Sn. Cruz argues that an electoral commission should be set up. The difficulty here is that the Constitution grants Congress the power to determine the Presidency only if the votes of the electoral college do not give a majority to one candidate. [1]

The 1887 Electoral Votes act provides for the resolution of disputes about the electoral returns, true. But the problem here is that (in a formal sense) there are no formal disputes. No state's legislature, executive or judiciary disputes that state's count. [2]

If -- if -- state legislatures or state executives had objected, we might be in a different place and Congress would have some difficult decisions to make. But the truth is that we are not there. [3]

Supposing Congress did throw out States' votes today. What then? They would be doing so in defiance of the 1887 EVA (which is clear that Congress has no role given the certifications), which would mean that they would be acting illegally. That point would surely be litigated. [4]

To prevail, challenges would have to argue that the Federal Courts had no jurisdiction in this case, or that the 1887 Act was unconstitutional. I've written here before about the silence of the 12th Amendment about how disputes should be resolved. [5]

Perhaps some members of Congress think that they have jurisdiction in this case because legislative assemblies often (not always) have jurisdiction over settling disputes that relate to the election of their own members. But that isn't the case here. [6]

Members of the Electoral College are not members of Congress. The case being made by those objecting is therefore one that throws into question the whole idea of whether election law can be made and should be followed. [7]

A large part of the objectors' case rests on the idea that state legislatures have had their Article II authority usurped by executive or judicial action. No state legislature has voted to send an objection to Congress on that basis. But in any case, [8]

The whole idea that the operation of state legislatures (themselves creatures of their own state's constitutional law) cannot be 'checked and balanced' by the usual operation of the other branches of state government is a novel one. [9]

It does raise an excellent question to be asked at Constitutional Law Moot competitions: would a provision in a state constitution directing the state legislature to provide for the selection of electoral college slates on the basis of popular vote be unconstitutional? [10]

I think that to answer 'yes' to that question would be a fairly strange position, though it is no stranger than position taken by many in the classic constitutional 'moot' question: 'can the President pardon himself?' [ends]