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Memo 01.18.2021

Setting the Record Straight on the POTUS “Ask”

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Vice President Pence was not asked to reject electoral votes.

In his letter of the morning of January 6, Vice President Mike Pence asserted that “[s]ome believe that as Vice President, [he] should be able to accept or reject votes unilaterally.” He repeated the claim later in the letter: “vesting the vice president with unilateral authority to decide presidential election contests would be entirely antithetical to [the] design” of separation of powers and checks and balances given to us by our founders. And then a third time, he wrote: “I do not believe that the Founders of our country intended to invest the vice president with unilateral authority to decide which electoral votes should be counted during the Joint Session of Congress.” And a fourth: “It is my considered judgment that my oath to support and defend the Constitution constrains me from claiming unilateral authority to determine which electoral votes should be counted and which should not.” 

With all due respect to the vice president, that is not what the president asked when all was said and done. But before I elaborate on that below, let’s explore just what constitutional authority the vice president has, by way of some hypothetical scenarios.

Suppose a Democrat governor in a state Trump clearly won—North Carolina, perhaps, or Kansas—were to certify the Biden slate of electors and transmit that certificate and the subsequent electoral votes to the president of the Senate (that is, the vice president of the United States). Republican legislators in the state howl about the fraud, but because the governor refuses to call the Legislature into special session, they can do nothing about it except send a letter notifying the vice president of the fraud. Is it really the case that nothing can be done?

Congress has asserted in section 15 of the Electoral Count Act of 1887 that it has the power to reject electoral votes if both houses determine that they were not “regularly given.” Yet there is no direct constitutional support for that assertion of power. The 12th Amendment merely assigns an observational role to the House and Senate during the Joint Session of Congress. Specifically, the relevant language of 12th Amendment provides that “the president of the Senate [that is, the vice president] shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted” (emphasis added). The actual counting of the electoral votes is in the passive voice. However, because the only affirmative role conveyed by the active voice—to open the certificates—is assigned to the vice president, legal scholars and political figures throughout history have contended that the counting is assigned to the vice president as well.

The issue then is whether the power to “open” and to “count” the electoral votes is merely ministerial, as the vice president claimed in his letter of January 6, or whether it implies any power to determine the legitimacy of the votes. Here, another example—one rooted in two historical precedents—will help.

The Vice President’s Role

Suppose that, instead of the false certificates provided by the Governors of North Carolina and Kansas described in the hypothetical above, there were two slates of electors certified from each of those states—the erroneous certificate from the governor, and a certificate from the legislatures of each state that was issued in accord with the actual results of the election. The 12th Amendment specifies that the vice president “shall…open all the certificates, and the votes shall then be counted.” Read hyper-literally, that would require the vice president to open and count both sets of electoral votes. That cannot possibly be correct, so some judgement has to be made as to which slate of electors to count.

Here again, the Congress has asserted authority to make that judgment. Section 15 of the Electoral Count Act provides that in the case of multiple slates of electors, the one to be counted is the one that the two houses of Congress (i.e., the House of Representatives and the Senate), “acting separately, shall concurrently decide” to count. If the House and the Senate cannot agree, Section 15 further provides that the slate “certified by the executive of the State” shall be dispositive—even though in our hypothetical it was clearly fraudulently given, and countermanded by the certification of the Legislature. 

A good number of legal scholars agree that Section 15’s provision of tie-breaking weight to the “executive” (as opposed to the legislatively-sanctioned slate) is a violation of Article II’s assignment to the Legislature of the power to choose the manner for choosing electors. But legal scholars, as well as historical political figures, have also contended that Congress’s claim of authority to make that determination at all is itself a usurpation of power that the 12th Amendment assigns solely and exclusively to “the president of the Senate.”

