He is not required to do anything by law and history sets the precedent as well:
The Monday after the second Wednesday in December of presidential election years is set as the date on which the presidential electors meet and vote. In 2020, that meeting is on December 14. On that day, electoral college delegations will meet separately in their respective states at their state capitols to cast their ballots for President and Vice President. The electors will then count the results and sign six certificates, known as Certificates of the Vote. Their Certificates of the Vote will then be paired with the Certificates of Ascertainment provided by the state governors. Then the packages will then be signed, sealed, and sent by registered mail to the President of the U.S. Senate (the Vice President). It’s clear, straightforward, black-letter law.
But what happens if the rules aren’t quite followed? What if the electors weren’t properly appointed, don’t meet on the right day, don’t have a certificate from the governor, and forget to sign their names?
Americans Don’t Play By the Rules as Written…
In the last 250 years, there have been incredible irregularities in how the electors were appointed and how they cast their ballot. Specific accounts include:
- The Georgia Incident of 1800, where the electors from Georgia failed to send a Certificate of the Vote and instead just signed their names to the back of the governor’s Certificate of Ascertainment without stating exactly how they cast their vote. Nevertheless, all the George elector votes were counted.
- The Massachusetts Incident of 1809, where the appointment of Massachusetts electors was disputed as “irregular and unconstitutional.” Nevertheless, all Massachusetts elector votes were counted.
- The Indian Incident of 1817, where the Indiana electors were elected before Indiana joined the Union! Nevertheless, the votes of Indiana’s three electors were counted.
- The Missouri Incident of 1821, where Missouri sent electors even though Missouri was not a state of the Union! Nevertheless, the Missouri electoral votes were counted.
- The Postmaster Incident of 1837, where the CN, NH, and NC electors were officers of the federal government in violation of the Constitutional prohibition against that. Nevertheless, all those electoral votes were counted.
- The Michigan Incident of 1837, where Michigan sent electors even though Michigan wasn’t a state of the Union! Nevertheless, the Michigan electoral votes were counted.
- The Wisconsin Incident of 1857, where the entire House and Senate disputed the electoral votes of Wisconsin because the electors didn’t cast their votes on the proper day. The President of the Senate counted Wisconsin’s electoral votes anyway, over the objections of both Representatives and Senators! “Almost every Member of Congress who spoke on the subject agreed that the votes of Wisconsin should not have been counted.” Nevertheless, the votes were counted.
- The Mississippi Incident of 1873, where the Mississippi electors did not certify that they voted by ballot, and one of the electors didn’t have his appointment signed by the Governor of Mississippi as required by state law. Nevertheless, the Mississippi electoral votes were counted.
- The Georgia Incident of 1873, where one of the Georgia electors failed to follow the constitutional requirement that he vote for at least one person who wasn’t a resident of his own state. Nevertheless, the Georgia electoral votes were counted.
- The Texas Incident of 1873, where the executive authority of Texas had failed to certify its electors were properly appointed; four electors who had been appointed were absent and replaced by other electors appointed by some of the remaining electors, without even a majority vote. Nevertheless, the Texas electoral votes were counted.
Did you spot the pattern? In each of the ten cases listed above, the presidential electors cast ballots that broke the rules. And in every case, the votes were counted. In America, presidential electors get their votes counted even when they…
- didn’t even send a certificate of the vote! (GA in 1800)
- represented territories that weren’t even states! (IN in 1817, MO in 1821, MI in 1837)
- weren’t certified as properly appointed by their state governor! (TX and MS in 1873)
- didn’t cast their votes on the prescribed day! (WI in 1857)
- didn’t certify that they voted by ballot! (MS in 1873)
- were officers of the federal government (CN, NH, and NC in 1837)
- were replacements for missing electors arbitrarily appointed by the remaining electors without even a majority vote! (TX in 1873)
- didn’t follow the requirement to vote for one person not resident of their own state! (GA in 1873)
So, with that history of hijinks laid out, let’s imagine a hypothetical.
