Part 3 ended, "So clearly the Act is not unconstitutional in many of its aspects, yet what is the constitutional authority of the two Houses, acting concurrently, to reject an unlawfully appointed elector's vote or to reject an elector's vote not regularly given?"

Scholarly opinion on this issue is divided. Probably the leading unconstitutionalist is still Vasan Kesavan, Is the Electoral Count Act Unconstitutional?, 80 N. Carolina L. Rev. 1653 (2002). He devotes a long footnote to rebutting the argument my colleague, Beverly J. Ross, and I made in The Electoral College and the Popular Vote, 12 Journal of Law and Politics 665, 705-50 (1996), that the oaths Senators and Representatives take to support the Constitution authorize their rejecting elector votes that do not comply with the several constitutional elector appointment and vote requirements catalogued in Part 3. Kesavan, supra at 1730, note 318. Our oath argument has no case law support for its specific result. But as Ms. Ross and I showed, Senators and Representatives repeatedly relied on the oath argument, starting with the Grand Committee debates in 1804-05, and continuing through the Twenty-Second Joint Rule adoption debates in 1865 and the many Electoral Count Act debates from 1877 to 1887 up to the Senate's extensive 1969 debates whether or not to count the vote of a faithless North Carolina elector, as set forth in Popular Vote, supra at 731-36. The Senate voted to count the North Carolina elector's vote, as did the House. These debates reflect Congress's commitment to the same responsibility for the constitutionality of its enactment, resolutions and other actions that the President and his Executive Branch colleagues and that judges, both State and federal, have for the constitutionality of their decisions.