This view was recently espoused most thoroughly by Vasan Kesavan,[1] who researched the article under the tutelage of prominent Yale Law Professors Bruce Ackerman and Akhil Amar, among others. University of California Law School Professor John Yoo took a similar view, arguing just last October:

Though the 12th Amendment describes the counting in the passive voice, the language seems to envisage a single, continuous process in which the vice president both opens and counts the votes…. And if “counting” the electors’ votes is the vice president’s responsibility, then the inextricably intertwined responsibility for judging the validity of those votes must also be his. 

Yoo found this to be “the better reading” and urged “that Vice President Pence would decide between competing slates of electors chosen by state legislators and governors, or decide whether to count votes that remain in litigation.” “The check on error or fraud in the count is that the vice president’s activities are to be done publicly, ‘in the presence’ of Congress,” he added. 

Professor Edward Foley, the Director of the Election Law Center at Ohio State University Moritz College of Law,[2] has likewise acknowledged the plausibility of that argument, noting in a recent law review article:

Despite [the Twelfth Amendment’s] ambiguity, or perhaps because of it, 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.

Edward B. Foley, Preparing for A Disputed Presidential Election: An Exercise in Election Risk Assessment and Management, 51 Loy. U. Chi. L.J. 309 (2019).

Foley also noted that this interpretative argument “has a significant historical pedigree,” albeit one that has also had “vociferous detractors.”

Hitting Pause

All this by way of background to show that whether or not Vice President Pence had the constitutional authority to determine that certain slates of electors were invalid remains an open question. Andrew McCarthy’s claim in a January 8 article in The Hill that “what the president pressured [Vice President Pence] to do was blatantly lawless” is therefore quite inaccurate, though it has certainly been regurgitated in one form or another by others in numerous other media outlets. 

But whether it is accurate or not, that was not what the vice president was asked. Here is the relevant portion of the president’s speech from the Ellipse on January 6: 

We’re supposed to protect our country, support our country, support our constitution, and protect our constitution. States want to revote. The States got defrauded. They were given false information. They voted on it. Now they want to recertify. They want it back. All Vice-President Pence has to do is send it back to the States to recertify, and we become president, and you are the happiest people (Emphasis added). 

That was consistent with my own remarks just prior to the president’s: “And all we are demanding of Vice President Pence is this afternoon at 1:00 he let the Legislatures of the States look into this so we get to the bottom of it and the American people know whether we have control of the direction of our government or not.”

In other words, the vice president was not being asked to decide the matter himself, but to pause the proceedings long enough to give the couple of states whose legislators had asked for more time to assess whether the illegal conduct by their state election officials—illegal conduct that Pence himself twice acknowledged in his statement—was sufficient to warrant revoking the existing certification and submitting a new one that accurately reflected the state’s vote, just as Hawaii had done in 1960. 

Pence was thus being asked to let the matter be resolved by the State Legislatures—which is just where Andy McCarthy claimed it should be resolved. “In our system,” he wrote, 

it is the states that choose the president, and the Constitution gives them sovereign authority over the disposition of their electoral votes. There is no federal check—not Congress, not the vice president—over how the states, pursuant to their own laws, certify the elections they conduct and the electors they appoint to cast their electoral votes. 

The difficulty was that the existing slates of electors had not been certified after an election conducted “pursuant to [the states’] own laws.” Pence was simply being asked to provide the state legislatures in the contested states with the time necessary to properly assess the legitimacy of their electoral votes. (As an aside, McCarthy’s claim that there is “no federal check” in either Congress or the vice president ignores that the Electoral Count Act provides just such a check, allowing Congress itself, as noted above, to determine if the electoral votes transmitted to it were “regularly given.”)

Obstructionism and the Road Ahead

Why did such a request come so close to the designated date for counting electoral votes? Because the governors in each of the contested states simply refused to call the legislatures into special session back in December, when a more orderly and timely investigation might have been had. But as the legislatures were coming back into session in early January, numerous legislators begged Pence to hit the pause button and let them investigate, in a transparent way so that the American people could have the chance to learn the truth about the election, whatever it was.

