Election 2020

"All Pence Can Do Is Count"

No, the vice president does not have the power to reject validly appointed electors.


One of the more innovative constitutional theories currently advanced by those trying to find a way that President Trump may remain in office is that Vice President Mike Pence has the authority to reject slates of presidential electors from individual states. This theory is advanced in litigation filed by several members of the House against the Vice President and has been circulating on social media. It is wrong.

In Monday's Wall Street Journal, attorneys Alan Charles Raul (a Reagan administration alum and co-founder of Checks & Balances) and Richard Bernstein explain some of the flaw in this latest theory.

Texas Rep. Louie Gohmert has argued that the Electoral Count Act of 1887 is unconstitutional. Therefore, he claims, Vice President Mike Pence is empowered by the 12th Amendment to reject 73 Biden-Harris electoral votes from five states when Congress meets to certify the 2020 election results on Jan. 6. A dozen Republican senators and many more House members also argue that Congress has this power. They are all wrong.

Neither the vice president nor Congress has the power to reject electoral votes. This is because the 12th Amendment vests no power in the vice president or Congress to judge who won a state's electoral votes when the authorized branches of the state's government agree, as they do here, on which electors won.

As Raul and Bernstein stress, the language of the 12th Amendment offers no support to this theory. The relevant language directs the vice president (serving as President of the Senate) to "open all the certificates" before a joint session of Congress. It then provides that "the votes shall then be counted." The language does not even direct the President of the Senate to do the counting, let alone authorize him to judge whether a slate of electors was validly appointed. In contrast, other provisions in the Constitution specifies who is empowered to "judge" the qualifications of members of Congress.

It's also worth noting that, contrary to what some claim, there are no rival slates of electors. Each state has appointed one, and only one, slate of electors in accordance with the Constitution, and relevant federal and state law. Further, only one slate of electors for each state has been submitted to the National Archives.

Given the above, it should be no surprise that Rep. Gohmert's lawsuit alleging the Electoral Count Act is unconstitutional has been going nowhere fast. The Department of Justice filed a brief on behalf of the Vice President arguing the plaintiffs had sued the wrong party. On New Year's Day, the district court dismissed the suit for lack of standing.

And then yesterday, the U.S. Court of Appeals for the Fifth Circuit affirmed in a terse, per curiam opinion from judges Higginbotham, Smith and Oldham.

This administrative panel is presented with an emergency motion for expedited appeal. We have appellate jurisdiction under 28 U.S.C. § 1291. That includes jurisdiction to determine both our and the district court's jurisdiction. We have the benefit of the briefing before the district court and its 13-page opinion styled Order of Dismissal, issued January 1, 2021. That order adopts the position of the Department of Justice, finding that the district court lacks jurisdiction because no plaintiff has the standing demanded by Article III. We need say no more, and we affirm the judgment essentially for the reasons stated by the district court. We express no view on the underlying merits or on what putative party, if any, might have standing. The motion to expedite is dismissed as moot. The mandate shall issue forthwith.

A petition for certiorari has yet to be docketed.


NEXT: Ted Cruz Recycles Election Fraud Claims Already Rejected by the Courts

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  1. This theory is advanced in litigation filed by several members of the House against the Vice President and has been circulating on social media. It is wrong.

    Wrong? Just wrong?

    The theory behind this lawsuit seems to be that the November election was no more than advisory, and that it is wholly within the authority of the VP to decide who the next President shall be.

    This is ludicrous beyond belief.

    Your Republican Party at work.

    1. How about Pence gets real drunk before counting and simply gets the count wrong…oops, my bad! Does the law say the VP must be sober when doing the counting?

      1. The 11th does not even say that the Veep does the counting, sober, drunk or otherwise.

      2. Oh that would be bad, he could accidentally look at Pelosi for a second too long and Mother would be unhappy.

  2. The wild card is if Pence has reason to believe that the electors were fraudulently selected. The precedent on this predates the First Civil War — with the 2nd likely to start this month.

    1. I honestly thought that, “ima take my ball and go home” went out of fashion in first grade.

      …. this is your modern GOP. Heads they win, tails … everyone loses.

    2. All-talk, delusional bigots are among my favorite culture war casualties . . . and the core of the Volokh Conspiracy’s carefully cultivated class of conservative followers.

