Who Counts the Votes of the Presidential Electors?

12/31/2020

Who Counts the Votes of the Presidential Electors? - Contemplations on the Tree of Woe

Contemplations on the Tree of Woe

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Who Counts the Votes of the Presidential Electors?

This may be the most important question in American history.

Alexander Macris Dec 7 15 32

"Those who cast the votes decide nothing. Those who count the votes decide everything."

The quote is ascribed to Joseph Stalin, although there’s little evidence that he actually said it.

Nevertheless, it resonates as true. Certainly America stands in crisis now because of disagreements about the count of the popular vote.

But the President of the United States isn’t actually elected by the popular vote. He’s elected by the college of presidential electors. As I noted in a previous article, one of the most important questions in this crisis is whether the state legislatures can appoint presidential electors to cast their votes in opposition to the popular vote.

But there is another question: Who counts the votes cast by the presidential electors? If “those who count the votes decide everything,” as Stalin said, then this is the most important question in American history.

The Constitutional Argument The U.S. Constitution governs the election of the President. The controlling provision is the Twel h Amendment, which states that: “[T]he President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certi cates and the votes shall then be counted.”

What does that mean? In “Preparing for a Disputed Presidential Election” (51 Loyola University Chicago Law Journal 2018), Edward B. Foley explains: The peculiar passive-voice phrasing of this crucial sentence opens up the possibility of interpreting it to provide that the “President of the Senate” has the exclusive constitutional authority to determine which “certi cates” to “open” and thus which electoral votes “to be counted.” https://macris.substack.com/p/who-counts-the-votes-of-the-presidential

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Who Counts the Votes of the Presidential Electors? - Contemplations on the Tree of Woe

This interpretation can derive support from the observation that the President of the Senate is the only o cer, or instrumentality, of government given an active role in the process of opening the certi cates and counting the electoral votes from the states. The Senate and House of Representatives, on this view, have an observational role only. The opening and counting are conducted in their “presence”—for the sake of transparency—but these two legislative bodies do not actually take any actions of their own in this opening and counting process. How could they? Under the Constitution, the Senate and the House of Representatives only act separately, as entirely distinct legislative chambers. They have no constitutional way to act together as one amalgamated corpus. Thus, they can only watch as the President of the Senate opens the certi cates of electoral votes from the states and announces the count of the electoral votes contained therein.

This interpretation of the Twel h Amendment is bolstered, moreover, by the further observation that the responsibility to de nitively decide which electoral votes from each state are entitled to be counted must be lodged ultimately in some singular authority of the federal government. If one body could decide the question one way, while another body could reach the opposite conclusion, then there inevitably is a stalemate unless and until a single authority is identi ed with the power to settle the matter once and for all. Given the language of the Twel h Amendment, whatever its ambiguity and potential policy objections, there is no other possible single authority to identify for this purpose besides the President of the Senate. (emphasis added) Foley is not alone in this analysis. Another prominent jurist, John Harrison, makes an even more forceful case. Harrison argues in “Nobody for President,” (16 J.L. & Pol., 2000), that the most natural reading of the Twel h Amendment grants the opening-and-counting power to the President of the Senate: The Twel h Amendment provides that in the presence of the two houses, [the President of the Senate] shall open all the certi cates from the electors. But as history shows, there can be more than one purported certi cate from a state. Indeed, multiple purported certi cates may be the most common cause of dispute. The certi cates that the President of the Senate is to open, however, are those of the electors, not those of non-electors. Hence, in order to know which certi cates to open, the President of the Senate must know which of competing slates of electors were validly appointed. …A natural reading [of the Twel h Amendment] thus indicates that in one especially important context, the dispute is to be resolved by a single individual. Neither House nor Senate https://macris.substack.com/p/who-counts-the-votes-of-the-presidential

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Who Counts the Votes of the Presidential Electors? - Contemplations on the Tree of Woe

is given any authority over the President of the Senate when it comes to opening the certi cates, and Congress by statute may not control the exercise of this constitutionally granted authority any more than it may tell the President who to pardon. (emphasis added) Now the President of the Senate is actually the Vice President of the United States - Trump’s running mate, Mike Pence. If Foley and Harrison are correct, then Mike Pence may be the most powerful man in America right now!

The Historical Argument Constitutional law is not, of course, merely a matter of language analysis. The intent of the Framers, the history of the Republic, and the interpretations of past jurists all bear weight.

But here, too, there is much evidence for the case that Pence has the power to open and count the votes of the presidential electors. As Foley regretfully explains: Whatever each of us personally thinks of this interpretative argument, it is necessary to acknowledge that it has a signi cant historical pedigree. It routinely had its advocates in the years leading up to the disputed election of 1876. During that intense dispute, it was conveniently invoked by Republicans, since the President of the Senate was one of their own at the time.

A er the resolution of that ugly dispute, the argument was resurrected by some during the congressional debates that led to passage of the Electoral Count Act of 1887…

What is the historical pedigree to which Foley refers? The Congressional Record of the passage of the Electoral Count Act records the opinion of many prominent legislators who held the view that the President of the Senate opens and counts the votes, even though some weren’t happy about it: “The counting function is vested in the President of the Senate and the Necessary and Proper Clause does not confer on Congress the power to assume unto itself the duty which the Constitution imposes on that o cer.” - Sen. Wilson “If the Constitution…does…by fair implication, vest in the President of the Senate the power and duty not only to open, but also to count, the votes, then Congress can not, by this or any other legislation, take away or transfer to any other “person or o cer that power and duty; - Rep. Baker “The Constitution says that ‘the votes shall then be counted,’ and if this mandate be addressed to the President of the Senate, that ends the question so far as the counting is https://macris.substack.com/p/who-counts-the-votes-of-the-presidential

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Who Counts the Votes of the Presidential Electors? - Contemplations on the Tree of Woe

concerned. The Constitution has then entrusted him with the whole power, and any legislation to direct him, would be an impertinent intrusion upon his prerogative.” - Sen. Spear “The President of the Senate’s discretion in opening certi cates shows the necessity of an amendment of the Constitution.” - Sen Morton.

