 (1886) (statement of Sens. Evarts,
Hoar, and George); see also infra text accompanying note 678 (discussing the denominator problem).

104

See, e.g., H.R. Misc. Doc. No. 44-13, at 367-80 (documenting procedural wrangling in the houses when meeting
separately to discuss objections to the vote of several states); id. at 237-334 (discussing conduct of 1869 electoral count
session, including the presiding officer's refusal to allow an appeal from his ruling that a motion was out of order).

105

See Electoral Count Act of 1887, ch. 90, 24 Stat. 373 (current version at

3 U.S.C. §§ 5-

6, 15-18 (2000)).

106

See Kesavan, supra note 13, at 1779; John C. Roberts & Erwin Chemerinsky, Entrenchment of Ordinary Legislation,
91 Cal. L. Rev. 1773, 1775 (2003).

107

Examples of such “legislation” are: Congressional Budget and Impoundment Control Act of 1974, Pub. L. No. 93-344,
88 Stat. 297 (1974); Legislative Reorganization Act of 1946, Pub. L. No. 79-601, 60 Stat. 812. See Stanley Bach, The
Nature of Congressional Rules, 5 J.L. & Pol. 725, 731 n.26 (1989); Roberts & Chemerinsky, supra note 106, at 1793-94.

108

See generally
Metzenbaum v. Fed. Energy Regulatory Comm'n, 675 F.2d 1282 (D.C. Cir. 1982) (noting that certain
provisions of the Alaska Natural Gas Transportation Act are rules of procedure that do not grant private rights).

109

See, e.g., 17 Cong. Rec. 1024 (1886) (statement of Sen. Ingalls); 13 id. at 2652 (1882) (statement of Sen. Blair) (stating
that future Congresses cannot be bound by this law); id. at 2648 (statement of Sen. Garland) (stating that although he
approves the substance of the bill, Congress cannot bind itself); 8 id. at 164 (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.”). In 1880, when the Democrats controlled both houses of Congress, they attempted
to pass a joint rule governing the count. See, e.g., 10 id. at 3652-63 (1880). This led to extended debate on the propriety
of relying on the houses' rule-making power rather than on their legislative power. See, e.g., id. Some congressmen
argued against the propriety of legislation on the related ground that the Constitution vested the electoral vote counting
power in the President of the Senate and that Congress lacked legislative power to move it elsewhere. See 18 id. at 74-75
(1886) (statement of Rep. Baker); 17 id. at 1059 (statement of Sen. Wilson); 10 id. at 4389 (1880) (statement of Rep.
Updegraff); id. at 3685 (statement of Rep. Ingalls).

110

See, e.g., 17 id. at 867 (1886) (statement of Sen. Morgan); 10 id. at 3685 (1880) (statement of Rep. Ingalls). President
Lincoln stated this view when he reluctantly signed legislation (framed as a joint resolution) excluding the Confederate
states from the electoral count in 1865. See Subcomm. on Compilation of Precedents, Counting Electoral Votes, H.R.
Misc. Doc. No. 44-13, at 229-30 (1877).

111

See supra notes 106-07.

112

In 1880, when the Democrats controlled both houses of Congress, the Senate leadership refused to consider a bill. 10
Cong. Rec. 3052 (1880). Instead, the Senate proposed (and passed) a joint rule on the subject that failed in the House
due to strong Republican objections. Id. at 3704.

113

Id. at 3694 (statement of Sen. Edmunds).

114

Specifically, this power was vested in the two houses of Congress while meeting in joint session. U.S. Const. amend. XII.

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115

U.S. Const. art. I, § 8, cl. 18. This is the “horizontal” component of the Sweeping Clause, which extends to any power
vested in the federal government by the Constitution. But see Kesavan, supra note 13, at 1731-43 (arguing against the
breadth of this component of the Sweeping Clause).

116

See U.S. Const. art. III, § 2, cl. 2 (granting the Supreme Court jurisdiction over all cases that affect public ambassadors).

117

See 8 Cong. Rec. 54 (1878) (statement of Sen. Edmunds).

118

See 18 id. at 46 (1886) (statement of Rep. Dibble) (arguing for a very limited scope of power); 17 id. at 1019 (statement
of Sen. Hoar); 15 id. at 5547 (1884) (statement of Rep. Herbert); 8 id. at 54 (1878) (statement of Sen. Edmunds); id. at 70
(statement of Sen. Morgan) (claiming Congress had assumed this understanding in regulating the submission of electoral
votes in 1792). Congress may well have adopted this interpretation when, in 1792, it required the state governors to issue
certificates to the electors, and when, in 1800, the two houses passed, but could not reconcile, versions of the Grand
Committee Bill. See Currie, supra note 59, at 136-39, 288-91 (discussing the 1792 law and Grand Committee Bill);
infra text accompanying note 410 (discussing the 1792 statute). Other congressmen may have held the more limited
position that Congress's legislative power is confined to specifying the consequences that follow when the two houses
disagree during the count. No power, they felt, could bind the houses when they were in agreement. See 17 Cong. Rec.
867 (1886) (statement of Sen. Morgan).

119

Some congressmen believed this position was unconstitutional when a state submitted only one set of properly certified
electoral returns. See, e.g., Subcomm. on Compilation of Precedents, Counting Electoral Votes, H.R. Misc. Doc. No.
44-13, at 452-55 (statement of Sen. Morton); id. at 416-18 (recounting a Senate Report written by Sen. Morton). They
argued that when a state submitted only one electoral return, it was constitutionally entitled to a presumption of validity
and it required a concurrent vote of both houses to reject the electors. Id. at 416-18, 452-55. But since the ECA adopted the
rule they wanted, whether for constitutional or prudential reasons, this objection need not detain us. Other congressmen
believed that when a state submitted a single set of electoral votes, the Constitution compelled Congress to accept it. See
18 Cong. Rec. 45 (1886) (statement of Rep. Dibble); infra text accompanying note 453. The congressmen who adopted
the ECA clearly spurned this position. See infra text accompanying note 295. So it, too, need not detain us here.

120

17 Cong. Rec. 2427 (1886) (statement of Sen. Hoar); id. at 1063 (statement of Sen. George); id. at 818 (statement of Sen.
Sherman) (pointing out that more than half the time Congress's two houses have been controlled by different political
parties); Edmunds, supra note 31, at 16.

121

17 Cong. Rec. 1019-20 (1886) (statement of Sen. Hoar).

122

Id.

123

See, e.g., 18 id. at 51 (statement of Rep. Adams).

124

Id. Adams was speaking against the House committee's attempt to give conclusive effect to any state that submitted one
set of electoral returns. See infra text accompanying note 368. Adams begrudgingly accepted this provision in the Senate
bill. 18 Cong. Rec. 52 (1886). Those decisions, he said, “may be regarded as a judicial determination of the question by
a court of last resort,” and that might justify congressional deference. Id.

125

See, e.g., 18 Cong. Rec. 31 (1886) (statement of Rep. Caldwell); 17 id. at 867 (statement of Sen. Morgan).

126

These congressmen understood electoral vote counting as a paradigmatic political question. See, e.g., 17 id. at 1058
(statement of Sen. Evarts); id. at 1024 (statement of Sen. Ingalls) (describing electoral vote counting as a political
function); id. at 817, 1020 (statement of Sen. Sherman); 10 id. at 3700 (1880) (statement of Sens. Edmunds and Morgan).
But see 17 id. at 1064 (1886) (statement of Sen. Edmunds) (implying availability of quo warranto proceeding for the
losing candidate).

127

17 id. at 867 (1886) (statement of Sen. Morgan).

128

Id.; see also 18 id. at 51-52 (statement of Rep. Adams) (speaking in favor of the Senate bill); id. at 31 (statement of
Rep. Caldwell); 15 id. at 5547 (1884) (statement of Rep. Herbert); 10 id. at 3700 (1880) (statement of Sens. Morgan
and Edmunds).

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129

17 id. at 867 (1886) (statement of Sen. Morgan); cf. 15 id. at 5547 (1884) (statement of Rep. Herbert) (discussing the
power of the final decision-maker).

130

Senator Morgan, for example, preferred adopting a joint rule. 17 id. at 867-68 (1886) (statement of Sen. Morgan).

131

Id. at 867; cf. 18 id. at 75 (statement of Rep. Herbert) (speaking of the “law-abiding” sentiment of the American people).

132

13 id. at 2651 (1882) (statement of Sen. Morgan).

133

Bush v. Gore, 531
The ECA certainly impacted the litigation surrounding the 2000 presidential election. See, e.g.,
U.S. 98, 110 (2000) (refusing to remand case because “safe harbor” provision of the ECA was about to expire).

134

See 18 Cong. Rec. 75 (1886) (statement of Rep. Herbert) (commenting on how the ECA's ability to bind Congress's
conscience would be amplified by the American people's desire for application of preexisting law to close elections).

135

See, e.g., id. at 30-31 (statement of Rep. Caldwell).

136

An illustration is the statement by Representative Caldwell, Chairman of the House committee managing the ECA on
final passage, on why removing the word “lawful” from a particular clause was of no moment and whether section 2 of
the ECA was meant to control against a concurrent vote of the two houses. Id.

137

Neither house of Congress recorded most of its votes on the bill, including the final vote. It is difficult to estimate
how many colleagues each senator spoke for or persuaded. In addition, some congressmen made remarks, probably
predicated on the view that Congress's electoral vote counting was not judicially reviewable, which indicates that they
did not think the statute/rule issue was critical. See, e.g., id. at 30. (“Congress may provide by law or joint rule the
manner of counting the [electoral] vote.”).

138

Most congressmen during the years the ECA was debated assumed there would be no judicial review of Congress's
electoral vote counting decisions. See, e.g., 17 id. at 1058 (statement of Sen. Evarts); id. at 867 (statement of Sen.
Morgan); 15 id. at 5455 (1884) (statement of Rep. Hart); Eric Schickler et al., Safe at Any Speed: Legislative Intent,
The Electoral Court Act of 1887, and Bush v. Gore, 16 J.L. & Pol. 717, 750-54 (2000) (Congress rejected federal court
involvement in the electoral count).

139

The difference between the two theories may be muted for another reason: In theory the courts will enforce Congress's
in-house rules when the rights of a third party, perhaps a losing presidential candidate, are affected. See Bach, supra
note 107, at 730-31 (noting that courts are reluctant to oversee enforcement of in-house rules); John C. Roberts, Are
Congressional Committees Constitutional?: Radical Textualism, Separation of Powers, and the Enactment Process, 52
Case W. Res. L. Rev. 489, 530-42 (2001) (stating that lower courts reserve the power to intervene but have never done
so). But see Gregory Frederick Van Tatenhove, Comment, A Question of Power: Judicial Review of Congressional
Rules of Procedure, 76 Ky. L.J. 597, 605-15 (1987) (finding that courts are more willing to intervene).

140

Bach, supra note 107, at 732-42 (noting that the Senate is more flexible in this regard than the House).

141

They all voted along party lines. See 13 Cong. Rec. 5144 (1882) (statement of Rep. Browne); Haworth, supra note
5, at 236, 243, 260, 335-36. For contemporary congressional reaction to the Electoral Commission, see supra text
accompanying note 76.

142

See Richard D. Friedman, Trying to Make Peace with Bush v. Gore, 29 Fla. St. U. L. Rev. 811, 866 (2001); Michael
J. Klarman, Bush v. Gore Through the Lens of Constitutional History, 89 Cal. L. Rev. 1721, 1724-47 (2001); Harold J.
Krent, Judging Judging: The Problem of Second-Guessing State Judges' Interpretation of State Law in Bush v. Gore, 29
Fla. St. U. L. Rev. 493, 496 (2001); Randall Kennedy, Contempt of Court, 12 Am. Prospect 15 (2001), reprinted in Bush
v. Gore:The Court Cases and the Commentary 336 (E.J. Dionne, Jr. and William Kristol eds., 2001); Cass Sunstein, What
We'll Remember in 2050, Chron. Higher Educ. (2001), reprinted in Bush v. Gore: The Court Cases and the Commentary,
supra, at 339; Jeffrey Rosen, The Supreme Court Commits Suicide, New Republic, Dec. 25, 2000 at 18, reprinted in
Bush v. Gore: The Court Cases and the Commentary, supra, at 311.

143

It should be noted, however, that in 1877, the House, which was controlled by Democrats, did abide by the Electoral
Commission statute even though it failed to work in the Democrats' favor. Haworth, supra note 5, at 278-83.

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144

See supra text accompanying note 132.

145

The ECA matters until it is amended or rescinded. As previously discussed, whether the ECA is a statute or an internal
rule matters for how it may be amended or rescinded. See supra text accompanying notes 25-26.

146

For examples of congressmen drawing from administrative law and election law, see 17 Cong. Rec. 1064 (1886)
(statement of Sen. Edmunds); 15 id. at app. 305-06 (1884) (statement of Rep. Broadhead).

147

Neither did Congress consider itself a judicial body governed by judicial norms.

148

See, e.g., 18 Cong. Rec. 30 (1886) (statement of Rep. Caldwell); 13 id. at 2651-52 (1882) (statement of Sen. Blair);
id. at 2650 (statement of Sen. Morgan).

149

See, e.g., 18 id. at 45-47 (1886) (statement of Rep. Dibble); 8 id. at 72-73 (1878) (statement of Sen. Jones); see also
Subcomm. on Compilation of Precedents, Counting Electoral Votes, H.R. Misc. Doc. No. 44-13, at 691-702 (1877)
(statement of Sens. Baldwin and Pinckney on the Grand Committee Bill of 1800).

150

13 Cong. Rec. 2650 (1882) (statement of Sen. Morgan); see also 15 id. at 5099-5101, 5105 (1884) (statement of Rep.
Pryor).

151

See, e.g., 18 id. at 51-52 (1886) (statement of Rep. Adams) (Congress may legislate only for the case where its houses
disagree); id. at 49 (statement of Rep. Eden) (Congress may act only when a state presents multiple returns). It is
impossible to determine the extent these congressmen did so from constitutional or prudential considerations.

152

See, e.g., Thomas Cooley, A Treatise on the Constitutional Limitations Which Rest Upon the Legislative Power of the
States of the American Union 623 (photo reprint 1972) (1868) (statutes may make the canvass “conclusive” or establish
a “special . . . board . . . with powers of final decision”); George W. McCrary, A Treatise on the American Law of
Elections 286-87 (Chicago, 4th ed., Callaghan & Co. 1897) (observing that “exclusive jurisdiction” to review elections
may be committed to administrative boards or municipal legislatures); Edmunds, supra note 31, at 17.

153

See infra text accompanying notes 167-68.

154

See, e.g., Ill. Rev. Stat. ch. 46 (1880); Ill. Rev. Stat. ch. 37 (1845); 1822 N.Y. Laws 268; Cooley, supra note 152, at
617-23; McCrary, supra note 152, at 196-226, 387-406. I use the term “ballot,” but the same was true in the early part
of the century when voting was by voice, and, in the latter part of the century when voting, in some jurisdictions, was
by machine.

155

Cooley, supra note 152, at 934.

156

McCrary, supra note 152, at 107.

157

See Cooley, supra note 152, at 606-14, 616-17, 620-21; McCrary, supra note 152, at 387-406.

158

Cooley, supra note 152, at 934.

159

Id.

160

Id. at 934-35.

161

Id. at 934.

162

State law might provide that the certificate be issued by the state returning board or the secretary of state. McCrary,
supra note 152, at 228-29. Frequently, the duty was placed on the governor, see, e.g., Ill. Rev. St. ch. 46, § 78 (1880),
and, for simplicity, I will refer only to his certificate.

163

Cooley, supra note 152, at 619-20, 621-22; McCrary, supra note 152, at 228-30.

164

People v. Cook, 8 N.Y. 67, 83 (1853) (“[I]t is the election, and not the certificate of the canvassers that gives the right
to an office.”); Att'y

Gen. ex rel. Bashford v. Barstow, 4 Wis. 567, 826 (1855) (“[I]t is the election to an office, and

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not the canvass of the votes, which determines the right to the office.”); see also Cooley, supra note 152, at 623-24;
McCrary, supra note 152, at 279-336. Thomas McIntyre Cooley, doyen of nineteenth-century constitutional scholars,
put the matter this way:
As the election officers perform for the most part ministerial functions only, their returns, and the certificates of election
which are issued upon them, are not conclusive in favor of the officers who would thereby appear to be chosen, but the
final decision must rest with the courts. This is the general rule, and the exceptions are of those cases where the law under
which the canvass is made declares the decision conclusive, or where a special statutory board is established with powers
of final decision. Whatever may be the office, an election to it is made only by the candidate receiving the requisite
plurality of the legal votes cast; and if any one, without having received such a plurality, intrudes into an office, whether
with or without a certificate of election, the courts have jurisdiction to oust, as well as to punish him for such intrusion.
Cooley, supra note 152, 623-24.
165

See infra text accompanying notes 166-77.

166

James L. High, A Treatise on Extraordinary Legal Remedies, Embracing Mandamus, Quo Warranto and Prohibition
544, 557, 580, 634-35 (Chicago, 3d ed., Callaghan & Co. 1896); McCrary, supra note 152, at 294.

167

See, e.g., People ex rel. Budd v. Holden, 28 Cal. 123, 129 (1865);

People ex rel. Smith v. Pease, 27 N.Y. 45, 54

(1863); People ex rel. Van Voast v. Van Slyck, 4 Cow. 297, 323, 325 (N.Y. Sup. Ct. 1825);
Cooley, supra note 152, at 623-24; McCrary, supra note 152, at 279-36.
168

169

170

Barstow, 4 Wis. at 584;

State ex rel. Drew v. McLin, 16 Fla. 17, 62, 65 (1876); Barstow, 4 Wis. at 602; 17 Cong. Rec. 1064 (1886) (statement
of Sen. Edmunds) (mentioning the availability of quo warranto proceedings to review gubernatorial elections). But see
State v. Baxter, 28 Ark. 129, 139 (1873) (state constitution vests contest over governor's office exclusively in state
legislature). Senators Edmunds and Sherman suggested that even the Presidency might be subject to quo warranto
proceedings. See Subcomm. on Compilation of Precedents, Counting Electoral Votes, H.R. Misc. Doc. No. 44-13, at
481 (1877) (statement of Sen. Edmund) (stating that quo warranto available for presidential elections); 17 Cong. Rec.
817 (1886) (statement of Sen. Sherman). But other senators strongly disagreed. See, e.g., id. (statement of Sen. Hoar).
In 1882, the House committee's substitute for the Senate bill provided for quo warranto proceedings after Congress
counted the electoral votes. 13 id. at 5143 (1882). The substitute bill never passed.
The Constitution expressly vests this authority in Congress. See, e.g., U.S. Const. art. I, § 5, cl. 1. Some state constitutions
vested authority to determine challenges to gubernatorial elections in the legislature also. See, McCrary, supra note 152,
at 281 (citing Baxter, 28 Ark. at 129).
Cooley, supra note 152, at 623. But see id. at 624 n.1 (citing
People v. Cicott, 16 Mich. 283 (1868)) (indicating that
the person receiving the requisite number of votes has a constitutional right to have his claim tried by a jury).

171

See H.R. Misc. Doc. No. 44-13, at 481 (statement of Sen. Edmunds) (stating that presidential elections are subject
to judicial proceedings); 17 Cong. Rec. 1064 (1886) (statement of Sen. Edmunds) (commenting that all states subject
election administration to judicial oversight); infra text accompanying notes 172-75.

172

Legislatures also sought to modify quo warranto actions by enacting Actions in the Nature of Quo Warranto. See
McCrary, supra note 152, at 236-37.

173

See infra text accompanying notes 175-77.

174

McCrary, supra note 152, at 281.

175

Defeated legislative candidates, and high executive officials, when they did not have recourse to the courts, could
contest their (non)elections before the legislature. Nineteenth-century election contest laws may not have extended
to presidential electors, and they may have only had recourse through quo warranto proceedings. See infra text
accompanying notes 241-56, 214 (discussing quo warranto in 1870s elections and the absence of contest laws for
presidential elections).

