Neither Pence nor Congress Has the Power to Reject State Electoral Votes

Then-Vice President Mike Pence delivers his acceptance speech as the 2020 Republican vice presidential nominee during the 2020 Republican National Convention held at Fort McHenry in Baltimore, Md., August 26, 2020. (Jonathan Ernst/Reuters)
Congress’s only job on Wednesday is to count.

I’m starting to wonder if this is a gag: Like, in order to amuse himself, President Trump is trying to see how far erstwhile “constitutional conservative” Republicans are willing to beclown themselves to … I don’t know, avoid the wrath of his base? Avoid Twitter taunts and schoolyard nicknames? Avoid his threats to campaign against them? Avoid derailment before the 2024 Ambition Train even leaves the station?

Whatever it may be, it’s time to stop. It was actually time to stop a few weeks ago, but this has gotten so irrational it no longer rises even to the level of farce.

The president now says Vice President Pence has the unilateral authority to invalidate state electoral votes that he decides are fraudulent. That is a ridiculous claim. It is not enough to say that it finds no literal support in the Constitution or any federal law. It is antithetical to the Constitution’s core theory of separation of powers — both its vertical aspect, under which the states are sovereign and the disposition of their electoral votes is left to them alone; and its horizontal aspect, in which the branches of the federal government check each other, and no single actor is permitted to accumulate tyrannical power.

In the now-infamous phone conference between the president and Georgia secretary of state Brad Raffensperger (each accompanied by advisers), did you notice that, while Trump browbeat and tried to bully Raffensperger for close to an hour, he never presumed to order Raffensperger to change the state’s election result? Well, that’s because he has absolutely no authority to do such a thing. How easy life would be if a single federal executive official could just tell seemingly lesser mortals what to do. But, see, even the most powerful single official in the United States has no such power. He can’t order Georgia, Pennsylvania, Michigan, Wisconsin, Arizona, and any other state to do anything about their electoral votes. He didn’t try to do it because that would have been absurd.

Well, suggesting that Pence has authoritarian power is equally absurd.

The Constitution gives the vice president no power whatsoever over the states. In fact, the Twelfth Amendment gives him no authority to do anything other than “open all the certificates” by which the states have individually certified their electoral votes. It doesn’t even say he gets to count the votes. After directing the veep to open the certificates, the amendment goes into the passive voice: “and the votes shall then be counted.”

That is because the task is entirely ministerial, as is the vice president’s participation. Yes, it is solemn. After all, a presidential election is being certified. On such an occasion, the Constitution aptly calls for a joint session of Congress, led by the veep in his capacity as presiding officer of the Senate. But Congress is in the role of witness, not judge. Pence and the federal lawmakers are there to observe each sovereign state’s formal certification of which candidate has been awarded its electoral votes, and the tabulation by which the states collectively elect the president.

In fact, under the Constitution, the Senate and House do not even certify the result.

It has become common over the past few weeks for federal lawmakers to refer to the joint session as their “certification” of the Electoral College result. Senator Josh Hawley (R., Mo.), for example, told Fox’s Bret Baier and Martha MacCallum on Monday night that he needed to register some objections on behalf of his constituents because he could not otherwise, in good conscience, “certify” the election. But no one is asking him to certify anything. The Twelfth Amendment simply says the states’ votes get counted, and “the person with the greatest Number of votes for President, shall be President, if such number be a majority of the whole number of Electors appointed” (emphasis added). Moreover, while Senator Hawley repeatedly claimed that Section 15 of the federal election law calls for Congress to certify the states’ votes, the statute says no such thing. Eight times, it refers to certificates or otherwise utters the word certified, but in each instance, it is referring to the state’s certification of its election result or its electors. There is no congressional certification because it’s the states that elect the president. No congressional sign-off is required.

The only interesting question about Wednesday’s joint session should be whether Section 15 of the federal election law is constitutional in that it purports to give Congress a potential objection to the counting of each state’s electoral votes. And note: It purports to give Congress the objection, not the vice president.

