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The Only Time I Withdrew a Blog Post from the Originalism Blog Pre-Publication Was on January 5, 2021
Andrew Hyman

The historic events at the U.S. Capitol on January 6, 2021 continue to be a subject of much interest, both legally and otherwise, so perhaps some readers might like to see a blog post that I withdrew the day before.  I’ll quote it in full now, and then add a few comments (by the “Electoral Vote Act” I meant the Electoral Count Act).
How Slowly Can the Vice-President Perform His Role Regarding the Electoral Vote Count and Must He Shut Down Dilatory Tactics? 
The Twentieth Amendment sets January 20 as Inauguration Day, so I’m not sure the Vice-President or members of Congress would accomplish much by stretching out the electoral vote count until then.  It would be foolish to do such an extraordinary thing merely for the sake of protest, or to delay the inevitable.  But it’s possible. 
This year, Congress has adopted rules setting January 6 for the start of the electoral vote count, and the clear suggestion is that the count should be finished on that date too, but the rules Congress has adopted do not flatly require a speedy or expeditious vote count, or set a midnight deadline. 
Maybe Congress could have required a speedy vote count, but they apparently did not.  Maybe Congress could now amend the rules to speed up the Vice President, but they have not done so as yet.  And maybe the Vice President has no intention of extending the vote count past January 6, or allowing any dilatory tactics that would have that effect. 
Besides the Constitution itself and the rules linked above that were adopted this year, another relevant law is the Electoral Vote Act, and it too does not require that the job be done by midnight on January 6.  Here’s the pertinent section titled “Counting Electoral Votes in Congress.”  It says that if the joint session of Congress splits up into sessions of the two houses then “When the two Houses have voted, they shall immediately again meet....” (emphasis added) so there’s no opportunity for any delay in reconvening after voting.  The word “immediately” (or a synonym) is distinctly absent as to other stages of the process, though.  A related question is whether members of the joint session can use dilatory tactics, and whether the Vice President would be under any duty to stop them.  Certainly delay or slowness would not be constitutionally permissible if it threatens to violate the Twentieth Amendment which clearly sets a deadline of January 20.  The next section of the Electoral Vote Act says, “if the counting of the electoral votes and the declaration of the result shall not have been completed before the fifth calendar day next after such first meeting of the two Houses, no further or other recess shall be taken by either House.”  That raises the familiar question of what a “recess” means, and I doubt it includes a mere adjournment from day to day. 
I suppose that one reason for delay might be to give state legislatures time to gather more information, further audit their elections, and perhaps try to change their electoral votes if they uncover facts that might justify doing so.  According to ballotpedia.org, the Wisconsin legislature reconvened on January 4, the Pennsylvania legislature on January 5, Arizona and Georgia on January 11, Michigan on January 13, and Nevada’s legislature on February 1 (too late to do anything).  More than a month has already passed since the election on November 3, so the Vice President and members of Congress need to consider whether delaying completion of the electoral vote count is really likely to make any difference in the final result, and whether such an extraordinary move would increase or decrease the actual or perceived legitimacy of whoever is sworn in on January 20.
So that’s what I wrote and withdrew the day before January 6, 2021 partly because I did not want to embolden anyone to delay the electoral vote count.  In retrospect and in the context of originalism, I think this old unseen blog post of mine was pretty much legally correct.  Back on January 6, 2021 Congress had not yet amended the Electoral Count Act, and it was the old language of that Act I relied upon.  In contrast, the amendments of December 22, 2022 require that the vice president cannot solely determine, accept, reject, or otherwise adjudicate disputes over electors.  For centuries before 2022, vice-presidents had been free to count electoral votes in a non-mechanical way, and had been unilaterally deciding some disputes about it. 
While Vice President Pence probably had power to slow down the electoral-vote-count at least under dire circumstances of obvious massive vote fraud, Pence likely did the right thing by refusing to do so here, because those circumstances did not exist.  While Pence heroically stood his ground and did his job, I do not agree that he was powerless to slow down the vote count, at least if those circumstances had justified it. 
No doubt President Trump had understandable grievances, but they did not amount to an appearance of obvious and massive vote fraud as of January 6, 2021.  Perhaps his leading legal grievance was that the U.S. Supreme Court had turned away a lawsuit from the state of Texas on December 11, 2020 which prevented the facts from being explored carefully and quickly in that central legal forum, and the ensuing events might have then been different. I’ve already written on this blog why I agree with what Justices Thomas and Alito said about that Texas lawsuit.  While Texas may not have had standing to attack the validity of statutes enacted by other states, Texas should have had standing to sue other states for not following their own statutes. 
I agree with Michael Ramsey that Pence likely lacked “power to disregard electoral votes which he thinks are invalid.”  But Trump was not demanding that, he was not simply pressuring Pence to disregard electoral votes, per the New York Times reporting on January 5, 2021: “Mr. Trump is now pressuring Mr. Pence to take matters into his own hands to delay the vote tabulation or alter it in Mr. Trump’s favor.”  Delay is something quite distinct from alteration, and slowing the electoral vote count was probably in Pence’s power, but (in my view) Pence heroically decided against delay.  Pence did so in the face of considerable violence as well as pressure from the Secret Service to get him out of the Capitol; massive vote fraud was not obvious at that time, and no states were self-reporting any massive vote fraud to Congress. 
As to the constitutionality of the Electoral Count Act either before or after the 2022 amendments, that Act places limits upon the Vice President as the presiding officer.  The rules of the U.S. Senate have for centuries limited the VP as presiding officer of the Senate, and limiting the VP as presiding officer of a joint session seems like pretty much the same thing. For anyone interested in studying the 2022 Amendments to the Electoral Count Act, a good informal place to start would be the essay by Professor Derek Muller three months ago praising those amendments.