Análisis microscópico del ensayo de colitis

I will not dwell long on the question of whether the statutory framework I have just outlined is constitutional. It seems to me that a constitutional challenge almost certainly would have failed.

As noted above, Congress passed the Electoral Count Act in the wake of the crisis of 1876-77, and with the hopes of preventing a similar crisis and confusion of the type that had arisen in prior in- stances of dispute electoral votes. The Act operated in the context of bare-bones and relatively uninformative constitutional language that had proven inadequate to the task. In a moment of relative political quiet—operating behind a veil of ignorance—Congress adopted a

189. Id. § 15. 190. Id.

191. Id. The statute is uninformative as to the meaning of “regularly given.” I assume, for example, that votes, although cast by lawfully appointed electors, would not be regu- larly given if they were not cast on the date designated by law, or if they were cast outside a meeting held within the state as required by the Twelfth Amendment.

192. Id.

193. POSNER, BREAKING THE DEADLOCK, supra note 2, at 137-41; Posner, Florida 2000,

supra note 2, at 44-45. Among other points, Judge Posner suggests that a battle in Con- gress might have resulted in Strom Thurmond or Lawrence Summers acting as President. 194. 3 U.S.C. §§ 17, 18 (1994).

procedure designed to elaborate on the constitutionally prescribed processes and minimize the probability of future difficulties.

It was entirely fitting for Congress to do this. Not only is Congress the national legislature, but the power in question—the power to de- cide which electoral votes shall be counted—clearly resides within Congress itself. Occasionally, the President of the Senate had as- serted the power, because it is he who is constitutionally designated to receive and open the returns, but that argument seems flimsy. More likely it is the House of Representatives, because the House chooses the President if no candidate receives a majority of electoral votes, or the two Houses concurrently, because it is in front of both that the electoral votes are opened, or conceivably the two Houses deemed to be acting as one body, on a one-member, one-vote basis. In passing the statute, then, Congress was allocating within itself195

power that belonged to it but the constitutional allocation of which was unclear.

Perhaps one might argue that, Congress not having been given an explicit grant of authority to fill in the rules governing the electoral count, any elaboration on the constitutional procedures should be by constitutional amendment. But the argument is unpersuasive. The nation should not have to reach constitutional agreement on the fine- grained mechanical issues addressed by the Electoral Count Act. To say that, absent a constitutional amendment, there can be no law clarifying the allocation of power in conducting the electoral count is to abandon serious hope of adopting any such law. And even if a con- stitutional amendment would be practical and preferable, a deci- sionmaker—especially a pragmatic decisionmaker of the type Judge Posner praises—in the midst of a crisis would have to consider the simple fact that the nation has not adopted such an amendment. If a live electoral dispute had gone to Congress in 2000 and the dispute were to be resolved according to rules previously prescribed, then those rules would have to be the ones laid out long before by the Electoral Count Act. It was the only rule book in town.

Furthermore, the Act has, for over a century, governed routine electoral counts without any dispute as to its constitutionality. Such accretions of authority in undisputed cases must count for something when the Act is finally put to the test in a disputed case.

In any event, it was always highly unlikely that the 2000 election dispute would yield a judicial decision that the Act is unconstitu- tional. As Judge Posner suggests, the Supreme Court presumably would have held a challenge to the Act—an attempt to restrain Con- gress in conducting the constitutionally prescribed count—

195. The statute, like all federal statutes, was presented to the President, but I do not believe that materially altered the situation.

nonjusticiable. It is possible that some members of Congress would have contended in debate that the Act is unconstitutional, or that it only carries the force of rules of the two Houses, and so could be dis- regarded by one House or the other. But such a contention would have appeared transparently to be an attempt to change the rules in the middle of the game, and it would have entailed a steep political price.

I will therefore assume that the process prescribed by the Elec- toral Count Act is constitutional and would have been generally re- garded as binding had the dispute continued into Congress. Now let us see how this process might have worked in the 2000 election. I will run through it under two alternative counterfactual assump- tions.