      Carry on, clingers . . . until the next time your betters decide to slap you into place.

      1. Hi, Cheater. Biden, not my President.

        An independent counsel should be appointed to investigate Chinese collusion. When the House turns Republican, Biden should be impeached.

        1. Russian Speak-and-Spell bot strikes again!

          1. How much is the Chinese Communist party paying to troll patriots on the internet?

            1. I’m surprised you didn’t slip and write ‘rubles.’

    3. This is pathetic even for your standards. But the most pathetic aspect is your lack of imagination. The wild card is Red Dawn, the Cubans invade. Dream big.

      1. What are they going to invade with? Rusted ’59 Chevys?

        1. No they will invade with tanks. We win the war using rusted 59 chevys. Haven’t you seen Red Dawn?

          1. Wolverines!

        2. Actually, JFTR, the ’59 Chevys are not rusted, but are mostly in excellent condition. The Cubans take great pride in those cars, and keep them in good shape.

          You would too if the alternative was a Lada, or walking.

      2. The ChiComs have already invaded — with Covid.

        1. They did not damage us with COVID. The media and the Democrat Governors damaged us with the lockdowns. They are the agents of the tech billionaires. They want access to the China market and will represent Chinese interests in our nation. The tech billionaires took in an additional $trillion over expected profits for 2020. That explains everything.

          1. And yet, in Wuhan itself, they are free from the virus. No rstrictions, no lockdowns. Why? Because they locked down hard initially, and forced mask compliance.

            The more active the measures, the more mask compliant the populace, the milder the severity of the outbreak. This pattern is confirmed again, and again around the world.

            And you guys wonder why everyone calls you guys morons, and get so butthurt about it. This is why. You refuse evidence you don’t like, and believe whatever you want.

            1. Why? Because everybody who was going to die is now dead. THAT is why it’s over in Wuhan.

              1. So Wuhan is devoid of people over the age of 65, and people with less perfect health?! Oh My God!

                Awaiting your citation for that.

              2. Citation needed.

                1. You guys are taking the word of a totalitarian police state, and you’re asking ME for cites? Seriously? Sheesh.

                  Wuhan, the pandemic’s first epicenter, may have had 10 times as many COVID-19 cases as were reported, a study from China’s CDC suggests

                  1. I’m looking at the video streams of NY eve parties coming out of Wuhan, not taking their word for it. They beat the virus. There are still old people and fat people and people with heart disease in Wuhan.

    4. Pence can believe anything he wants, he still can’t do squat.

      1. Why are you talking shit at Pence? He filed to get this suit tossed. And won. He’s on your side as to this suit.

        But because he’s in the other party he still needs to be dissed just because reasons. See how stupid this partisan shit is? “The dumbass agrees with me so he’s terrible”. Lol.

        Why should anybody the partisans seriously.

        1. So far, Pence appears unwilling to join the Kraken heads. But, Mr Ed seems to think that Pence is a wild card and has some authority to do something. Apparently, Ed attended the Louie Gohmert School of Law, graduating second behind the Canadian Rafael Cruz. All MG is doing is pointing out that even if Pence were so inclined, there’s nothing he can do.

        2. Pence publicly came out in support of the effort to challenge the EC votes.

    5. “With the second likely to start this month”.

      I just love these pampered keyboard warriors who keep threatening this. Truth is y’all are in no way mentally prepared for how awful the conditions in the country would be in the event of a CW 2. When your family is trying to live in the bombed out shell of your house. Or a group from the other side takes your daughter’s basketball team “prisoner”. The suffering and deprivation are beyond anything you can imagine and y’all are way too pussified to handle it.

      So be glib and talk all the shit you want. Tough talk is cheap.

      1. Actually, it will be worse than that — you left out the disease and starvation. That’s why I don’t want to see it.

        But Blue America is going to do worse if it happens.

        1. You dumbasses have been saying this forever and yet here we are, the greatest nation the world has ever seen.

          Despite Trump, we’re still the #1 global power – militarily, economically, socially, diplomatically – and by a lot (and if our power has eroded somewhat it is SPECIFICALLY because of Trump).

          Go away Chicken Little.

        2. Fuck you, Ed.

          You “don’t want to see it,” but according to you the only way to avoid it is to concede the election to Trump. So you’re threatening violence if you don’t get your way.

