[EL] ON THE UNENFORCEABILITY OF THE ELECTORAL COUNT ACT

[Schultz, David A.]

Hi all:

If the 2016 presidential election has a major meltdown or if there are
major challenges to the electoral votes in any state, don’t necessarily
count on Congress to be able to resolve the problem.  The reason is that
the law that empowers Congress to resolve electoral vote disputes may be
unconstitutional.   This is the argument that one of my former students and
I make in a recently published law review article.  Given the recent
comments that Donald Trump has made about not necessarily accepting the
results of the election, it is possible that Congress may be called on to
resolve any electoral vote disputes, therefore invoking the Electoral Count
Act of 1887.

The Constitution ultimately vests in Congress the authority to resolve
challenges regarding the allocation and counting of electoral votes by the
individual states.  The statutory basis for how Congress does that is the
Electoral Count Act in 1887.  The Act was passed in light of the disputed
presidential election of 1876. While the Act was not invoked or used by
Congress  in 2000 to resolve the disputed results in Florida, it
nonetheless remains the final word regarding how states appoint electors
and  the form in which votes are to be submitted to and counted by
Congress.  Were Donald Trump, for example, to challenge the election
results, Congress would have the last word in counting the electoral
votes.  Yet as we argue, there are serious reasons to think that the
Electoral Count Act might well be struck down as unconstitutional by the
courts.

The article is titled:
ON THE UNENFORCEABILITY OF THE ELECTORAL COUNT ACT
By: Chris Land & David Schultz

Rutgers Journal of Law & Public Policy, Volume 13, Issue 4 (Fall 2016)

http://www.rutgerspolicyjournal.org/sites/rutgerspolicyjournal.org/files/Land_Schultz_0.pdf
-- 
David Schultz, Professor
Editor, Journal of Public Affairs Education (JPAE)
Hamline University
Department of Political Science
1536 Hewitt Ave
MS B 1805
St. Paul, Minnesota 55104
651.523.2858 (voice)
651.523.3170 (fax)
http://davidschultz.efoliomn.com/
http://works.bepress.com/david_schultz/
http://schultzstake.blogspot.com/
Twitter:  @ProfDSchultz
My latest book:  Presidential Swing States:  Why Only Ten Matter
https://rowman.com/ISBN/9780739195246/Presidential-Swing-States-Why-Only-Ten-Matter
FacultyRow SuperProfessor, 2012, 2013, 2014
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20161023/3d1ab279/attachment.html>