The Volokh Conspiracy
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"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.