by Atty. Mario Apuzzo, ©2020

The Disputed Hayes-Tilden Election of 1876

(Dec. 30, 2020) — This article was inspired by my recent two-part interview (Part I and Part II) with the Post & Email and some of the public comments that followed.  The question is whether both Houses of Congress need to reject a single return of a state’s Electoral College vote for an objection made during the joint session of Congress on January 6, 2021, to prevail.  As explained below, both Houses of Congress do not have to agree to reject that state’s Electoral College votes for those votes to be voided. 

There are five scenarios under Section 15 of the Electoral Count Act of 1887(3 U.S.C. § 1 et. seq.) (“ECA”) for counting and resolving Electoral College votes disputes in the joint session of Congress.  Scenarios 1 through 4 deal with cases in which both Houses either agree or disagree to the regularity of the votes.  Scenario 1 is the only case in which Congress receives just one Electoral College return and both Houses must agree to reject the vote.  Scenario 5 is the only one of the five scenarios in which the two Houses disagree, but it only applies when Congress receives competing electoral returns (one state submits to Congress more than one Electoral College vote return).  With such disagreement, it provides that the stalemate between the Houses shall be broken by Congress having to accept the electoral votes which a state’s executive (Governor) shall have certified. Hence, under Section 15, one could argue that Scenario 5, which allows for a case in which both Houses disagree, only applies if Congress receives official competing electoral returns and that if it receives only one such return then the two Houses must under Scenario 1 both agree to reject that vote.  As explained below, Congress in joint session is not shackled by Section 15 because Section 15 is unconstitutional and even if constitutional, it does not apply to a case of a corrupt underlying popular vote. 

Again, there are five scenarios for resolution under Section 15 of the ECA.  Scenarios 1 through 4 deal with cases in which both Houses either agree or disagree to the regularity of the votes.  Scenario 5 provides: 

“(5) 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.”

Scenario 1 only deals with cases in which there is only one return of a state’s electoral votes.  It says that the votes must be counted unless both Houses reject the vote. So here we have both Houses agreeing with each other to reject the vote. Implicit is the case in which both Houses agree to accept the vote either with no objection by any Senator or Representative or with voting to accept the electoral votes after an objection. In both cases, the Houses are agreeing with each other.       

Scenario 2 through 5 deal with cases in which there is more than one return of a state’s electoral votes. Scenario 2 is applicable only if there was a “safe harbor” determination by a state’s “judicial or other methods or procedures.” Scenario 3 only applies if there is a dispute as to what state authority is the legal authority to appoint the electors and “the lawful tribunal of such State” decides the matter.  But again, both Houses must agree on that decision. Scenario 4 only applies if there is no “safe harbor” relief as to which of two electoral vote returns are the valid ones.  Again, both Houses must either agree to accept or reject a return. Scenario 5 is the only one of the five scenarios in which the two Houses disagree. With such disagreement, it provides that the stalemate between the Houses shall be broken by Congress having to accept that slate of electors which a state’s executive (Governor) shall have certified.

So, Scenario 1 through 4 of Section 15 of the Electoral Count Act only apply if both Houses of Congress agree, either to accept or reject any state’s electoral votes.  They do not apply if both Houses of Congress disagree with each other.  What applies in that case is Scenario 5.  Scenario 5 is the only one in which the ECA includes the possibility of both Houses disagreeing on how which of the competing electoral returns are to be counted.  But we cannot use Scenario 5 if Congress received only one Electoral College vote return from a state.  Furthermore, the provision purports to resolve the dispute between the Houses through the governor’s certification. Seven contested states, Arizona, Georgia, Michigan, New Mexico, Nevada, Pennsylvania, and Wisconsin all sent competing electoral returns to Congress. No governor of any of those states has certified the Republican returns.  Hence, Congress can easily just ignore those competing Republican returns and treat each such state as having provided just one electoral return. 