Foley, also obviously unhappy with this situation, goes on to explain: [Thus] Republicans [can] point to the historical pedigree of this position, observing that Republicans made the same argument during the disputed election of 1876 and that at least some recent law journal scholarship has supported this position. Unembarrassed by the apparent con ict of interest caused by Mike Pence simultaneously being a candidate for reelection and arbiter of the electoral dispute, these Republicans observe that Thomas Je erson was in essentially the same position during the disputed election of 1800 and yet the Twel h Amendment le this provision in place when Congress rewrote the procedures for the Electoral College a erwards.

Wait, Thomas Je erson pulled this trick? Indeed he did. The 1800 Presidential election was a contest between Je erson, Aaron Burr, John Adams, Charles Pinckney, and John Jay. Je erson, as the current Vice President, was the President of the Senate when it came time to count the votes. And he counted them in his own favor! Bruce Ackerman and David Fontana explain what happened in their article “Thomas Je erson Counts Himself into the Presidency” (90 Virginia Law Review 2004, 551-643): Thomas Je erson was remarkably aggressive as President of the Senate. Georgia’s certi cate - granting four electoral votes to Je erson - was constitutionally defective on its face, a de ciency that was announced on the oor of Congress and reported by leading newspapers of the day. To resolve all doubts, we have located Georgia’s certi cate in the National Archives, and it does indeed reveal striking constitutional irregularities…

Nevertheless, Je erson failed to pause before counting George’s four electoral votes into the Republican column, declaring the nal vote as if nothing were amiss. Had Georgia’s ballot been excluded, the vote count…would have admitted all ve candidates into a runo in the House… Without the decisive use of his power as President of the Senate, Je erson might never have become President of the United States. (emphasis added)

https://macris.substack.com/p/who-counts-the-votes-of-the-presidential

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Who Counts the Votes of the Presidential Electors? - Contemplations on the Tree of Woe

Read that again: Thomas Je erson, author of the Declaration of Independence, the man whose face adorns Mt Rushmore, among the most revered founding fathers of our country, only became President because he used his unilateral power as President of the Senate to open and count the presidential ballots in his own favor.

Vasan Kesavan, in “Is the Electoral Count Act Unconstitutional?” (80 NC L. Rev. 2001-2002), records another example where the President of the Senate unilaterally determined the winner of the Presidential Election: In the election of 1856, the ve electors of the State of Wisconsin did not cast their votes on the day prescribed by federal law because of a snowstorm. The President of the Senate counted Wisconsin's electoral votes over the objections of both Representatives and Senators assembled in convention. When Representative Lechter objected to Wisconsin's electoral votes and moved to exclude them, the presiding o cer (the President of the Senate) simply stated that no debate was in order when the votes were being read by the tellers or even a er they were nished.' When Senator Crittenden then asked the presiding o cer, "Do I understand the Chair to decide that Congress, in no form, has power to decide upon the validity or invalidity of a vote?,"' the presiding o cer replied that it was his constitutional duty to announce the result of the electoral count and that "[w]hat further action may be taken, if any further action should be taken, will devolve upon the properly-constituted authorities of the country, the Senate or House of Representatives, as the case may be.'…

Several Members of Congress were concerned that the decision to count Wisconsin's electoral votes would set a dangerous precedent. According to Senator Pugh, unlike the Missouri Incident which was "never likely to happen again," the Wisconsin Incident "may occur one hundred times again, if the Government should stand that many years.' Almost every Member of Congress who spoke on the subject agreed that the votes of Wisconsin should not have been counted.' (emphasis added) And yet the votes were counted… because the President of the Senate opened and counted them. The President of the Senate’s choice was more powerful than the collective will of Congress.

Come January 2021, Vice President Mike Pence will be presented with the sealed certi cates containing the ballots of the presidential electors. At that moment, the Presidency will be in his hands.

And there is nothing stopping Pence, under the authority vested in him as President of the Senate, from declining to open and count the certi cates from the six disputed states. If they https://macris.substack.com/p/who-counts-the-votes-of-the-presidential

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Who Counts the Votes of the Presidential Electors? - Contemplations on the Tree of Woe

are (as more than 70% of Republicans believe) certi cates from non-electors appointed via voter fraud, why should he open and count them? As Harrison noted, “the certi cates that the President of the Senate is to open… are those of the electors, not those of non-electors.”

The President’s position going into January 2021 is thus considerably stronger than the mainstream media would like to admit. There is Constitutional language and historical precedent that gives his Vice President the unilateral power to decide the outcome of our contested election.

If Trump would be king, Mike Pence could be his kingmaker.

Update: Reader Jon. H. has written in to share the source of the Stalin quote. It is from The Memoirs of Stalin’s Former Secretary by Boris Bazhanov and the exact quote is“ I consider it completely unimportant who in the party will vote, or how; but what is extraordinarily important is this — who will count the votes, and how.”

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Comments Commenting has been turned off for this post Cognitive Dissonance Dec 7 Liked by Alexander Macris

Now wouldn't Mike Pence deciding the election thoroughly cook some liberal noodles. May the games begin.

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1 reply Nullus Maximus Dec 7

This would be glorious, and it would necessitate martial law in many American cities in the following weeks.

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12/31/2020

Who Counts the Votes of the Presidential Electors? - Contemplations on the Tree of Woe

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