I appreciate Akiva Cohen. If he didn’t drudge through the nonsense suit filed by Rep. Louie Gohmert, et al., against Vice President Michael Pence, I might have felt compelled to, and I don’t want to. Having read some of the Trump election suit papers, and the shredding by Mike Dunford, I’ve suffered enough.
The crux of the suit*?
Essentially, the suit seeks to “free” Pence from the constraints of the Twelfth Amendment and the Electoral Count Act so that he can either count an alt slate of electors rather than the one certified by the states, or simply not count the electors from states he finds to be in dispute, and only count the remaining states. Either way, the suit asks the court to make Pence the Minister of Magic.
Both Article II of the Constitution and the 12th Amendment say that the votes of the Electoral College are to be opened by the “president of the Senate,” meaning the vice president. The Electoral Count Act, passed in 1887 to avoid chaotic counts like the one that followed the 1876 election, adds important details. It provides a detailed timeline to tabulate electoral votes, culminating with the final count to take place on Jan. 6, and it delineates the powers of the vice president.
He is to be the “presiding officer” (meaning he is to preserve order and decorum), open the ballot envelopes, provide those results to a group of tellers, call for any objection by members of Congress, announce the results of any votes on objections, and ultimately announce the result of the vote.
One of the “jobs” of vice president is to be the “president of the Senate.” His only substantive duty as such is to vote to break a tie. There are also ceremonial duties, and this is one: the vice president gets to announce the name of the next president. It can be a painful duty, as it likely was for Al Gore when he was constrained to announce the George H. Bush was elected president, but that’s the job.
As for the tasks leading to the announcement, they are what we refer to in law as “ministerial,” that someone has to do the perfunctory work of opening the envelopes sent by the state containing the votes of its electors, hand them to the tellers, who have their own ministerial job of counting the votes. He asks if there are objections. If so, there will be debate, culminating in a vote by the body.
Pence’s role isn’t discretionary. He doesn’t get to shove an envelope from Georgia into his pocket and say, “nope, not gonna count that one.” He doesn’t get to “rule” on the validity of a state’s decision to certify the electors. He doesn’t get to decide anything.
Nothing in either the text of the Constitution or the Electoral Count Act gives the vice president any substantive powers. His powers are ministerial, and that circumscribed role makes general sense: The whole point of an election is to let the people decide who will rule them. If an incumbent could simply maneuver to keep himself in office — after all, a maneuver to protect Mr. Trump also protects Mr. Pence — the most foundational precept of our government would be gravely undermined. In America, “we the people,” not “we, the vice president,” control our destiny.
Why Neal Katyal felt it necessary to include the “we the people” line is unclear. Sure, if one prefers implistic platitudinous crap, it’s close enough, but it’s neither correct nor appropriate, especially when one is trying to parse law relative to the Electoral College, of all things. If it was “we the people,” then the popular vote would supplant the EC. It doesn’t. If it was “we the people,” then divided slates of electors would reflect divided state votes rather than “winner take all” as some states have established. That’s the point, the the election of a president is left to the manner of states’ choices in electors. It’s a weird system, and shouldn’t be reduced to platitudinous simplicity.
It’s also not magic.
The drafters of the Electoral Count Act consciously insisted on this weakened role for the vice president. They guarded against any pretense he might have to throw out a particular state’s votes, saying that the vice president must open “all certificates and papers purporting to be” electoral votes. They further said, in the event of a dispute, both chambers of Congress would have to disagree with a particular state’s slate of electoral votes to reject them. And they made it difficult for Congress to disagree, adding measures such as a “safe harbor” provision and deference to certification by state officials.
The notion promoted by Gohmert’s suit, that the procedures established by constitutional amendment and law to conduct this otherwise routine act can be transformed into one where the vice president, as president of the Senate, gets to override states’ decisions of who their electors should be, or gets to throw out states because he doesn’t care for their choice or how they were chosen, is nuts. It doesn’t exist. There is no authority for any of this. It’s obviously undemocratic (which is where some wag retorts, “but we’re a Republic, hah!”), but more importantly to lawyers, there is simply no basis for the VP to do anything more than perform his ceremonial function.
None of that matters to guys like Gohmert or Trump, who take comfort in the sort of ignorance of law that allows them to make absurd stuff up as they go and believe that if they can spin it, it can become real. But what of Pence?
He now stands on the edge of history as he begins his most consequential act of leadership. The question for Vice President Pence, as well as other members of Congress, is which side of history he wants to come down on. Can he show the integrity demonstrated by every previous presidential administration? The American people accept a graceful loser, but a sore loser never goes down well in the history books.
What would happen if, after being handed the piece of paper with the name of the next president on it, Vice President Michael Pence, in a stentorian voice, announces that the next president is “he who must not be named”? Joe Biden will still be the next president and Pence will earn a footnote in the history books for his ridiculous attempt to name himself Minister of Magic. There is no magic here.
*Image shamelessly taken from Akiva Cohen’s twitter feed.
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