          Kiss my ass.

          1. That’s of a piece with Louie Gohmert saying that because the courts tossed his completely frivolous lawsuit that there would have to be blood in the streets.

    6. ” The precedent on this predates the First Civil War”

      Are you referring to the annual football game between the University of Oregon and Oregon State University? Because if you are, you should know that this game is no longer known as the Civil War.

  3. The Electoral Count Act of 1887 is unconstitutional because it allows for challenges to the EC votes, which is not at all allowed according the the 12A. When the Ds did it in the past they were very much in the wrong and what the Rs are planning is also wrong. The 12A does not even allow Congress to vote to accept the results.

    1. “John Marshall has made his decision, now let’s see him enforce it.”

    2. Okay, here’s a question, what is Congress supposed to do if different parts of a state are in dispute over who won the election in that state and two different electoral ballots are sent to Congress for that state?

      This scenario was a possible outcome in Florida in 2000, and there is at least one case of it happening historically before the Electoral Count act was passed.

      Pre-enactment history

      During the election of 1876, Congress received electoral votes from multiple slates of electors in several Southern states. While the Twelfth Amendment describes how electors must meet and cast their votes, it did not foresee multiple competing slates of electoral votes from the same state. To help avoid this problem in future elections, Section 3 of the Electoral Count Act created an “ascertainment” process to help Congress determine who the state’s valid electors are, including a role for the governor.

      1. The Constitution is silent on what to do if there is a legitimate dispute, and in that case it is reasonable for Congress to fill in the gaps with legislation. I would say that the Electoral Count Act is probably constitutional in that event, but for this election there are no disputed ballots so this is just academic for now.

        1. “I would say that the Electoral Count Act is probably constitutional in that event”

          I would say that based on what I’ve been able to find on it, the Electoral Count Act, doesn’t actually allow for challenges in the absence of competing ballots.

          1. Yes, that’s why they were going out of their way to engineer competing slates; Without those, they’d have no pretext for the challenge.

      2. Only three possible instances I can think of exist where Congress would need to consider how to count a State’s votes. (Note: How, not ‘whether to do so.’)

        1) Forgery – If the certified result is somehow a forgery and not the actual result sent by the Electors.

        2) Mathematical error – If the certified result claims to allocate more Electors’ votes than mathematically possible. i.e. Colorado has 9 Elector votes currently. If the certified result claimed a total of 11 votes, that would be a problem.

        3) Multiple certified results – If the State in question sent more than one version of a Certified result.

        None of those instances would permit Congress to decide to throw out the votes. In all scenarios, Congress reaches out to the appropriate people and gets the correct information.

        Only if the State in question somehow refused to provide the information to clarify the issue could Congress consider throwing out the result and refusing to count it.

        Beyond those scenarios, the ECA is unconstitutional in pretending Congress and the VP can simply toss the results aside.

      3. two different electoral ballots are sent to Congress for that state?

        Isn’t the ballot supposed to be certified by the governor, or SoS?

        Are you saying there would be a dispute over who was governor? Shouldn’t that be decided by the state supreme court?

        1. How about the governor certified one ballot and the SoS certified a different ballot.

          1. Well, I suppose that’s a matter for state law.

        2. There was the case in Hawaii in 1960, where the governor sent two certified totals to congress (because the election was extremely close, and it initially looked like Nixon won, but then a recount showed that Kennedy had won). Nixon did the right thing by accepting the Democratic certificate, but you can imagine all sorts of fun counter-factual scenarios where those 3 electoral votes actually mattered to the outcome.

      4. “Okay, here’s a question, what is Congress supposed to do if different parts of a state are in dispute over who won the election in that state”

        Depends. Is the dispute arising because one group of people is pouting and saying “NUH-UH! Our guy won, which we know is true because we want to very much for it to be true” while the other side of the dispute is saying “we counted the votes, and our guy got more of them! Read ’em and weep! No, on second thought, stop crying about it. It’s undignified.”

  4. An innocent question: if Trump sued Pence (or intervened to appeal the Gohmert lawsuit, if that’s something that could happen), would he have standing (since he would lose his job if Pence doesn’t trash the Constitution)?

    That would be entertainment.

