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Pence is Right, Eastman Might Be Right, and Trump is Wrong
Michael Ramsey

Regarding the recent exchange between former Vice President Pence and former President Trump on the Vice President's powers: the Constitution's text, given its most plausible reading, resolves many questions (though not all of them).  On this matter, Pence seems clearly in the right.

The question is whether the Vice President has power to disregard electoral votes which he thinks are invalid.  Nothing in the Constitution's text gives him this power.  (I'm leaving aside the complex and constitutionally suspect Electoral Count Act, though I think nothing there purports to give him that power either.)

The Twelfth Amendment says:

[T]hey [the Electors in each state] shall sign and certify [the lists of persons receiving votes for President and Vice President], and transmit [the lists] sealed to the seat of Government of the United States, directed to the President of the Senate [i.e., the Vice President; -- The President of the Senate shall, in the presence of the Senate and the House of Representatives, open all the certificates, and the votes shall then be counted; ...

That's all the Amendment (or anything else in the Constitution's text) says about the Vice President's power relating to electoral votes.  It says nothing about a power  to disregard allegedly defective votes.

Even assuming this language means that the Vice President counts the electoral votes (which it doesn't say, but might be read to imply), counting is manifestly different from deciding on validity.  Counting is a ministerial task.  Deciding on validity is an exercise of discretion and judgment.  One does not imply the other.

Moreover, there are obvious problems with making the Vice President the judge of disputed electoral votes.  The Vice President may have a enormous conflict of interest (as Pence did in 2020, and Vice President Harris may in 2024).  Even in the Framers' pre-party-system politics, the risk of conflict of interest should have been apparent.  That's not a reason to read a power out of the Constitution that's clearly stated, but it is a reason to avoid a strained reading of what the text says.

From media accounts, I'm not sure what Trump's legal argument is, but I have a hard time seeing any way to overcome the text.  The power he asserts for the Vice President simply isn't there, and there's no grounds for implying it.  Sometimes, the text provides answers. (See also here on  a different power of the Vice President).

The Amendment does have a serious defect, though, as we found out in 1876.  What happens if two sets of electoral votes are submitted for a state?  This brings me to John Eastman's (in)famous memo to then-President Trump in January 2020.  My understanding is that Professor Eastman made a very limited claim: that if two sets of electoral votes were submitted for a state, the Vice President could refuse to count either of them.

This might be right, although I'm not sure of it.  Assume that the Amendment does give the Vice President the power to count the votes (as well as just opening the envelopes).  Obviously when confronted with two sets of votes from the same state, he must do something aside from merely counting; he can't count both sets, so either he has to decide which to count (a questionable enterprise, for the conflict of interest reasons noted above), or he has to decline to count either.  The Eastman memo says (on constitutional grounds) he should take the second option.

Whether or not that's right, it has nothing to do with what actually happened, because no competing sets of votes were transmitted.  Thus, to the extent Trump is relying on Eastman's advice, his reliance is misplaced: Trump is wrong even if Eastman is right.

RELATED: For a fun-to-read assessment of the Constitution and the Electoral Count Act (that I don't entirely agree with), see here from Gary Lawson and Jack Beermann.

ANDREW HYMAN ADDS: In 2004, Bruce Ackerman and David Fontana investigated the electoral vote counts for the elections of 1796 and 1800 and found that the vice-presidents at that time (Adams and Jefferson respectively) may not have performed their counts in an exactly ministerial manner.  But it was a lot more ministerial than what President Trump was hoping Vice-President Pence would do.  See Thomas Jefferson Counts Himself into the Presidency.  I generally agree that Pence did the right thing, absent any state sending competing slates of electors, or any official request by a state to do anything other than what Pence did.  Pence did not have a lot of room to legally do anything else.