In a January 4 letter, 21 members of the Pennsylvania Senate, including the powerful president pro tem of the Senate, outlined the numerous instances of violations of state law by state election officials and even the judiciary in the conduct of Pennsylvania’s election, thereby usurping the sole power that the Legislature has pursuant to Article II of the federal constitution to determine the manner for choosing presidential electors. Because of those illegal actions, the Senators noted “that PA election results should not have been certified” and asked that the Congress “delay certification of the Electoral College to allow due process as we pursue election integrity in our Commonwealth.”

Similar letters were sent from Pennsylvania house members, and from legislators in Arizona, Georgia, and Michigan. Arizona’s included this: “based upon the clear and convincing nature of the evidence [of illegality and fraud], we respectfully ask that you recognize our desire to reclaim Arizona’s Electoral College Electors and block the use of any Electors from Arizona until such time as the controversy is properly resolved through the pending litigation or a comprehensive forensic audit.” The Assembly in Wisconsin even passed a formal resolution. 

The vice president was apparently advised that he was obligated to allow a count of questionable elector votes to proceed because a minor subsection of the Electoral Count Act of 1887 provides that the “joint meeting [of Congress] shall not be dissolved until the count of electoral votes shall be completed,” and that no recess could be taken except for the separate houses of Congress to decide upon any objections that were raised. On this view, a minor procedural provision of the 1887 Act was so sacrosanct that it could not be suspended even to give the state legislatures time to ensure that illegal electoral votes did not determine the election of the next President of the United States.

Ironically, Vice President Pence, Speaker Nancy Pelosi, Majority Leader Mitch McConnell, and Minority Leader Chuck Schumer all violated other provisions of that sacrosanct Electoral Count Act later in the evening when it served their purpose. Section 17 of that act limits debate on objections to two hours, at which point the presiding officer (that would be VP Pence in the Senate) “shall…put the main question without further debate.” That debate went about 2 hours and 40 minutes (not including the time in recess due to the incursion into the capital), in violation of the statute. 

The debate in the House went even longer, also in violation of the statute. And at the conclusion of the vote in the Senate, Majority Leader McConnell moved to take up other business and allow for additional debate, in violation of the provision of the Electoral Count Act that they shall “immediately” reconvene in joint session. So much for the sacrosanct set of procedures in the Electoral Count Act.

A large portion of the American citizenry believes the illegal actions by partisan election officials in a few states have thrown the election. They saw it with their own eyes—in Fulton County, Georgia, where suitcases of ballots were pulled from under the table after election observers had been sent home for the night; in parts of Wayne County (Detroit), Michigan, where there are more absentee votes cast than had been requested; in Dane County (Madison), Wisconsin, where supposedly neutral election officials coordinated with the Biden campaign an illegal ballot harvesting scheme called “Democracy in the Park”; in Nevada, where people were paid with gift cards to vote; and perhaps most profoundly (if it is ultimately shown to have carried over to other counties and states) in Antrim County, Michigan, where votes were electronically flipped from Trump to Biden. The American people also saw state officials alter or ignore election law, such as Pennsylvania’s dispensing of signature verification requirements, or county clerks in Wisconsin who advised voters to illegally claim “indefinitely confined” status in order to avoid that state’s voter ID laws. 

That is what the American people know, or strongly suspect, and they are not fools. Yet at every turn, they have been thwarted in merely getting a full, independent forensic audit to confirm (or rebut) that these things happened. The anger over a possibly stolen election will not subside unless and until that investigation occurs, fully and transparently. Only then will the losing side be able to find solace in the fact that a fair and honest election had been conducted, whatever its outcome. Is that really too much to ask?

[1] Vasan Kesavan, Is the Electoral Count Act Unconstitutional?, 80 N.C. L. Rev. 1653, 1688-90, 1699-1701 (2002)

[2] See also Nathan L. Colvin & Edward B. Foley, The Twelfth Amendment: A Constitutional Ticking Time Bomb, 64 U. Miami L. Rev. 475 (2010).

Correction: a previous version of this article incorrectly stated that there were more votes cast than registered voters in Wayne County, MI.

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