WHO COUNTS?: THE TWELFTH AMENDMENT, THE VICE PRESIDENT, AND THE ELECTORAL COUNT.

• Date: 22 September 2022
• Author: Delahunty, Robert J.

Contents Introduction I. The Law of Presidential Elections and the January 6, 2021, Attack on the Capitol A. The Events of January 6, 2021 B. Disputes over Electoral Votes C. Congressional Power and the Electoral Count Act of 1887 D. Scholarly Commentary II. The Constitutional Text and Structure: How Presidents Are Chosen A. Constitutional Text B. Constitutional Structure C. Founding History D. The Unconstitutionality of the Electoral Count Act III. Founding Era Practice and After. A. Interpretative Guidelines: The Uses of History B. Practice in the Founding Period 1. The Election of 1788 2. The Act of March 1, 1792 3. The Election of 1792 4. The Election of 1796 5. The Election of 1800 C. The Twelfth Amendment of 1804 D. Post-Ratification Evidence from the Early Republic 1. The Massachusetts Incident of 1809 2. The Indiana Incident of 1817 3. The Missouri Incident of 1821 4. From 1821 to 1865 E. From the End of the Civil War to the End of Reconstruction F. The Election of 1876 G. The Electoral Count Act of 1887 IV. Four Objections A. Nemo Iudex Sui B. Is the Counting Function Too Important to Be Left to the Vice President Alone? C. The Relevance of the Electoral Count Act D. How Would the Supreme Court Likely Rule if It Intervened? Conclusion: What Should Pence Have Said? Introduction

Under the Twelfth Amendment of the United States Constitution, Vice President Kamala Harris will open the presidential electoral votes on January 6, 2025, before both houses of Congress. (1) Would she have the constitutional authority to resolve disputes over the legitimacy of those votes? If so, what types of disputes can she address?

Imagine a controversy where President Joseph Biden runs for reelection in 2024 against Florida governor Ron DeSantis. Biden wins the popular vote but loses in the Electoral College, 278 to 260. Arizona, Georgia, and Pennsylvania, which chose Biden in 2020, cast their forty-six electoral votes for DeSantis. (2) All three states, with Republican legislatures, enact new voting rules in the wake of complaints by Donald Trump over the 2020 election. Their new voting laws require an identification to vote, prohibit "vote harvesting," and end universal mail-in ballots. The Supreme Court refuses to accept challenges to these rules for suppressing minority voting in violation of the Fourteenth and Fifteenth Amendments and the Voting Rights Act of 1965. (3) When the electoral votes arrive in Washington, D.C., to be counted in early January, disputes arise over their legitimacy. Assume that a divided Congress does not act on claims that the voting rules in those states undermine the election's legitimacy. Could Vice President Harris, as President of the Senate, (4) resolve disputes over the electoral votes from the three states?

We argue that while the constitutional text is ambiguous, its best reading makes the Vice President, as President of the Senate, the only federal institution to judge the legitimacy of electoral votes, subject in limited cases to judicial review. We also conclude, however, that the Vice President can only exercise this power over specific types of disputes originating from the states. Under our theory, if Vice President Harris receives only one set of electoral votes from the state institutions identified under the laws of Arizona, Georgia, and Pennsylvania, she can only accept them as legitimate. She has no authority to decide whether the states' electors were appointed constitutionally, consistent with the Fourteenth and Fifteenth Amendments. But if she were to receive two electoral slates from a single state, one blessed by the legislature and another by the governor, or were to face a dispute between the political branches of a state government and the state or federal court, she would have to choose which electoral votes to count and determine their legitimacy.