  5. So if Congress smells a rat, it is powerless….smells like a jewish argument.

    1. ^ This is what the people on Trump’s side look like under their masks.

  6. I’ve seen several claims in other forums that precisely what Gohmert is claiming the VP has the sole unreviewable power to do has in fact happened in several past presidential elections. Some of these claims predate Gohmert’s lawsuit.

    Of course no actual documentation of this is provided and and what I can’ find on line for the mentioned presidential elections does not back it up.

    1. Somebody lying online. Shocking.

      1. Somebody lying in a court filing, however, should have consequences.

  7. Somehow Democrats are just as bad. Somehow. I’m waiting folks . . . tell me. Somehow . . .

    1. They’re far worse, as their process of continually mounting regulatory burden slows technological progress, and thus medical treatments, so people continue dying when they otherwise shouldn’t. This “warp speed” vaccine development should be the normal, for example.

      Oh, you meant with respect to the minor issue here. Nevermind.

      1. Slow down there.

        Remember, you guys are anti-science.

      2. This is a good point. The regulations enacted by Democrats banning biomedical research using fetal tissue has been a major impediment to medical progress and treatments, and we’ll likely never know how many people will have died because of it.

        Oh, wait – what was that? That was Trump with the fervent support of his idiot base? Well, carry on then.

      3. Without elections, what is america? We basically have no other common values.

        “Minor issue”, indeed.

      4. “They’re far worse, as their process of continually mounting regulatory burden slows technological progress”

        (snicker) Which party’s members are currently muttering about wanting to bust up the tech companies?

      5. ” This ‘warp speed’ vaccine development should be the normal, for example.”

        A Republican arguing for government subsidies to help businesses compete? Keep quiet, or you’re going to be voted out of the Big Tent…

  8. There is a textually demonstrable constitutional commitment of the electoral vote counting duty to Congress. I don’t think the courts have a role. Any right under the Electoral Count Act is a right without a remedy.

    Nevertheless, the Act provides valuable cover for politicians who want to explain why they didn’t re-elect Trump. (See also the Flag Code, an unenforceable set of rules for displaying the US flag which at last provides a standard to judge behavior by.)

  9. I agree that all Pence should do is count. Likely it’s all he will do.

    But isn’t it a standard part of Democratic (party) governance, that all ministerial positions are actually capable of being exercised in a discretionary fashion?

    1. But only by Democrats…

    2. “. . . that all ministerial positions are actually capable of being exercised in a discretionary fashion (within the constitutional framework and appropriate checks and balances).”

      It’s not unlimited discretion (I wish someone had briefed Trump on this). (Actually I don’t since then he would have been re-elected.)

      1. The only limitation I’ve ever seen was, “Is this exercise of discretion beneficial to Democrats?” Though I suppose there’s a component of, “Do we expect to get away with this?” in there, too, since acts of discretion you don’t get away with aren’t particularly beneficial.

        1. What specifically are you thinking of?

          1. Well, for instance, look at Trump v Wisconsin Elections Commission; A court ruled, in effect, that the task of “administering” election laws, which normally would be ministerial, permitted altering the rules in ways that didn’t actually conform to the text of the statutes being administered.

            That was one of the cases that declared that the legislature’s plenary authority to determine the manner of selection of electors was limited to deciding that there’d be an election, and didn’t extend to any of the details of how the election would be conducted. Which strikes me as a really narrow reading of “manner”.

            1. Didn’t read II B of the opinion which specifically addresses your argument?

              1. That very portion is what I was criticizing: The state legislature DID assign the elections commission the job of ‘administering’ the election laws it had originated. I dispute that this made anything the elections commission chose to do, even in defiance of those laws, an act of the legislature. That’s what I meant by using it as an example of treating a ministerial roll as a source of real discretionary power.

                And if the departures from the legislative scheme were large enough to change the outcome of the election, they certainly were “significant”.

                1. Yes, yes, we know you dispute this. But no one else does. Including PA supreme court and the US supreme court, and 200 years or so of precedent, and the judges in the specific case that was brought in PA on this issue.

                  So it seems you have no leg to stand on. So shut the fuck up? Please?

                2. How was the the very portion you were criticizing when Section A had an even more narrow reading of the ‘Manner’ argument?