I think Section 15 is probably unconstitutional. Congress has no business second-guessing a state’s determination of its own electoral votes; that is the prerogative of the state. But if the statute is constitutional, it is only because it is strictly limited to the exceedingly rare situation in which a state has failed to timely certify its election result. More specifically, there must be an 1876 Hayes/Tilden situation, in which there is real doubt about which candidate’s slate of electors truly represents the state’s election result.

That is, Section 15 is not intended to give Congress what Trump and some congressional Republicans are wrongly claiming that Congress (or Pence) has, namely, a veto over a state’s electoral votes based on generalized grievances about fraud and voting irregularities.

Section 15 is unambiguous (if a bit dense) on this point, stating in pertinent part (my italics):

No electoral vote or votes from any State which shall have been regularly given by electors whose appointment has been lawfully certified … from which but one return has been received shall be rejected.

Recall that in the 1876 controversy, there were states that disputed which slate of electors had been chosen. Some of those states provided more than “one return,” meaning the appointment of their electors was not settled. By contrast, when a state provides only one return, signifying only one slate of electors lawfully appointed under state law, its electoral results may not be rejected.

By its own terms, Section 15 authorizes the two congressional chambers jointly to reject a state’s votes only “when they agree that such vote or votes have not been so regularly given by electors whose appointment has been so certified” (emphasis added). The rest of Section 15 addresses what is to be done when more than one set of electors claims to be the legitimate one. That is the only situation in which the statute contemplates a rejection of the state’s electoral votes. This renders Section 15 completely consistent with Section 5, the safe-harbor provision, under which if a state certifies its election result six days before the Electoral College votes, that certification is binding on the federal government.

Consequently, for purposes of Wednesday’s joint congressional session, there is no legal basis to object, much less to reject any state’s electoral votes. Every state has certified. Every state has just one lawfully designated slate of electors. To the extent there were allegations of irregularities, the courts have ruled. The state certifications were issued prior to the Electoral College vote, as called for by the safe-harbor provision. The certifications are conclusive under federal law. Congress has no right under Section 15 to challenge them.

Does this seem controversial? It shouldn’t. But if it does, then ask yourself this. Let’s say we were back on January 6, 2017, at the joint session of Congress to count the states’ electoral votes, with the expectation that Donald Trump would be recognized as the next president. What if then-Vice President Biden had said on that occasion:

You know, Hillary Clinton was ahead in all the polls, and some reputable polling said Donald Trump had less than a 10 percent chance to win. Yet, I’m supposed to believe he somehow pulled an inside straight and won a bunch of battleground states that all the polls showed him behind in? And he lost the popular vote by nearly 3 million? That is, Hillary got just about the same total of votes that President Obama got when he won in 2012, and I’m supposed to believe she lost? That sounds awfully fishy to me. Look how razor-thin it was in Pennsylvania, Michigan, and Wisconsin. I don’t think we should count those — sure, no one’s proved fraud, but how can we really be sure?

That’s basically what President Trump is asking Vice President Pence to do on Wednesday (except that this time, the Democrat got 7 million more votes than Trump did). What would you have said in 2016 if Biden had done that? What would you have said if a bunch of Democratic senators said, “Let’s not count the votes; let’s freeze everything for ten days so we can have a blue-ribbon commission do an audit”? What would you have said if some blue-state senators and House members lodged objections to the counting of electoral votes from states Trump won — fairly but barely — on unproven suspicions of fraud (to say nothing of unproven allegations of fraud and impropriety that had been rejected, time after time, by state and federal courts).

Can you honestly say that you’d have had no problem with a claim that the vice president had unilateral authority to reject any state’s electoral votes? Or a claim that Congress had the power to create an “Electoral Commission” to “audit” the states’ procedures and second-guess both state and federal courts? Or a claim that Congress had the authority to reject a state’s votes, based on some foot-stamping by Clinton about pervasive fraud, or Russia, or some such?

I kinda doubt it.


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