How to Stop the Trump Steal in 2024: Fixing Section 15 of the Electoral Count Act
By: Armando Dkos
Tags: Electoral Count Act, Coup, Trump, Republicans

How to Stop the Trump Steal in 2024: Fixing Section 15 of the Electoral Count Act

There has been a lot of discussion of the threat of the potential for a Trump “steal” of the 2024 Presidential Election. In particular Rick Hasen and Greg Sargent have done great work. In the recent telling however, it feels like the the biggest failing in our system that creates the threat of a Trump steal has been pushed to the background. That is Section 15 of the Electoral Count Act, which purports to permit a majority of both houses of Congress to reject the certified electoral votes from States. In fact that would be unconstitutional in my view. The 12th Amendment simply does not permit this. But that’s a different article. Because whatever anyone thinks, there is no definitive ruling declaring that Congress can not do this.

In the meantime the threat of Section 15 of the ECA is just sitting there waiting for Trump to abuse in 2024. I present here an attempt to provide a simple amendment to Section 15 of the Electoral Count Act that at the least will remove any lawful fig leaf to a Republican steal of the 2024 election on January 6, 2025.

The Electoral Count Act

I assume most readers are familiar with the origins of the Electoral Count Act — the 1876 Presidential Election produced a disputed election where various Southern states had conflicting electoral votes presented to Congress and a stalemate occurred as to which votes to count. Eventually a commission was named, a political bargain was struck ending Reconstruction and Rutherford B. Hayes became President. Weirdly the Electoral Count Act isn’t passed until 1887, 11 years later. In any event, it did become law though for the next 113 years, it really wasn’t an issue. Then Bush v Gore happened and the Rehnquist Court in Bush v. Palm Beach County Canvassing Board raised the safe harbor provision of Section 5 of the Electoral Count Act to a foundational Constitutional principle:

We granted certiorari on two of the questions presented by petitioner: whether the decision of the Florida Supreme Court, by effectively changing the State’s elector appointment procedures after election day, violated the Due Process Clause or 3 U. S. C. §5, and whether the decision of that court changed the manner in which the State’s electors are to be selected, in violation of the legislature’s power to designate the manner for selection under Art. II, §1, cl. 2 of the United States Constitution. 531 U. S. ____ (2000). . . . In addition, 3 U. S. C. §5 provides in pertinent part: “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.” The parties before us agree that whatever else may be the effect of this section, it creates a “safe harbor” for a State insofar as congressional consideration of its electoral votes is concerned. If the state legislature has provided for final determination of contests or controversies by a law made prior to election day, that determination shall be conclusive if made at least six days prior to said time of meeting of the electors. The Florida Supreme Court cited 3 U. S. C. §§1–10 in a footnote of its opinion, App. to Pet. for Cert. 32a, n. 55, but did not discuss §5. Since §5 contains a principle of federal law that would assure finality of the State’s determination if made pursuant to a state law in effect before the election, a legislative wish to take advantage of the “safe harbor” would counsel against any construction of the Election Code that Congress might deem to be a change in the law. . . . 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. We are also unclear as to the consideration the Florida Supreme Court accorded to 3 U. S. C. §5. The judgment of the Supreme Court of Florida is therefore vacated, and the case is remanded for further proceedings not inconsistent with this opinion.

The Palm Beach County Canvassing Board opinion is the genesis of the “independent state legislature” doctrine that has been used off and on by Republican justices to achieve the results they prefer in election cases. In the runup to the 2020 election. Judge Kavanaugh wrote a noted footnote on it and Justice Alito segregated certain Pennsylvania mail in ballots based on it. Luckily neither of these decisions had a dispositive effect in any state and Trump’s clown car of lawyers never gave the Supreme Court any foothold to decisively intervene in his favor.

But I like revisiting Bush v Gore cases for a point that I now think is paramount regarding the real threat in 2024 — it is Section 15 of the Electoral Count Act. Let me illustrate with a hypothetical — suppose instead of Bush it was Gore who prevailed in Bush v Gore and Florida certified its electoral votes to Gore instead of Bush. What COULD have happened on January 6, 2021?

Well according to Section 15 of the Electoral Count Act:

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 Vice President 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 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. . . .

(Emphasis supplied.) On January 6, 2001, While Al Gore was the Vice President, Republicans held the House and would hold the Senate (it was 50–50!!) once Cheney became VP. Can you imagine the chaos! Al Gore would have declared himself the next President of the United States in the most contentious situation that could ever be devised. Of course, Al Gore conceded the election after the Supreme Court decided in December 2000 so none of this became an issue. What would George W. Bush have done? Imo not concede the election. And of course we know Trump will NEVER concede the Election. So imagine January 6, 2025, Biden (or Harris!) wins a close election, Trump doing what he did then, fortunately without control of the government. Republicans control the House and Senate. Kamala Harris remains the VP. How does this go then?

Well Section 15 of the Electoral Count Act says explicitly “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. . . .” As I say, this provision violates the 12th Amendment imo, but no court has said so and won’t say so before January 6, 2025. Thus it must be amended. So how do we amend it?

Proposal for Amending Section 15 of the Electoral Count Act

In an interview with Isaac Chotiner, Professor Hasen says:

[F]ixing the 1887 Electoral Count Act. That’s this arcane federal law that explains how Congress is supposed to count the Electoral College votes from each state. One of the provisions in there says you only need an objection from one senator and one representative in order to go into separate trial sessions to negotiate over whether or not Electoral College votes should be accepted or rejected. There should be a much higher threshold, and there should be a substantive standard for rejecting those votes.

My proposal is about the substance though a higher threshold is certainly a good idea too. What would I change? The provision I objected to above:

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. . . .

would be amended to read:

but the two Houses concurrently may reject any vote or votes which are not conclusive as provided by Section 5 of this Act or which have been lawfully certified according to section 6 of this title.

Section 5 is the famous safe harbor provision we heard so much about during Bush v Gore. Didn’t hear about it much last year. Section 6 is the provision that requires a Governor to submit its certified electoral votes. If my proposed language were law, it would have made all the objections made by Republicans on January 6, 2025 out of order.

Well who would rule them out of order? Well the President of the Senate. Al Gore ruled the objections to the Florida electoral votes for Bush in 2000 out of order because they did not comply with Section 15. The President of the Senate would have the same role in January 2025.

But you might object, what if the States do not certify Biden even though he won? What if a Republican Governor doesn’t send in the certification as required by Section 6? Well laws in and of themselves aren’t solutions to lawlessness. Biden’s lawyers will have to win those battles at the state level. But it does no good to win those battles at the state level if a Republican Congress can just do whatever it wants on January 6, 2025.

As Section 15 of the Electoral Count Act reads now, it would be lawful for a Republican Congress to throw out any electoral votes it wants by a majority vote in each house. I can not imagine a bigger threat to our democracy than that.