Yoo & Delahunty on the vice president’s role in counting electoral votes

Over at National Review, John Yoo and Robert Delahunty have some long-ish thoughts on the role of the vice president in counting electoral votes. Consistent with their views elsewhere, they argue that the vice president has some role, and a larger role than Congress. I don’t think that’s right for reasons I’ve laid out on Eastman’s views, and I won’t rehash some of those points here. But I want to focus on a few of the claims.

Their bottom line: “We believe that the best reading of the Constitution’s text, structure, and history, is to place disputes over the legitimacy of the electoral vote into the hands first of the states, then of the vice president, and then perhaps of the judiciary. But not Congress.”

First, it’s worth noting how vice president-centric the claim is. The Constitution says the “President of the Senate,” and that language is used a couple of times in the Yoo & Delahunty piece. But until the 25th Amendment, there was no procedure to replace the Vice President. The President of the Senate devolved to the President Pro Tempore. Or, the President Pro Tempore acts as President of the Senate when the Vice President is simply absent, as has happened in other instances of the counting of electoral votes. I’ve noted the strange inconsistency here: it’s odd to claim that the President of the Senate–sometimes, one single Senator–has the power to handle disputes over electoral votes, but the entire Congress does not.

Second, there’s some misuse, in my view, of the statements of Senator Charles Pinckney in 1800, prior to the Twelfth Amendment, and who, it’s worth noting, was promptly outvoted on the issue when the Senate immediately considered the topic. It’s true that Pinckney spoke at length that it was state legislatures, not Congress, that should resolve the disputes over electors. Yoo & Delahunty say that Pinckney is “substantially correct,” then go on to reject half of his argument–namely, “Pinckney seems to have assumed that all potential disputes over the electors and their votes could be decided internally within the states, leaving no place for federal review. Other Framers likely shared that assumption. But that assumption has proven to be incorrect.”

That’s not “substantially correct.” Pinckney left it to X not Y to resolve disputes. To say he’s right by saying “not Y” doesn’t say much, without also saying that X is right. For, I assume, Pinckney would recoil even more at the concept of the vice president usurping the role of the state legislature.

But it also misses a lot of what Pinckney has to say in his March 28, 1800 speech .”Congress have no power to interfere except in the manner I shall hereafter detail,” he opens. That is, there are powers of Congress here. He notes the propriety of the Act of 1792 on the topic, for instance.

Elsewhere, he notes, the Constitution gives “to Congress no interference in or control over the election of President. It is made their duty to count the votes in a convention of both Houses, and for the President of the Senate to declare who has the majority of votes of the electors so transmitted.” Congress counts. The President of the Senate neither counts nor resolves disputes.

But another objection of Pinckney’s is that he just doesn’t want to answer the hard questions at the moment.

Elsewhere he states, “[S]uppose a State Legislature should so far forget its duty as not to pass the manner in which, within the proper time, electors of a President should be elected, and the people should, notwithstanding, assemble and elect under a different authority: would the votes of the electors, under these circumstances, be receivable? Or, suppose that two different sets of electors should insist that they were constitutionally elected, and that double returns should be transmitted, one certified by the Governor of the State, and the other not; which are to be received, and who is to have the power to decide to which the preference is to be given?

“On this subject I am to remark, that the Constitution supposes a mutual confidence to exist between the Federal and State Governments; that not only in its formation, but in the strict and honorable performance of their relative duties, there will be the greatest punctuality and exactness; that neglect, and particularly refusal, on the part of either must endanger the existence of both; and that until the case does actually arise it is extremely impolitic in either to suspect it, and particularly to adopt measures in anticipation, on suspicions unsupported by proofs, to meet situations that have never yet occurred, or probably never will . . . .”

Pinckney acknowledges that state dispute resolution mechanisms may not solve the problem, but he insists that the question should simply not be answered until a problem arises. That is, it would infringe on state autonomy to doubt them at this stage.

And, finally, given that majorities of both houses of Congress (despite Pinckney’s failed floor statements) agreed that it had the power to count votes and resolve disputes in 1800 (even if it couldn’t agree on the language of a bill), it seems strange to say that the subsequent enactment of the Twelfth Amendment a few years later disclaimed the very power members of Congress believed they already possessed. It’s for this crucial reason to separate the original public meaning of Article II with the original public meaning of the Twelfth Amendment. The latter is best read as ratifying the practices of Congress, including the scope of its practices (e.g., appointing tellers to tabulate the votes, a task not given to the President of the Senate) at the time.

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