Robert J. Delahunty (University of St. Thomas School of Law (Minnesota)) & John Yoo (University of California at Berkeley School of Law; American Enterprise Institute; Stanford University – The Hoover Institution on War, Revolution and Peace) have posed Who Counts: The 12th Amendment, the Vice President, and the Electoral Count (Case Western Reserve Law Review, forthcoming) (82 pages) on SSRN.  Here is the abstract:

Under the 12th Amendment of the U.S. Constitution, the Vice President opens the electoral votes for President before both houses of Congress. Would she have the constitutional authority to resolve disputes over the legitimacy of the electoral votes? If so, what types of disputes? This article argues that, while the constitutional text is ambiguous, its best reading makes the Vice President, as President of the Senate, the only federal institution to judge the legitimacy of electoral votes, subject in limited cases to judicial review. It also concludes, however, that the Vice President can only exercise this power over limited types of disputes originating from the states. If the Vice President receives only one set of electoral votes from the state institutions identified under state laws, she can only accept them as legitimate. She has no authority to decide whether the states’ electors were appointed in a constitutional manner. We argue that the 1887 Electoral Count Act cannot bind either the state legislatures or the Vice President in the performance of their duties under the 12th Amendment. On the facts of the 2020 election, no dispute over the electoral votes existed that justified intervention by the Vice President. States had certified their electoral counts, and no courts had halted the meeting of the electors or the reporting of their votes. But if the federal government were to receive two electoral slates from a single state, or a dispute has arisen within a state between the political branches of government and state or federal courts, the Vice President would have to choose which electoral votes to count and, in the process, judge their legitimacy.

I haven’t looked closely at all of the authors’ evidence, but I’m skeptical of even their limited view of the Vice President’s constitutional power (see here for earlier Originalism Blog discussion of this issue).

Here’s the relevant text (the Twelfth Amendment):

[T]hey [the Electors in each state] shall sign and certify [the lists of persons receiving votes for President and Vice President], and transmit [the lists] sealed to the seat of Government of the United States, directed to the President of the Senate [i.e., the Vice President]; — The 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; …

If the Amendment’s drafters wanted to give the Vice President counting authority, they could easily have written “… and he shall then count the votes.”  Using the passive voice (“and the votes shall then be counted”) deliberately fails to specify who counts the votes.

That does not mean the Constitution is ambiguous about whether the Vice President counts the votes, so that courts or other interpreters need to use extra-textual sources to resolve the ambiguity. Rather, the Constitution is clear that it does not specify who counts the votes, and thus leaves it to whatever entity has residual power in the area (here, the Senate and the House of Representatives) to resolve how the votes are counted.

NOTEThis post was originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.

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