The Electoral Vote Count and Inauguration Day [Updated]David Weisberg

Andrew Hyman has written an interesting post concerning another interesting post he had initially decided not to post.  (I hope that’s clear.)  I’d like to comment on what I believe to be an error in that formerly unposted post.  Before commenting, however, I want to echo Mr. Hyman’s praise of Vice President Pence’s actions on January 6, 2021: He did the right thing.

Now to my comment.  Mr. Hyman notes correctly that Section 1 of the Twentieth Amendment fixes noon on January 20 as the time “the terms of the President and Vice President shall end[.]”  But he goes on to say that “the Twentieth Amendment … clearly sets a deadline of January 20” for the completion of the counting of electoral votes.  I do not think that is correct; fixing the time of expiration of the terms of office of President and Vice President is not the same thing as setting a deadline for finishing the electoral vote count.  In fact, the Twentieth Amendment impliedly contemplates that the electoral vote count might not be completed by January 20.

Section 3 of the Twentieth Amendment provides, in relevant part:

If … a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.

It is very clear that the amendment takes into account a situation in which, on the 20th, the president “shall not have been chosen.”  It also contemplates that, on the 20th, neither a president nor a vice president might have “qualified” to serve.  Surely one possible reason for the failure of a president to be chosen, or the failure of both a president and a vice-president to be qualified, would be some dispute over the counting of electoral votes that prevents that count from being completed by the 20th.

The Congress, as authorized by Section 3, has declared who in such a case shall act as president.  The Presidential Succession Act of 1947 provides that the Speaker of the House is next in line for the presidency.  Moreover, Section 2 of the Twentieth Amendment provides that Congress shall meet every year beginning January 3 at noon, which time and date Congress has not altered.  So, the House of Representatives has plenty of time (which was needed this year) before the 20th to choose a Speaker. 

If, on the 20th, there is no qualified president or vice president, the person who had been chosen as Speaker would properly be sworn in to act as president.  Under the Presidential Succession Act, the person acting as president shall serve until such time as “a qualified and prior-entitled individual is able to act[.]”  (3 U.S.C. Sec. 19(d)(2).)  Therefore, nothing in the Twentieth Amendment should be understood as setting a “deadline” for the completion of the electoral vote count.

 

UPDATE - ANDREW HYMAN COMMENTS:  David Weisberg and I apparently agree that VP Pence’s term of office had to expire on January 20, 2021.  To me, that implies he had to fulfill any mandatory duties by that date, such as opening or counting electoral votes.  One might alternatively argue that the VP could simply hand over any such duties to the president pro tempore of the Senate, but that seems a bit slippery; I am skeptical that any constitutional actor can avoid a mandatory duty by merely saying the next guy can do it.  So I would interpret “President of the Senate” in this context to mean the same person to whom the electoral votes are transmitted "sealed to the Seat of the Government of the United States, directed to the President of the Senate."