by John C Eastman – Trump’s attorney
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,…
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