The Twentieth Amendment and the Electoral Vote Count [Corrected]Michael Ramsey

December 29, 2024

In The Hill, Evan A. Davis & David M. Schulte suggest a way Democrats could derail the counting of the electoral votes on January 6: Congress has the power to block Trump from taking office, but lawmakers must act now. From the core of the argument (after first asserting that President-elect Trump is disqualified from the presidency by Section 3 of the Fourteenth Amendment:

…[S]pecific legislation designed for this situation already exists. The Electoral Count Act was first enacted in 1887 and later amended and restated in 2022. That statute provides a detailed mechanism for resolving disputes as to the validity of Electoral College votes.

The act specifies two grounds for objection to an electoral vote: If the electors from a state were not lawfully certified or if the vote of one or more electors was not “regularly given.” A vote for a candidate disqualified by the Constitution is plainly in accordance with the normal use of words “not regularly given.” Disqualification for engaging in insurrection is no different from disqualification based on other constitutional requirements such as age, citizenship from birth and 14 years’ residency in the United States.

To make an objection under the Count Act requires a petition signed by 20 percent of the members of each House. If the objection is sustained by majority vote in each house, the vote is not counted and the number of votes required to be elected is reduced by the number of disqualified votes. If all votes for Trump were not counted, Kamala Harris would be elected president.

I think, however, that the authors are wrong to say that an electoral vote for a disqualified person is not “regularly given,” and their saying (without citation) that it’s “plainly in accordance with the normal use of words” doesn’t make it so. A vote not “regularly given” more “plainly” refers to one given illegally (e.g., contrary to state law, or as a result of bribery), involuntarily (under duress or mistakenly), or by an unauthorized person.

In contrast, a vote lawfully and deliberately given by a duly appointed elector to a person not (currently) eligible for the presidency is “regularly given” – that is, given in accordance with applicable laws and procedures. The Constitution does not prohibit a person who is ineligible for the presidency from being a candidate – perhaps, for example, in the hopes that the ineligibility will be lifted. Nor does the Constitution prohibit an elector from voting for a person who is ineligible for the presidency (again, with the thought perhaps that the ineligibility would be lifted). The Constitution only intervenes if a person who is ineligible attempts to take office as President.

Section 3 of the Fourteenth Amendment shows how such a vote might be regularly cast. Section 3 allows Congress (by a two-thirds vote) to lift a disqualification imposed by the Section for engaging in insurrection. (And historically Congress has exercised this power.) So assuming a person is unquestionably disqualified by Section 3: it would still be entirely appropriate for that person to seek the presidency, for electors to vote for that person, and for Congress – if that person won a majority of electoral votes – to lift the Section 3 disqualification. There is no constitutional requirement that the disqualification be lifted before the electoral votes are cast, rather than after.

Of course, in this situation Congress might not lift the disqualification, in which case the disqualified candidate would be constitutionally barred from taking office. But that does not mean votes for that person were not “regularly given” – only that they subsequently turned out to be ineffective.

The Twentieth Amendment – which has been overlooked to some extent in the discussion – confirms this analysis and provides a remedy if an ineligible person is elected. It states:

If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified… (emphasis added)

Thus the Amendment “plainly” (if I may use that term) contemplates that an ineligible person can become President-elect, and that that person becomes President if the ineligibility is removed. And that being so, there’s nothing inappropriate (or “not regular”) about voting for an ineligible person. At least in the case of a Section 3 ineligibility, such a vote could be made in the expectation, or at least the hope, that Congress would lift the ineligibility.

I also think that Section (e)(2) of the Electoral Count Act, which the authors rely on to make Kamala Harris President after a challenge to the electoral votes, is unconstitutional. [Ed.: But see correction below.] As they describe it:

This is indeed what Section (e)(2) indicates, but it’s flatly contrary to the Twelfth Amendment, which says:

The person having the greatest number of [electoral] votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. (emphasis added)

Thus, if an elector is appointed but that elector’s vote is not “regularly given,” this does not reduce the number of votes needed to be elected. It is a majority of the electors appointed not (as the Electoral Count Act says) a majority of the votes given, that the Twelfth Amendment requires for election. And Congress cannot provide for a lesser number of votes than the Constitution requires.

In sum, the authors are wrong on two counts. An electoral vote for an ineligible candidate is “regularly” (though perhaps futilely) given under the Twentieth Amendment, and so cannot be challenged under Section (d)(2)(B) of the Electoral Count Act. And even if Congress (wrongfully) rejected all of President-elect Trump’s votes on this ground, the result would be that no candidate received a majority of the “whole number of electors appointed” – which under the Twelfth Amendment results in the House of Representatives choosing the President.

CORRECTION: As to Section (e)(2), Derek Muller (Notre Dame) writes:

There's an error in that Hill piece, which you unfortunately rely upon. Here's 15(e)(2):

If the number of electors lawfully appointed by any State pursuant to a certificate of ascertainment of appointment of electors that is issued under section 5 is fewer than the number of electors to which the State is entitled under section 3, or if an objection the grounds for which are described in subsection (d)(2)(B)(ii)(I) has been sustained, the total number of electors appointed for the purpose of determining a majority of the whole number of electors appointed as required by the Twelfth Amendment to the Constitution shall be reduced by the number of electors whom the State has failed to appoint or as to whom the objection was sustained.

And here's 15(d)(2)(B)(ii):

(ii) Grounds for objections.—The only grounds for objections shall be as follows:

(I) The electors of the State were not lawfully certified under a certificate of ascertainment of appointment of electors according to section 5(a)(1).

(II) The vote of one or more electors has not been regularly given.

As you can see, 15(e)(2) does contemplate reducing the denominator required for a majority. But it expressly provides that it is only in those cases (a) where a state has failed to appoint its full slate of electors (e.g., New York in 1789, where it appointed zero), or (b) where the objection is under (I), not "lawfully certified." For an objection of not "regularly given," it is (II), and would not include a reduction in the denominator. The writers of this Hill piece (no particular experts themselves) were quite sloppy in interpreting the new, carefully crafted ECRA.

Professor Muller is right, of course. That's what I get for relying on The Hill instead of studying the statute closely myself. Apologies. (In particular, apologies to drafters of the ECRA.)

So as actually written, Section (e)(2) is consistent with the Twelfth Amendment, because it only reduces the number of electoral votes needed for election when there is a defect in the appointment of an elector, not when there is a defect in a vote by a duly appointed elector. My conclusion should have been: If Section (e)(2) said what the authors of The Hill's essay say it said, it would be unconstitutional.

Posted at 6:03 AM