No matter what President Trump says, Vice President Mike Pence has no discretion when Congress counts electoral votes on Wednesday. Pence’s role is merely ministerial, and he cannot lawfully help Trump overturn the states’ certified election results.
Trump was wrong on Monday night to suggest otherwise by saying that he will “like” Pence less if Pence doesn’t help. Trump is suggesting something akin to asking the scoreboard operator to overturn the results of a football game. It’s nonsense.
The 12th Amendment of the Constitution notes that the electors from each state “shall sign and certify, and transmit sealed” their votes for president and vice president. Article II of the Constitution says Congress shall set the Election Day and the day when electors meet. In the Electoral Count Act, Congress set the first date in November and the second in December and also set a procedure (of dubious constitutionality) for what to do if — repeat, if — duly elected officials in some states send competing slates of certified electors or fail to certify a slate. Not even the Electoral Count Act, though, allows for a slate that has not been certified by state officials to have its votes counted. It does, though, specify, without any ambiguity, that slates certified by a particular date in December must be counted by Congress.
The question about the Electoral Count Act is whether, constitutionally, it should allow Congress any discretion at all. There is no question, however, that even that law leaves in place the absolute mandate that certified votes “shall” be counted.
And even in the bizarre eventuality in which Congress as a whole claims legitimate discretion, the vice president does not.
The 12th Amendment says the “President of the Senate” (who, by definition, is the vice president of the United States, if he is present) “shall” open the certificates. Which certificates? Those sent by the states as directed by the state legislatures, according to Article II. And how does Congress know which electors have been certified? By procedures spelled out in the parts of the Electoral Count Act the constitutionality of which is not in question — namely, those certified by state officials as set out in each state’s laws that were applicable before Election Day, not after the fact.
Again, though, the Constitution gives the vice president no choice in the matter. He merely opens the certificates. Then, according to the Electoral Count Act, “tellers” shall tally all the votes and present them to the vice president to be announced. Again, he has no choice in the matter. He “shall thereupon announce the state of the vote.”
Then, in the controversial part of the Electoral Count Act, the very strict provisions for vote challenges (provisions the Trump team has not even come close to meeting) do allow at least some grounds for objections. Even then, though, the vice president has no power to rule on the objection. Instead, each chamber of Congress meets separately and votes on the objection. The vice president again merely “announce[s] the decision.”
Nowhere in the original Constitution, the amendments to the Constitution, or the duly passed congressional statutes is the vice president afforded even a shred of substantive, decision-making authority.
Pence is a patriot, and no patriot would try to usurp authority that is not his. Twice before in the past 60 years, vice presidents presided over the electoral vote counts of elections they narrowly lost under controversial circumstances. Both Richard Nixon and Al Gore refused to participate in any way in congressional challenges to the outcome. Surely, Pence has at least as much respect for the Constitution as Nixon and Gore did, doesn’t he?