176

See Cooley, supra note 152, at 624-26; McCrary, supra note 152, at 280, 311-16, 339.

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177

This is generally true under modern law also. An exception may be presidential elector contest states-like Texas-which
are brought only before the governor. Tex. Elec. Code Ann. § 221.002 (Vernon 2003).

178

See Cooley, supra note 152, at 624-25; McCrary, supra note 152, at 227-42.

179

McCrary, supra note 152, at 189.

180

Id. at 191.

181

Id. at 149.

182

Id. at 199.

183

See, e.g., Edmunds, supra note 31, at 9 (equating prima facie determinations with the political branches and equating
finality with judicial determination).

184

See, e.g., infra text accompanying notes 353-62, 431-37; see also infra text accompanying notes 198-227 (discussing
the views of Justice Bradley and Field while on the Election Commission).

185

See, e.g., Subcomm. on Compilation of Precedents, Counting Electoral Votes, H.R. Misc. Doc. No. 44-13, at 362 (1877)
(detailing the Senate Committee Report on the effect of Louisiana quo warranto proceeding in 1872); 5 Cong. Rec.,
pt. 4, 261 (1877) (statement of Justice Bradley, as an Electoral Commission member). Senator Morton indicated some
disagreement with the 1872 Committee Report, but later changed his mind. See id. at 196 (discussing the Florida case
in 1876); Dougherty, supra note 10, at 86. But see 5 Cong. Rec., pt. 4, 250 (statement of Justice Field, as an Electoral
Commission member) (arguing that the quo warranto proceeding, which was filed before but decided after the electors
balloted, related back to the date of filing and controlled who were the proper electors).

186

Congress could refuse to count the vote of the certified person. See infra text accompanying notes 212, 433 (discussing
1873 dispute over Louisiana's vote).

187

See H.R. Misc. Doc. No. 44-13, at 362 (addendum by Sen. Morton).

188

See infra text following note 236.

189

See infra text accompanying notes 240-60.

190

See infra text accompanying note 276.

191

See infra text accompanying notes 241-61. The quo warranto proceedings were completed before Congress met to count
electoral votes, but Congress ignored the results of the quo warranto actions because they were not concluded before
elector balloting day. H.R. Misc. Doc. No. 44-13, at 362 (1877) (addendum by Sen. Morton); 5 Cong. Rec., pt. 4, 261
(statement of Justice Bradley).

192

See, e.g., infra text accompanying note 365, 536 (discussing attempts to broaden the conclusive effect of state
certification).

193

See 8 Cong. Rec. 70-72 (1878) (statement of Sen. Morgan); Frank J. Goodnow, The Writ of Certiorari, 6 Pol. Sci. Q.
493, 512-14 (1891); Louis L. Jaffe, Judicial Review: Constitutional and Jurisdictional Fact, 70 Harv. L. Rev. 953, 970-71
(1957) [hereinafter Jaffe, Judicial Review]; Louis L. Jaffe, The Right to Judicial Review I, 71 Harv. L. Rev. 401, 419
(1958); Frederic P. Lee, The Origins of Judicial Control of Federal Executive Action, 36 Geo. L.J. 287, 305 (1948).

194

See H.R. Misc. Doc. No. 44-13, at 691 (statement of Sen. Baldwin); McCrary, supra note 152, at 423-29 (discussing
fraud by election officials); infra text accompanying notes 208-11, 357-59.

195

See, e.g., 18 Cong. Rec. 50-51 (1886) (statement of Rep. Adams); id. at 31 (statement of Rep. Caldwell); 15 id. at
5461-62 (1884) (statement of Rep. Springer); id. at 5547 (statement of Rep. Herbert); 13 id. at 2651-52 (1882) (statement
of Sen. Blair).

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196

See, e.g., 18 id. at 45-47 (1886) (statement of Rep. Dibble); 8 id. at 72-73 (1878) (statement of Sen. Jones); see also
H.R. Misc. Doc. No. 44-13, at 691-702 (statements of Sens. Baldwin and Pickney).

197

According to the proponents of this view, the remedy for fraudulently issued credentials was punishment at the state
level. See H.R. Misc. Doc. No. 44-13, at 696 (statement of Sen. Pickney); 18 Cong. Rec. 45 (1886) (statement of Rep.
Dibble).

198

See 5 Cong. Rec., pt. 4 (1877). I use Justice Bradley as my example even though he was not a member of Congress
because: (1) while on the Electoral Commission he was charged with applying Congress's powers; (2) he was regarded
as the most nonpartisan member of the Commission; and (3) he analyzed all the disputed cases (while other members
of the Commission did not). At this point, I am not analyzing how Congress necessarily used the norms of election and
administrative law. Instead, I am showing how the norms could be used, and that they were used, by contemporaries to
think about Congress's electoral vote counting powers. These norms informed the arguments of all the members of the
Electoral Commission and the advocates arguing before them, whether they were congressmen or justices. See id.

199

Act of Jan. 29, 1877, ch. 37, § 2, 19 Stat. 277, 229; see also 5 Cong. Rec., pt. 4, 259 (1877) (statement of Justice Bradley)
(“[T]he powers of the Commission are precisely those . . . Congress possess[es in counting electoral votes].”). Bradley's
remarks left open whether Congress could amplify its powers through legislation. Id. at 264. No power enhancing
legislation had been enacted, however. For a review of the various disputes before the 1877 Electoral Commission, see
Dougherty, supra note 10, at 136-213; Fairman, supra note 5, at 56-122; Haworth, supra note 5, at 57-167, 220-84.

200

5 Cong. Rec., pt. 4, 261 (1877) (statement of Justice Bradley) (discussing the Florida case). In Florida, a quo warranto
proceeding was commenced before the electors balloted and was concluded, at the trial level, before Congress met to
count the electoral votes. Haworth, supra note 5, at 78-80. Applying the officer de facto doctrine, Justice Bradley refused
to consider the outcome of the quo warranto action. 5 Cong. Rec., pt. 4, 261 (1877). Justice Field disagreed with him
on this point. Id. at 247 (statement of Justice Field).

201

5 Cong. Rec., pt. 4, 263, 265, 266 (1877) (statement of Justice Bradley).

202

Id.

203

Id.

204

The objection to the South Carolina returns focused on the entire conduct of the election and the presence of federal
troops, not on any decision of the state canvassing board. Id. at 266. Bradley ruled that Congress, when meeting to count
electoral votes, could take “notice” of disorder “of such a public character” as “secession and the late civil war” but not
of lesser disorders. Id. Without a law providing for investigation, Congress had to assume the election was conducted
properly. Id.; see also infra text accompanying note 209 (discussing “manifest fraud”).

205

5 Cong. Rec., pt. 4, 261, 262-63 (1877).

206

Id. Justice Bradley was correct that the Louisiana statute was unique in giving its returning board discretionary power.
See State ex rel. Bonner v. Lynch, 25 La. Ann. 267 (1873) (finding that the Supreme Court of Louisiana cannot go behind
state returning board because the board exercises discretionary functions). However, Justice Bradley's view of the Florida
returning board was not correct. In saying the Florida board also had discretionary power, Bradley pointedly did not
follow the Supreme Court of Florida's determination that the Florida state canvassing board exercised only ministerial
authority. 5 Cong. Rec., pt. 4, 261 (1877) (statement of Justice Bradley); State ex rel. Drew v. McLin, 16 Fla. 17 (1876).
Bradley said simply, “I do not concur” with the Florida court; the court's ruling that the canvassing board exceeded its
jurisdiction “was not necessary to the judgment.” 5 Cong. Rec., pt. 4, 261 (1877). In doing this, he presaged the treatment
of the Supreme Court of Florida by the United States Supreme Court in

207

5 Cong. Rec., pt. 4, 261, 263 (1877) (statement of Justice Bradley).

208

Id. at 260, 263-64 (statement of Justice Bradley).

209

Id. at 263 (statement of Justice Bradley); see also id. at 260, 261.

210

Bush v. Gore, 531 U.S. 98 (2000).

Id. at 263.

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211

Id. at 261.

212

Id. at 265. The state canvassing authority was the secretary of state, not a board. Id.

213

See id. at 264-66.

214

David A. McKnight, The Electoral System of the United States 419 (F.B. Rothman 1993) (1878).

215

Haworth, supra note 5, at 158, 162-63; Morris, supra note 5, 183-85.

216

Haworth, supra note 5, at 163; Morris, supra note 5, at 184.

217

See 5 Cong. Rec., pt. 4, 265 (1877) (statement of Justice Bradley).

218

Id. at 265.

219

Id.

220

Id.

221

The ineligible elector who resigned, and the elector who the remaining Republican electors had appointed to fill the
vacancy, were the same person. Haworth, supra note 5, at 165.

222

See Harp Week, Finding Precedent: Hayes vs. Tilden, at http:// elections.harpweek.com/9Controversy/bio-ControversyFull.asp? UniqueID=2&Year=1876 (last visited Feb. 15, 2004).

223

5 Cong. Rec., pt. 4, 245 (1877) (statement of Justice Field).

224

Id. at 250.

225

Justice Field held that the weight of American precedent was that when the victorious candidate is ineligible, it is unfair
to “elect to office a man whose pretensions the people had designed to reject.” Id. at 250; Cooley, supra note 152, at 620
(stating the American rule); McCrary, supra note 152, at 248-50 (same). English precedent was to the contrary. 5 Cong.
Rec., pt. 4, 250 (statement of Justice Field); McCrary, supra note 152, at 247.

226

5 Cong. Rec., pt. 4, 251 (1877) (statement of Justice Field).

227

Id. The consequence of Justice Field's logic, had it prevailed, is that Hayes and Tilden would have tied, and the House,
controlled by Democrats, presumably would have elected Tilden. Justice Field gave no opinion on the Louisiana and
South Carolina controversies.

228
229
230

Electoral Count Act of 1887, ch. 90, § 1, 24 Stat. 373, 373 (current version at

3 U.S.C. § 7 (2000)).

U.S. Const. art. I, § 1, cl. 3.
Act of Mar. 1, 1792, ch. 8, § 2,

1 Stat. 239, 239.

231

Id. § 1.

232

2 Annals of Cong. 278-79 (1792).

233

Id. (statement of Reps. White, Dayton, and Baldwin). Representative White felt that “[i]f it had been possible, he could
have wished that the Electors should meet and give in their votes on the very day of their being chosen.” Id. at 278.

234
235

Act of Jan. 23, 1845, ch. 1, 5 Stat 721 (codified at

3 U.S.C. § 1 (2000)).

Id.

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236

What is popularly known as election day is really “appointment” day, the time when electors are appointed. The states
determine how electors are appointed; a popular election is one of the ways they may select electors. See U.S. Const.
art. II, § 1, cl. 2. By 1845, popular elections had become the near-universal method for selecting electors, but even then,
as well as later, states used other methods. See Friedman, supra note 142, at 817 n.18. In this Article, I will refer to
“appointment” day as election day in deference to modern usage.

237

Subcomm. on Compilation of Precedents, Counting Electoral Votes, H.R. Misc. Doc. No. 44-13, at 72-75 (1877)
(discussing whether Michigan was entitled to electoral votes); id. at 49-56 (discussing whether Missouri was entitled
to electoral votes); id. at 46-47 (discussing whether Indiana was entitled to electoral votes). In 1837, there was also
a potential controversy, which Congress chose to overlook, over whether appointed electors were constitutionally
unqualified because they held federal office. See id. at 71. In 1809, there had been a potential controversy, which
Congress also ignored, over whether Massachusetts had followed the proper appointment process. See id. at 37-42.

238

See id. at 246-47 (stating that Georgia electors voted on the wrong day); id. at 231-36 (discussing the dispute over votes
from Georgia, which arguably had not yet complied with Congress's terms for readmission after the Civil War); id. at
86-144 (stating that Wisconsin electors voted on the wrong day); infra text accompanying note 590 (discussing 1865
problem of votes submitted by Confederate states).

239

See H.R. Misc. Doc. No. 44-13, at 363-407 (discussing the objection to three Georgia electoral votes cast for Horace
Greeley, who had died after election day but before elector balloting day; discussing the objection to Mississippi, Texas,
and Arkansas electoral votes for improper certification; and discussing the objection to Arkansas electoral votes because
there had been no valid election).

240

There could have been a second dispute over multiple slates of electors: Two slates of electors claimed to have carried
Arkansas, but in the end, only one set of Arkansas's electoral votes was presented when the other slate did not press its
case. Id. at 389-91; Electoral College, Ark. Gazette, Dec. 5, 1872, at 4:3. Arkansas's electoral vote was still rejected by
Congress on the grounds that no valid election had occurred and that there had been no proper certification. See H.R.
Misc. Doc. No. 44-13, at 406-07.

241

Althea D. Pitre, The Collapse of the Warmoth Regime, 1870-72, 6 La. Hist. 161, 180-82 (1965).

242

Kellogg v. Warmouth, 14 Fed. Cas. 157 (C.C.D. La. 1872) (No. 7667) (Governor Warmoth's name is misspelled in the
case); H.R. Misc. Doc. No. 44-13, at 359 (Senate Report on the Electoral Vote of Louisiana).

243

Kellogg, 14 Fed. Cas. at 157; H.R. Misc. Doc. No. 44-13, at 359 (Senate Report on the Electoral Vote of Louisiana).

244

H.R. Misc. Doc. No. 44-13, at 391-94 (Certificates of Louisiana electors indicating the date they cast their ballots).

245

Id. at 394 (statements of Reps. Sheldon and Stevenson, and Sen. Carpenter); id. at 361 (statement in Senate Report).

246

See Kellogg, 14 Fed. Cas. at 157; H.R. Misc. Doc. No. 44-13, at 358-63, 391-94, 396-99, 402-05; Pitre, supra note 241,
at 178-82. The action filed in Louisiana on November 14, 1872 to determine the proper composition of the canvassing
board was not resolved until January 1873. See State v. Wharton, 25 La. Ann. 2 (1873); H.R. Misc. Doc. No. 44-13,
at 362.

247

See supra notes 201-21 and accompanying text. Oregon also sent in multiple slates of electors. In Oregon, however,
the problem did not involve who won the election. One of the Republican electors held a federal appointment and was,
therefore, ineligible to be a presidential elector. The controversy turned on the governor's power to make a substitute
appointment. See supra text accompanying note 218. Because the Oregon dispute did not involve an election contest,
it will not be discussed at this point.

248

Hayes and Tilden were separated by one electoral vote. See supra note 222.

249

See 5 Cong. Rec., pt. 4, 261 (1877) (statement of Justice Bradley) (concerning Florida); Dougherty, supra note 10, at
202 (discussing South Carolina). An action was probably not filed in the third state, Louisiana, because the Supreme
Court of Louisiana in 1873 had ruled that its canvassing board exercised discretionary authority and, therefore, was
not subject to judicial revision; its determination was final. See State ex rel. Bonner v. Lynch, 25 La. Ann. 267 (1873);
supra text accompanying note 206.

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250

See 5 Cong. Rec., pt. 4, 287 (1877) (reprinting Florida's certificates which are dated December 6); Haworth, supra note
5, at 76 (stating that the canvass was completed on the night of December 5). The story of the Florida count is detailed
in Jerrell H. Shofner, Florida in the Balance: The Electoral Count of 1876, 47 Fla. Hist. Q. 122 (1968). Florida law
allowed the returning board thirty-five days to complete its work, even though federal law required the electors to ballot
on the twenty-ninth day. Id. at 130.

251

Shofner, supra note 250, at 146.

252

Id. at 147. It could not have been started any earlier, as quo warranto proceedings require that someone be in office in
order to be challenged.

253

See Haworth, supra note 5, at 78-79.

254

See id. at 79.

255

Id.

256

Jerrell H. Shofner, Florida Courts and the Disputed Election of 1876, 48 Fla. Hist. Q. 26, 43 (1969). With the election
settled, the Republican electors apparently never prosecuted their appeal. Id. at 42. The Supreme Court of Florida was
composed of two Republicans and one Democrat, and that may explain why the Court did not expedite its consideration
of the quo warranto appeal.

257

See, e.g., 5 Cong. Rec., pt. 4, 239 (1877) (statement of Sen. Hoar); id., 196-97 (statement of Sen. Morton).

258

See Haworth, supra note 5, at 154.

259

5 Cong. Rec., pt. 4, 180 (1877).

260

State ex rel. Barker v. Bowen, 8 S.C. 382 (1876) (refusing removal to the federal courts, but mentioning the date the
action was commenced).

261

Bowen, 8 S.C.at 403, 408. The error was that the Democratic electors had brought the case in the name of the state rather
than in the name of the United States. Id. at 407. I am unaware of any other court with a similar pleading rule. It should
be noted that the Bowen court was composed of Judges Moses, Willard, and Wright, all of whom were Republicans.
See Ernest McPherson Lander, Jr., A History of South Carolina, 1865-1910 26 (1960) (on Willard); William C. Hine,
Jonathan Jasper Wright, in 24 Am. Nat'l Biography 34 (John A. Garraty & Mark C. Carnes eds., 1999) (on Wright); R.
H. Woody, Franklin J. Moses, Jr., Scalawag Governor of South Carolina, 1872-74, 10 N.C. Hist. Rev. 111, 112 (1933)
(on Moses).

262

Edmunds, supra note 31, at 18.

263

8 Cong. Rec. 51 (1878) (statement of Sen. Edwawrds); 7 id at 3738 (statement of Sen. Edwards).

264

Compare 8 id. at 51 (citing S. 1308, 45th Cong. (1878)), with Electoral Count Act of 1887, ch. 90, 24 Stat. 373 (current
version at
3 U.S.C. §§ 5- 6, 15-18 (2000)) (the ECA); 13 Cong. Rec. 859 (1882) (Sen. Hoar saying the 1882 bill
is “the one originally . . . reported by the Senator from Vermont [Edwards] . . . in 1878”).

265

8 Cong. Rec. 51 (1878) (citing S. 1308, 45th Cong. (1878)).

266

Id. (statement of Sen. Edmunds).

267

Id. at 197 (describing S. 1308, 45th Cong. (1878) as passing the Senate, being introduced in the House, and being referred
to a committee from which it never emerged).

268

See supra note 235 and accompanying text.

269

See, e.g., 15 Cong. Rec. 5076 (1884) (citing S. 25, 48th Cong. (1884)); 13 id. at 859 (1882) (citing S. 613, 47th Cong.
(1882)).

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270

17 id. at 2387 (1886) (citing S. 9, 49th Cong. (1886)).

271

In 1934, in the only substantive change to the ECA since its adoption, Congress moved elector balloting day to “the First
Monday after the second Wednesday in December,” only forty-one days after election day. The change was made to
conform with the newly adopted Twentieth Amendment which moved the presidential inauguration day to January 20.
U.S. Const. amend. XX. At the time, Representative Sumners observed that the time between election day and elector
balloting was too short “to allow a reasonable time for settling contests over the election of presidential electors” and
that the general election should be moved to early October. 78 Cong. Rec. 9900 (1934) (statement of Rep. Sumners).
Sumners' suggestion was never acted on and the current spacing remains three to four weeks less than the authors of the
ECA thought appropriate. On two occasions, the time allowed by the 1934 amendment has proven insufficient. After
the 1960 election, Hawaii took until December 30 to decide (at the trial level) the outcome of its election. 107 Cong.
Rec. 290 (1961) (setting forth the Hawaii judgment). After the 2000 election, Florida was still attempting to resolve its
election when the United States Supreme Court halted the process six days before the electors balloted. See infoplease,
2000 Election Chronology, at http:// infoplease.com/ipa/A0884144.html (last visited on Feb. 16, 2004).

272

Electoral Count Act of 1887, ch. 90, § 2, 24 Stat. 373 (current version at

3 U.S.C § 5 (2000)).

273

See supra text accompanying note 167 (discussing quo warranto).

274

In 1876, for example, the Florida trial court reached its decision in late January. See 5 Cong. Rec., pt. 4, 288 (1877)
(stating that Florida Certificate No. 3 mentioned the date the quo warranto was completed); supra text following note 250.

