Congress Republicans exploring overturning the electoral coll ege?

[Conkle, Daniel O.]

Congress claims this power and describes this procedure in 3 U.S.C. Sec. 15,
originally enacted in the wake of the 1876 Hayes-Tilden election.  This
statute is incredibly verbose and poorly written, but it is quite clear, in
context, that Congress generally must defer to state law and cannot simply
reject votes on a partisan basis.

Assuming that only one set of electoral votes is submitted from Florida, the
pertinent language of Sec. 15 seems to be this:  Congress must accept
electoral votes if the votes are "regular given by electors whose
appointment has been lawfully certified" by the state, but may reject votes
that "have not been so regularly given by electors whose appointment has
been so certified."  Query, might Congress conclude that the votes were not
"regularly given" or that the certification was not "lawful" if Congress
thinks -- contrary to the state's own judgment, as a matter of state law --
that the electors' appointment was tainted in some way, or that a competing
set of electors actually should have been certified?  I tend to think not,
but I also tend to think that this would be a political question not subject
to judicial consideration.

In the unlikely event that Congress were indeed to reject Florida's
electoral votes, that would apparently mean that no candidate would have a
majority of the "whole number of electors appointed," as required by the
Constitution, and the election at that point would be thrown into the House
of Representatives.  I say "apparently" because, if the congressional
decision actually amounted to a rejection of the electors' *appointment* as
invalid, one could argue that this would reduce the "whole number of
electors [validly] appointed" by 25, reducing the denominator by that amount
and giving Gore a victory with his remaining electoral votes.  In any case,
a political question, I think, should it actually come to that.

Dan Conkle
* * * * * * * * * * * * * * * * * * * * * * *
Daniel O. Conkle
Professor of Law
Indiana University School of Law
Bloomington, Indiana  47405
(812) 855-4331
fax (812) 855-0555
mailto:conkle at indiana.edu
* * * * * * * * * * * * * * * * * * * * * * *


 -----Original Message-----
From: Howard Gillman [mailto:gillman at RCF-FS.USC.EDU]
Sent: Friday, November 17, 2000 12:43 PM
To: CONLAWPROF at LISTSERV.UCLA.EDU
Subject: Congress Republicans exploring overturning the electoral
college?


CNN had a story yesterday reporting that Congressional Republicans are
looking into whether they have the power, by a majority vote of the
Congress, to reject the votes of Florida electors if Gore wins (which is
unlikely).  The story can be found here:

http://www.cnn.com/2000/ALLPOLITICS/stories/11/16/congress.election/

The key language is:

                   According to both memos, any one member of
                   the House joined by any one member of the
                   Senate could object to the disputed Florida
                   electoral votes during the joint session. At that
                   point, each chamber would meet separately to
                   debate and vote on the merits of the objection.

                   Both chambers must agree to reject the electoral
                   votes while only one chamber is needed to accept
                   them, the Republican memo says.

Do we all agree that a majority vote in each chamber to not accept a slate
of electors can result in those electors' votes not being counted?  If so,
why doesn't that mean that WHENEVER one party controls the Congress and the
other party gets a majority of electoral college votes, then the
congressional majority can just undue the results of the election (for
example, by just not accepting California's electors)?

Thanks.

Howard Gillman
USC Political Science