Imagine that Georgia’s 16 Republican presidential electors decide to gather in Atlanta on December 14th to cast their vote for Trump. However, only half show up, the others backing out due to concerns of safety or refusal to act against the popular vote. The remaining 8 electors just pick 8 more trusty Trump Republicans to replace the missing electors (as happened in Texas in 1873). That takes an extra day, so they end up voting one day late (as happened in Wisconsin in 1857). They don’t have a certificate from their state governor, so they send their vote without it (as happened in Texas and Mississippi in 1873). And off it goes to the President of the Senate.
Let’s assume this happens in some other states, too, such that it’s enough to change the outcome of the election if these votes are counted.
Now what? History, as we have shown, has a clear answer: Ten out of ten times, when electors broke the rules, the votes were still counted no matter how irregular they were.
Always, every time. The rules didn’t matter.
And Sometimes We Don’t Even Know What the Rules Are!
Our hypothetical is, of course, failing to mention a really important factor. While our roguish Republican electors are casting their ballot, the staid and certified Democrat electors are
also meeting to cast
their ballot. At the end of the day, two certificates get sent to the President of the Senate from Georgia.
Now it’s January 6. The Senate and House of Representatives have assembled in a joint session at the Capitol, in the House chamber. The Vice President, Mike Pence, is presiding as President of the Senate. The Twelfth Amendment states: " [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.”
So Pence is to open
all the certificates. But… there’s two from Georgia!
As soon as Georgia’s certificates are presented, the Democrats immediately clamor that the votes from the Republican electors have to be rejected - the Republican electors broke the rules. They weren’t lawfully appointed, they didn’t have signed certificates from the governor, and they voted on the wrong day.
But, as we’ve just seen, none of that has ever stopped electoral votes from being counted. Irregularities have been permitted many, many times in history. The Republicans have ample precedent to support that.
So what happens? No one knows.
I’m not exaggerating. Really, no one knows. The rules for properly counting electoral votes are so ambiguous, they make the original “white box” rules for
Dungeons & Dragons look like Ikea instructions.
Let’s explore a few possibilities
Maybe the President of the Senate Makes the Choice…
There is a very strong Constitutional theory that the power to open and count the votes of the presidential electors is vested exclusively in the President of the Senate. The President of the Senate is actually the Vice President of the United States - Trump’s running mate, Mike Pence.
Therefore, if this theory is true, Mike Pence can simply open the Republican certificates and toss the Democrat certificates into the trash. The Democrats could howl and shout and gnash their teeth, but they cannot count votes that Pence doesn’t open.
I have laid out the legal arguments and historical precedent for Pence’s power in my
earlier article, so I wont repeat them here. Suffice to say, if opening and counting the votes of the presidential electors is like playing white box
D&D, then Mike Pence is the designated dungeonmaster. And nobody gets to argue with the DM.
More at:
https://macris.substack.com/p/if-cha...ricas-election
See Also:
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. As Foley regretfully explains:
Whatever each of us personally thinks of this interpretative argument, it is necessary to acknowledge that it has a significant historical pedigree. It routinely had its advocates in the years leading up to the disputed election of 1876. During that intense dispute, it was conveniently invoked by Republicans, since the President of the Senate was one of their own at the time. After the resolution of that ugly dispute, the argument was resurrected by some during the congressional debates that led to passage of the Electoral Count Act of 1887…
What is the historical pedigree to which Foley refers? The Congressional Record of the passage of the Electoral Count Actrecords the opinion of many prominent legislators who held the view that the President of the Senate opens and counts the votes, even though some weren’t happy about it:
“The counting function is vested in the President of the Senate and the Necessary and Proper Clause does not confer on Congress the power to assume unto itself the duty which the Constitution imposes on that officer.” - Sen. Wilson
“If the Constitution…does…by fair implication, vest in the President of the Senate the power and duty not only to open, but also to count, the votes, then Congress can not, by this or any other legislation, take away or transfer to any other “person or officer that power and duty; - Rep. Baker
“The Constitution says that ‘the votes shall then be counted,’ and if this mandate be addressed to the President of the Senate, that ends the question so far as the counting is concerned. The Constitution has then entrusted him with the whole power, and any legislation to direct him, would be an impertinent intrusion upon his prerogative.” - Sen. Spear
“The President of the Senate’s discretion in opening certificates shows the necessity of an amendment of the Constitution.” - Sen Morton.