275

Election contest laws are statutorily authorized in nearly all states and expedite post-election relief procedures beyond
mere recounting of ballots. See Developments in the Law-Elections, 88 Harv. L. Rev. 1114, 1298, 1302 (1975). Although
quo warranto was the common law method for trying an office holder's title to office, election contest laws was an
alternative proceeding date to the early nineteenth century. See, e.g., 1821 Ill. Laws 74.

276

Subcomm. on Compilation of Precedents, Counting Electoral Votes, H.R. Misc. Doc. No. 44-13, at 346 (1877); see also
id. at 408, 414; 13 Cong. Rec. 2647 (1882) (statement of Sen. Pugh) (commenting on state election contest laws); 5 id.
at 24 (1876) (President Grant, in the Annual Message he sent to Congress during the Hayes-Tilden contest stated that
“[t]he attention of Congress cannot be too earnestly called to the necessity of throwing some greater safeguard over the
method of choosing and declaring the election of a President. Under the present system there seems to be no provided
remedy for contesting the election in any one State.”).

277

Edmunds, supra note 31, at 18.

278

In 1877, just after the disastrous Hayes-Tilden election, Senator Eaton, a Democrat, proposed an amendment
commanding that “[a] tribunal for the decision of all contested issues arising in the choice of the electors of President
and Vice-President shall be appointed in each State” by the state's governor and senate “not less than twelve months
prior to the time fixed by law for the choice of electors.” 6 Cong. Rec. 415 (1877) (describing S.R. Res. No. 7). Eaton's
proposal never made it out of committee. Ames, supra note 4, at 121, 401.

279

See Samuel Dibble, Views of the Minority to Accompany Bill S. 9, H.R. Rep. 49-1638, pt. 2, at 1-2 (1886)9, H.R.
Rep. 49-1638, pt. 2, at 1-2 (1886); 18 Cong. Rec. 45 (1886) (statement of Rep. Dibble); 17 id. at 1061 (statement of
Sen. Teller); 15 id. at 5546 (1884) (statement of Rep. Hammond); id. at 5078 (statement of Rep. Eaton), discussed in
Burgess, supra note 10, at 635-37.

280

See 17 Cong. Rec. 1020 (1886) (statement of Sen. Hoar) (preferring to appoint the senior Justice of the Supreme Court
as arbiter); Edmunds, supra note 31, at 18; Schickler et al., supra note 138, at 750-54. In 1873, when the problem
of contending elector slates first arose, Senator Frelinghuysen, a Republican, proposed a constitutional amendment
ordaining that “[d]isputes arising with regard to the persons chosen as electors of President and Vice-President shall . . .
be decided by the Supreme Court of the United States.” H.R. Misc. Doc. No. 44-13, at 345. Frelinghuysen's amendment,
like Eaton's proposal, see supra note 278, never made it out of committee. Ames, supra note 4, at 119, 394.

281

13 Cong. Rec. 2646 (1882) (statement of Sen. Pugh).

282

3 U.S.C. § 5 (2000).

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283

See, e.g., H.R. Misc. Doc. No. 44-13, at 452-55 (statement of Sen. Morton) (discussing the 22d Joint Rule); 10 Annals
of Cong. 27-32, 126-46 (1800) (recounting the debate on the Grand Committee bill).

284

See supra text accompanying note 66. In regard to Arkansas, some Congressmen pointed to a formal defect in the
electors' certification: it was impressed with the seal of the secretary of state, not the seal of the State. H.R. Misc. Doc.
No. 44-13, at 431 (statement of Sen. Morton). But also among the objections were protests to the validity of the electors'
election and the canvass of the state vote. Id. at 394-95 (statement of Sen. Rice); see also id. at 389-91 (statement of the
Vice President on presence of other Arkansas returns that were too informal to be presented); id. at 335 (statement of
Sen. Sherman establishing a committee to inquire into the Arkansas election). In subsequent years, some congressmen
unfairly characterized Congress's rejection of Arkansas's vote as entirely due to the absence of the seal. See, e.g., id.
at 431 (statement of Sen. Morton). In 1869, Congress had questioned Louisiana's electoral vote based on the electors'
underlying election, but both houses voted to admit the votes. Id. at 238-46.

285

The single house veto was allowed by the 22d Joint Rule, the then-current regulation for Congress's electoral counts.
See supra text accompanying notes 63, 91 (discussing the 22d Joint Rule).

286

Burgess, supra note 10, at 635.

287

8 Cong. Rec. 70 (1878) (statement of Sen. Morgan).

288

Electoral Count Act of 1887, ch. 90, § 2, 24 Stat. 373, 373 (current version at

3 U.S.C. § 5 (2000)).

289

See Biographical Directory of the United States Congress, George Frisbie Hoar, at http://bioguide.Congress.gov/scripts/
biodisplay.pl? index=H000654 (last visited Feb. 15, 2004).

290

17 Cong. Rec. 1020 (1886) (statement of Sen. Hoar); see also 18 id. at 49 (statement of Rep. Eden) (describing the Senate
bill and opposing it on behalf of the House substitute); 17 id. at 867 (statement of Sen. Morgan) (“In this bill there is but
one sentiment, and that is to secure to each State its full electoral power, to be expressed and exercised, as far as may
be, under the Constitution, through its own laws and through the final and conclusive judgment of its own tribunals.”).

291

13 id. at 2645 (1882) (statement of Sen. Pugh, as Chair of the committee reporting on the bill, introducing the bill).

292

13 id. at 2646 (statement of Sen. Pugh).

293

See, e.g., 18 id. at 50 (1886) (statement of Rep. Eden); 17 id. at 867 (statement of Sen. Morgan); 15 id. at 5461 (1884)
(statement of Rep. Springer) (opposing the ECA for this reason); id. at 5459 (statement of Rep. Parker); id. at 5078-79
(statement of Rep. Browne); 13 id. at 2651 (1882) (statement of Sen. Blair) (opposing the ECA for this reason); id.
at 2651 (statement of Sen. Hoar); 8 id. at 158-59 (1878) (statement of Sen. Bayard); id. at 52-53 (statement of Sen.
Edmunds). The only indication in the legislative history that a section 2 determination is not meant to be conclusive is
from congressmen who supported both the bill and Congress's moral obligation to be bound by a section 2 determination,
but thought that one Congress could not constitutionally bind another. See, e.g., 18 id. at 31 (1886) (statement of Rep.
Caldwell); 17 id. at 867-68 (statement of Sen. Morgan) (stating that for this reason he prefers a joint resolution, but
will vote for the bill); 13 id. at 2650-51 (1882) (statement of Sen. Morgan) (same). The difference between these two
positions matters only if there is judicial review of Congress's determination that the requirements for meriting section
2 status have not been met.

294

See, e.g., 15 id. at 5547, 5550 (1884) (statement of Rep. Herbert) (showing that the House adopted Rep. Herbert's
amendment to the Senate bill only to immediately vote the whole bill down in favor of a House substitute that enlarged
the scope of conclusive state action); 13 id. at 2651-52 (1882) (statement of Sen. Blair). But see 15 id. at 5459 (1884)
(statement of Rep. Parker) (stating, as an ardent nationalist, support for state power in this area).

295

See, e.g., Samuel Dibble, Views of the Minority: To Accompany Bill S.9, H.R. Rep. 49-1638, pt. 2, at 1-2 (1886)9, H.R.
Rep. 49-1638, pt. 2, at 1-2 (1886); 18 Cong. Rec. 48 (1886) (statement of Rep. Cooper).

296

18 Cong. Rec. 668 (1887); id. at 74-77 (1886).

297

Edmunds, supra note 31, at 18.

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298

See infra text accompanying notes 299-317.

299

The subtleties of whether a tribunal is the state's designated section 2 authority are discussed in Wroth, supra note 13,
at 338-40.

300

The ECA does not define, and Congress never discussed, what it meant by a “final determination.” Would a judgement
of a trial court be final if subject to appellate review? Would a judgment of a court of last resort be final if subject to
a motion for rehearing?

301

Electoral Count Act of 1887, ch. 90, § 2, 24 Stat. 373, 373 (current version at

3 U.S.C. § 5 (2000)).

302

8 Cong. Rec. 52 (1878) (statement of Sen. Edmunds); see also 18 id. at 75 (1886) (statement of Rep. Herbert); id. at
47 (statement of Rep. Cooper). In 1872, the governor of Louisiana had signed a bill into law after the election for the
express purpose of constituting the returning board as he wanted it. Pitre, supra note 241, at 181. The law had passed
the legislature two years before the election, but the governor delayed signing it. Id. at 177, 181.

303

18 Cong. Rec. 75 (1886) (statement of Rep. Herbert). Note that the focus in the remarks quoted in the text is on procedure,
such as establishing commissions and their jurisdiction. This indicates that the section 2 limitation we are discussing
extends to the legislative designation of the section 2 authority and all post-election day legislation concerning an
election's final determination. It does not encompass the designated authority's use of its power. In other words, during the
2000 presidential election, had the Supreme Court of Florida finished its work within section 2's “safe harbor” provision,
and ruled for the Democratic electors, the Republican charge that it had “changed the law,” see Andrew Ferguson, Who
Are You Calling Angry?, Time, Dec. 18, 2000, at 50; Thomas Ulen, Book Review, 2001 U. Ill. J.L. Tech. & Pol'y, 317,
326 (2001) (quoting Cass Sunstein, Echo Chambers: Bush v. Gore, Impeachment, and Beyond 4 (2001)), would not
have been a proper ground for claiming a violation of this part of section 2. The bonafides of the section 2 tribunal's use
of its authority may be a violation of section 2's putative fraud exception. See infra text accompanying notes 357-81. But
if every disputable application of substantive law came within the section 2 limitation under discussion here, it would
allow Congress to deny the tribunal's decision regarding section 2 status based on “mere error.” That is something the
ECA did not intend.

304

See Samuel Dibble, Views of the Minority: To Accompany Bill S. 9, H.R. Rep. 49-1638, pt. 2, at 2 (1886)9, H.R. Rep.
49-1638, pt. 2, at 2 (1886). Specifically, Representative Dibble wrote:
[I]n case a contention shall arise in a State as to who are its lawfully-chosen electors, and it should happen that no
State law exists which will meet the emergency thus arising, we contend that Congress has no Constitutional power
to prescribe that such State may not provide for the determination of such contention at any time prior to the day for
casting the electoral vote.
Id.; see also 18 Cong. Rec. 46 (1886) (statement of Rep. Dibble). The vociferously pro-states' rights committee minority
really meant it when they said that the states' elector appointment power was plenary, and that “up to . . . the day when
the electors are to cast their votes, the State power as to appointment can not be interfered with in any manner, shape,
or form by the Congress of the United States, or by any other power.” Id.

305

Electoral Count Act of 1887 § 2.

306

8 Cong. Rec. 51 (1878) (citing S. 1308, 45th Cong. § 4 (1878)).

307

13 id. at 859 (1882) (citing S. 613, 47th Cong. § 2 (1882)); 10 id. at 3656 (1880) (citing S. 1485, 46th Cong. § 2 (1880)).
The 1882 bill was introduced as “the Edmunds bill.” 13 id. at 2645 (1882) (statement of Sen. Pugh); see also id. at 186
(statement of Sen. Hoar).

308

15 id. at 430 (1884) (statement of Sen. Hoar).

309

Id. at 5076 (citing S. 25, 48th Cong. § 2 (1884)).

310

The bill cut the time from sixty-nine or sixty-two days, depending on how the calendar breaks, to sixty-three or fifty-six
days, respectively. See supra text accompanying note 271. Current law allows only forty-one days due to the changes
introduced in 1934. See supra note 271.

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311

18 Cong. Rec. 46 (1886) (statement of Rep. Dibble).

312

Id.; see also Samuel Dibble, Views of the Minority: To Accompany Bill S. 9, H.R. Rep. 49-1638, pt. 2, at 1-2 (1886)9,
H.R. Rep. 49-1638, pt. 2, at 1-2 (1886) (“[U]p to the time of casting the votes in the electoral colleges, each State has
the right, in cases of contest, of determining which are its lawfully chosen electors.”).

313

See supra text accompanying note 304.

314

18 Cong. Rec. 50 (1886) (statement of Rep. Eden) (rejecting the minority's view that the bill “dictate[s] to the States the
mode of appointing electors”); id. at 47 (statement of Rep. Cooper) (eventually misreading the provision as allowing
the law to be passed six days before the electors meet).

315

Id. at 50 (statement of Rep. Eden) (after discussing the minority's view, describing his understanding of the general
purpose of the bill).

316

Electoral Count Act of 1887, ch. 90, § 3, 24 Stat. 373, 373 (current version at

3 U.S.C. § 6 (2000)).

317

Whether with modern communications the six-day proviso is still as helpful as it was under nineteenth-century
conditions, and whether it is worth the collateral problems it creates, are certainly open questions.

318

I have traced the notion of providing a decent interval between elector ascertainment and elector balloting to Senator
Eaton's proposed constitutional amendment in 1877 requiring the states to create “[a] tribunal for the decision of all
contested issues arising in the choice of [presidential] electors.” 6 Cong. Rec. 415 (1877). The proposed amendment
required the tribunals to be constituted a year before the election and to render their decisions a month before the
electors balloted. Id. Eaton's proposal never emerged from committee. Ames, supra note 4, at 121, 401. The only other
appearance of a suggestion for an interval between elector ascertainment and elector balloting was in Representative
Updegraff's 1882 House substitute for Senator Edmunds's bill. That substitute bill directed the governor to provide his
certificate “five days before the day fixed for their meeting, or as soon as a final judicial determination shall be made.”
13 Cong. Rec. 5143 (1882) (discussing section 4 of the House substitute). However, under the House substitute, the
tribunal rendering the decision was allowed conclusive effect even if its decision was reached on elector balloting day.
Id. (discussing section 3 of the House substitute). Yet Updegraff's 1882 idea that it would be good for the governor
to have the certificates prepared five days before the day for casting electoral ballots so nicely anticipates having the
tribunal's decision rendered six days before the electors' ballot, that it is hard not to imagine a connection between it
and the six-day provision's initial appearance in 1884.

319

Commentators temporarily lost sight of this during the 2000 election dispute. See, e.g., Contesting the Vote: Comments
from Gore on the Florida Election, N.Y. Times, Nov. 29, 2000, at A1 (noting that Vice President Gore said December
12 is the “deadline for seating electors”); Contesting the Vote: Update-Matter of Dates and Disputes, N.Y. Times, Nov.
29, 2000, at A25 (“Mr. Gore . . . is facing a Dec. 12 federal deadline for selecting Florida's 25 electors.”).

320

18 Cong. Rec. 50 (1886) (statement of Rep. Eden).

321

See infra text accompanying notes 477-80 (discussing section 4 of the ECA).

322

Electoral Count Act of 1887, ch. 90, § 2, 24 Stat. 373, 373 (current version at
3 U.S.C. § 5 (2000)). That is, it is
conclusive only to the identity of the electors appointed to cast the states' electoral votes. For simplicity, I have made
a bit of an understatement here. I will argue that requiring Congress to accept a section 2 declaration as to who are the
state's electors covers errors in their underlying election but, perhaps, does not cover either a total failure to have an
election or an election so rife with impropriety that the state tribunal's decision upholding it is fraudulent. See infra text
accompanying notes 357-81.

323

See Electoral Count Act of 1887 § 2.

324

See, e.g., 18 Cong. Rec. 45 (1886) (statement of Rep. Dibble); 8 id. at 162-63 (1878) (statement of Sen. Merrimon).

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325

They are, after all, state officers, performing a federal function. See Ray v. Blair, 343 U.S. 214, 224 (1952) (explaining
that the electors are not federal officers, even though they perform a federal function); 18 Cong. Rec. 45 (1886) (statement
of Rep. Dibble).

326

8 Cong. Rec. 163 (1878) (statement of Sen. Merrimon) (mentioning bribery, intimidation, and fraud); id. at 70; (statement
of Sen. Morgan) (mentioning “corruption through bribery”).

327

See U.S. Const. art. II, § 1, cls. 3-5.

328

Congress has never had a case where an elector voted corruptly. Congress's exercise of its jurisdiction to scrutinize the
constitutional qualifications of electors dates to 1837, and its jurisdiction to scrutinize other constitutional norms to 1817.
Subcomm. on Compilation of Precedents, Counting Electoral Votes, H.R. Misc. Doc. No. 44-13, at 44-48, 70-76 (1877);
Kesavan, supra note 13, at 1680, 1683-85. None of these episodes resulted in the rejection of a vote. In 1872, three votes
from Georgia were rejected for violation of the constitutional norm of voting for a qualified presidential candidate-the
disqualification was that the candidate had died after election day. See text accompanying note 66 (discussing Greeley).
Congress exercised its power to consider whether electors complied with constitutional norms most recently in 1969
in discussing whether to reject a vote cast by an elector who did not vote for his party's presidential candidate. See
Kesavan, supra note 13, at 1692-94.

329

U.S. Const. art. II, § 1, cl. 2 (prohibiting federal officials from being electors).

330

15 Cong. Rec. 5076 (1884) (citing S. 25, 48th Cong. § 2 (1884)); 13 id. at 859 (1882) (citing S. 613, 47th Cong. § 2
(1882)); 8 id. at 51 (1878) (citing S. 1308, 45th Cong. § 4 1878)).

331

Disqualifications usually require factual determinations. See, e.g., H.R. Misc. Doc. No. 44-13, at 71 (statement of
Sen. Grundy) (discussing difficulty of determining if certain electors were constitutionally disqualified). If Congress
was willing to defer to state adjudication of other factual matters, the deference reasonably could be extended to the
determination of whether electors held federal offices.

332

8 Cong. Rec. 163 (1878) (statement of Sen. Merrimon); id. at 158-59 (statement of Sen. Bayard); id. at 70 (statement
of Sen. Morgan); see also 18 id. at 31 (1886) (statement of Rep. Caldwell) (discussing other constitutional objections
to the elector's vote).

333

8 id. at 70 (1878) (statement of Sen. Morgan); see also id. at 158 (statement of Sen. Bayard). Senator Morgan, who
was speaking about the statute when it contained the “lawful title to office” language, would have extended section 2's
conclusivity principle to include an elector's constitutional eligibility if it had been specifically addressed in a section
2 determination. See id. at 70-71.

334

The change apparently was made in committee and no comment was made about it on the Senate floor.

335

See Subcomm. on Compilation of Precedents, Counting Electoral Votes, H.R. Misc. Doc. No. 44-13, at 46-47, 49-56,
70-75 (discussing Indiana, Missouri, and Michigan).

336

18 Cong. Rec. 31 (1886) (statement of Rep. Caldwell) (citing U.S. Const. art. IV, § 4).

337

I treat constitutional infirmities as implied limitations separate from the electors' constitutional qualifications because
they deal with matters-statehood and compliance with the Fourteenth Amendment, for example-which normally would
not be raised before the state's tribunal because they might impugn the title of all the contending slates of electors.

338

15 id. at 5076 (1884) (citing S. 25, 48th Cong. § 2 (1884)) (“try and determine”); 13 id. at 859 (1882) (citing S. 613, 47th
Cong. § 2 (1882)) (“try and determine”); 8 id. at 51 (1878) (citing S. 1308, 45th Cong. § 4 (1878)); see also Edmunds,
supra note 31, at 18 (“[I]t would be safer . . . to have [elector election] disputes settled by honest judicial means in the
States in which they may occur . . . .”).

339

17 Cong. Rec. 1058 (1886) (statement of Sen. Evarts).

340

Id.

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341

See, e.g., id. at 1062 (statement of Sen. Saulsbury).

342

See, e.g., id. at 1061 (statement of Sen. Teller).

343

Id. at 1063-64.

344

Id. at 2387 (citing S. 9, 49th Cong. § 2 (1886), after recommittal); see also id. at 2427 (statement of Sen. Hoar) (explaining
the change).

345

Id. at 2427 (statement of Sen. Hoar).

346

See infra text accompanying notes 347-56.

347

See supra text accompanying note 288 (quoting section 2 of the ECA).

348

See infra text accompanying notes 349-52.