Notwithstanding this statutory structure, in a case in which Congress only received one state’s official electoral return, both Houses of Congress do not have to agree to reject that state’s Electoral College votes for those votes to be voided. First, it is doubtful that Section 15 of the ECA is constitutional.  Simply, Congress cannot substantively amend the Constitution with a statute.  Congress amended Article II, Section 1 with the Twelfth Amendment because it saw the original Constitution as having not provided for a substantive election problem.  If Congress wanted to substantively change the Twelfth Amendment, again for failure of the Constitution to have provided a solution to a certain problem, it had to do so with another amendment as it did through the Twentieth Amendment. Congress cannot just carve out pieces of the Twelfth Amendment and then change them with a statute such as Section 15 of the ECA. The necessary and proper clause of Article I, Section 8, Clause 18 of the Constitution does not apply here to save Section 15.   

Second, even if Section 15 of the ECA is constitutional, it does not apply to limit Congress’s power in a case of a state’s corrupt popular vote, including a case in which voters in a popular election and electors of the Elector College voted for a candidate who is not an Article II natural born citizen.  It is neither the popular election nor the Electoral College that wields the ultimate power to select the President and Vice President.  Rather, the Constitution ultimately tasks Congress with that authority.  The purpose of the ECA as a whole is to assist Congress in deciding how and which electoral votes of a state to count when in joint session. While Section 15 requires that a state’s Electoral College votes be “regularly given by electors,” it does not address cases in which there is a corrupt underlying popular vote. Section 15 does not apply to limit Congress’s power when faced with a corrupt underlying state’s popular vote. Section 15 therefore does not address cases in which a state’s underlying popular vote was corrupted.

Section 15 does not provide for objections by Senators or Representatives based on corruption of a state’s underlying popular vote. In fact, other than to require that the elector’s vote be “regularly given,” the section makes no mention of the possibility of a state’s popular vote being corrupt.  Hence, both Houses do not have to agree to reject a state’s Electoral College votes.  There can be a case in which for political reasons the two Houses disagree.  If that were to happen, a governor’s certification of any state’s Electoral College votes could not hamper Congress’s constitutional duty to assure that “[t]he United States shall guarantee to every State in this Union a Republican Form of Government” (Constitution, Article IV, Section 4), which means that it must guard our elections from any corruption that would endanger our system of majority rule.  The Constitution is the supreme law of the land which means that the Constitution always prevails over a federal or state statute.  Members of Congress take an oath or affirm to support and defend the Constitution. Congress must have the constitutional power, if not express then implied, when counting Electoral College votes not to count corrupted and therefore unconstitutional popular votes which are the predicate for those Electoral College votes.  Scenario 1 of Section 15 tells us that much in its provision that the two Houses can reject a state’s Electoral College vote that they conclude has not been “regularly given by electors” of that state even if their “appointment has been so certified” by that state’s governor. 

Section 15 of the ECA cannot force a House of Congress to count a vote when it would be a violation of the Constitution to do so.  If Congress cannot agree to accept a state’s Electoral College votes (both Houses disagree) because one House concludes that those votes are based on a corrupt underlying popular vote, then that state shall have failed to follow the command of Article II, Section 1, Clause 2 which provides that “[e]ach State shall appoint, in such Manner as the Legislature thereof may direct” its electors. Indeed, if a state can take back the power to appoint electors, then it can lose that power for having conducted an illegal election of those electors. States have rights under our Constitution, but not the right to violate the Constitution.  With such a constitutional violation, no candidate is allotted that state’s Electoral College votes unless, and as to not disenfranchise that state’s voters, a candidate can demonstrate that he or she was the true winner of that state’s popular vote and that therefore that state has satisfied its constitutional duty. If no candidate can show that he or she received the required majority of all the Electoral College votes (270 of 538), then the House of Representatives shall elect the President and the Senate the Vice President as provided for by the Twelfth Amendment.


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  1. “Scenario 5 is the only one in which the ECA includes the possibility of both Houses disagreeing on how which of the competing electoral returns are to be counted.”

    Mario’s scenario 5 is the answer to his scenarios 2 – 4. Those scenarios only answer what to do if both Houses agree. They do not include a result of both Houses disagree. His scenario 5 takes care of that.