                  And to move to the particular, one of the three ‘defiances’ of state election law Trump and you argue was done by the commission was to interpret the statutory language of “[i]f a certificate is missing the address of a witness, the ballot may not be counted” to define the components of an ‘address’ (which wasn’t done by the statutory language) and then direct that “where a voter may have left off the certificate one or more components of the witness address” that then “clerks shall do all that they can reasonably do to obtain any missing part of the witness address.”

                  I mean, you think this an act of defiance of the statutory language such that a *federal* court should have stepped in an overruled the Legislature’s duly authorized commission *and* the Wisconsin Supreme Court which held it was ok?

                  1. The commission was duly authorized to administer the election laws, not to violate them.

                    I don’t like this “no harm, no foul” approach to enforcing state election laws.

                    1. I don’t like this “no harm, no foul” approach to enforcing state election laws.

                      But that’s because you completely misunderstand the purpose of those laws. “No harm, no foul” is exactly the correct approach.

                    2. “commission was duly authorized to administer the election laws, not to violate them. ”

                      You support the Republicans, so the notion of a bureaucrat invalidating the vote of an American voter doesn’t horrify you, despite the Republicans arguing that having government bureaucrats interfere with American citizens exercising their rights, for some reason that doesn’t apply to voting.

                3. That very portion is what I was criticizing:

                  You mean the part where they explained that the WEC did not defy any laws?

        2. Anyway, I don’t think the Overton window is anywhere near letting Pence get away with handing the election to Trump. While things no less outrageous happen in Washington all the time, they took a long, long series of abuses to work up to, and get people jaded.

          Though Democrats routinely challenge Republican electors in the House, (See this, for instance. Bush in 2001 AND 2005, and Trump in 2017.) this would be a new abuse, and would take some time to work up to.

          1. What happens in Washington all the time that is no less worse than a VP giving a federal election to himself and his President despite the states certifying more electors for the other guy via democratic elections?

            1. Sure, though that’s somewhat a matter of opinion.

              For instance, the practice of routinely violating the quorums clause by using voice “votes” to conduct business without a quorum present. They’ve held votes in Congress with as few as three members present, and often on important things.

              The origination clause is also routinely violated, by the practice of the Senate taking dead House bills, and using their “H.R.” number on a new Senate bill, as though it had originated in the House.

              Both these are protected by the courts’ “enrolled bill” doctrine, which holds that, if the leadership of Congress agree that a bill was constitutionally enacted, the courts are not to look at any evidence to the contrary. This allows the leadership of Congress to get away with routine violations of clear commands in the Constitution, because the courts will refuse to look at any evidence that they’re lying about whether those commands were followed.

              1. “Sure, though that’s somewhat a matter of opinion.”

                In the same sense that the spherical nature of the Earth is a matter of opinion.

                1. After this post, I’ve decided that he is, in fact, a very talented troll, and not the pill-addicted boomer that I assumed he was.

                  1. The closest I get to a pill addiction is popping SAMe on a regular basis to keep my arthritis in check.

                    Do you care to claim that Congress doesn’t violate the quorum and origination clauses? Or do you just think routine constitutional violations are no big deal?

                    1. No, they don’t violate the origination clause by doing what you describe. They scrupulously follow it. What I think you mean is that they violate the spirit of the origination clause.

                  2. He’s a nakedly stupid partisan, but not secretly. He’s open to admitting it.

                2. It’s more ovoid, actually.

                  The Constitution says that the only business Congress is allowed to conduct in the absence of a quorum is sending for enough absent members to reach a quorum. This rule is pretty straightforward, and is routinely violated.

                  It says revenue measures must originate in the House. This, too, is routinely violated.

                  If you’ve ever bothered watching Congress on CSPAN, then you know that nobody is actually given a chance to vote during voice “votes”; “Allinfavorsayayeallopposedsaynaytheayeshaveit” is one word.

                  And quorum calls that are allowed to proceed to completion are as rare as hen’s teeth.

                  Further, it is not unheard of for the version of a bill that the leadership “enroll” to be materially different from the version actually voted on in one or both of the chambers.

                  You may not be offended by these constitutional violations, but that’s kind of my point: If you sneak up on a constitutional violation, eventually people stop caring, even if they’d have been outraged if you’d gone straight to the violation without getting them use to lesser offenses.

