The Electoral Count Act Debate Understates the Vice President’s Role

March 1, 2022

Robert Delahunty

Washington Fellow

Disputes over counting the electoral vote should be decided first in the states, then by the vice president, and then perhaps by the judiciary — but not Congress.

On January 6, 2025, Vice President Kamala Harris will open the electoral votes for president. Imagine if Arizona, Georgia, and Pennsylvania switch their 2020 votes for Joseph Biden to the 2024 Republican candidate — say, former president Donald Trump, or Florida governor Ron DeSantis. This switch of 46 electoral votes (taking reapportionment into account), assuming all other states vote the same way in 2024 as in 2020, would award the White House to the Republicans.

But according to the theory promoted by former president Donald Trump, Harris would have the authority to reject these electoral votes. It is not hard to guess her grounds. She could claim that changes in state electoral laws to require voter ID, prohibit vote harvesting, and end universal mail-in ballots suppressed minority voting in violation of the 14th and 15th Amendments.

Under the theory proposed by former vice president Mike Pence, former circuit judge J. Michael Luttig, and other distinguished officials and scholars, however, Harris could play only a ceremonial role and would have no right to “overturn” electoral votes. Meanwhile, however, members of Congress of both parties, judging by their votes to challenge the results of the 2016 and 2020 presidential contests, believe that they instead enjoy the right to reject “irregular” electoral votes. They claim this authority under the Electoral Count Act of 1877 (ECA), which establishes a procedure under which, after a member of the House and a member of the Senate vote to raise the question, both houses of Congress by majority vote can agree to reject a state’s electors. Hoping to forestall a repeat of Trump’s attempts to overturn the 2020 election, an alliance of Republicans and Democrats hope to amend the ECA to eliminate any possible vice-presidential role and to raise the votes required in Congress to reject a state’s electoral vote.

Trump, Pence, and these members of Congress are all wrong, but the fault lies not in themselves, but in the Constitution’s Twelfth Amendment. Ratified in 1804 after the disastrous electoral deadlock of the 1800 election, the Twelfth Amendment is so ambiguous as to invite these efforts to fill the “who’s in charge?” gap with the vice president, Congress, or the states alone. The amendment says that “the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates” of the electoral votes. Unfortunately, it then directs, in the passive tense, that “the votes shall then be counted.” 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.

You would not know that from the text of the act. The ECA, sadly, is no longer a dusty relic stored in a statutory attic. As the events of January 6, 2021, showed, it has the potential to cause serious mischief. Protesters rioted on Capitol Hill as the two Houses of Congress met to witness the electoral-vote count and to review the challenges lodged by members of the House and Senate to the returns of two key states. The protesters disrupted the vote count, and the final tally could not issue until January 7.

To prevent a similar repeat in the 2024 presidential election, it is time to repeal and replace the ECA — but in the right way. Members of Congress are taking a serious interest in the subject. Democratic senators King (Maine), Klobuchar (Minn.), and Durbin (Ill.) have proposed an Electoral Count Modernization Act. The majority staff of the House Administration Committee has issued a 31-page report detailing more proposals for ECA reform. On the GOP side, Senator Mitch McConnell (Ky.), the minority leader, has floated the idea of reforms (though his Democratic counterpart, Senator Chuck Schumer (N.Y.), has pushed back against it). Legal commentators have also called for revamping the current system.

The problem is not just that the ECA is confusingly written. The problem is that key parts of the ECA suffer from intractable constitutional flaws — most of which were noted during the congressional debates surrounding its passage. The main difficulty is that the ECA gives Congress the power to invalidate presidential electors’ votes on the grounds that they were “irregularly given.”

This is a problem because the Constitution deliberately excludes Congress from the dispute-resolution process in favor of a state-centric process for appointing electors. The Constitution’s text, structure, and context all show that Congress was to have no substantive role in dispute resolution. The key provisions occur in Article II (the section that deals with executive, not legislative, power) and in the Twelfth Amendment. The Constitution instructs the states to appoint their electors “in such Manner as the Legislature thereof may direct.” Congress is given no authority to control the “Manner” of these appointments; it may only “determine the Time of chusing the Electors, and the Day on which they shall give their Votes.” Members of Congress are constitutionally ineligible to be electors. After the electors have cast their ballots for president and vice president and certified them under seal to “the seat of the government . . . directed to the [vice president],” the vice president, in her capacity as president of the Senate, “shall, in the presence of the Senate and the House of Representatives, open all the certificates and the votes shall then be counted.” Nothing establishes a congressional power to challenge an electoral vote or pass judgment on its validity. The only role assigned to Congress is that of a spectator in a public ceremony.