349

17 Cong. Rec. 1020 (1886) (statement of Sen. Hoar); see also Subcomm. on Compilation of Precedents, Counting
Electoral Votes, H.R. Misc. Doc. No. 44-13, at 481 (1877) (statement of Sen. Edmunds) (stating that presidential
elections are subject to judicial proceedings); 17 Cong. Rec. 1064 (1886) (statement of Sen. Edmunds) (commenting
that all states subject election administration to judicial oversight).

350

17 Cong. Rec. 1759 (1886) (remarks of Sen. Hoar) (saying the “substance” of the bill that reemerged from the Committee
was “unchanged”); id. at 2386 (same).

351

Electoral Count Act of 1877, ch. 90, § 2, 24 Stat. 373, 373 (current version at

3 U.S.C. § 5 (2000)).

352

To illustrate what the ECA requires: Until 1989, Texas's election contest law designated its State Board of Canvassers
as the authority to hear presidential elector election contests. Tex. Elec. Code Ann. § 221.002 (Vernon 1985), amended
by Tex. Elec. Code Ann. § 221.002 (Vernon 1989). It also authorized the Board, when hearing an elector contest,
to adjudicate the issue of whether illegal votes were counted or legal votes refused. Id. § 221.002 (Vernon 2004).
Incidentally, in 1989, Texas substituted the Governor as the final arbiter of presidential election contests. See id. Thus,
in the 2000 election, we might have seen George Bush authorized to determine an elector election contest involving
Al Gore and himself.

353

Edmunds, supra note 31, at 9; see also 17 Cong. Rec. 1063-64 (1886) (statement of Sen. Edmunds) (stating that the
initial determination of elections is an administrative function everywhere subject to judicial review).

354

Edmunds, supra note 31, at 19-20.

355

Id. at 18-19. Edmunds also preferred that there be “prompt review of the decisions of the State courts by the Supreme
Court of the United States.” Id. at 19. He never incorporated this latter preference into any proposed legislation, probably
in deference to the politics of the matter and his own doubts about whether federal jurisdiction was constitutional. The
Supreme Court had only just begun to hint at federal interest in presidential elections. See Ex parte
U.S. 651 (1884); cf. Ex parte

Yarbrough, 110

Siebold, 100 U.S. 371 (1879) (federal interest in congressional elections).

356

Edmunds, supra note 31, at 19.

357

8 Cong. Rec. 159 (1878) (statement of Sen. Bayard).

358

Id. at 70-71 (statement of Sen. Morgan).

359

Senator Morgan was an active proponent of the ECA throughout its extended consideration, serving as a member of the
Senate committee that drafted the ECA and as a floor debater. See 17 Cong. Rec. 863-68, 1063 (1886) (statements of
Sen. Morgan); 15 id. at 2650-51 (1882) (statement of Sen. Morgan); 10 id. at 3052, 3658, 3662, 3691, 3700 (statements
of Sen. Morgan); 9 id. at 15 (1879) (committee assignments); 8 id. at 68-72 (1878) (statement of Sen. Morgan). He
never indicated a different view, and his view complements his position that ultimately the ECA bound only Congress's

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conscience. See 17 id. at 867 (1886) (statement of Sen. Morgan). In other words, even under the ECA, Congress retained
sufficient flexibility to respond appropriately to any situation. See id.
360

See supra text accompanying notes 194, 207-11.

361

15 Cong. Rec. 5078 (1884) (statement of Rep. Eaton).

362

Id. at 5547 (statement of Rep. Herbert); see also id. at 5105 (statement of Rep. Pryor) (discussing fraudulent votes).

363

Rather, in 1884, the House heard only Representative Browne's overstated response that the states ought to have
“absolute power to determine every question concerning the appointment of its electors.” Id. at 5079. The response is
overstated because it did not even allow Congress to reject votes based on constitutional infirmities. See id.

364

18 Cong. Rec. 29-31 (1886).

365

Id. at 29 (citing S. 9, 49th Cong. § 4 (1886), as amended by the House committee). I have removed the word “lawful”
from the quoted language. In the original it appears just before the word “return.” I have done this because Representative
Caldwell, in his remarks, stated that the committee had decided to remove that word. Id. at 31.

366

17 id. at 538 (list of members of Select Committee on the Election of the President and Vice President).

367

18 id. at 48 (statement of Rep. Cooper); see also id. at 50 (statement of Rep. Eden) (stating that the bill “absolutely
requires” accepting the state return when only one slate of electors appears); id. at 49 (statement of Rep. Cooper).
Representative Cooper is listed as a member of the House Select Committee on the Election of the President and Vice
President. 17 id. at 538.

368

18 id. at 52 (statement of Rep. Adams). Rep. Adams, it should be noted, thought the Senate provision might be
unconstitutional because Congress could not bind itself. Id. at 51-52. In his view, legislation could properly provide only
for instances of disagreement between the two houses. Id.

369

Rep. Adams's remarks are a bit overwrought. It is difficult to imagine that either the House committee's proposal or the
unamended Senate bill meant to compel Congress to accept forged documents. Even the most vociferous states' rights
advocates admitted Congress's power to check the regularity of electors' credentials. See, e.g., id. at 47 (statement of
Rep. Dibble). Given the acknowledged power to check credentials, it should be pointed out that a true fraud exception
lies somewhere between the literal remarks of Representatives Cooper and Adams. Representative Cooper claimed that
Congress would have to accept credentials “knowing” that the electors were not elected. Supra text accompanying note
367. Not all erroneous elections are fraudulent. Thus, just as Adams's remarks overstate the absence of a fraud exception,
Rep. Cooper's remarks do not literally deny its presence. The Senate proposal successfully passed into law as it stood
because although the House adopted the committee's proposal, the House receded from the proposal in the conference
with the Senate. See infra text accompanying note 454.

370

See supra material cited in notes 357-58.

371

See 5 Cong. Rec., pt. 4, 247 (1877) (statement of Justice Field); id. at 229 (statement of Rep. Hunton); id. 211-12, 215-16
(statement of Sen. Bayard).

372

See Samuel Dibble, Views of the Minority: To Accompany Bill S. 9, H.R. Rep. 49-1638, pt. 2, at 1 (1886)9, H.R. Rep.
49-1638, pt. 2, at 1 (1886); Subcomm. on Compilation of Precedents, Counting Electoral Votes, H.R. Misc. Doc. No.
44-13, at 690-702 (1877) (statements of Sens. Baldwin and Pickney); 18 Cong. Rec. 46-47 (1886) (statement of Rep.
Dibble).

373

See supra text accompanying note 365 (discussing the House committee proposal); supra text accompanying note 304
(discussing House Committee minority); infra text accompanying note 536 (same).

374
375

See Electoral Count Act of 1887, ch. 90, § 2, 24 Stat. 373, 373 (current version at

3 U.S.C. § 5 (2000)).

See supra text accompanying notes 126-28.

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376

See supra text accompanying note 128. This, in fact, was Representative Adams's actual position in the 1886 House
debate just discussed. 18 Cong. Rec. 51-52 (1886).

377

See supra text accompanying notes 193-211 (discussing administrative law).

378

See supra text accompanying note 209 (discussing Justice Bradley's position that Congress's inherent power was limited
to setting aside returns only for “manifest fraud”).

379

5 Cong. Rec., pt. 4, 263 (1877) (statement of Justice Bradley); see also id. at 260-61 (statement of Justice Bradley)
(arguing that, at least without further legislation, the want of jurisdiction must be based on facts that are manifest
Bell v. Southwell, 376 F.2d 659, 662, 664 (5th Cir. 1967) (explaining that the
without further investigation); cf.
federal voiding of state elections is “drastic” and “guardedly exercised,” but is appropriate for “gross, spectacular, [and]
completely indefensible” unconstitutional state action). The “constitutional facts” doctrine is discussed in Jaffe, Judicial
Review, supra note 193, at 953; Henry P. Monaghan, Constitutional Fact Review, 85 Colum. L. Rev. 229 (1985).

380

See supra text accompanying note 337. The specific illustration Senator Bayard gave of evidence of fraud as an exception
to section 2, was when there was no constitutional fact supporting the tribunal's judgment. See 8 Cong. Rec. 158-59
(1878) (statement of Sen. Bayard).

381

For example, in the 2000 election, had the Supreme Court of Florida been allowed to reach a final determination by
December 12, its ruling would have been unimpeachable in Congress, even if erroneous. See supra note 303. Or, given
what happened, the final determination the Supreme Court of Florida did reach, though compelled to do so by an arguably
erroneous United States Supreme Court decision, was equally conclusive because all courts were acting honestly.

382

See supra text accompanying notes 193-94.

383

If Congress's electoral vote counting under the ECA is subject to judicial review, then the courts ultimately will determine
whether an electoral vote merits section 2 status. See infra note 396. Still, Congress must make the decision, at least
in the first instance. See Stanley Bach & Jack Meskell, Cong. Research Serv., Counting Electoral Votes in CongressMultiple Lists of Electors From One State 6 (2001) (suggesting the Joint Session may decide the lawfulness of a section
2 determination).

384

The ECA requires that objections be in writing and signed by at least one senator and one representative. See infra text
accompanying note 615.

385

To avoid confusion, let me state now that I am not discussing whether the vote will be counted. Section 4 of the ECA
contains the rules which govern whether a return is counted. Electoral Count Act of 1887, ch. 90, § 4, 24 Stat. 373,
373-74 (current version at 3 U.S.C. § 15 (2000)). A return that does not have section 2 status can still be counted under
that provision. See id. Also, the vote of an elector that does have section 2 status may nonetheless not be counted because
Congress, consistent with both section 2 and section 4, may find there is a supervening defect, like a constitutional
infirmity, disqualification, or, perhaps, fraud. See infra text accompanying notes 458-68.

386

See supra text accompanying note 119 (discussing the equality postulate).

387

Some congressmen believed that the Constitution compelled Congress to accept electoral votes whenever: (1) a state
submitted a single set of electoral votes; or (2) a state's governor certified one of a state's multiple submissions. See,
e.g., Subcomm. on Compilation of Precedents, Counting Electoral votes, H.R. Misc. Doc. No. 44-13, at 504-05 (1877)
(statement of Sen. Morton); sources cited supra note 372 (describing the view of Representative Dibble and of the
House Committee minority). The congressmen who voted for the ECA clearly spurned this position. Other congressmen
believed that when a state submitted a single set of electoral votes, the Constitution required that Congress treat the votes
as presumptively valid. See, e.g., H.R. Misc. Doc. No. 44-13, at 444, 527 (statement of Sen. Morton). This meant that the
votes could be rejected, but only if both houses concurred in rejecting them. Since the ECA adopted this rule, whether
for constitutional or prudential reasons, see infra text accompanying notes 506, 510, it requires no further discussion.

388

Some congressmen believed that the Constitution only allowed Congress to provide rules for situations where the houses
disagreed about whether a vote should be counted. See, e.g., 18 Cong. Rec. 51-52 (1886) (statement of Rep. Adams).

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389

As we have seen, congressmen debated whether statutes, joint rules, or concurrent rules were the proper vehicle for
“providing otherwise.” See supra text accompanying notes 106-40. But most congressmen agreed it could be done by
some means.

390

See, e.g., 18 Cong. Rec. 75 (1886) (statement of Rep. Herbert); id. at 52 (statement of Rep. Adams); id. at 51 (statement
of Rep. Eden); id. at 47 (statement of Rep. Dibble); 17 id. at 1021, 2427 (statement of Sen. Hoar) (implying, by his
comments of what the “remnant” is, that no vote could be counted unless both houses assented); id. at 865, 867 (statement
of Sen. Morgan); 13 id. at 5148 (1882) (statement of Rep. Hewitt).

391

See infra text accompanying note 439 (discussing the 22d Joint Rule).

392

17 Cong. Rec. 1021 (1886) (statement of Sen. Hoar).

393

See infra text accompanying notes 447-56.

394

See supra text accompanying notes 338-44.

395

Also, if the President of the Senate, as presiding officer at Congress's vote counting session, rules an objection out of
order because he thinks the return is conclusive under section 2, section 2 will have some binding effect. I shall argue,
however, that the Senate President has no such power. See infra text accompanying note 665.

396

Even if there is judicial review, Congress will have initial say in whether a return merits section 2 status, and reviewing
courts are likely to accord Congress's decision great deference. See Bach, supra note 107, at 730-31 (noting that courts
are reluctant to oversee enforcement of Congress's in-house rules); Roberts, supra note 139, at 530-42 (observing that
despite power to do so, courts have not intervened to enforce congressional rules); cf. Bush v. Gore, 508 U.S. 98, 113
(2000) (review of state court decisions on state law that have unconstitutional implications is “independent, if still
deferential”) (Rehnquist, C.J., concurring); Chevron U.S.A. Inc. v. Natural Res. Def. Council Inc., 467 U.S. 837, 843
(deference accorded the reasonable construction of a statutory provision made by the administrator of an agency).

397

Electoral Count Act of 1887, ch. 90, § 2, 24 Stat. 373, 373 (current version at

3 U.S.C. § 5 (2000)).

398

See supra note 106 and accompanying text.

399

If judicial review allowed a court to accept a vote after both houses voted to reject the return because the court found
the return to clearly deserve section 2 status, then the ECA would be binding on a future Congress.

400

See infra text accompanying notes 701-02.

401

Conversely, section 4's voting rules for grappling with situations in which a state submits multiple slates of electors and
multiple slates claiming section 2 status will make it clearer that both houses must agree a particular set of electoral
votes merits section 2 status in order for that set to have it.

402

See infra text accompanying notes 587-669 (discussing procedural provisions).

403

See infra text accompanying notes 438-559 (discussing section 4 of the ECA).

404

See infra text accompanying notes 509.

405

See infra text accompanying note 458-68 (discussing the relationship between section 4 and section 2).

406

Burgess, supra note 10, at 635.

407
408

Electoral Count Act of 1887, ch. 90, § 3, 24 Stat. 373, 373 (current version at

3 U.S.C. § 6 (2000)).

U.S. Const. art. II, § 3. The Twelfth Amendment directed the electors to make distinct lists for President and Vice
President, but made no change in the certification and delivery process. Id. amend. XII.

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409

See Act of Mar. 1, 1792, ch. 8, § 2,

1 Stat. 239, 239-40 (providing the duties of electors in presidential elections).

410

Id.

411

Id.

412

Id. § 3 (providing the duties of the executive of each state).

413

Id.

414

See, e.g., 3 Annals of Cong. 279-80 (1791) (statement of Reps. Niles and Hillhouse).

415

See, e.g., id. at 279 (statement of Rep. Clark).

416

U.S. Const. art. IV, § 1. A draft of the Constitution contained a clause authorizing Congress to determine “‘the manner
of certifying and transmitting”’ electoral votes, but it was deleted by the Committee on Style. Currie, supra note 59,
at 137 & n.54.

417

18 Cong. Rec. 45 (1886) (statement of Rep. Dibble) (an ultra-states' rights congressman saying federal legislation may
be predicted on Article IV, Section 1 to regulate the certification of the states' electoral process).

418

See, e.g., 15 id. at 5076 (1884) (citing S. 25, 45th Cong. § 3 (1884)); 13 id. at 859 (1882) (citing S. 613, 47th Cong.
§ 3 (1882)).

419

17 id. at 1057 (1886) (statement of Sen. Evarts).

420

Id. The text of section 3 of the ECA as finally adopted is ambiguous as to whether, when the state's initial administrative
ascertainment of electors is subject to a contest that results in a section 2 final determination, the governor should
send in a section 3 certificate after both the administrative ascertainment and the final determination, or only after
the final determination. See Electoral Count Act of 1887, ch. 90, § 3, 24 Stat. 373, 373 (current version at
3
U.S.C. § 6 (2000)). Senator Evarts's comments, and in the legislative history, make it clear that the governor should
wait until the end of his or her state's election determination process. 17 Cong. Rec. 2427 (1886) (statement of Sen.
Hoar). Thus, Governor Jeb Bush acted prematurely when he sent in his certificate of ascertainment to the federal
government on November 26, 2000, and followed that one up with a second certificate of final determination on
December 13. See Exec. Dep't, State of Fla., Certificate of Ascertainment of Presidential Electors (Nov. 26, 2000),
available at http://www.archives.gov/federal_register/electoral_ college/2000_certificates/ascertainment_florida.html
(last visited Feb. 14, 2004); Exec. Dep't, State of Fla., Certificate of Final Determination of Contests Concerning
the Appointment of Presidential Electors (Dec. 13, 2000) [hereinafter Certificate of Final Determination, available at
http:// www.archives.gov/federal_register/electoral_college/2000_ certificates/ascertainment_florida.html (last visited
Feb. 14, 2004).

421

17 Cong. Rec. 1057 (1886) (statement of Sen. Evarts).

422

Id. (statement of Sen. Evarts).

423

Id.

424

Id.

425

Id. at 1058.

426

See 19 id. at 1062 (1886) (statement of Sen. Hoar) (commenting that election results are public knowledge); Fairman,
supra note 5, at 40-41; Haworth, supra note 5, at 45-56 (discussing that on the morning after the 1876 election it was
known that Hayes and Tilden were separated by only a few contestable electoral votes); Letter from Thomas Jefferson
to James Madison (Dec. 19, 1800), reprinted in 2 Matthew Davis, Memoirs of Aaron Burr 69-70 (photo reprint 1971)
(stating Jefferson's expectation that he and Burr would tie for the presidency).

427

17 Cong. Rec. 1062 (1886) (statement of Sen. Hoar).

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428

Id. (statement of Sen. Edmunds); see also id. at 2386 (statement of Sen. Hoar) (commenting on Senator Edmunds's role).

429

See id. at 2427 (statement of Sen. Hoar); id. at 2387 (S. 9, 49th Cong. § 3 (1886), after recommittal).

430

See, e.g., id. 2427 (statement of Sen. Hoar) (indicating that the provision for a more elaborate gubernational certification
is not a significant change).

431

See, e.g., Samuel Dibble, Views of the Minority: To Accompany Bill S. 9, H.R. Rep. 49-1638, pt. 2, at 1 (1886)9, H.R.
Rep. 49-1638, pt. 2, at 1 (1886); Subcomm. on Compilation of Precedents, Counting Electoral Votes, H.R. Misc. Doc.
No. 44-13, at 690-702 (1877) (statements of Sens. Baldwin and Pickney); 18 Cong. Rec. 46-47 (1886) (statement of
Rep. Dibble).

432

See H.R. Misc. Doc. No. 44-13, at 381-89 (discussing Texas's 1872 electoral certificate and vote); id. at 41 (statement
of Rep. Hillhouse) (discussing returns of one of the states, which he does not name); 13 Cong. Rec. app. 539 (1882)
(statement of Rep. Updegraff) (describing Georgia's vote in 1800); Gov. Packson, Executive Dep't, State of Ga.,
Certificate of 1800 Georgia Election (1800). Certificate of Georgia vote 1800 (photocopy on file with the author).

433

H.R. Misc. Doc. No. 44-13, at 357-63, 390-98, 403-05 (discussing and rejecting Louisiana's electoral votes, even
those certified by Governor Warmoth); 5 Cong. Rec., pt. 4, 178-79, 264-66 (1877) (transcript of Electoral Commission
meeting) (discussing and rejecting a vote from an elector certified by Oregon Governor Grover); supra text
accompanying notes 212-21 (discussing Justice Bradley's rejection of Oregon's 1877 vote).

434

See, e.g., 17 Cong. Rec. 1023 (1886) (statement of Sen. Sherman); infra text accompanying notes 480-87 (discussing
governor's certification); supra text accompanying notes 212-21 (relating Justice Bradley's discussion of the Oregon
electoral vote in 1877).

435

17 Cong. Rec. 1057 (1886) (statement of Sen. Evarts).

436

Id.

437

See infra text accompanying notes 532-57 (discussing the governor's certification under section 4 when there are multiple
slates of electors).

438

Electoral Count Act of 1887, ch. 90, § 4, 24 Stat. 373, 373-74 (current version at 3 U.S.C. § 15 (2000)).

439

See supra text accompanying note 63. I believe Congress's 1865 view reflects dominant congressional opinion since
the founding, although there is scholarly commentary that claims otherwise. See supra notes 61-63 (noting that some
historians claim Congress adopted this position for the first time in the 1860s).