Foley, also obviously unhappy with this situation, goes on to explain:
[Thus] Republicans [can] point to the historical pedigree of this position, observing that Republicans made the same argument during the disputed election of 1876 and that at least some recent law journal scholarship has supported this position. Unembarrassed by the apparent conflict of interest caused by Mike Pence simultaneously being a candidate for reelection and arbiter of the electoral dispute, these Republicans observe that Thomas Jefferson was in essentially the same position during the disputed election of 1800 and yet the Twelfth Amendment left this provision in place when Congress rewrote the procedures for the Electoral College afterwards.
Wait, Thomas Jefferson pulled this trick? Indeed he did. The 1800 Presidential election was a contest between Jefferson, Aaron Burr, John Adams, Charles Pinckney, and John Jay. Jefferson, as the current Vice President, was the President of the Senate when it came time to count the votes. And he counted them in his own favor! Bruce Ackerman and David Fontana explain what happened in their article “
Thomas Jefferson Counts Himself into the Presidency” (90 Virginia Law Review 2004, 551-643):
Thomas Jefferson was remarkably aggressive as President of the Senate. Georgia’s certificate - granting four electoral votes to Jefferson - was constitutionally defective on its face, a deficiency that was announced on the floor of Congress and reported by leading newspapers of the day. To resolve all doubts, we have located Georgia’s certificate in the National Archives, and it does indeed reveal striking constitutional irregularities…
Nevertheless, Jefferson failed to pause before counting George’s four electoral votes into the Republican column, declaring the final vote as if nothing were amiss. Had Georgia’s ballot been excluded, the vote count…would have admitted all five candidates into a runoff in the House… Without the decisive use of his power as President of the Senate, Jefferson might never have become President of the United States. (emphasis added)
Read that again: Thomas Jefferson, author of the Declaration of Independence, the man whose face adorns Mt Rushmore, among the most revered founding fathers of our country,
only became President because he used his unilateral power as President of the Senate to open and count the presidential ballots in his own favor.
Vasan Kesavan, in
“Is the Electoral Count Act Unconstitutional?” (80 NC L. Rev. 2001-2002), records another example where the President of the Senate unilaterally determined the winner of the Presidential Election:
In the election of 1856, the five electors of the State of Wisconsin did not cast their votes on the day prescribed by federal law because of a snowstorm. The President of the Senate counted Wisconsin's electoral votes over the objections of both Representatives and Senators assembled in convention. When Representative Lechter objected to Wisconsin's electoral votes and moved to exclude them, the presiding officer (the President of the Senate) simply stated that no debate was in order when the votes were being read by the tellers or even after they were finished.' When Senator Crittenden then asked the presiding officer, "Do I understand the Chair to decide that Congress, in no form, has power to decide upon the validity or invalidity of a vote?,"' the presiding officer replied that it was his constitutional duty to announce the result of the electoral count and that "[w]hat further action may be taken, if any further action should be taken, will devolve upon the properly-constituted authorities of the country, the Senate or House of Representatives, as the case may be.'… Several Members of Congress were concerned that the decision to count Wisconsin's electoral votes would set a dangerous precedent. According to Senator Pugh, unlike the Missouri Incident which was "never likely to happen again," the Wisconsin Incident "may occur one hundred times again, if the Government should stand that many years.' Almost every Member of Congress who spoke on the subject agreed that the votes of Wisconsin should not have been counted.' (emphasis added)
And yet the votes were counted… because the President of the Senate opened and counted them. The President of the Senate’s choice was more powerful than the collective will of Congress.
More at:
https://macris.substack.com/p/who-co...e-presidential
Originally Posted by Contumacious
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