Recently, Claremont Institute — the think tank that employs Eastman and is developing a demented intellectual theory of Trumpism — put out a statement denying that Eastman ever suggested Pence should throw the election.
That’s nonsense — Eastman’s memo said exactly that — but regardless, Claremont whitewashed the situation in a way that leaves the zombie theory alive. Claremont claimed Eastman advised Pence not to assume unilateral authority “despite credible legal arguments” saying he does have that authority. The theory lives on.
It shouldn’t. Which brings us to a comprehensive new analysis by legal scholar Matthew Seligman.
Seligman’s essay notes that the 12th Amendment doesn’t assign the counting role only to the vice president. A more reasonable reading is that the vice president “opens” slates of electors and they “shall then be counted” by all present, including Congress.
Seligman also does a deep historical dive into the two presidential elections before the 12th Amendment’s 1804 ratification. In both, Congress did count electors (via a complex procedure) and much contemporaneous discussion demonstrates a clear understanding of this.
It’s impossible to believe the 12th amendment would have assigned this counting power only to the vice president right after all that, Seligman notes.
“Congress has participated, and in important respects controlled, the count of electoral votes from the very beginning,” Seligman concludes. This shows the 12th Amendment was ratified to reflect precisely that understanding, that “Congress, and not the President of the Senate,” counts and resolves disputes over electors.