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

Jack Michael Beermann and Gary Lawson explain the constitutional process for counting electoral votes. It argues that the Constitution does not allow Congress any role in the process, and thus the Electoral Count Act is unconstitutional. Also, it suggests that some lawmakers acted outside of their authority during the election certification process in January 2021.

Discussion Questions

If the Electoral Count Act is unconstitutional, does that negate some lawmakers’ objections to electors on January 6, 2021?