Congress Must Count the Votes: The Danger of Not Including a State's Electoral College Votes During a Disputed Presidential Election

Imagine this (nightmare) scenario: In the November 2020 election,

one party wins control of both Houses of Congress, and the presidency comes

down to a disputed election in a state that typically leans toward the other party.

Let's say that Republicans take back a majority of the House of Representatives,

retain control of the Senate, and the presidency will depend on a swing state like

Pennsylvania-a state that voted for the Democratic nominee from 1992

through 2012 but the Republican nominee in 2016. Assume also that Congress,

now fully under Republican control, receives two competing slates of electoral

college votes from Pennsylvania stemming from ballot counting disputes: one

slate for Donald Trump and the other for Joe Biden. Or perhaps Congress

receives only one slate of electoral college votes, in favor of Biden, but Trump

and other Republicans claim that voter fraud make the totals from Pennsylvania

inaccurate. On January 6, 2021, Congress will count the electoral college votes

and announce the winner of the presidency. During a dispute, can Congress

refuse to count any electoral college votes from a particular state that is

embroiled in controversy? Could Congress simply ignore Pennsylvania's

submission in this scenario?

The short answer is that although Congress has the statutory authority to

disregard a state's electoral votes entirely, that option should generally be off

the table.

In the unfortunate situation that a disputed presidential election ends up in

Congress, the two Houses could theoretically refuse to count any electoral

college votes from a particular state under the federal Electoral Count Act

(ECA), which provides rules for Congress to follow when resolving a disputed

presidential election. To be sure, the ECA already includes a presumption that

Congress must count electoral college votes unless both Houses agree not to

count them. But there are no standards to guide Congress's decision, meaning

that both Houses could reject a state's submission based on pure partisanship.

In addition, the ambiguous language of the statute leaves open the possibility

that Congress could fail to credit a state's electoral college votes even if only

one House rejects them.

Instead, the presumption, though not absolute, should be almost

impenetrable: absent evidence of bribery or the like, and unless there is strong

bipartisan agreement in both Houses, Congress should count votes from all fifty

states (and D.C.), even if one or more states are disputed. This short essay

explains why a refusal to count electoral college votes-absent a bipartisan

agreement that actual evidence proves bribery or something similar-would be

wrong as a matter of democratic principle and would violate core constitutional

norms.