Pence cannot stop the electoral college

I’ve been getting inquiries worrying that Pence will block the Biden electoral college win when he presides in the Senate on January 6th. Don’t worry. Neither the 12th A nor the Electoral Count Act give him that power.

The 12th Amendment merely designates the President of the Senate (the VP) to “open all the certificates.” But then it uses the passive voice: “the votes shall then be counted.” Implicitly, Congress does the counting.

The Electoral Count Act is more detailed on the count process. Note that the president of the Senate (the VP) has no special role in resolving any dispute.

After there are objections to any state’s slate of electors, the only way to override the certified electors is if BOTH Houses “concurrently… reject” that slate. See 3 USC 15. Dems control the House. That’s simply never going to happen. The Senate isn’t going to reject any slate either. “But if the two Houses shall disagree…the votes of the electors whose appointment shall have been certified by the executive of the State…shall be counted.” 3 USC 15 . Governors already certified the Biden win, 306-232.

Don’t forget the Safe Harbor provision that the states all met in time and that legally protects the Biden win (306-232): Certification by Dec 8th “shall be conclusive, and shall govern in the counting of the electoral votes.” 3 USC 5. If Pence or the Senate tried to pull any extra-legal/illegal moves to sabotage the count, Biden could seek a court order immediately in federal court, receive the order, and the Supreme Court would refuse any Trump appeal by denying cert. But I don’t imagine that would be necessary.

My mentor Bruce Ackerman and my friend David Fontana wrote this article (summarized here) about how Adams in 1796 and Jefferson in 1800 counted electoral votes with formalistic problems (Vermont & Georgia, respectively. But there was no Electoral Count Act then. Moreover, the historical record does not suggest a substantive dispute over whether Vermont or Georgia intended the electoral votes to go to Adams or Jefferson, respectively. The vice presidents’ actions in 1796 & 1800 simply are not precedents for Pence to defy the voters or the Electoral Count Act.

Bottom line: There is no secret legal maneuver left to stop a Biden presidency. Pence & McConnell understand these rules & are in an awkward political position of their own sad making. Any drama before or on Jan 6 will be merely a pathetic show of Trump loyalty/cowardice.

PS: I just saw this Washington Post article on Pence and the electoral college by @jdawsey1@ColbyItkowitz. I’m surprised they didn’t try to explain more precisely why Pence has *no legal power* to stop the ElectoralCollege. The word “evident” is too weak.

Author: Jed Shugerman

Jed Handelsman Shugerman is a Professor and Joseph Lipsitt Scholar at Boston University School of Law. He was at Fordham Law School 2013-2022. He received his B.A., J.D., and Ph.D. (History) from Yale. His book, The People’s Courts (Harvard 2012), traces the rise of judicial elections, judicial review, and the influence of money and parties in American courts. It is based on his dissertation that won the 2009 ASLH’s Cromwell Prize. He is co-author of amicus briefs on the history of presidential power, the Emoluments Clauses, the Appointments Clause, the First Amendment rights of elected judges, and the due process problems of elected judges in death penalty cases. He is currently working on two books on the history of executive power and prosecution in America. The first is tentatively titled “A Faithful President: The Founders v. the Unitary Executive,” questioning the textual and historical evidence for the theory of unchecked and unbalanced presidential power. This book draws on his articles “Vesting” (Stanford Law Review forthcoming 2022), “Removal of Context” (Yale Journal of Law & the Humanities 2022), a co-authored “Faithful Execution and Article II” (Harvard Law Review 2019 with Andrew Kent and Ethan Leib), “The Indecisions of 1789” (forthcoming Penn. Law Review), and “The Creation of the Department of Justice,” (Stanford Law Review 2014). The second book project is “The Rise of the Prosecutor Politicians: Race, War, and Mass Incarceration,” focusing on California Governor Earl Warren, his presidential running mate Thomas Dewey, the Kennedys, World War II and the Cold War, the war on crime, the growth of prosecutorial power, and its emergence as a stepping stone to electoral power for ambitious politicians in the mid-twentieth century.

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