The Blog

2020-

2020-12-11 d
"Without the decisive use of his power as President of the Senate, Jefferson might never have become President of the United States."

Who Counts the Votes of the Presidential Electors?
This may be the most important question in American history

"Those who cast the votes decide nothing. Those who count the votes decide everything."

The quote is ascribed to Joseph Stalin, although there’s little evidence that he actually said it. Nevertheless, it resonates as true. Certainly America stands in crisis now because of disagreements about the count of the popular vote.

But the President of the United States isn’t actually elected by the popular vote. He’s elected by the college of presidential electors. As I noted in a previous article, one of the most important questions in this crisis is whether the state legislatures can appoint presidential electors to cast their votes in opposition to the popular vote.

But there is another question: Who counts the votes cast by the presidential electors? If “those who count the votes decide everything,” as Stalin said, then this is the most important question in American history.

The Constitutional Argument

The U.S. Constitution governs the election of the President. The controlling provision is the Twelfth Amendment, which states that:

“[T]he 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.”

What does that mean? In “Preparing for a Disputed Presidential Election” (51 Loyola University Chicago Law Journal 2018), Edward B. Foley explains:

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)

Foley is not alone in this analysis. Another prominent jurist, John Harrison, makes an even more forceful case. Harrison argues in “Nobody for President,” (16 J.L. & Pol., 2000), that the most natural reading of the Twelfth Amendment grants the opening-and-counting power to the President of the Senate:

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)

Now the President of the Senate is actually the Vice President of the United States - Trump’s running mate, Mike Pence. If Foley and Harrison are correct, then Mike Pence may be the most powerful man in America right now!

The Historical Argument

Constitutional law is not, of course, merely a matter of language analysis. The intent of the Framers, the history of the Republic, and the interpretations of past jurists all bear weight.

But here, too, there is much evidence for the case that Pence has the power to open and count the votes of the presidential electors. (read more)

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