Constitutional perspectives on the electoral count process

I suspect many readers of this site will find the essay by Benjamin A. Kleinerman to be of interest: “The January 6th “Vote”: Constitutional Authority, Political Leadership, and Civic Education“.

Key quote: “All this handwringing about whether to certify the Electoral College’s vote is entirely play-acting.” It was written before the insurrection.

The three brief responses linked at the bottom of Kleinerman’s essay are also worthy of your attention.

4 thoughts on “Constitutional perspectives on the electoral count process

  1. I think if nothing else, the last five years have shown us that believing anything is sacrosanct is not a good idea in politics. Supreme Court appointments become something that cannot be done on the eve of an election to something that must be done during an election. The right to vote somehow no longer includes the right to vote in a meaningful election where one’s vote has value. Freedom of religion becomes something more and more that serves as a tool for some to impose their religious beliefs on others. Precedent has no value. Norms have no value.

    In this atmosphere, I can’t be surprised that someone will try. We need to reinforce that words have meaning or they won’t anymore.


  2. Barring a constitutional amendment to ensure the federal supreme court returns to a more traditional consensus-based model there’s legislation that could at least ameliorate the situation.

    The congress can create inferior courts at will.

    A federal electoral court could:

    be given jurisdiction over all federal election issues
    be formed of equal numbers of Democratic and Republican nominees
    be bound by law to pursue substantial justice without recourse to technical rules such as standing
    to prevent shenanigans like the on again off again McConnell rule, vacancies would be filled, pending a permanent appointment, by random draw from the circuit courts of appeal bench, still observing the Democratic nominee/Republican nominee rule

    5 in case of a tie the opinion of the state court would prevail

    A new electoral count act would not be a bad idea either.


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