Mike Pence Will Not Have Power to Decide Which Electors to Count

President Trump has chosen to punish Mike Pence’s four years of loyal service by placing him in an impossible position in today’s joint session of Congress, with the untenable claim that Pence has the power, by himself, to throw out slates of electors certified by state governors:

If this were the case, Pence would have the power to give Trump — and himself — another term without the consent of the House or Senate. Encouraging people to believe that this is true puts Pence to a choice: play along and create a constitutional crisis when Congress fights him on it, or abide by the law (as he is expected to do) and have Trump turn on him as a traitor to MAGAland who singlehandedly lost the White House. After everything Pence has done for Trump, the ingratitude of this is stunning, but it is entirely in character with Trump’s petty inability to let anyone escape his orbit without being humiliated, just as he has done to David Perdue and Kelly Loeffler.

It is not a defensible position. The Twelfth Amendment requires electors to send their votes “to the seat of the government of the United States, directed to the President of the Senate,” and provides that “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 President of the Senate is the vice president, when he presides, or the president pro tempore, when the vice president is absent.) The text does not specify who does the counting, or who rules on what shall be counted. It seems significant that the Twelfth Amendment is explicit that the presiding officer opens the votes, and indeed, must open all of them, but reverts to the passive voice when discussing who decides what to count. Some senators complained, when the amendment was presented to Congress, about the ambiguity. A natural reading of the text suggests that the difference in the structure of the two phrases should have some meaning: The vice president does not act alone in doing the counting.

As a matter of history, it would be bizarre if the framers of the Twelfth Amendment wanted to place such sweeping discretion in the hands of the vice president. The Twelfth Amendment was passed after the fiasco of the 1800 election. Under the original Article II procedure, the runner-up for the presidency became vice president. In 1800, the vice president, Thomas Jefferson, ran again against the president, John Adams. Jefferson received the same number of electoral votes as his running mate, Aaron Burr, sending the election to the House. Had Jefferson possessed the power to do so under the original rules, he could have just ruled out one of Burr’s electors; he did not. Moreover, when the Twelfth Amendment was written and ratified, the vice president was still Burr — a man almost universally despised and mistrusted by both parties (Burr killed Alexander Hamilton in a duel a month after the Twelfth Amendment was ratified, long after it was clear that he would be left off the 1804 ticket). The absolute last thing on earth anyone in 1804 would have done was to ratify an amendment to the Constitution to let Aaron Burr, acting alone, decide who the next president would be.

Since 1887, Congress has provided a detailed, statutory roadmap in the Electoral Count Act that limits the power of Congress to deciding disputes between state-sponsored slates of electors, and requires both houses to agree for votes to be rejected. I walked through this process in an earlier column. In order for the vice president to decide, he would have to declare the Electoral Count Act to be unconstitutional — a step neither Richard Nixon in 1960 nor Al Gore in 2000, both sitting vice presidents defeated as candidates in controversial elections, were willing to take. That would swiftly bring on a constitutional crisis, as the House and Senate would disagree with him, and the courts would be deeply hesitant to get involved.

There does remain some constitutional ambiguity over five different possible readings of the Twelfth Amendment’s text:

1. The vice president, who opens the votes, decides what to count.
2. The Senate and House, acting jointly, decide what to count.
3. The Senate and House, each acting separately, decide what to count — which raises the question, if both disagree, of whether it takes both houses to count a vote, or both houses to reject a vote.
4. The House, which decides the presidency in the absence of an Electoral College majority, decides which votes to count for president, and the Senate decides which votes to count for vice president.
5. Congress has the power to provide by statute for a counting procedure.

A few scholars in the years after passage of the Twelfth Amendment did take the view that the vice president decides, though even they tended to do so with the caveat that Congress had the power to legislate a different procedure. James Kent in 1826: “I presume, in the absence of all legislative provision on the subject, that the President of the Senate counts the votes, and determines the result, and that the two houses are present only as spectators, to witness the fairness and accuracy of the transaction, and to act only if no choice be made by the electors.” (Emphasis added.)

But in practice, between 1804 and 1887, the power to decide from very early stages was treated as residing with Congress — and the passage of the ECA decisively embraced the fifth reading. Stephen Siegel’s 2003 law review article “The Conscientious Congressman’s Guide to the Electoral Count Act of 1887” offers a detailed background of this history. So does Vasan Kesavan in this 2003 law-review article arguing that the Electoral Count Act is unconstitutional. Kesavan nonetheless concludes that “the best interpretation as a matter of text and the better interpretation as a matter of history is that the counting function is vested in the Senate and House of Representatives.”

In all that time, nobody has made a serious attempt to lodge the sole power of decision in the vice president over the objections of Congress. The vice president is understood to have some power, as the presiding officer of the process, to make preliminary rulings on points of order and the like, but he can be overruled by Congress. As a matter of textual structure and the background assumptions of 1804 about how legislatures work, it would be unusual for the framers of the Twelfth Amendment to lodge total power, unchecked by the legislature itself, in the presiding officer of the Senate without explicitly saying so. Don’t blame Mike Pence for following tradition, statute, and the natural, historical reading of the Constitution.