440

See supra text accompanying notes 63, 69 (discussing the 22d Joint Rule and the 1865 Joint Resolution). A joint
resolution has the same constitutional status as a statute because it requires bicameral passage and presidential
presentment. See U.S. Const. art. I, § 7, cl. 3. That Congress had power to alter the Constitution's default voting rules
by statute was subject to greater diversity of opinion in Congress. See supra text accompanying notes 128-32.

441

See supra text accompanying note 287 (discussing section 2 of the ECA).

442

In fact, almost none of the electoral votes that have been submitted since the ECA's adoption have been adjudicated by a
section 2 process. Florida's electoral vote in 2000 is the only instance of which I am aware. See Wroth, supra note 13, at
337 (A 1961 “survey” of electoral counts under the ECA shows no submission of section 2 validated returns.); Maskell
et al., supra note 13, at 23-29 (describing electoral counts from 1889 to 1997 and not mentioning any § 2 determinations).

443

See supra text accompanying notes 403-06.

444

See infra text accompanying note 509.

445

For a discussion of the procedural rules, see infra text Part III.E.

446

See supra text accompanying note 63.

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447

448

Subcomm. on Compilation of Precedents, Counting Electoral Votes, H.R. Misc. Doc. No. 44-13, at 453-54 (1877)
(statement of Sen. Morton); id. at 416-18. The Senate voided the joint rule in 1876. H.R. Misc. Doc. No. 44-13, at
444-58, 782-94 (1877); Wroth, supra note 13, at 330.
H.R. Misc. Doc. No. 44-13, at 687 (citing

S. 1, 44th Cong.

§ 1 (1876)); id. at 459 (citing S. 1251, 43rd Cong.

§ 1 (1875)); In the Electoral Commission Law of 1877, Congress also provided that it required the concurrent vote
of both houses to reject electoral votes from a state that presented only one return. See Act of Jan. 29, 1877, ch. 37,
§ 1, 19 Stat. 227, 227-28.
449

See supra text accompanying note 428.

450

Wroth, supra note 13, at 330-31, 334.

451

Andrew Caldwell, Report: To Accompany Bill S. 9, H.R. Rep. No. 49-1638 (1886)9, H.R. Rep. No. 49-1638 (1886);
18 Cong. Rec. 29-30 (1886).

452

18 Cong. Rec. 77 (1886).

453

Id. (citing adopted amendment).

454

Id. at 668, 713.

455

Id. at 668.

456

Electoral Count Act of 1887, ch. 90, § 4, 24 Stat. 373, 373-74 (current version at 3 U.S.C. § 15 (2000)).

457

See id. § 2.

458

See supra text accompanying notes 322-37.

459

If there is no fraud exception, Congress's commitment is even larger.

460

This is an initial assessment. The final understanding must await an analysis of the procedural provisions which affect
how section 2 and section 4 work together procedurally.

461

Of course, if only one house of Congress manifests its view that the electors do not merit section 2 status by voting
against counting their votes, the votes would still be counted under section 4 if those votes were the only set of electors
the state submitted.

462

Given the complexity of the ECA, mistakes in application are easy to make, even unintentionally. During the 2001 vote
count, some House members objected to counting Florida's electoral votes on the ground that they were not “regularly
given.” 147 Cong. Rec. H52 (daily ed. Jan. 6, 2001) (statements of Reps. Jackson-Lee, Meek, Johnson, and Cummings).
Since there was no post-appointment misbehavior by Florida's electors, this was an inappropriate ground for objecting.
It would have been more plausible to object to Florida's electoral votes by arguing they were not lawfully certified. But
this position would require a showing that Florida's election was fraudulent and that Florida's electoral votes were not
entitled to section 2 status. See infra text accompanying notes 400-502.

463

8 Cong. Rec. 52 (1878) (statement of Sen. Edmunds). The situation is actually more complex than Senator Edmunds
thought. If the ECA is really a joint rule adopted in statutory form, then the Senate's and House's concurrence expresses
their intent to change the rule. Even if the ECA is a statute, it cannot constitutionally bind Congress, and Congress
rightfully may ignore it. Only if the ECA is a statute that binds Congress would Congress's action not be rightful. Even
then, there may be no power to correct it.

464

Subcomm. on Compilation of Precedents, Counting Electoral Votes, H.R. Misc. Doc. No. 44-13, at 481 (statement of
Sen. Edmunds) (stating that presidential elections are subject to quo warranto proceedings); 8 Cong. Rec. 52 (1878)
(statement of Sen. Edmunds); Edmunds, supra note 31, at 20 (stating that Congress should pass a law subjecting disputed
presidential elections to the judiciary).

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465

See, e.g., 17 Cong. Rec. 867 (1886) (statement of Sen. Morgan); discussion supra Part II.A.1.

466

See, e.g., 17 Cong. Rec. 866 (1886) (statement of Sen. Morgan) (recognizing the possibility of political bias in Supreme
Court justices); 13 id. at 5144-45 (1882) (statement of Reps. Bowman and Browne) (recognizing the possibility of bias
in all judges); supra text accompanying note 35.

467

17 Cong. Rec. 867 (1886) (statement of Sen. Morgan); see also 8 id. at 70 (1878) (statement of Sen. Morgan) (stating
that Congress's “power could be abused so that the people would refuse submission to the persons so declared elected;
but such refusal would be revolution, however much it might be justified in morals or by the right to demand redress
for governmental abuse”).

468

Once again, I postpone discussing the possible influence of the President of the Senate in his role as presiding officer
of Congress's vote counting session. For that discussion, see infra Part III.E.

469

Congress seemed to think that the answer to the question whether a state return merited section 2 status would be readily
apparent. Congress ignored Representative Updegraff's warning that law can never define two classes of cases with total
clarity. See 13 Cong. Rec. app. 539 (1882) (statement of Rep. Updegraff).

470

See, e.g., 18 id. at 49 (1886) (statement of Rep. Eden) (discussing Congress as responding to electoral returns that either
have or do not have section 2 authentication); 17 id. at 2427 (statement of Sen. Hoar) (same).

471

18 id. at 668, 713 (1887) (Conference Report). In other words, if the chambers of Congress disagreed, the votes would
be counted. There was no one-house veto.

472

Electoral Count Act of 1887, ch. 90, § 3, 24 Stat. 373, 373 (current version at

3 U.S.C. § 6 (2000)) (emphasis added).

473

See supra text accompanying notes 403-06 (summarizing analysis of section 2 of the ECA).

474

18 Cong. Rec. 52 (1886) (statement of Rep. Adams) (discussing phrase “regularly given” as it appears in another section).
As discussed, these defects include failing to comply with constitutional requisites for elector voting, such as not voting
on the correct day, voting for a constitutionally disqualified candidate, or corruption in office.

475

Constitutional infirmities include defects resulting from the constitutional ineligiblity of the elector and from the state's
inability to participate in the Electoral College. See supra text accompanying notes 322-37.

476

See 18 Cong. Rec. 52 (1886) (statement of Rep. Adams) (discussing returns authenticated by the section 2 procedure as
entitled to more protection than returns that have not been through that process).

477

Id. at 31 (statement of Rep. Caldwell) (referring to violations of the Republican Guarantee Clause and of the Fourteenth
Amendment's mandate to decrease state electoral votes as a penalty for denying the vote to African-American citizens).

478

Id.

479

17 id. 2427 (statement of Sen. Hoar).

480

Fraud was discussed as a possible ground for rejecting section 2 authenticated returns. See supra notes 357-82 and
accompanying text. The difference is that for section 4, there is no doubt that fraud is a permissible ground. See infra
text accompanying notes 500-02.

481

Subcomm. on Compilation of Precedents, Counting Electoral Votes, H.R. Misc. Doc. No. 44-13, at 357-63, 390-98,
403-05 (1877) (discussing and rejecting Louisiana's electoral votes, even those certified by Governor Warmoth); 5 Cong.
Rec., pt. 4, 264-66 (1877) (statement of Justice Bradley) (discussing and rejecting a vote from an elector certified by
Oregon Governor Grover).

482

See supra material cited note 481.

483

17 Cong. Rec. 1023 (1886) (statement of Sherman) (speaking of a governor's certification of Senate and House elections).

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484

See discussion supra Part II.B.1 (discussing election law).

485

See, e.g., 5 Cong. Rec., pt. 4, 261 (1877) (statement of Justice Bradley).

486

See, e.g., id. at 265 (discussing the Oregon Governor's certification of the 1877 election).

487

See supra text accompanying note 193 (discussing administrative review). Errors could include issuing the certificate
to electors that the state's Election Board had not declared to be the winners.

488

8 Cong. Rec. 55 (1878) (statement of Sen. Edmunds).

489

See supra text accompanying notes 154-62.

490

See, e.g., 18 Cong. Rec. 45 (1886) (statement of Rep. Dibble) (discussing import of governor's certificate but not any
other administrator); 17 id. at 2427-28 (colloquy between Sens. Hoar and George on failure of Governor to abide by the
Act, but not other officials); id. at 1022 (statement of Sen. Hoar) (same).

491

I do not consider a third position that the Constitution denied Congress the ability to go behind the governor's certificate.
That minority position clearly was rejected by the decision to allow Congress to question the governor's ministerial
decisions.

492

5 Cong. Rec., pt. 4, 260-66 (1877) (statement of Justice Bradley).

493

See id.

494

Id. at 265.

495

Id. at 260.

496

Id. at 261. Justice Bradley's differing treatment of the state governor and state returning board is hard to fathom. It rested
on Justice Bradley's view that the board is part of the machinery for determining who the state appointed while the
governor is a conduit for reporting the board-determined result. See id. at 265.

497

See discussion supra Part II.B.

498

See supra text accompanying note 193 (discussing administrative review).

499

However, these defects could be grounds for rejecting an elector if they amounted to a constitutional infirmity.

500

See 5 Cong. Rec., pt. 4, 261, 263 (1877) (statement of Justice Bradley) (acknowledging and defining a manifest fraud
exception to his general principle not to review the decisions of state returning boards); supra text accompanying note
193 (discussing the administrative-election law fraud exception).

501

See supra text accompanying note 209 (discussing manifest fraud).

502

See supra text accompanying note 368 (discussing Representative Adams's complaint).

503

Even under the broader rule, none of the problems of the 2000 Florida presidential election would be proper grounds
for objecting to the lawfulness of the governor's certificate. The problems with the Florida election did not rise to the
level of fraud.

504

18 Cong. Rec. 31 (1886) (statement of Rep. Caldwell) (quoting the minority report); see also id. at 668 (citing the
Conference Report); id. at 30-31 (statement of Rep. Caldwell).

505

Id. at 31 (statement of Rep. Caldwell).

506

In other words, when a state submits one set of elector votes that do not claim, or do not merit, section 2 status, section 4
frames and guides the discussion of whether to count any or all of them by providing the Senate and House's agreement
on the proper grounds for rejecting such electoral votes.

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507

See supra text accompanying notes 403-06 (summarizing section 2).

508

Samuel Dibble, Views of the Minority: To Accompany Bill S. 9, H.R. Rep. 49-1638, pt. 2, at 1 (1886)9, H.R. Rep.
49-1638, pt. 2, at 1 (1886) (referring to “lawful” in another section); see also 18 Cong. Rec. 50 (1886) (statement of
Rep. Edens); id. at 31 (statement of Rep. Caldwell).

509

The ECA never directly speaks to the case of a state's single set of non-section 2 authenticated electors that also do not
have a section 3 certification. Congress assumed that state governors would always carry out their federally imposed
obligation to certify their state's return. See 17 Cong. Rec. 2427-28 (1886) (statements of Sens. George and Hoar). Should
Congress receive one set of electoral votes from a state that lacked the governor's section 3 certificate, the implication
of the ECA is that Congress may accept those votes, though it is not bound to. More importantly, my reading of the
ECA is that a vote by either house to reject any or all of the electoral votes would suffice. In principle, this outcome
seems appropriate because lacking a section 2 or a section 3 certification means electors lack the credential that would
give them their prima facie claim to office. This is true even though they are the only electors presenting themselves.
A counterargument to this position is that the Constitution does not require electors to have any certification other than
their own. See U.S. Const. art. II, § 1. However, if we limit ourselves to interpreting the ECA, the ECA presumes as a
baseline that both houses must concur to accept an electoral vote and changes that default rule in specified situations.
The default rule is premised on the view that the two houses are the judges of what votes count and nothing can be
counted without both houses saying it should be.

510

Subcomm. on Compilation of Precedents, Counting Electoral Votes, Misc. H.R. Doc. No. 44-13, at 417 (1877); id. at
349 (statement of Sen. Morton); 17 Cong. Rec. 816 (1886) (statement of Sen. Hoar).

511

See Electoral Count Act of 1887, ch. 90, § 4, 24 Stat. 373, 373-74 (current version at 3 U.S.C. § 15 (2000)).

512

See, e.g., 17 Cong. Rec. 866-67 (1886) (Sen. Morgan); id. at 816 (Sen. Hoar). In the ECA, Congress obviously
decided to accord a presumption of regularity to the electors backed up by a section 2 determination. But, as has been
argued, it requires a concurrent vote of both houses to determine which return, if any, has that backing. See supra text
accompanying notes 383-96. Some congressmen always argued that the packet backed up by the governor's certificate
ought to be deemed the regular packet, see, e.g., H.R. Misc. Doc. No. 44-13, at 693-94, 696 (statement of Sen. Pinckney),
but Congress refused to adopt that position and the ECA does not reflect this presumption. See Electoral Count Act
of 1887 § 4. 18 Cong. Rec. 45-46 (1886) (statement of Rep. Dibble). The ECA does, however, turn to the governor's
certificate as a last resort. See infra text accompanying note 542.

513

17 Cong. Rec. 867 (1886) (statement of Sen. Morgan).

514

Id.; see also id. at 869 (statement of Sen. Sherman); 8 id. at 164 (1878) (statement of Sen. Merrimon). As Representative
Broadhead said:
When there is but one return, it being the act of a public officer, it is prima facie correct, and requires, therefore, the
concurrent action of both bodies to overturn it. When there are two returns, the two prima facie cases offset and destroy
each other, and it requires the affirmative action of both bodies to determine which is the true return.
15 id. at app. 306 (1884) (statement of Rep. Broadhead).

515

H.R. Misc. Doc. No. 44-13, at 459 (citing S. 1251, 43d Cong. § 2 (1875)); see also id. at 687 (citing
S. 1, 44th Cong.
§ 2 (1876)). Senator Morton's bills also provided that when there was but one return from a state, it required a concurrent
vote of both houses to reject. See id. (citing S. 1, 44th Cong.

§ 1 (1876)).

516

Wroth, supra note 13, at 334-35.

517

See infra text accompanying notes 518-24.

518

Electoral Count Act of 1887, ch. 90, § 4, 24 Stat. 373, 373-74 (current version at 3 U.S.C. § 15 (2000)). For simplicity,
I use the ECA's final language. To compare the language of the bills, see, for example, 13 Cong. Rec. 859 (1882) (citing
S. 613, 47th Cong. § 4 (1882)); and 8 id. at 51 (1878) (citing S. 1308, 45th Cong. § 6 (1878)). The ECA also provided
for counting votes of the electors appointed to fill any vacancies in the electoral college that arose after an elector's initial

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appointment. See Electoral Count Act of 1887 § 4. That provision was not in Senator Edmunds's original bill, but was
added in 1886. 17 Cong. Rec. 966 (1886) (statement of Sen. Hoar) (submitting amendments).
519

15 Cong. Rec. 5076 (1884) (citing S. 25, 48th Cong. § 4 (1884)); see also, e.g., 13 id. at 859 (1882) (citing S. 613, 47th
Cong. § 4 (1882)). I use the bills' language because it is clearer than the language of section 4 of the ECA. The language
in this part of the ECA was subject to a non-substantive change when the bill's sponsors accepted Senator Evarts's view
that section 2 authorities need not be judicial tribunals. 17 id. at 2387 (1886) (citing S. 9, 49th Cong. § 4 (1886), after
recommittal). After the change, the bill directed Congress to accept the votes of the electors supported by “the decision
of such State so authorized by its laws,” id., which is how the law read on final passage. See Electoral Count Act of
1887 § 4. Except for indicating that the “final determination” authority need not be a judicial tribunal, Senator Hoar
described his deletion of the word “tribunals” as non-substantive. 17 Cong. Rec. 2387 (1886) (statement of Sen. Hoar).

520

15 Cong. Rec. 5076 (1884) (citing S. 25, 48th Cong. § 4 (1884)); see also, e.g., 13 id. at 859 (1882) (citing S. 613, 47th
Cong. § 4 (1882)). I use the bills' language because this part of Senator Edmunds's proposal was subject to a substantive
change as the ECA approached final passage. See infra text accompanying notes 532-42 (discussing the role of the
governor's certificate).

521

See supra text accompanying note 473 (discussing “regularly given”).

522

See supra text accompanying notes 473-80 (discussing these defects for electors who lack section 2 status).

523

See supra text accompanying notes 299-406 (discussing section 2' s conditions and limitations).

524

See, e.g., 18 Cong. Rec. 49 (1886) (statement of Rep. Eden).

525

See Electoral Count Act of 1887, ch. 90, § 4, 24 Stat. 373, 373-74 (current version at 3 U.S.C. § 15 (2000)).

526

See infra text accompanying notes 542-43 (discussing import of governor's certificate when the houses disagree).

527

17 Cong. Rec. 815 (1886) (statement of Sen. Sherman) (stating that the single/double return distinction “is a distinction
without a difference, because in any case of a dispute that may arise the manufacturing or creating of double returns
is the easiest possible process”). John Burgess agreed with the ease of creating conflicting returns, Burgess, supra note
10, at 649, and it was, in fact, done in 1889. See 20 Cong. Rec. 1860 (1889) (discussing Oregon's vote). In 1877, there
was an attempt to manufacture a dual return from Vermont, which the Senate President refused to put before the joint
session. See Haworth, supra note 5, at 274-79.

528

See, e.g., 17 Cong. Rec. 1058 (1886) (statement of Sen. Evarts); id. at 816, 819 (statement of Sen. Sherman); see also
18 id. at 46 (statement of Rep. Dibble).

529

See, e.g., 18 id. at 46 (statement of Rep. Dibble); 17 id. at 1060 (statement of Sen. Teller); id. at 1059 (statement of Sen.
Wilson); id. at 816, 819 (statement of Sen. Sherman).

530

17 id. at 867 (statement of Sen. Morgan).

531

See, e.g., id. at 1023 (statement of Sen. Hoar); id. at 816 (statement of Sen. Sherman) (describing the bill as giving one
house of Congress the ability to “exclude the vote of any State” when it “was one chief object of the framers . . . to
separate as wide as the poles the election of electors from the power of the legislative branch”).

532

Id. at 1020 (statement of Sen. Hoar). The amendment that Senator Hoar submitted read as if it denied Congress power to
reject the electors certified by the governor under any circumstances, see id. at 966, 1019, and that is how Senator John
Sherman understood it. Id. at 1021 (statement of Sen. Sherman). When introducing his proposed amendment, Senator
Hoar described it as I have described it in the text. Id. at 1020. His later discussions are ambiguous, but are consistent
with the interpretation I have given. Id. at 1022-24.

533

Id. at 1021 (statement of Sen. Sherman); see also id. at 1062 (statement of Sen. Saulsbury). John Burgess also thought
giving power to the state governors was unwise. Burgess, supra note 10, at 649. Senator Sherman was reading Senator
Hoar's amendment as if a governor's certificate would conclude the matter, even over the opposition of both houses of
Congress. See 17 Cong. Rec. 1021 (1886) (statement of Sen. Sherman).