The Constitution does specify a non-ceremonial role for Congress in choosing a president, but only if no candidate secures a majority of the electors’ votes. Should the count fail to produce a majority, the House of Representatives — acting alone, without the Senate — picks the president from among the top three finalists, with each state’s delegation casting a single vote. That much, and no more, is granted by the Constitution to Congress in deciding the outcome of the presidential election.

Other constitutional clauses provide indirect, but powerful, support for this conclusion. Although Article I of the Constitution, which creates the legislative power, recognizes that each state prescribes the “Times, Places and Manner” of elections for members of Congress, it also gives Congress the authority to override such state “Regulations” — including those as to the “Manner” in which the state has sought to conduct these elections. By contrast, the Constitution nowhere grants Congress or any other body the authority to override the “Manner” by which states appoint their presidential electors. The Framers knew how to grant Congress the power to control elections — when they wanted to.

The Framers even knew how to make Congress the judge of election disputes. Article I charges Congress to be “the Judge of the Elections, Returns and Qualifications of its own Members.” Under this clause, Congress could find a state’s election of a member of Congress to be fraudulent and reject it. But Article II adopts nothing comparable with regard to presidential electors. If the Framers had intended Congress to be the “Judge” in disputes over the appointment and qualifications of electors, they knew how to say so.

The constitutional structure supports the exclusion of Congress from dispute resolution over electors. The Constitution creates an executive that is substantially independent of the legislature. Our system fundamentally differs from modern parliamentary democracies, where the executive is chosen by and from the legislature and must retain the legislature’s confidence to stay in power. For good or ill, these parliamentary democracies have chosen to reject our Constitution’s separation of powers. If Congress could effectively decide whom to select as president, executive independence and the separation of powers would break down.

The Constitution’s history further buttresses our conclusion. During and after the Revolutionary War period, the states had generally made their executives dependent on, or even parts of, their legislatures. Considering these state constitutions defective, most of the Framers sought to create an independent national executive. It would contradict this basic objective to allow Congress the final say in the selection of the president through a power to reject electors.

Further, some state constitutions and statutes from the Founding period specifically carved out a role for legislative intervention to resolve disputes over the vote count in elections for state governor. (Delaware, Pennsylvania, and New York were among them.) Had the Founders wished to follow that tack, they had familiar models before them. But they chose not to include any of these devices in the U.S. Constitution.

Congress debated the question of where authority lay for resolving electoral disputes not long before the disputed presidential election of 1800. In that debate, Senator Charles Pinckney of South Carolina — who had himself been a leading Framer and ratifier, and who had introduced a constitutional plan of his own at the Philadelphia Convention — spoke at length. Pinckney emphasized that “it was the intention of the Constitution to make the President completely independent of the Federal Legislature” and “to give Congress no interference in, or control over the election of a President.” It followed that Congress was absolutely denied “the right to object to any vote, or even to question whether they were constitutionally or properly given.”  Congress, as Pinckney insisted, had not “the smallest power to decide on a single [elector’s] vote.” Instead, Pinckney argued, states were to decide any questions as to the qualifications or conduct of electors.

We believe that Pinckney’s state-centric view of the electoral-dispute-resolution process is substantially correct, but two important qualifications need to be made. First, the federal judiciary has a constitutional role to play in reviewing the states’ selection procedures (as in Bush v. Gore). A state cannot choose electors in violation of the 14th Amendment and 15th Amendment’s bans on the use of race in elections and government programs.

Second, 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. States may be unable to resolve electoral disputes by the date Congress has designated for the electors’ votes to be opened and counted. Though unusual, such cases have arisen over the course of American history. In that event, a decision about the state’s electors must be made at the federal level.

There are at least two kinds of situation in which a state may fail to yield a definitive and binding decision on disputed electoral votes. One is a situation in which different authorities within a state — the executive and the legislature, say, or the governor and the attorney general — have certified different slates of electors. The other is a situation in which, perhaps because litigation over the popular vote is continuing, a state has failed to certify any set of electors, but the state legislature, bypassing the governor, has purported to resume its power to appoint electors and certified a slate on its own.

These are situations that appear to require a federal decision-maker to rule on which set of electors to accept, or on whether to accept any certifications at all. The best reading of the Constitution, we believe, is that the vice president has that decision-making power. Where a state has spoken with more than one voice, or may not have spoken at all, it is for the vice president, who is charged with opening the certificates of the electors’ votes, to decide the question. In any case, as we have argued above, Congress simply has nothing to say on the matter.

