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

Legal historian at Fordham Law School, teaching Torts, Administrative Law, and Constitutional History. JD/PhD in History, Yale. Red Sox and Celtics fan, youth soccer coach. Author of "The People's Courts: Pursuing Judicial Independence in America" (2012) on the rise of judicial elections in America. I filed an amicus brief in the Emoluments litigation against Trump along with a great team of historians. I'm working on "The Rise of the Prosecutor Politicians," a history of prosecutors and political ambition (a cause of mass incarceration), and "The Imaginary Unitary Executive," on the myths and history of presidential power in America.

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