Morgan Griffith and Ben Cline were among the 138 House objectors to the Electoral College vote. Others have rightfully condemned them for their actions. But, relying on the 2000 opinion in Bush v. Gore, they have tried to justify their conduct on legal grounds. As a member of the bar of the Supreme Court of Virginia and the Supreme Court of the United States, I write to explain—in common-sense terms—why their legal arguments are rubbish.
First, some background. Our Constitution divides power between state governments and the federal government. Relevant here, it gives state governments, not the federal government, the power to decide the fairness and legitimacy of presidential elections. Each state gets a certain number of “electors” to vote in the Electoral College. Citizens cast votes for their state’s electors by choosing the candidate that those electors have pledge to vote for. State election officials count those votes. And after determining which slate of electors received the most votes, governors of each state “certify” a list of electors and send it to Congress. This is a straightforward process.
The 12th Amendment to the Constitution, which governs presidential elections, does not give Congress any power to reject duly certified lists of electoral votes. Congress’s only role is to count the electoral-college votes and announce the results. As the 12th Amendment states: “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.” Simply stated: Congress has the duty to count Electoral-College votes, not the right to say which votes count.
It is true that, under the Electoral Count Act (3 U.S.C. § 15) members of Congress can object to the counting of votes. But the only proper basis for making such an objection—i.e., the only way that such an objection can prevail—is if there are competing slates of electors certified by a given State. For example, if Virginia certified and affixed the seal of the Commonwealth to two different slates of electors (e.g., one by Governor Northam and one by another person purporting to be Governor), then the Electoral Count Act gives Congress the power to determine who was the proper certifying authority for Virginia and, thus, who are the proper electors from the Commonwealth.
But that’s not what happened here. The states in question, Arizona and Pennsylvania, each submitted only a single slate of electors. Each slate was certified by the Republican Governors of the respective states. So there was no need for Congress to decide between competing slates of electors. Congress’ only duty was to open envelopes and tabulate the results.
The objecting Republican House members cite Bush v. Gore to justify their action. To paraphrase Lloyd Bentsen: I know Bush v. Gore. This case is no Bush v. Gore.
To begin with, Congress is not a court of law. The state and federal courts, not Congress, have authority to resolve cases and controversies. This includes disputes over election results. I think even non-lawyer readers will recognize, in an instant, that it would be insane to allow Congress to determine which electoral college votes to accept. Why bother having an election? Congress would just cherry-pick which votes to accept. Whoever controlled Congress would control the presidency. So much for separation of powers.
Second, their objection comes far, far, too late. The lawsuits in Bush v. Gore occurred while votes were still being tabulated and before the governor had certified the results. Here, Arizona’s (Republican) governor certified the results on December 8, 2020, and Pennsylvania’s (Republican) governor certified the results on November 24, 2020. Under the Electoral Vote Act, results certified on or before December 8, 2020 “shall be conclusive, and shall govern in the counting of the electoral votes as provided in the Constitution.” (See 3 U.S.C. § 5.) In other words, the time for contesting election results was over on December 8, 2020.
Finally, the objections made on January 1, 2021, were an attempt to disenfranchise all the voters of two sister states. By contrast, the lawsuit in Bush v. Gore was simply an attempt to stop a recount. If I were a citizen of Arizona or Pennsylvania, I would be outraged that a Virginian Congressman was trying to take away my votes.
Mr. Griffith and Mr. Cline are both talented lawyers. They knew better than to sign onto this legal hogwash. And they knew that their challenge had no legal basis and would fail. I’ll leave it to the reader to speculate why they did what they did.
Rainsbury is an attorney in Roanoke.