Is there anything to be said in support of congressional power to act? Defenders of the ECA and similar legislative initiatives have traditionally fallen back on the necessary-and-proper clause, which vests Congress with power to enact measures “necessary and proper” “for carrying into Execution” the powers granted to the other branches. In its most plausible form, this defense contends that Congress must have the power to provide for the resolution of disputed electoral vote counts because, without such as procedure, a president might not be elected at all, or if somehow selected otherwise, might be of dubious legitimacy. But it is unlikely that after carefully barring Congress from intervening in the electoral count, the Framers allowed it to control the process through this device. It would be like locking all the doors to a house against an intruder but then leaving the key in one of them. If Congress could regulate electoral-vote disputes through this clause, it could effectively undermine the states’ powers to decide on the “Manner” in which electors were appointed: Congress could, for instance, rule that no electoral votes could be accepted if the electors had been picked by the state legislature instead of by popular vote, or if the state governor had not certified the results.

Critics will question why the vice president should have any affirmative decision-making power, even if Congress has none. There are three basic answers grounded in text and history.

First, assigning the power to resolve disputes seems to be the most natural reading of the Twelfth Amendment’s text. It gives the vice president acting alone, but in the presence of the House and Senate, the duty to open the electoral ballots. Even though the Twelfth Amendment then uses the passive voice to say, “and the votes shall then be counted,” the vice president would be the most logical textual choice to carry out that function. If the framers of the Twelfth Amendment had decided to include Congress, for the first time, in an active role, we could have expected them to say so in the text. Instead, the more natural reading is that the vice president opens the ballots and then proceeds to count them. In the process of counting them, the vice president must decide between two sets of electoral votes or whether an electoral vote truly comes from its state.

Second, if a ruling on the vote count at the federal level is necessary, but Congress (even when assembled to witness the counting) is constitutionally precluded from giving it, then who but the vice president is empowered to perform the task? The Twelfth Amendment provides that if no candidate receives a majority of the electoral votes for president, then the House of Representatives “shall choose, immediately, by ballot, the President” (emphasis added). There is to be no interval between the conclusion of the vote count and the action of the House in cases where the vote count has not yielded a majority. Where there are rival electors or rival slates, and a decision on which votes to count would determine whether a majority vote for a candidate exists, someone must decide either that a majority exists or that the choice among the candidates must go to the House. That decision-maker could only be the vice president: it could not be a court, since the House must convene “immediately.”

Third, in the early elections of 1796 and 1800, critical electoral votes were disputable — votes that in the first case would decide whether John Adams had been elected president, and in the second, whether Thomas Jefferson had enough votes to tip the final choice (with himself still in consideration) into the House. In both cases, the vice president, as president of the Senate, accepted — without any challenge from Congress — the disputable votes. And the vice presidents in question were, respectively, John Adams and Thomas Jefferson, each of them accepting as valid the disputable votes in his own favor. The precedents of Adams and Jefferson, two of the most significant Founders, were long understood to show that the vice president had a substantive role to play in resolving potential electoral-vote disputes. Indeed, that seems to have been the prevailing view among constitutional commentators until about 1820, by which time most of the Founding generation had died. But even after that point, including during congressional debates over the ECA, proponents of that view remained.

We recognize that attributing some substantive power in vote-count disputes to the vice president is controversial. For one thing, the Constitution hardly ever assigns significant authority to a single agent other than the president. For another, since the incumbent vice president might be a candidate for the presidency, our view might enable the vice president to hoist himself or herself into the presidency (as, one might say, Adams and Jefferson did). The “problem,” however, is not nearly as severe as it might seem: The authority we believe the vice president holds is very limited. It only arises in situations where a state has not definitively spoken; and it may be subject to eventual judicial review. True, it does interpret the Constitution to permit a vice president who is also a presidential candidate to adjudge a dispute in which he or she is a highly interested party; but the Constitution does just that in several other places as well (as when federal judges decide whether their salaries are subject to income tax).  

If our reasoning is correct, some of the current proposals to reform the ECA would not cure the defects in the existing statute. The draft being circulated by Senators King, Klobuchar, and Durbin, for instance, would provide “narrow grounds for Congress to object to electors or electoral votes submitted by the states.” And it would affirm “that the Vice President has no role in the counting of electoral votes, except to open electoral-vote ballots.” In both respects, the proposal would be unconstitutional. It would be a catastrophe if the country had another contested presidential election whose outcome was to be decided under a statute that the courts would have to overturn.

Instead, Congress could usefully repeal the provisions of the ECA that purport to give Congress the power to initiate and review challenges to electoral votes. A new law could provide for expedited judicial review of any rulings the vice president makes as to which votes to accept or reject. One thing is certain: Whatever roles the Constitution may assign or permit to the states, the vice president, or the federal courts in resolving disputed electoral votes, it excludes Congress.

This essay was coauthored with John C. Yoo and was originally published in National Review on February 28, 2022. John Yoo is the Emanuel S. Heller Professor of Law at the University of California at Berkeley, a nonresident senior fellow at the American Enterprise Institute, and a visiting fellow at the Hoover Institution at Stanford University.