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Senators Hoar and Teller attempted to answer Senator Sherman's concerns. Senator Hoar argued that the states implicitly
left the decision to their governor whenever they did not establish a different tribunal. Id. at 1022, 1024 (statement of
Sen. Hoar). Senator Teller argued:
Where can you leave that, in the absence of a judicial inquiry, better than with the governor of a State? I know in times
of high partisan excitement there may be danger that the governor of a State will outrage the people of his State by not
expressing the voice that they have expressed at the polls; but it is much safer to leave it with him, who is answerable
to the people for any outrage he may commit, than to intrust it to hands foreign to the State and having no connection
with the State.
Id. at 1060 (statement of Sen. Teller).
534

Specifically, on Senator Sherman's suggestion, the bill was recommitted for further study, and when it reemerged from the
Committee, Senator Hoar's proposal had been forgotten. 17 Cong. Rec. 1023-26 (1886) (statement of Senator Sherman).

535

18 id. at 30.

536

Samuel Dibble, Views of the Minority: To Accompany Bill S. 9., H.R. Rep. 49-1638, pt. 2, at 2 (1886)9., H.R. Rep.
49-1638, pt. 2, at 2 (1886); 18 Cong. Rec. 76 (1886) (voting down minority amendment); id. at 45, 47 (statement of
Rep. Dibble).

537

18 Cong. Rec. 77 (1886).

538

Id. at 668 (1887). It is not surprising Senator Hoar accepted the proposal considering that it was his own idea.

539

Id.

540

Electoral Count Act of 1887, ch. 90, § 4, 24 Stat. 373, 374 (current version at 3 U.S.C. § 15 (2000)).

541

18 Cong. Rec. 668 (1887).

542

17 id. at 2427-28 (1886) (statements of Sens. George and Hoar) (discussing the problem of a governor refusing to issue
a certificate).

543

See Wroth, supra note 13, at 344. Or, stated another way, there are multiple returns certified by different claimants to
the governor's office and Congress cannot agree as to the identity of the true governor. See 18 Cong. Rec. 47 (1886)
(statement of Rep. Dibble). Multiple returns certified by different claimants to the governor's office were submitted to
Congress by Florida in 1877. See 5 id., pt. 4, at 287-88 (1877). In 1961, Hawaii submitted multiple returns certified by
different governors, and interestingly, each certifying governor was the legitimate governor at the time he certified the
return. See 107 id. at 288-91 (1961). The question may be asked whether, when there are multiple returns and one of
them claims certification by the state's section 2 authority, that return should be assumed to be prima facie valid and
require a concurrent vote of both houses to reject it. I think not. Section 4 of the ECA states that in the presence of
multiple returns, the return authenticated by the state's section 2 authority is to be counted. But until the houses agree
that a return has been so authenticated, it is only a return that purports to have that status. Electoral Count Act of 1887
§ 4. Stated another way, the basic theory of the ECA is that no votes are to be counted unless both houses agree to count
them or the ECA expressly provides otherwise. As stated previously, the rule about counting the section 2 authenticated
return can only come into effect when the houses agree that they have a section 2 return before them. See supra text
accompanying notes 383-402.

544

This is the meaning I draw from the Conference Committee's language that “lawful votes of the legally appointed
electors,” Electoral Count Act of 1887 § 4 (emphasis added), could be rejected by a concurrent vote. The Conference
Committee Report confirms this by stating: “It takes the concurrent votes of both Houses, deciding that the votes are
not lawful votes, in order to reject them.” 18 Cong. Rec. 668 (1887).

545

See 17 Cong. Rec. 1021 (1886) (statement of Sen. Sherman).

546

Burgess, supra note 10, at 649. On Professor John Burgess's status, see supra text accompanying note 10.

547

See 17 Cong. Rec. 1060 (1886) (quoting statement of Sen. Teller); id. at 1022, 1024 (statement of Sen. Hoar).

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548

Burgess described the provision on the governor's certificate as a “conditio sine qua non” of acceptance by the House.
Burgess, supra note 10, at 649.

549

Certificate of Final Determination, supra note 420; David Barstow & Somini Sengupta, Contesting the Vote: The Florida
Legislature, N.Y. Times, Nov. 28, 2000, at A25 (stating that Jeb Bush signed Florida's Certificate of Ascertainment the
night of November 26, “barely an hour after the state canvassing commission declared George W. Bush the winner” of
the state's election, a move which was unusually hasty compared to other states).

550

One also wonders what Governor Bush would have done had the Supreme Court of Florida finished after the electors
had balloted. Modern norms may countenance post-elector balloting certifications. See 107 Cong. Rec. 288-91 (1961)
(accepting the votes of Democratic electors from Hawaii despite post-elector balloting certification).

551

See Subcomm. on Compilation of Precedents, Count Electoral Votes, H.R. Misc. Doc. No. 44-13, at 359, 362, 393-94,
407 (1877); Pitre, supra note 241, at 181.

552

See 1 Edward Stanwood, A History of the Presidency 447-49 (2d ed. 1975).

553

Id. at 449.

554

See 16 Cong. Rec. 1532 (1885) (describing the reading of Governor Cleveland's certificate attesting to the results of the
New York election to applause on the House floor and in the galleries).

555

Let alone the brother of the candidate, as he was in the 2000 election in Florida. Unlike Jeb Bush, who sent in his initial
certification before the election contest was determined, Grover Cleveland waited until after the contest in his state
was settled. See supra notes 549-53. One complication that Congress in the 1880s did not anticipate, perhaps, is that
the presidential candidate would not only be the certifying governor, but also the section 2 authority determining the
outcome of any presidential election contest. Nonetheless, that is what Texas law, absent a recusal, provides. See Tex.
Elec. Code Ann. § 221.002 (Vernon 2004).

556

Burgess, supra note 10, at 649. Consider the substantial minority of the House committee who wanted to amend the
ECA so that the governor's certificate was conclusive and could not be rejected even by a concurrent vote of the House
and Senate. See supra text accompanying note 536.

557

If there is judicial review of Congress's vote counting, one can speculate whether a court might set aside the counting of
those votes based on a governor's fraudulently issued tie-breaking certification. A fraudulent certification is, after all, no
certification at all. Indeed, since the governor in issuing his section 3 certificate acts ministerially, one wonders whether
it might be set aside for mere error. The counterargument is that the ultimate provision in section 4 does not provide that
the governor's certificate be “lawful” as it does elsewhere in the ECA. The implication is that all the ECA requires is
the “fact” of gubernatorial certification, not its bona fides.

558

If the ECA is a binding statute, its provisions govern until a statute is passed authorizing a change.

559

L. Kinvin Wroth and Jack Maskell suggest an additional instance in which a state would be entirely disenfranchised.
See Maskell, supra note 17, at 6-11; Wroth, supra note 13, at 343. I discuss their suggestion in Appendix II.

560

Electoral Count Act of 1887, ch. 90, §§ 4-

7, 24 Stat. 373, 373-74 (current version at 3 U.S.C. §§ 15-18 (2000)).

561

The Senate President usually is the Vice President, though he may be the senator who has been elected President pro
tempore. In writing about Congress's past electoral vote counting sessions, I generally will not distinguish whether the
Senate President was the Vice President or a President pro tempore who presided at the meeting.

562

Subcomm. on Compilation of Precedents, Counting Electoral Votes, H.R. Misc. Doc. No. 44-13, at 263 (1877) (statement
of Rep. Butler); see also id. at 273 (statement of Speaker Colfax) (recalling the “scene” in 1857 but not describing it);
id. at 264 (statement of Rep. Callis) (describing the session as “undignified”).

563

Id. at 264-65.

564

See id. at 78-143 (recounting the debate during and after the 1857 and 1869 electoral counts).

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565

In 1857, James Buchanan defeated John Fremont and Millard Fillmore by 174 votes to 114 and 8, respectively, even if
we count Wisconsin's five disputed votes for Fremont. See id. at 88. In 1869, Ulysses Grant beat Horatio Seymour by
the margin of 214 electoral votes to 80, even if we include Georgia's nine disputed votes for Seymour. Id. at 265.

566

Burgess, supra note 10, at 651-52.

567

See infra text accompanying note 586.

568

R.S. tit. 3, ch. 2, § 152 (1873); Wroth, supra note 13, at 341 (inauguration day moved from March 4 to January 20 in
1934). Now it ends on January 20. See U.S. Const. amend. XX,

§ 1.

569

Electoral Count Act of 1887, ch. 90, § 4, 24 Stat. 373, 373 (current version 3 U.S.C. § 15 (2000)).

570

Now it is set for January 6, fourteen days before Inauguration Day. 3 U.S.C. § 15 (2000).

571

Electoral Count Act of 1887 § 4.

572

Id.

§ 5.

573

Id. § 4.

574

Id.

575

Id.

§ 6.

576

Id. § 7.

577

Id.

578

Id.

579

See, e.g., Subcomm. on Compilation of Precedents, Counting Electoral Votes, H.R. Misc. Doc. No. 44-13, at 224 (1877)
(stating that the 22d Joint Rule allowed no debate when the Senate and House separated to consider an objection to
receiving an electoral vote).

580

John Burgess, who is very critical of the ECA's substantive provisions, pronounced the procedural provisions
“exhaustive” and as good “as human wit can divine.” Burgess, supra note 10, at 652.

581

See supra notes 561-64 and accompanying text (discussing 1857 and 1869 meetings); infra note 633 and accompanying
text (discussing 1869 meeting).

582

Maskell, supra note 17, at 3-4. The ECA's procedural provisions have not previously been the subject of sustained study.

583

18 Cong. Rec. 30-31 (1886) (statement of Rep. Caldwell).

584

U.S. Const. amend. XII.

585

17 Cong. Rec. 865 (1886) (statement of Sen. Morgan) (stating that the Senate President presides “only by reason of some
rule or agreement between the two Houses. The Constitution is silent upon that point. The Constitution speaks of no
officer who is to preside over the joint meeting.”). The first time an objection was made to counting a state's vote during
Congress's vote counting session was in 1817. Subcomm. on Compilation of Precedents, Counting Electoral Votes, H.R.
Misc. Doc. No. 44-13, at 46 (1877) (statement of Rep. Taylor). The objector was a House member. Id. He addressed
his remarks to the Speaker of the House. Id. A Senator who spoke in support of the House member's objection spoke
to the President of the Senate. Id. (statement of Sen. Vernon).

586

Electoral Count Act of 1887, ch. 90, § 4, 24 Stat. 373, 373 (current version at 3 U.S.C. § 15 (2000)).

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587

I do not consider the power that the Senate President may exercise as presiding officer of the Senate when the Senate
meets separately to consider objections raised at the joint session.

588

U.S. Const. amend. XII.

589

Electoral Count Act of 1887 § 4.

590

See H.R. Misc. Doc. No. 44-13, at 227-28. The Senate President also said he would present them if instructed to by
either house. Id. at 228.

591

Id. at 390.

592

Id. at 390-91.

593

Haworth, supra note 5, at 275. The Senate President's ruling involved some interpretive discretion. No law expressly
specified a date for all packets to be in. The Senate President held that the law required him to submit all packets he had
on the date that Congress began its vote counting session. Id. Needless to say, the Senate President was a Republican
and the supposed late-arriving packet of Vermont electoral votes was being proferred by Representative Hewitt of New
York, a Democratic leader. Id. at 274-75. In 1961, Vice President Nixon presented returns that arrived on the morning of
Congress's electoral count session.
Bush v. Gore, 531 U.S. 98, 127 (2000) (Stevens, J., dissenting); 107 Cong. Rec.
288-91 (1961); A. A. Smyser, How Kennedy Won 1960 Recount in Hawaii, Honolulu Star-Bull., June 8, 1963, at 5.

594

The returns from Georgia lacked the governor's certificate and simply listed the names of the four electors who declared
they were voting for Thomas Jefferson and Aaron Burr. See 13 Cong. Rec. app. 539 (1882) (statement of Rep. Updegraff)
(describing Georgia's vote in 1800); Gov. Packson, Executive Dep't, State of Ga., supra note 432.

595

5 Cong. Rec. 1504 (1877) (statement of Rep. Mills) (referring to the certificate); see also McKnight, supra note 214,
at 419 (referring to a “burlesque certificate”).

596

5 Cong. Rec. 1503 (1877) (statement of Rep. Stone) (reading the envelope address). The Senate President, in presenting
this paper, said it was his “duty . . . to submit all papers coming into his hands and purporting to be certificates.” Id.
Given the envelope's designation, he “had no discretion in respect of laying the paper before the two Houses.” Id. After
receiving objections to all of Louisiana's returns, the Senate President asked for and received unanimous consent that
the burlesque certificate should not be considered further. Id. at 1505.

597

20 id. at 1860 (1889).

598

See Sam W. MacDowell, State of Or., Governor Certificate of the Legal Election and Appointment of the Legal Electors
of the Lawful President and Vice-President of the United States of N. America (1888). The Senate President then asked
for unanimous consent to count the Oregon return that had a certificate from the person recognized as Oregon's governor.
Id. As Congress knew, Oregon's governor in 1889 was Sylvester Pennoyer, who is still famous among American law
students as the defendant in
Pennoyer v. Neff, 95 U.S. 714 (1878). Samuel MacDowell is not mentioned in any
history of Oregon that I have been able to locate.

599

Jefferson needed seventy electoral votes to be elected President. With Georgia's four votes, he had seventy-three. See
Subcomm. on Compilation of Precedents, Counting Electoral Votes, H.R. Misc. Doc. No. 44-13, at 30-31 (1877). In
1797, Vice President Adams presented Vermont's electoral votes even though they were not entirely free from doubt.
Vermont's four electoral votes were necessary for Adams to have been elected President. 1 Stanwood, supra note 552, at
51-52. Their defect, if any, was that the Vermont legislature had appointed the electors without previously enacting a law
authorizing themselves to do it. Id. Since the Vermont return was formally correct, the issue was not whether the votes
should have been presented, but whether they should have been counted. For that reason, I do not consider them here.

600

R.S. tit. 3, ch. 2, §§ 146-48 (1873).

601

See supra text accompanying notes 510-15 (discussing section 4).

602

See U.S. Const. amend. XII.

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603

H.R. Misc. Doc. No. 44-13, at 227-28. The Senate President, in saying that a motion to require him to present papers
in his possession was in order, relied on language in the 22d Joint Rule. See id. Similar language is in
the ECA.

section 6 of

604

See supra text accompanying notes 119, 383 (discussing bicameralism). But see H.R. Misc. Doc. No. 44-13, at 228
(statement of Senate President in 1865, explaining that “in the opinion of the Chair, if either branch of Congress shall
be disposed to order the [withheld] returns to be read, it is within their power to do so”).

605

Electoral Count Act of 1887, ch. 90, § 4, 24 Stat. 373, 373 (current version at 3 U.S.C. § 15 (2000)).

606

Id.; see also 18 Cong. Rec. 46 (1886) (statement of Rep. Dibble) (discussing residual interpretive authority of ministerial
officials).

607

Coincidentally, it increases the discretionary power of the two houses and, if they disagree, makes it more frequent that
the tie-breaking certificate of the state governor will decide the issue, because it promotes placing multiple electoral
returns before Congress. See discussion supra Part III.D.2 (discussing multiple returns).

608

Robert's Rules of Order Revised § 58, at 236-37 (75th Anniversary ed. 1951); see also id. at § 21, at 78-83 (questions
of order and appeal); id. at § 40, at 174-75 (dilatory, absurd, or frivolous motions).

609

See H.R. Misc. Doc. No. 44-13, at 246-47, 263-65 (providing different interpretations of the 1869 rules); id. at 87-93
(providing differing interpretations of the 1869 rules); supra text accompanying note 596 (discussing interpretation of
rule that barred second Vermont certificate in 1877); infra text accompanying note 661 (discussing interpretation of
ECA in the 2001 joint session).

610

Electoral Count Act of 1887 § 4.

611

Id.

612

Id.

613

Id. The text is ambiguous, but precedent is clear that all papers from a state are presented before objections are in
order. This has happened every time the Senate President has received and presented multiple returns. See H.R. Misc.
Doc. No. 44-13, at 391-95 (presenting multiple returns from Louisiana); 107 Cong. Rec. 288-91 (1961) (presenting
multiple returns from Hawaii); 20 id. at 1860 (1889) (presenting multiple returns from Oregon); 17 id. at 817 (1886)
(statement of Sen. Sherman) (stating that the Senate President simply hands the certificates to the tellers); 5 id. at
1195-98, 1503-06, 1728-31, 1945-46 (1877) (presenting multiple returns from Florida, Louisiana, Oregon, and South
Carolina respectively); 3 Dreschler's Precedents of the United States House of Representatives, ch. 10, § 1.2, at 7 (1977)
(when there are multiple returns, the Vice President hands them to the tellers in the order in which they were received).
Thus the Senate President cannot influence the process by controlling the order in which returns are considered. I thank
Professor Jack Balkin for drawing my attention to this problem.

614

Electoral Count Act of 1887 § 4 (providing that objections may be made “upon such reading of any such certificate or
paper”). This provision is backed up by electoral vote counting precedent. See H.R. Misc. Doc. No. 44-13, at 227, 246
(statement of Senate President) (ruling objections out of order as not timely).

615

Electoral Count Act of 1887 § 4. Section 4 also requires that the objection “shall state clearly and concisely, and without
argument, the ground thereof.” Id. For simplicity, I will not refer to this requirement, but will simply speak of the ECA's
formal requirements for objections as involving a writing signed by a senator and a member of the House.

616

Id.

617

Id.

§ 5.

618

Id.

619

Id. § 4.

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620
621

8 Cong. Rec. 51 (1878) (citing S. 1308, 45th Cong.

§ 6 (1878)).

18 id. at 76 (1886) (statement of Rep. Oates). Between 1878 and 1886, only two changes were made to the procedural
provisions in Senator Edmunds's original bill, and this was one of them. The other change dealt with the date set for
starting Congress's electoral count session. Senator Edmunds's original bill selected the second Monday in February
rather than the second Wednesday. Compare 8 id. at 51 (1878) (citing S. 1308, 45th Cong.
Count Act of 1887 § 4. That change has no effect on the Senate President's power.

§ 6 (1878)), with Electoral

622

18 Cong. Rec. 668 (1886).

623

By “substantive objections,” I mean objections to counting a state's electoral vote. By “procedural motions,” I mean
all motions questioning the Senate President's conduct of the meeting, including appeals from any of his rulings on
substantive objections and other procedural motions.

624

Electoral Count Act of 1887 § 4.

625

The Senate's precedents script the presiding officer's comments. See Floyd M. Riddick & Alan S. Frumin, Riddick's
Senate Procedure, S. Doc. No. 101-28, at 1441 (1992). In the House, the presiding officer announces the vote totals
and whether the bill passes. See Proceedings of the House of Representatives (C-SPAN1 television broadcast, Nov.
20, 2003) (statement of Speaker pro tempore Bass). The Congressional Record does not reflect this practice; the editor
indicates the import of a vote. See, e.g., 142 Cong. Rec. 25482, 25576 (1996). In this regard, the Congressional Record
is not a verbatim transcript of House proceedings. Compare Proceedings of the House of Representatives, supra, with
149 Cong. Rec. H11665-67 (daily ed. Nov. 20, 2003) (statement of Speaker pro tempore Bass) (Congressional Record
reporting the same votes).

626

Subcomm. on Compilation of Precedents, Counting Electoral Votes, H.R. Misc. Doc. No. 44-13, at 389 (1877) (statement
of the Vice President).

627

Id. at 263 (statement of Senate President).

628

Id. at 264-65.

629

115 Cong. Rec. 196-97 (1969) (Sen. Russell elected President pro tempore); id. at 145, 171 (President pro tempore
presiding at electoral count session).

630

Id. at 171 (statement of Senate President pro tempore).

631

Id.

632

If the houses are in agreement, they can always overrule the Senate President or instruct their tellers what to record. See
infra text accompanying notes 653-67 (discussing appeals). This assumes that appeals of the Senate President's rulings
are in order. Id.

633

H.R. Misc. Doc. No. 44-13, at 230-35, 246-47.

634

Id. at 246-47.

635

See id.

636

Id. at 247.

637

Id. at 263.

638

Id. at 263-64.

639

Id. at 273 (statement of Speaker Colfax) (explaining that “there is nothing clearer” than the applicability of the special
concurrent rule on Georgia).