                  Pence isn’t going to hand this to Trump, because, while Congress does things as outrageous as that on a frequent basis, the groundwork hasn’t been put in for THIS outrage.

                  1. “Pence isn’t going to hand this to Trump, because […]”

                    Because the VP doesn’t have the power to override elections that picked someone else. If they did, Biden would have given the 2016 election to Hillary just because more American voters wanted her to be President.

              2. Good Lord, you really think violating the Quorum law = a self interested VP tossing the certified election results of states handing him and his running mate the Presidency? You’ve got some proportionality issues (or more likely, not just much of a fan of democracy in the first place).

                1. Have you ever seriously thought about WHY quorum requirements exist? Apparently not. Or maybe you’re just not much of a fan of democracy in the first place?

                  Look, I’m not approving of this scheme to overturn the election, if it ends up being more than a protest vote. I think it’s at least as awful as Congress routinely violating the Constitution in multiple ways.

                  My point was just that, as a novel violation, they’d be unlikely to get away with it, because big constitutional violations need to be approached gradually.

                  1. “Look, I’m not approving of this scheme to overturn the election, if it ends up being more than a protest vote.”

                    So you’re not signing on to the revolution unless it succeeds?

                  2. I’m not approving of this scheme to overturn the election, if it ends up being more than a protest vote.

                    You always leave yourself a back door exit.

                    1. He’s been around the block a few times. Doesn’t wanna get called an ex birther again.

                    2. He’s been around the block before, and backed a loser again.

    3. “I agree that all Pence should do is count. Likely it’s all he will do.”

      Are we sure he CAN count? Does he know that 304 is more than 232?

      1. This, “All the people I dislike politically are idiots” thing gets tired after a while.

        Ah, who am I kidding? It started out tired.

        1. I’m not anti-Republican, I’m anti-idiot. This seems to be causing you some confusion.

          1. Who knew? Turned out Pence wasn’t quite 100% toady and does recognize limits on Executive power.

  10. Breaking: Trump is filing TWO lawsuits against the GA SoS over the leaked tape — which (a) was selectively edited and (b) because it involved confidential negotiations to settle a lawsuit, is required by GA law to remain confidential.

    Breaking: PA has 200,000 more ballots than voters.

    1. Not breaking, because it’s old news:

      You’re liar and a fool.

    2. “Breaking: PA has 200,000 more ballots than voters.”

      Yeah, this is neither breaking nor true. But it is typical of the kind of allegations that Cruz thinks should be the foundation for setting this awful precedent, they’re silly, misinformed, desperate, etc.

    3. a) The call was not edited.
      b) It did not involve negotiations to settle a suit.
      c) Trump tweeeted about it first.

    4. Breaking: Dr. Ed has become completely divorced from reality.

      In lieu of flowers send money to the Donald Trump Needs Money to Go Away Fund.

      1. As bernard11 says “Not breaking, because it’s old news”

        1. He’s been largely untethered to reality for quite some time, agreed, but the complete and total abandonment of reality appears to be recent.

    5. Breaking: Trump is filing TWO lawsuits against the GA SoS over the leaked tape — which (a) was selectively edited and (b) because it involved confidential negotiations to settle a lawsuit, is required by GA law to remain confidential.

      1) “Selectively edited” is redundant.
      2) It was not edited; the entire tape was released.
      3) There is no clause of action for “selective editing” or “editing.”
      4) It did not involve confidential negotiations.
      5) There was no suit being settled. (Indeed, if there were, then Trump’s lawyers were acting unethically since they were talking to a represented party without said counsel being present.)
      6) There is no such Georgia law. That’s a lie. Why do you say things like that when you know there are people smarter and more knowledgable than you that are going to call you on it?

      1. Also no lawsuits were filed.

      2. *Cause of action.

      3. “5) There was no suit being settled. (Indeed, if there were, then Trump’s lawyers were acting unethically since they were talking to a represented party without said counsel being present.)”

        Eh? Trump speaks directly to Mr. Germany on several occasions.

    6. ” Trump is filing TWO lawsuits against the GA SoS over the leaked tape”

      OK, so Trump is losing two more lawsuits. Why would this matter?

  11. Pence could defy the, “All he can do is count,” rule, by chewing gum.

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