Our second argument is that the current system for resolving federal election disputes and determining the meaning of constitutional provisions for counting electoral votes is misguided. This issue has received renewed attention with President Biden's 2020 victory. After a contentious campaign, states reported 306 electoral votes for Biden and 232 for then-incumbent Donald J. Trump. (5) But rather than concede defeat, Trump contested Biden's victory at every step, from the counting of individual ballots to the selection of state electors and the opening of the electoral votes by Congress. (6)

Trump's resistance failed, along with an attack on the Capitol that interfered with the electoral counting. During the January 6 attack, rioters attempted to prevent the counting. Trump demanded that Vice President Michael R. Pence reject the electoral votes of a sufficient number of states, so that either he could win or the House of Representatives could select the President under the Twelfth Amendment. (7) Trump argued that the Vice President "can decertify the results or send them back to the states for change and certification." (8) "He can also decertify the illegal and corrupt results and send them to the House of Representatives for the one vote for one state tabulation." (9) While Pence conceded that he "share[s] the concerns of millions of Americans about the integrity of this election," (10) he concluded: "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." (11) Describing his role as "largely ceremonial," Pence instead called upon Congress to use the procedures of the Electoral Count Act of 1887 (ECA or the Act,12) which requires majorities of both houses to discard irregularly cast electoral votes. (13) Accordingly, Congress heard objections to the legitimacy of electoral votes from Pennsylvania and Arizona and, after suspending its proceedings during the Capitol Hill attack, rejected the challenges. (14)

Both Trump and Pence misunderstood the Constitution. Under the best reading of the text, structure, and history, Article II and the Twelfth Amendment establish the basic system for selecting the President and the Vice President. Article II gives each state electoral votes equal to the combined number of its senators and members of the House. It also grants state legislatures the authority to appoint electors, who must cast separate ballots for both the President and the Vice President. The electors meet in their states and send a certification of their votes to Congress. (15) Under the Twelfth Amendment, "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." (16) If no candidate receives a majority, the Constitution defers the final choice to the House, with each state delegation receiving a single vote. (17) The Founders rejected both congressional selection and popular national elections as methods of choosing a President. Instead, they created a state-centric system.

Rather than leave the decision to the Vice President or the states, Congress has claimed the final power to resolve electoral vote disputes. It created the ECA to eliminate uncertainty in electoral vote counting. It created a "safe harbor" date by which states had to determine their electoral votes. (18) It also provided for cases where the validity of an electoral vote was challenged, allowing the majority of both houses to reject electoral votes that are not "regularly given," effectively overriding the resolution of any disputes by the states. (19) But in the spring of 2022, Congress began considering proposals to amend the Act to prohibit the Vice President from rejecting any electoral votes and limit its own role in deciding electoral disputes. (20)

Contrary to Congress's claim of authority, it had not played a significant role in resolving such disputes until 1876. In that election, those bent on ending Reconstruction had terrorized African American voters. The ensuing fights, political and real, led Florida and Louisiana, two former Confederate states, to submit competing slates of electoral votes. (21) In the 1887 ECA, Congress enacted a number of measures. For example, the Act prescribed the "safe harbor" provision noted above. (22) With regard to disputed votes, the Act allowed a majority of both houses acting concurrently to reject electoral votes that are not "regularly given," thus effectively overriding state resolution of any disputes. (23)

A few disputes have arisen in the twentieth and twenty-first centuries. In the 1960 and 2000 presidential elections, then-incumbent Vice Presidents Richard M. Nixon and Albert A. Gore did not settle electoral controversies in a way that altered the outcome, though they both lost those elections. More recently, some scholars argued that Congress ought to manage the risk of a major dispute. (24) After Bush v. Gore, (25) scholars debated the constitutionality of the ECA, with some in passing assuming the law was valid. (26) In 2004, for example, Bruce Ackerman and David Fontana predicted future trouble because "[t]he constitutional text does not speak clearly" in the case of multiple, disputed electoral votes from the same state. (27) In 2019, election law scholar Edward Foley presciently observed that ambiguities in federal law might create a conflict between Vice President Pence and a Democratic Congress over disputed electoral votes that would decide the 2020 election. (28) Most recently, Congress in the spring of 2022 began considering proposals to amend the ECA. The goal of these proposals is to prohibit the Vice President from rejecting any electoral votes, no matter the reason, and to limit Congress's participation to certain cases, e.g., ineligible electors. (29) On December 29, 2022, President Biden signed an omnibus spending bill that included reforms to the Act. (30)

As we explain in this Article, neither Trump, Pence, nor...