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640

Is there, for example, a fraud exception to a section 2 tribunal's final determination? If so, does it cover only manifest
fraud? What operative facts meet whatever standard is imposed? See supra text accompanying notes 372-81. To take
instances that have arisen: when an elector votes for a candidate different from the one he is pledged to vote for, is
that an example of a vote that is not regularly given?, 115 Cong. Rec. 171 (1969) (answering “no”); should Congress
consider electors whose right to that office was determined by an election contest that concluded after the day set for
elector balloting? 107 id. at 290 (1961) (answering “yes,” by unanimous consent at the suggestion of the Vice President,
but without meaning to set a precedent).

641

See Electoral Count Act of 1887, ch. 90, § 4, 24 Stat. 373, 373-74 (current version at 3 U.S.C. § 15 (2000)).

642

In addition, if there are multiple returns, but the houses agree that one of them was authenticated by the state's section
2 authority, the counting rule is that both houses must concur to reject the votes because of elector ineligibility or postappointment behavior. See supra note 544. But determining if the situation arises is a bright-line determination requiring
only a ministerial decision.

643

This is one of the reasons why it was important to assert that when a slate of electors claim section 2 status, they do not
have it unless the Senate and the House agree that they do. This argument helps clarify that the Senate President has
no role in deciding if section 2's conditions and limitations have been met. If section 2's conclusivity principle imposed
a separate voting rule in competition with section 4, then the Senate President would be in the position he was in with
regard to the two rules governing the 1869 electoral count. He would be in a position, after Congress voted to reject the
slate claiming section 2 status, to rule that the case came within the terms of section 2 and not section 4.

644

See infra text accompanying notes 649, 652 (distinguishing the ECA's textual basis for allowing substantive objections
and procedural motions).

645

Subcomm. on Compilation of Precedents, Counting Electoral Votes, H.R. Misc. Doc. No. 44-13, at 246 (1877) (statement
of 1869 Senate President and Sen. Drake); id. at 227 (statement of 1865 Senate President and Rep. Pruyn); id. at 89
(statement of 1857 presiding officer and Rep. Letcher); id. at 82 (statement of 1849 Senate President and Sen. Stevens).
These were substantive objections to counting votes.

646

Id. at 246 (statement of 1869 Senate President and Sen. Drake); id. at 227 (statement of Senate President and Rep. Pruyn).

647

Id. at 246; id. at 227. Senator Drake's argument, for example, was that the “vote of Nevada has been reported, but has
not yet been decided on.” Id. at 246. Apparently, Senator Drake believed that the decisive moment for counting votes
is when the tellers make their report, not when each state is individually dealt with. See id. Representative Pruyn's
argument was substantially the same. See id. at 227.

648

Id. at 263 (statement of Senate President and Sen. Butler). This was part of the 1869 fracas. See supra notes 562-64 and
accompanying text. House Speaker Colfax supported the Senate President's refusal to allow appeals from his ruling. H.R.
Misc. Doc. No. 44-13, at 273 (discussing the conduct of the 1869 vote counting session); see also id. at 89 (statement
of 1857 presiding officer) (ignoring appeal made by Senator Toombs); id. at 82 (statement of 1849 Senate President)
(“[N]o motion was in order.”).

649

Electoral Count Act of 1887, ch. 90, § 4, 24 Stat. 373, 373-74 (current version at 3 U.S.C. § 15 (2000)). Vice President
Gore, in his role as Senate President, enforced this requirement during the 2001 electoral count, ruling out of order a
series of objections to Florida's certificate because they were signed by a House member but no Senator. See 147 Cong.
Rec. H34-36 (daily ed. Jan. 6, 2001). This provision also requires that the objection be without argument. Electoral
Count Act of 1887 § 4.

650

See supra text accompanying note 648 (discussing statements of Representative Pruyn and Senator Drake). Although
the ECA text is not wholly unambiguous, pre-ECA electoral vote counting precedent and considerations of efficient
administration counsel that the Senate President have the power to supervise the timeliness of objections.

651

See Robert's Rules of Order (Newly Revised) § 39, at 331 (10th ed. 2000) (“[E]very deliberative assembly has the right
to protect itself from the use of [parliamentary] forms for the opposite purpose.”). This is especially true because the
Senate President must entertain procedural motions, like appeals from his rulings. See infra text accompanying notes
662-64. Dilatory motions that present substantive objections to counting a state's electoral vote present little danger of
undue delay because of the ECA's provisions that make for expeditious consideration of substantive objections. See

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supra text accompanying notes 482-88, 513, 572-74. But procedural motions, like quorum calls and appeals of the Senate
President's rulings, can unduly delay substantive consideration of any state.
652

Electoral Count Act of 1887

§ 6 (emphasis added).

653

See, e.g., Robert's Rules of Order (Newly Revised), supra note 651, at 240-52.

654

See, e.g., Subcomm. on Compilation of Precedents, Counting Electoral Votes, H.R. Misc. Doc. No. 44-13, at 273 (1877)
(statement of Speaker Colfax) (discussing the conduct of the 1869 vote counting session); id. at 226-28 (statement of
Senate President) (discussing procedural motions); id. at 89 (statement of 1857 Senate President) (ignoring appeal made
by Senator Toombs); id. at 82 (statement of 1849 Senate President) (“[N]o motion was in order.”).

655

Id. at 86, 89-90 (1857 rule and Senate President ruling); id. at 81-82 (1849 rule and Senate President ruling).

656

The 22d Joint Rule, after setting out the procedure of Senate and House separation to decide objections to counting a
state's electoral vote, stated: “And any other question pertinent to the object for which the two houses are assembled
may be submitted and determined in like manner.” Id. at 224 (citing S.J. Res. 22, 38th Cong. (1865)); see also id. at 462
(statement of Sen. Morton) (commenting on 22d Joint Rule).

657

Id. at 227-28 (statement of Senate President) (discussing motion to submit the Confederate certificates); id. at 226
(statement of 1865 Senate President) (indicating he could receive procedural motions, even for something as insignificant
as dispensing with reading the electoral certificates in their entirety, if the houses are willing to “separate in order to
pass upon the question”).

658

Id. at 264-65.

659

Id. at 263-64.

660

Id. at 273. Speaker Colfax also said the 22d Joint Rule did not provide for it, and no appeal had ever been taken. Id. But
he seems to have forgotten the 1865 incident, the Senate President's explanation of how the 22d Joint Rule provided for
it, and how it could be handled by the same procedure for deciding substantive objections to counting a state's electoral
vote. See supra text accompanying note 657. It should be noted, however, that Speaker Colfax was correct in saying no
appeal had ever been taken. In 1865, after the Senate President ruled that the appeal was in order, the House member
who made the appeal withdrew it rather than force a separation of the two houses. H.R. Misc. Doc. 44-13, at 227-28
(statements of the Vice-President and Sen. Yeaman).

661

147 Cong. Rec. H35-36 (daily ed. Jan. 6, 2001).

662

Id. at H35. Vice President Gore said this a number of times in response to different motions. Id. at H35-36. Gore's
reference was to 3 U.S.C. §§ 15-18 (2000), where sections 4-7 of the ECA are codified.

663

Vice President Gore specifically responded to an appeal with this analysis. 147 Cong. Rec. H36 (daily ed. Jan. 6, 2001)
(statement of Vice President and Rep. Hastings).

664

This assumes the procedural motions were also timely, not argumentative, and not dilatory. These facets of proper
substantive objections and procedural motions were not in issue at this point. Vice President Gore also subjected a
request for unanimous consent to the requirement that the appeal be in writing with the appropriate two signatures. Id.
(statement of Vice President and Rep. Waters) (noting also that an objection was heard). This seems to go too far and
counters over a century of precedent. Since 1865, Senate Presidents have expedited the proceedings by accepting, or
suggesting, unanimous consent motions. The tradition, which began under the 22d Joint Rule, was immediately adopted
under the ECA and has continued ever since. H.R. Misc Doc. No. 44-13, at 226 (statement of 1865 Vice President);
107 Cong. Rec. 290 (1961) (accepting and counting one of Hawaii's multiple returns as the appropriate return); 43 id. at
2149 (1913) (correcting a clerical error); 20 id. at 1859-60 (1889) (disposing of facetious electoral return from Oregon).

665

See supra text accompanying note 583 (discussing role of the Senate President). Allowing procedural motions and
appeals does lengthen Congress's vote counting session. To some extent this is undesirable, as dispatch is a virtue in
electoral vote counting. Still, the ECA provides rules that limit delay by requiring that all objections to counting a state's
vote be submitted while the state is under consideration, that all objections be considered together, and that time limits

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for the Senate and House's separate consideration of the objections and recesses be enforced. See supra note 647 and
accompanying text. I also note that most of the procedural motions and appeals during the 2001 vote counting session
were because the Senate President had ruled out of order substantive objections that did not have a senatorial signature.
See supra note 649. Had there been a senatorial signature, the substantive objection would have been in order, and no
procedural motions, which threatened delay, would have needed to be made.
666

That it would take a concurrent vote of both houses to overrule a substantive or procedural ruling of the Senate President
should be added to the reasons why the ECA should be read to give the Senate President as few opportunities as possible
to exert influence through ruling substantive objections and procedural motions out of order. This supports the view that
the Senate President should review objections, motions, and appeals only for whether they are in proper form, timely,
and not dilatory.

667

See, for example, supra text accompanying notes 383-402, where it is argued that when electors claim section 2 status,
it is for Congress to decide whether they merit it. Even if the Senate President is certain that the electors deserve section
2 status, the Senate President cannot tilt towards that outcome by ruling out of order objections to counting their votes.
The Senate President can only act when the objections are formally insufficient, not timely, or dilatory. For similar
reasons, should members of Congress object to receiving a state's vote on the ground that the vote was not regularly
given because of concerns about the way the votes in the presidential election were recounted by county canvassing
boards, the Senate President may not rule the objection out of order even though the objection that the vote was not
regularly given applies only to the electors' post-appointment behavior. See supra text accompanying note 474. Although
the Senate President might refuse to accept the objection on the grounds that it was argumentative, once the argument
was removed, the Senate President would have to receive it. Electoral Count Act of 1887, ch. 90, § 4, 24 Stat. 373,
373-74 (current version at 3 U.S.C. § 15 (2000)).

668

In addition, the ECA has built-in safeguards that limit delay. See supra text accompanying notes 570-80. When Rep.
Caldwell, in the second paragraph of his remarks, referred to the votes' “legality,” he meant a judgment of whether
the votes suffered constitutional infirmities, not whether there were mistakes in state law. 18 Cong. Rec. 31 (1886)
(statement of Rep. Caldwell). This is shown by the examples he gave. See supra text accompanying note 336 (discussing
constitutional infirmities).

669

18 Cong. Rec. 31 (1886).

670

If Congress accepts one slate of electors as properly elected under state law, then the Senate and House must concur in
rejecting the votes of some of them because of other defects. See supra text accompanying note 544.

671

If there are multiple claimants to the governor's office, and they certify multiple returns with copies of the state's seal,
the state's electoral votes cannot be counted unless the two houses agree on the identity of the legitimate governor. See
supra text accompanying notes 542-43.

672

It is unclear whether ministerial error is limited to the governor's actions or may be traced back to the ministerial errors
of the canvassing boards on which the governor relied.

673

If the fraud exception does exist, Congress may inquire into fraud in the section 2 process. Fraud in the underlying
election may be evidence of the section 2 tribunal's fraud, but it does not necessarily establish it.

674

By not “complete,” this Article means that the ECA does not provide a uniquely correct solution for every dispute
that might arise when Congress counts electoral votes. This notion of “completeness” is drawn from Thomas C. Grey,
Langdell's Orthodoxy, 45 U. Pitt. L. Rev. 1, 7 (1983).

675

See, e.g., 18 Cong. Rec. 668 (1887) (excepting instances of dual governments in a state); 17 id. at 1019, 1020 (1886)
(statement of Sen. Hoar) (same).

676

U.S. Const. amend. XII.

677

Wroth, supra note 13, at 324-25.

678

If the problem were in an elector's appointment, that may differ from the problem with the way an appointed elector
behaved in office. The ECA also leaves open many minute procedural issues. See Maskell, supra note 17, at 3-4
(mentioning, for example, “form . . . of question[s] . . . presented”). Although these problems are perhaps too minute

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to be dealt with in the ECA (or in this Article), partisan squabbling over them could diminish the public's perception
of regularity.
679

See, e.g., 17 Cong. Rec. 2428 (1886) (statement of Sen. George); id. at 1061 (statement of Sen. Call); id. at 820-21
(statement of Sen. Hoar); id. at 820, 1057 (statement of Sen. Evarts); 17 id. at 819 (statement of Sen. Edmunds); see
also 18 id. at 49 (statement of Rep. Cooper); Maskell et al., supra note 13, at 2-3; Burgess, supra note 10, at 650; Wroth,
supra note 13, at 345.

680

In 1873, when Congress rejected Arkansas's and Louisiana's electoral vote, and when it rejected three votes from
Georgia, the Senate's and House's journals recorded the required majority for election differently. Journal of the House
of Representatives of the United States 354 (1873) (stating that 177 electoral votes are required); Journal of the Senate
of the United States of America 348 (1873) (stating that 184 electoral votes are required); Maskell et al., supra note 13,
at 4-5. The Senate's and House's disparity in treatment raises the problem noted in the text. It is a troubling precedent,
particularly because it is the only occasion on which Congress rejected a state's electoral vote, rather than giving alternate
counts or choosing between competing slates. In addition, Congress's precedents are not consistent on diminishing the
majority required for election when electoral votes are not cast because an elector died or was not appointed. See id. at
3-5; Wroth, supra note 13, at 345 n.95. On these occasions, however, the Senate and House have recorded the required
majority the same way. The point is, however, that Congress's action shows no consistent pattern.

681

Electoral Count Act of 1887, ch. 90, § 4, 24 Stat. 373, 374 (current version at 3 U.S.C. § 15 (2000)).

682

Id.

683

For cogent critiques of the ECA's policy choices, see Burgess, supra note 10, at 637-38, 645-50; Wroth, supra note 13,
at 334-52. See also Glennon, supra note 13 (suggesting a thorough overhaul of the electoral vote counting system).

684

The period is actually thirty-five days if we limit the time to the “safe harbor” period.

685

See generally Guido Calabresi, A Common Law for the Age of Statutes (1982); William N. Eskridge, Jr., Dynamic
Statutory Interpretation (1994).

686

In 1969, Congress addressed whether it should count a vote cast for a candidate other than the candidate to whom the
elector was pledged. 115 Cong. Rec. 145-72, 209-47 (1969). The law of the state involved, however, did not bind electors
to vote as they had pledged. See id. Consider also the argument, made in 1969, that Congress should not only disregard
the “faithless electors” vote, but record it for the candidate for whom it should have been cast. Id. at 198-201 (statements
of Sens. Muskie and Mundt). Nineteenth-century Congresses would not have considered doing that.

687

See 107 id. at 288-91 (1961) (counting the votes of Hawaii's Democratic electors based on a trial court's determination
of an election contest two days before Congress met, although the ruling was still subject to appeal). Nineteenth-century
Congresses would have not allowed this, based on their understanding of the officer de facto doctrine. See supra text
accompanying note 185.

688

See generally Calabresi, supra note 685; Eskridge, supra note 685; Jack Balkin, Constitutional Interpretation and the
Problem of History, 63 N.Y.U. L. Rev. 911, 953 (1988); Lawrence Lessig, Understanding Changed Readings: Fidelity
and Theory, 47 Stan. L. Rev. 395, 401-43 (1995).

689

Or consider a variant of this hypothetical: If one supposes there was time for a rehearing petition to be filed under
normal Florida Supreme Court rules, perhaps the earnestly asserted issue would be whether the Florida Supreme Court's
decision was “final.”

690

See Letter from Thomas Jefferson to James Madison, supra note 426 (stating Jefferson's expectation that he and Burr
would tie for the presidency).

691

17 Cong. Rec. 1019 (1886) (statement of Sen. Hoar).

*659 APPENDIX I
The Electoral Count Act of 1887

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24 Stat. 373
Chap. 90.-An act to fix the day for the meeting of the electors of President and Vice-President, and to provide for and regulate
the counting of the votes for President and Vice-President, and the decision of questions arising thereon.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the
electors of each State shall meet and give their votes on the second Monday in January next following their appointment, at
such place in each State as the legislature of such State shall direct.
SEC. 2. That if any State shall have provided, by laws enacted prior to the day fixed for the appointment of the electors, for
its final determination of any controversy or contest concerning the appointment of all or any of the electors of such State, by
judicial or other methods or procedures, and such determination shall have been made at least six days before the time fixed for
the meeting of the electors, such determination made pursuant to such law so existing on said day, and made at least six days prior
to the said time of meeting of the electors, shall be conclusive, and shall govern in the counting of the electoral votes as provided
in the Constitution, and as hereinafter regulated, so far as the ascertainment of the electors appointed by such State is concerned.
SEC. 3. That it shall be the duty of the executive of each State, as soon as practicable after the conclusion of the appointment
of electors in such State, by the final ascertainment under and in pursuance of the laws of such State providing for such
ascertainment, to communicate, under the seal of the State, to the Secretary of State of the United States, a certificate of such
ascertainment of the electors appointed, setting forth the names of such electors and the canvass or other ascertainment under
the laws of such State of the number of votes given or cast for each person for whose appointment any and all votes have been
given or cast; and it shall also thereupon be the duty of the executive of each State to deliver to the electors of such State, on or
before the day on which they are required by the preceding section to meet, the same certificate, in triplicate, under the seal of
the State; and such certificate shall be inclosed [sic] and transmitted by the electors at the same time and in the same manner as
is provided by law for transmitting by such electors to the seat of Government the lists of all persons voted for as President and
of all persons voted for as Vice-President; and section one hundred and thirty-six of the Revised Statutes is hereby repealed; and
if there shall have been any final determination in a State of a controversy or contest as provided for in section two of this act, it
shall be the duty of the executive of such State, as soon as practicable *660 after such determination, to communicate, under
the seal of the State, to the Secretary of State of the United States, a certificate of such determination, in form and manner as the
same shall have been made; and the Secretary of State of the United States, as soon as practicable after the receipt at the State
Department of each of the certificates hereinbefore directed to be transmitted to the Secretary of State, shall publish, in such
public newspaper as he shall designate, such certificates in full; and at the first meeting of Congress thereafter he shall transmit
to the two Houses of Congress copies in full of each and every such certificate so received theretofore at the State Department.
SEC. 4. That Congress shall be in session on the second Wednesday in February 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 one o'clock in the
afternoon on that day, and the President of the Senate shall be their presiding officer. Two tellers shall be previously appointed
on the part of the Senate and two on the part of the House of Representatives, to whom shall be handed, as they are opened by
the President of the Senate, all the certificates and papers purporting to be certificates of the electoral votes, which certificates
and papers shall be opened, presented, and acted upon in the alphabetical order of the States, beginning with the letter A; and
said tellers, having then read the same in the presence and hearing of the two Houses, shall make a list of the votes as they shall
appear from the said certificates; and the votes having been ascertained and counted in the manner and according to the rules in
this act provided, the result of the same shall be delivered to the President of the Senate, who shall thereupon announce the state
of the vote, which announcement shall be deemed a sufficient declaration of the persons, if any, elected President and VicePresident of the United States, and, together with a list of the votes, be entered on the Journals of the two Houses. 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, 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 three of this act
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 *661 by electors whose appointment has been so
certified. If more than one return or paper purporting to be a return from a State shall have been received by the President of

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the Senate, those votes, and those only, shall be counted which shall have been regularly given by the electors who are shown
by the determination mentioned in section two of this act to have been appointed, if the determination in said section provided
for shall have been made, or by such successors or substitutes, in case of a vacancy in the board of electors so ascertained, as
have been appointed to fill such vacancy in the mode provided by the laws of the State; but in case there shall arise the question
which of two or more of such State authorities determining what electors have been appointed, as mentioned in section two
of this act, is the lawful tribunal of such State, the votes regularly given of those electors, and those only, of such State shall
be counted whose title as electors the two Houses, acting separately, shall concurrently decide is supported by the decision of
such State so authorized by its laws; and in such case of more than one return or paper purporting to be a return from a State,
if there shall have been no such determination of the question in the State aforesaid, then those votes, and those only, shall be
counted which the two Houses shall concurrently decide were cast by lawful electors appointed in accordance with the laws
of the State, unless the two Houses, acting separately, shall concurrently decide such votes not to be the lawful votes of the
legally appointed electors of such State. 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. When the two Houses have voted, they shall immediately again meet, and the presiding officer shall
then announce the decision of the questions submitted. No votes or papers from any other State shall be acted upon until the
objections previously made to the votes or papers from any State shall have been finally disposed of.
SEC. 5. That while the two Houses shall be in meeting as provided in this act the President of the Senate shall have power
to preserve order; and no debate shall be allowed and no question shall be put by the presiding officer except to either House
on a motion to withdraw.
SEC. 6. That when the two Houses separate to decide upon an objection that may have been made to the counting of any
electoral vote or votes from any State, or other question arising in the matter, each Senator and Representative may speak to
such objection or question five minutes, and not more than once; but after such debate shall have lasted two hours it shall be
the duty of the presiding officer of each House to put the main question without further debate.
SEC. 7. That at such joint meeting of the two Houses seats shall be provided as follows: For the President of the Senate, the
Speaker's chair; for the Speaker, immediately upon his left; the Senators, in the body of the *662 Hall upon the right of the
presiding officer; for the Representatives, in the body of the Hall not provided for the Senators; for the tellers, Secretary of the
Senate, and Clerk of the House of Representatives, at the Clerk's desk; for the other officers of the two Houses, in front of the
Clerk's desk and upon each side of the Speaker's platform. Such joint meeting shall not be dissolved until the count of electoral
votes shall be completed and the result declared; and no recess shall be taken unless a question shall have arisen in regard to
counting any such votes, or otherwise under this act, in which case it shall be competent for either House, acting separately,
in the manner hereinbefore provided, to direct a recess of such House not beyond the next calendar day, Sunday excepted, at
the hour of ten o'clock in the forenoon. But if the counting of the electoral votes and the declaration of the result shall not have
been completed before the fifth calendar day next after such first meeting of the two Houses, no further or other recess shall
be taken by either House.
Approved, February 3, 1887.

