Muller on Yoo and Delahunty on the Twelfth Amendment and electoral vote counting

Could Kamala Harris resolve a dispute over competing voter slates in the 2024 presidential election, perhaps by choosing the slate to support her re-election as vice president? In a recent law review article in the Western Case Reservation Law Review, Professors John Yoo and Robert Delahunty have argued that the vice president has a small, but significant, role in resolving such disputes (though not as large as Donald Trump or John Eastman claimed). Their article, while aligning with claims made in the past by other academics, was quite controversial.

Notre Dame Law Professor Derek Muller responds to Yoo and Delahunty in the latest issue of Western Case Reservation Law Review, explaining why their theory is wrong. Even if there were competing electoral rolls from individual states, the Vice President would not have the authority to resolve such disputes.

Here’s how the article begins:

On January 6, 2021, Senate President Vice President Mike Pence dutifully opened the 2020 presidential election ballots and read the totals aloud. He acted in line with the direction of the Electoral Count Act of 1887, in line with the joint resolution of Congress passed three days earlier, and in line with more than two centuries of congressional practice. Not everyone was convinced that the Constitution and laws of the United States obligated Pence to behave in this way, especially President Donald Trump, who had just lost the election and was looking for a way to turn defeat into victory.

Professors Robert Delahunty and John Yoo agree with Pence on this. In their recent article here in Western Case Reservation Law Review on the vice president’s role in counting the electoral votes they conclude: “Pence was obligated to count the votes as directed by the States.” But they come to a different conclusion about who holds the legal power to count electoral votes and resolve disputes. They conclude: “Our theory leads to the conclusion that the best reading of the constitutional text, structure, and history assigns that role to the Vice President, not to Congress or the judiciary.” In contrast, “Congress has no substantive role in the process.”

Congress has continually rejected this view for more than 200 years, and perhaps that is why Pence saw no such room for debate. Professors Delahunty and Yoo helpfully examine the history surrounding electoral vote counting controversies, and in places place appropriate conditions on the modesty of their claims. But this essay explains why Congress, and not the President of the Senate, has the power to count electoral votes and resolve disputes about them.

Some details help frame the crux of the controversy. There are potentially three different responsibilities to consider when the House and Senate meet before the President of the Senate to count the electoral votes. First, who chairs the joint session in which the counting takes place, and what is the role of that chair? Second, who counts the electoral votes? Third, who resolves disputes over those electoral votes?

This essay answers these questions. First, the president of the joint session is the president of the Senate and acts like any other president of a legislature. You initiate actions based on precedent, parliamentary procedures and the wishes of the House. And that means that the House – here, the joint session – can bind the President of the Senate as president. Congress did exactly that when it chose to further limit the Senate President’s distraction in the Electoral Count Reform Act of 2022. Second, Congress counts electoral votes. Evidence in the text and structure of the Constitution and in the practice of Congress before the ratification of the Twelfth Amendment supports this interpretation. Third, the power to resolve disputes goes hand in hand with the power to matter. This means that Congress also has the power to resolve disputes over presidential electors.

Separating these responsibilities is critical because it can be too easy to confuse some of these activities, which in turn misses the distinctions of responsibilities. When the president acts, he does so not to count votes, but to preside over the joint session and help it proceed according to the rules and precedents established by Congress. The actions he undertakes may resemble the substantial act of counting. But a careful examination of the data reveals that the president of the Senate does not, and has never counted, the votes. That’s because the power to count resides in Congress, where the Twelfth Amendment lodges that power.

The full article is here.

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