Boston University School of Law
In a prior article, see Jack Beermann & Gary Lawson, The Electoral Count Mess: The Electoral Count Act of 1887 Is Unconstitutional, and Other Fun Facts (Plus a Few Random Academic Speculations) about Counting Electoral Votes, 16 FIU L. REV. 297 (2022), we argued that much of the 1877 Electoral Count Act unconstitutionally gave Congress a role in counting and certifying electoral votes. In 2022, Congress amended the statute to make it marginally more constitutional in some respects and significantly less constitutional in others. In response to a forthcoming article by Cass Sunstein defending the new Electoral Count Reform Act on policy grounds, we explore how the ECRA reduces the opportunities for members of Congress unconstitutionally to object to electoral votes but in other respects compounds the constitutional problems of its century-and-a-half old predecessor by (a) trying to allocate authority over presidential elections to people, such as congressionally appointed tellers, who cannot receive such authority, (b) trying to restrict the discretion of actors, such as the Vice President, in whom the Constitution vests a small measure of discretion, and (c) trying to issue orders to people, such as state legislators, over whom Congress has no authority.
Gary S. Lawson & Jack M. Beermann,
Congressional Meddling In Presidential Elections: Still Unconstitutional After All These Years; A Comment On Sunstein
Boston University Law Review
Available at: https://scholarship.law.bu.edu/faculty_scholarship/3489