Vice President Pence Can Preside But Not Decide

Since the presidential election on Nov. 2, the rule of law has held.

That is one of the most noteworthy, and inspiring, developments in the entire history of U.S. law. Whether they were appointed by Presidents Donald Trump or Barack Obama, by Presidents Bill Clinton or George W. Bush, federal judges have shown fidelity to the law by rejecting frivolous and evidence-free efforts by Trump to overturn former Vice President Joe Biden’s victory.

Congress will meet on Wednesday to finalize that victory. Senator Ted Cruz of Texas, joined by at least 10 other Republican senators or senators-elect, is mounting a challenge, seeking to delay and perhaps to reverse the result. An obvious question is the role of Vice President Mike Pence, who serves as president of the Senate and can break deadlocked senate votes on ordinary matters, now that he has “welcomed” the senators’ electoral vote challenge. What is he permitted to do on Wednesday?

Under the law, the simplest answer is: Not very much. His role is largely ceremonial. He has no power to overturn the results of a presidential election.

A central reason is that the drafters of the U.S. Constitution and those who followed them were acutely aware of the risk of bias and self-interest in politics. They did not want the vice president, who might well have a rooting interest, to settle the outcome of a presidential election. 

For this week’s congressional vote there are two principal sources of law. The first is the Electoral Count Act of 1887. The second is the 12th Amendment to the U.S. Constitution.

The Electoral Count Act was adopted in the aftermath of the constitutional crisis that followed the 1876 contest between Samuel Tilden and Rutherford B. Hayes. In response, the law says: Never again.

The law was explicitly designed to ensure that disputed issues would generally be settled by state authorities. It was written to make Washington much quieter, and to reduce the risk of partisan wrangling.

Under the statute, the vice president will be the “presiding officer” on Wednesday, but he won’t have a lot to do. The outcome is supposed to be settled by “certificates of the electoral votes” that come from the states.

The Electoral Count Act lays out the mechanics in impressive detail:

Two tellers shall be previously appointed on the part of the Senate and two on the part of the House of Representatives, to whom shall be handed, as they are opened by the President of the Senate, all the certificates and papers purporting to be certificates of the electoral votes, which certificates and papers shall be opened, presented, and acted upon in the alphabetical order of the States, beginning with the letter A.

After the vice president opens the certificates, the tellers are required to “make a list” of them. And after the votes have been counted, the result must be “delivered to the President of the Senate, who shall thereupon announce the state of the vote, which announcement shall be deemed a sufficient declaration of the persons, if any, elected President and Vice President of the United States.”

At that point, the vice president must ask if there are any objections. Here again, the law gives him little to do:

Every objection shall be made in writing, and shall state clearly and concisely, and without argument, the ground thereof, and shall be signed by at least one Senator and one Member of the House of Representatives before the same shall be received. When all objections so made to any vote or paper from a State shall have been received and read, the Senate shall thereupon withdraw, and such objections shall be submitted to the Senate for its decision.

Apparently Cruz and his allies will make their objections. But the Electoral Count Act sharply limits the power of the Senate and the House to reject electoral votes — and it certainly does not authorize the vice president to do that. As Professor Stephen Siegel of DePaul University has written, “the Senate President is meant to be something of an automaton.”

To be sure, some of Trump’s supporters are arguing that the Electoral Count Act is unconstitutional. That’s probably wrong, but we should also look at the 12th Amendment, whose relevant provision is very brief:

[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; The person having the greatest number of votes for President, shall be the President ...

This provision also gives the vice president a modest role. He “opens all the certificates.” A key word is “all.” With respect to vote counting, the governing words — “the votes shall then be counted” — are flat, mandatory and in the passive voice, which is not a grant of broad discretionary authority.

Let’s step back a bit. It was clear in the founding period, and when the 12th Amendment was ratified in 1803, that a vice president could well be a candidate for president or vice president. Seeking to establish a self-governing republic, the framers did not want him to be able to decide his own fate, or that of his boss.

Now in this difficult period, the rule of law has held. It is astounding that Cruz’s letter, signed by a total of 11 senators or senators-elect, does not engage the Electoral Count Act and the 12th Amendment. Instead it points, with palpable enthusiasm, to the chaotic, horrific aftermath of the Tilden-Rutherford election, which nearly tore the U.S. apart, and which effectively ended Reconstruction. It concludes, “We should follow that precedent.”

Have they no shame?

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Cass R. Sunstein is a Bloomberg Opinion columnist. He is the author of “Too Much Information” and a co-author of “Nudge: Improving Decisions About Health, Wealth and Happiness.”

©2021 Bloomberg L.P.

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