Senator Josh Hawley and numerous Republican representatives have indicated that when electoral certifications are set to be counted, they will object to the counting of certifications from several disputed states.

Hawley’s statement did not cite the authority for his objecting, I assume it is the 1887 law, The Electoral Count Act, 3 U.S.C. §§3-21, which provides procedures for raising and resolving objections. (See this 2016 Congressional Research Service Report for a description and citations.)

As I pointed out before, this procedure is a dead end because electors certified by states are counted unless an objection is upheld by both houses of Congress. Since Democrats control the House of Representatives, there is no chance that an objection to a state certified for Biden would be upheld. Maybe there are other political reasons for invoking this procedure — Democrats did it in January 2005 to challenge Bush electors — but no one should think this will change the election outcome. Not even Hawley seems to think that, as his statement makes clear he’s seeking a debate on election integrity or lack thereof in the 2020 election.

That Hawley and Republicans are invoking the statute should put to rest the claim that some have raised that the statute no longer governs because one congress cannot bind a future congress. If that is the case then it’s actually worse for Trump (or any challenger) because the Constitution provides no means of objecting — the certified votes must be counted.

A claim has circulated widely in the past few days that Vice President Mike Pence, as President of the Senate, has the power and discretion to reject certifications. If Pence had such power and chose to exercise it, it would be over, but he doesn’t.

Here is the relevant language of Article II, Section I (after the 12th Amendment)(emphasis added)

The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President.

Note the words. “Shall … open all the Certificates” and “the Votes shall then be counted.” Shall is mandatory, there is no discretion. The certificates must be opened by Pence, and the votes must be counted (it’s unclear who does the counting, but the votes must be counted regardless). No Vice President (whether Mike Pence, Al Gore or future VP Kamala Harris) performing the function of opening the votes has discretion to reject votes. No Vice President has authority to accept votes presented through some extra-constitutional other process.

There is an interesting legal question of what would happen if a state authority presented conflicting votes — for example the legislature certified one set of electors but the executive branch certified a different set — but that has not happened here. No state authority has certified more than one set of electors. A bunch of legislators acting on their own getting together outside the constitutional certification process to announce electors is not presented for counting any more than if I got together with some friends and we delivered an envelope to Pence with our chosen slate of electors. Maybe if legislatures (not legislators) had so acted, we would have a legal conundrum, but that has not happened.

The Congressional legislation provides a mechanism for objections to be raised and resolved. Neither the constitution nor the legislation makes the Vice President king for a day.

The argument that Pence has such power has been circulating based on an article by someone named Alexander Macris (don’t know if it’s a pseudonym) which has been spread by Rasumussen Reports and in articles such as this at American Thinker.  Macris’ analysis doesn’t stand up to simple scrutiny — he bases his views on snippets from law review articles, but they are overstated and out of context, and in any event, law review articles are just opinions, they don’t have any legal authority and certainly don’t usurp the language in the Constitution or congressional legislation.

For example, he cites “Preparing for  a Disputed Presidential Election” (51 Loyola University Chicago Law Journal 2018), Edward B. Foley

The peculiar passive-voice phrasing of this crucial sentence opens up the possibility of interpreting it to provide that the “President of the Senate” has the exclusive constitutional authority to determine which “certificates” to “open” and thus which electoral votes “to be counted.”

This interpretation can derive support from the observation that the President of the Senate is the only officer, or instrumentality, of government given an active role in the process of opening the certificates and counting the electoral votes from the states. The Senate and House of Representatives, on this view, have an observational role only. The opening and counting are conducted in their “presence”—for the sake of transparency—but these two legislative bodies do not actually take any actions of their own in this opening and counting process. How could they? Under the Constitution, the Senate and the House of Representatives only act separately, as entirely distinct legislative chambers. They have no constitutional way to act together as one amalgamated corpus. Thus, they can only watch as the President of the Senate opens the certificates of electoral votes from the states and announces the count of the electoral votes contained therein.

This interpretation of the Twelfth Amendment is bolstered, moreover, by the further observation that the responsibility to definitively decide which electoral votes from each state are entitled to be counted must be lodged ultimately in some singular authority of the federal government. If one body could decide the question one way, while another body could reach the opposite conclusion, then there inevitably is a stalemate unless and until a single authority is identified with the power to settle the matter once and for all. Given the language of the Twelfth Amendment, whatever its ambiguity and potential policy objections, there is no other possible single authority to identify for this purpose besides the President of the Senate. (emphasis added)

Yet this is not even Foley’s opinion. He’s just presenting different viewpoints and his article runs through various “interpretative arguments” on the power of the President of the Senate and possible disputes as to vote counting.  Read the law review article linked above.

Macris also cites “Nobody for President” (16 J.L. & Pol., 2000) by John Harrison, quoting as follows:

The Twelfth Amendment provides that in the presence of the two houses, [the President of the Senate] shall open all the certificates from the electors. But as history shows, there can be more than one purported certificate from a state. Indeed, multiple purported certificates may be the most common cause of dispute. The certificates that the President of the Senate is to open, however, are those of the electors, not those of non-electors. Hence, in order to know which certificates to open, the President of the Senate must know which of competing slates of electors were validly appointed.

…A natural reading [of the Twelfth Amendment] thus indicates that in one especially important context, the dispute is to be resolved by a single individual. Neither House nor Senate is given any authority over the President of the Senate when it comes to opening the certificates, and Congress by statute may not control the exercise of this constitutionally granted authority any more than it may tell the President who to pardon. (emphasis added)

Yet in the very next sentence in the Harrison article not quoted, he opines to the contrary:

It would be hard to imagine that one person had been given this power, even if we did not know that the President of the Senate often would be a candidate for President of the United States. We know that well, as did the authors of the Twelfth Amendment.

There’s also a historical example that gets cited, of Thomas Jefferson counting defective votes.  From this it is argued that Pence could refuse to count allegedly defective votes. But that’s the opposite of what Jefferson did, he counted the votes opened. Law Prof. Jed Shugman writes of that precedent:

My mentor Bruce Ackerman and my friend David Fontana wrote this article (summarized here) about how Adams in 1796 and Jefferson in 1800 counted electoral votes with formalistic problems (Vermont & Georgia, respectively. But there was no Electoral Count Act then. Moreover, the historical record does not suggest a substantive dispute over whether Vermont or Georgia intended the electoral votes to go to Adams or Jefferson, respectively. The vice presidents’ actions in 1796 & 1800 simply are not precedents for Pence to defy the voters or the Electoral Count Act.

I’ve gone farther down this rabbit hole than I should have, particularly on New Year’s Eve. If you want “to fight” on January 6 for political reasons, I get it, I’m as frustrated as you are (maybe more so).

It’s just bothered me that really bad legal takes — and these are not the first — have mislead well-meaning and justifiably-concerned people to think the outcome on January 6 is going to be different.

UPDATE 8 p.m.

There’s a lawsuit in the Eastern District of Texas seeking a declaration and injunction giving Pence the power to decide which electoral votes to count, and declaring the Electoral Count Act void. You can see the docket with links to filings here. Pence has filed an opposition saying he is not a proper party, the relief if any needs to be against the House and Senate.

 

 
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