Politico’s Betsy Woodruff Swan & Kyle Cheney have a three-page memo from Vice President Mike Pence’s attorney Greg Jacob on January 5, 2021. It appears he’s responding to a six-page memo from John Eastman (which followed a shorter memo), which Eastman apparently communicated to Pence on January 4.
Jacob does the best he can in a very short and pressured time period. He identifies the salient issues, but I do think he gets one thing wrong–in a way that gives too much credence to Eastman’s theory.
Jacob writes that in the event of competing slates of electors Article II places a “firm thumb on the scale” to the state legislature’s slate if the state legislature has chosen that slate, even if they chose a slate after Election Day. (That was the pitch Eastman and Rudy Giuliani unsuccessfully made to state legislatures.) But I don’t think that weeks after the election, the state legislature can simply pick an alternate slate of electors. The legislature already picked the manner of choosing electors (a popular vote). And that’s because Congress picked the time of choosing electors (the first Tuesday after the first Monday in November). I recently detailed this argument here at ELB. In short, it’s worth emphasizing that this isn’t a viable path. (Jacob had the luxury of the fact that no state legislatures had even attempted to do so, much less sent in a competing slate.)
There’s also an interesting conversation on the political question doctrine. Eastman “acknowledges that majorities in both the House and Senate would oppose his novel procedure.” But if Pence refused to go along with their objections, what might happen? An impasse in Congress? Rival statements of the electoral vote? In reality, swift litigation seemed likely. But what does the political question doctrine have to say about it? Jacob is skeptical that the political question would insulate judicial review of the Vice President’s decision.
Now, I think there’s a pretty strong textually-demonstrable commitment to Congress to count electoral and resolve disputes (a couple of dissenting opinions in Bush v. Gore actually went a touch further to earlier stages of the process). But Jacob here is engaged in realism. He twice notes “composition” (once described as “unfavorable” to Eastman’s position, another as the “present” composition “unlikely” to find a political question) of the D.C. Circuit. I don’t know if individual judges’ inclinations or one party’s appointees would be less inclined to adhere to the political question doctrine in an Electoral Count Act dispute. Or if the facts of this case made it less palatable to a Democratic-majority of the D.C. Circuit.
But Jacob avoids the thorny substance of the political question doctrine with a realistic, “If you try this, you’ll lose.” Less satisfying to the academic. Probably the short-term advice Pence needed that day.