*663 APPENDIX II
Whether Section 4's Treatment of the “Multiple Return” Problems Is Disjunctive or Conjunctive
Jack Maskell and L. Kinvin Wroth read the ECA's three step process for grappling with multiple return problems as

disjunctive. 692 Their analysis suggests a situation where a state would be entirely disfranchised beyond those that I have

delimited. 693 According to Maskell and Wroth, when there are multiple sets of returns authenticated by different tribunals
claiming to be the state's section 2 authority, should the House and Senate disagree as to which tribunal is the proper section

2 authority, no vote from the state is to be counted, and “[t]his result follows regardless of the governor's action.” 694 As
Wroth explains: “Congress in this case looks to the executive certificate only as evidence of the decision reached by a tribunal
authorized by the state legislature. If the decision of the authorized tribunal cannot be made out, then there is no valid return
for the governor to certify.” 695

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There is evidence in the ECA's legislative history supporting Wroth's and Maskell's position. As they indicate, Senator Hoar,
Representative Eden, and the Conference Committee Report specifically mention the governor's certificate only when discussing
the situation “when there has been no determination of the question in the States.” 696 I submit, however, that when more than
one tribunal in a state asserts that it is the state's section 2 authority, if the houses of Congress disagree as to which tribunal is
the proper one, then that is an instance when no determination of the question in the State has been made. 697
*664 As passed, section 4's provision dealing with multiple returns is:
If more than one return or paper purporting to be a return from a State shall have been received by the President of
the Senate, those votes, and those only, shall be counted which shall have been regularly given by the electors who
are shown by the determination mentioned in section two of this act to have been appointed, if the determination
in said section provided for shall have been made . . . ; but in case there shall arise the question which of two
or more of such State authorities determining what electors have been appointed, as mentioned in section two
of this act, is the lawful tribunal of such State, the votes regularly given of those electors, and those only, of
such State shall be counted whose title as electors the two Houses, acting separately, shall concurrently decide
is supported by the decision of such State so authorized by its laws; and in such case of more than one return
or paper purporting to be a return from a State, if there shall have been no such determination of the question in
the State aforesaid, then those votes, and those only, shall be counted which the two Houses shall concurrently
decide were cast by lawful electors appointed in accordance with the laws of the State, unless the two Houses,
acting separately, shall concurrently decide such votes not to be the lawful votes of the legally appointed electors
of such State. 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. 698

Textually, it is more plausible to read the final sentence, particularly the words “such votes,” as relating to the entire prior
sentence, not just to the clause after the final semicolon. 699

In addition, the main purpose of the amendments that led to Congress turning to the governor's certificate as the ultimate

tiebreaker-Hoar's floor amendment 700 and the House of Representatives' committee's substitute proposal 701 -was to respond
to congressmen concerned about the power of one house of Congress to disfranchise a state when there were multiple returns.
In reviving their proposals, and in crafting section 4's final language, the Conference Committee's view was that:
*665 The general effect of all [the reconciling amendments], and of the bill as reported . . ., is to provide for
the decision of all questions that may arise as to its electoral vote to the State itself; and where, for any reason,
that fails, then the Houses circumscribe their power to the minimum under any circumstances to disfranchise a
State, and such result can only happen when the State shall fail to provide the means for the final and conclusive
decision of all controversies as to her vote. 702

Under Wroth's and Maskell's reading, one house of Congress may disfranchise a state under more circumstances than under my
reading. Under Wroth's and Maskell's reading, a state is disfranchised whenever there are multiple sets of returns authenticated
by different tribunals claiming to be the state's section 2 authority and the House and Senate disagree on which board is the
proper section 2 authority. 703 In addition, a state is disfranchised even if only one of the multiple returns claims to have
been authenticated through a section 2 process but the House and Senate disagree about whether the determination met all the

conditions section 2 imposes for being a proper final determination. 704 Under my reading, a state is disfranchised only when
the houses concur in rejecting the return certified by its governor. 705

In the legislative history of the provision, there is much evidence that supports reading the final sentence (the sentence about
the governor's certificate) as applying to more than just the final clause of the preceding sentence. The provision that passed
the House of Representatives was more likely to be read disjunctively because in that draft the provision on the governor's

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certificate appeared as part of the final clause dealing with the situation when there was no tribunal determination. 706 Moving
the *666 “governor's certificate” language to its own sentence seems to clarify that the provision on the governor's certificate
applies to more than just the clause after the last semicolon. It may well have been part of what the Conference Committee
meant when it said it “remodel[led] . . . the language of the House amendment so as to clear up any ambiguity in the section . . .
when there has been no determination of the question in the States.” 707

Moreover, in introducing his amendment, Senator Hoar said: “[I]f the amendment which I have proposed shall be adopted no

case can arise under this bill of rejecting the vote of any State except in the single case of dual State goverments.” 708 “Dual
state governments” implies not just multiple tribunals claiming to be the state's section 2 authority, but multiple claimants to
the governor's office. Similarly, the House of Representatives committee report did not limit its description of the role of the
“governor's certificate” amendment to situations where the House of Representatives and the Senate disagreed about which
tribunal was the state's proper section 2 authority. The House committee report merely paraphrased the Senate bill's provision
on multiple returns and stated:
Under the amendment, where there is but one State government and two sets of returns, purporting to be the vote
of the State, then that return shall be counted which is supported by the certificate of the executive of the State, . . .
unless both houses, acting separately, shall concur *667 in deciding that the vote so certified and returned is not
the lawful vote of the State. 709

The remarks of Representative Samuel Dibble, chief spokesman for the House committee minority, support reading the
“governor's certificate” language as coming into play whenever the houses disagreed about which votes, if any, to count when
a state submitted multiple sets of electoral votes. Dibble's states' rights position was that Congress's power in counting electoral
votes was “a ministerial act” 710 of “count[ing], in the sense of enumeration.” 711 Congress's power, he said, was “to recognize
credentials” 712 and he “deni[ed] the existence of any authority in one House, or in both Houses of Congress combined, to set

aside that prima facie case when it is certified and presented in regular form and manner.” 713 To Dibble, the only legitimate
time to disfranchise a state that submitted authenticated returns was when there was a “dual government” with “two persons
claiming to hold the office of governor, two persons claiming to hold the State seal, two impressions of the seal which are

facsimilies” on different returns, and each House recognizes a different government. 714 For these reasons, Dibble said he
agreed with the Senate bill “in its general tenor and spirit,” and with the House committee majority's proposed amendment to

count, when all else failed, the return certified by the state's governor under the seal of the state. 715 Indeed, he led the House
committee minority in insisting that the governor's certificate conclude the matter and not be subject to rejection by a concurrent
vote of both houses. 716

Dibble was, in short, extraordinary in his desire that Congress not have power to disfranchise a state, yet he never protested
that under the House committee majority's bill that Congress had the power to disfranchise a state whenever the two houses
received multiple returns that purported to *668 come from differing section 2 authorities simply by disagreeing as to which
tribunal was the proper one. Silences are difficult to interpret, but I think it suggests that he did not read the committee's bill
as disjunctive. Rather, I think that he thought the requirement to turn to the governor's certificate applied whenever the houses
disagreed as to the identity of the state's proper section 2 authority because that was an instance of what the bill meant when
it spoke of the state making no determination of the question. 717

As a final argument, consider that before the amendment regarding the governor's certificate was added, section 4 was drafted in
the same disjunctive style as it was after Hoar and the House committee added their amendment. The unamended section 4 read:
If more than one return or paper purporting to be a return from a State shall have been received by the President
of the Senate, those votes, and those only, shall be counted which shall have been regularly given by the electors
who are shown by the evidence mentioned in section 2 of this act to have been appointed, if the determination
in said section provided for shall have been made . . . . ; but in case there shall arise the question which of two
or more of such State tribunals determining what electors have been appointed, as mentioned in section 2 of this
act, is the lawful tribunal of such State, the votes regularly given of those electors, and those only, of such State
shall be counted whose title as electors the two Houses, acting separately, shall concurrently decide is supported

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by the decision of the tribunal of such State so authorized by its laws; and in such case of more than one return or
paper purporting to be a return from a State, if there shall have been no such determination of the question in the
State aforesaid, then those votes, and those only, shall be counted which the two Houses, acting separately, shall
concurrently decide to be the lawful votes of the legally appointed electors of such State. 718

If Wroth's and Maskell's argument about the implication of the disjunctive clauses is correct, then the meaning of the unamended
provision is that if, under the first clause, the houses disagree on whether there has been a timely section 2 determination, or,
under the second clause, the houses disagree on whether any of the multiple returns claiming section 2 authentication really
have it, then the houses have no authority, as the third *669 clause allows when there is “no such determination,” to attempt to
agree that any return is the state's valid return regardless of whether it has a section 2 authentication. In other words, Wroth's and
Maskell's reading means that once any return is received that purports to have a section 2 authentication, if the houses disagree
about the bonafides of that authentication, they are precluded from counting another return, even when both houses agree that
it is the valid return. Under Wroth's and Maskell's reading, a return that claims section 2 status may not trump all, but it does
forestall all. This does not seem to be what Congress could possibly have intended. 719

The implication I draw from this is that after the provision on the governor's certificate was added, even before the Conference
Committee redrafted the provision to make it clearer, it applied generally to all instances of multiple returns. The Congress that
wrote the ECA intended that when the Senate and House of Representatives disagreed about whether a return had section 2
status, that itself was an instance of “no such determination” made under the ECA. It is another example of the requirement that
the Senate and House of Representatives must agree before a return can be accorded section 2 status. 720 In this situation, the
houses have to agree not only that there was a section 2 determination, but also on the tribunal that made it.

*670 APPENDIX III
Summary of Grounds Under the ECA for Denying Electors Section 2 Status and for Not Counting Electoral Votes
I. Grounds for Denying Electors Section 2 Status
A. The electors' status was not authenticated by the authority designated by state law to make the “final determination” of the
identity of the state's electors
B. The state's final determination process was not established by a state law enacted prior to election day
C. The determination was not “final” six days or more before the day set for elector balloting
D. The state's “final determination” process did not use quasi-judicial methods
E. And perhaps: The “final determination” authority's decision was (1) fraudulent, or (2) “manifestly” fraudulent
II. Grounds for Rejecting Electoral Votes Submitted by an Elector Who Has Section 2 Status
A. Pre-appointment grounds
1. The elector is personally disqualified from holding the elector's office because he or she also holds federal office
2. Other constitutional infirmities, such as
a. The elector was appointed by a territory that is not entitled to participate in the presidential election
b. The state submitted more electoral votes than it is entitled to under the Constitution

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B. Post-appointment grounds
1. The elector cast his or her vote in violation of constitutional and federal statutory requirements; for example, the elector
did not vote
a. by ballot
b. for a President and Vice-President, one of whom is not an inhabitant of the elector's state
c. on the day set by federal law
d. for candidates who are constitutionally qualified to hold the President's and Vice-President's office
2. The elector cast his or her vote because of bribery or corruption
III. Grounds for Rejecting Electoral Votes Submitted by an Elector Who Does Not Have Section 2 Status
A. All the grounds mentioned in II above
B. The elector's Certificate of Election resulted from
*671 1. the governor's ministerial error, and perhaps, any ministerial error by election administrators on which the governor
relied
2. a fraudulent appointment process, although it is arguable that the fraud must be so notorious that it is “manifest”
Another way of stating the grounds for objecting to counting electoral ballots is that section 4 of the ECA requires an elector's
vote to be “regularly given” and “lawfully certified.” “Regularly given” covers all post-appointment grounds. “Lawfully
certified” covers all pre-appointment grounds. All the grounds in III above are pre-appointment. The grounds in II are pre-and
post-appointment, as indicated.
The specific grounds mentioned here are drawn from the grounds discussed by the Congresses that framed the ECA. It is not
meant to be exhaustive of the specific objections that members of Congress may raise. For example, members of Congress
might object if electors voted for candidates other than the candidates state law bound them to vote for. If so, the objection,
based on post-appointment conduct, would be that the electors' votes were not “regularly given.” This would be the appropriate
ground of objection regardless of whether the electors claimed section 2 status.

692

Maskell, supra note 17, at 8-11; Wroth, supra note 13, at 343.

693

My view is that when there are multiple submissions, a state will be disfranchised only when both the Senate and the
House concur in rejecting all the state's submissions, or there is no submission certified by the governor, or there are
two or more governors and Congress disagrees as to who the true governor is.

694

Wroth, supra note 13, at 343. Maskell points out that Burgess implicitly agrees with their position. Maskell, supra note
17, at 8 n.26 (citing Burgress, supra note 10, at 642-44).

695

Wroth, supra note 13, at 343. I treat Wroth and Maskell's analysis in Appendix II because: (1) it applies only to the rare
instance when a state makes multiple submissions and two or more of them claim section 2 authentication; and (2) my
response is so detailed that it would burden the text. The length of my response reflects the complexity of the subject and
the wealth of material. It also reflects my great respect for Wroth's and Maskell's views on the ECA. I owe a great debt
to Wroth's seminal and perceptive article. See Wroth, supra note 13. Jack Maskell, who works for the Congressional

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Research Service, has enormous experience in divining the meaning of statutes for Congress. Differing from Wroth and
Maskell is something that requires extensive support.
696

18 Cong. Rec. 668 (1886); see also id. at 49-50 (statement of Rep. Eden); 17 id. at 1020, 1022 (statement of Sen. Hoar).

697

Cf. supra text accompanying note 383 (discussing electors claims to have section 2 status).

698

Electoral Count Act of 1887, ch. 90, § 4, 24 Stat. 373, 374 (current version at 3 U.S.C. § 15 (2000)) (emphasis added).

699

Maskell implicitly admits this. Maskell, supra note 17, at 9-10.

700

See supra text accompanying note 532 (discussing Senator Hoar's amendment).

701

See supra text accompanying note 535 (discussing the House committee's proposal).

702

18 Cong. Rec. 668 (1886) (emphasis added).

703

See supra note 694 and accompanying text.

704

See supra text accompanying notes 299-381 (reviewing the conditions). If Wroth and Maskell are right, their reading
should apply to the first and second step in the ECA's three-step process. In other words, I am arguing that, if (as Wroth
and Maskell argue) the sentence on the governor's certificate does not relate to the second clause of the provision on
multiple returns, it would seem to follow that it does not apply to the first clause either. The first clause is the one that
deals with the case of multiple returns with only one of them purporting to be authenticated by a section 2 process.

705

I exclude from consideration whether disfranchisement might also occur if the governor refused to certify any return,
or there are multiple governors certifying different returns. The point is that Wroth's and Maskell's reading would
disfranchise a state under all the circumstances that mine does plus the additional occasions under discussion here.

706

As passed by the House, the provision read, in relevant part:
[B]ut in case there shall arise the question which of two or more of such State authorities determining what electors have
been appointed, as mentioned in section 2 of this act, is the lawful tribunal of such State, the votes regularly given of
those electors, and those only, of such State shall be counted whose title as electors the two Houses, acting separately,
shall concurrently decide is supported by the decision of such State so authorized by its laws; and in such case of more
than one return or paper purporting to be a return from a State, if there shall have been no such determination of the
question in the State aforesaid, then those votes, and those only, shall be counted which were cast by electors whose
appointment shall have been duly certified under the seal of the State by the executive thereof, in accordance with the
law of the State, unless the two Houses, acting separately, shall concurrently decide such votes not to be the lawful votes
of the legally appointed electors of such State.
18 Cong. Rec. 30 (1886) (emphasis added) (citing the bill with the House committee's proposed amendments, which
were passed as proposed).

707

Id. at 668.

708

17 id. at 1020 (statement of Sen. Hoar); see also id. at 1021 (statement of Sen. Hoar) (“Now, I can not . . . think of any
case which this bill does not cover, determine, or remand to the State to determine, any case in which any friction or
difficulty can grow out of the mechanism here provided, except in the case of dual State governments.”).

709

Andrew Caldwell, Report: To Accompany Bill S. 9, H.R. Rep. No. 49-1638, at 2 (1886)9, H.R. Rep. No. 49-1638, at
2 (1886).

710

18 Cong. Rec. 46 (1886) (statement of Rep. Dibble).

711

Id. at 45.

712

Id. at 47.

713

Id. at 46. Representative Dibble held that it was for the judiciary to “prevent grievous wrongs from being done” and
that courts were the “places where hide-bound forms of credentials can be broken through.” Id. at 46-47. He was such a
states' rights enthusiast that he, along with the committee minority, argued that it was an unconstitutional infringement of

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Case 6:20-cv-00660-JDK Document 33 Filed 01/01/21 Page 553 of 553 PageID #: 958

THE CONSCIENTIOUS CONGRESSMAN'S GUIDE TO THE..., 56 Fla. L. Rev. 541

the states' plenary power to appoint electors for Congress to require the states' section 2 authorities (1) to conclude their
work six days before the electors balloted in order to have conclusive effect, and (2) to be established before election
day. See Samuel Dibble, Views of the Minority: To Accompany Bill S. 9, H.R. Rep. 49-1638, pt. 2, at 1-2 (1886)9, H.R.
Rep. 49-1638, pt. 2, at 1-2 (1886); 18 Cong. Rec. 45-47 (1886) (statement of Rep. Dibble).
714

18 Cong. Rec. 47 (1886).

715

Id.

716

Id.; see also H.R. Rep. 49-1638, pt. 2H.R. Rep. 49-1638, pt. 2, at 1-2.

717

Dibble's own substitute bill was drafted in the same supposedly disjunctive form.

718

17 Cong. Rec. 2387 (1886) (citing S. 9, 49th Cong. § 4 (1886), after recommital); see also 15 id. at 5076 (1884) (citing
S. 25, 48th Cong. § 4 (1884)).

719

This argument applies to the provisions that were ultimately passed, but it is clearer if one considers the bill's earlier
versions.

720

See supra text accompanying notes 383-85 (discussing requirement for House and Senate concurrence).

56 FLLR 541
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