Muller on Yoo and Delahunty on the Twelfth Amendment and the Counting of Electoral Votes

A critique of John Yoo and Robert Delahunty's suggestion that the Vice President has a role in counting electoral votes.

Could Kamala Harris resolve a dispute over competing electoral vote slates in the 2024 presidential election, perhaps choosing the slate supporting her own re-election as vice president? In a recent law review article in the Case Western Reserve Law Review, Professor John Yoo and Robert Delahunty argued that the vice president has a small, but significant, role in resolving such disputes (though not as great a role as Donald Trump or John Eastman claimed). Their article, while aligning with claims that had been made by other academics in the past, was quite controversial.

Notre Dame law professor Derek Muller responds to Yoo and Delahunty in the latest issue of the Case Western Reserve Law Review, explaining why their theory is wrong. Even if there had been competing slates of electors from individual states, the Vice President lacks the authority to resolve such disputes.

Here is how the article begins:

On January 6, 2021, the President of the Senate—Vice President Mike Pence—dutifully opened the electoral votes from the 2020 presidential election and read aloud the totals. He acted consistent with the direction of the Electoral Count Act of 1887, consistent with the congressional joint resolution approved three days earlier, and consistent with more than two centuries of congressional practice. Not everyone was convinced that the Constitution and laws of the United States obligated Pence to behave in this way—most notably, President Donald Trump, who had just lost the election and sought a way to turn defeat into victory.

On this, Professors Robert Delahunty and John Yoo agree with Pence. In their recent article here in the Case Western Reserve Law Review on the topic of the role of the Vice President in counting electoral votes, they conclude, "Pence was obliged to count the votes as submitted by the states." But they reach a different conclusion on who holds the legal power to count electoral votes and resolve disputes. They conclude, "Our theory leads to the conclusion that the best reading of the constitutional text, structure, and history assigns that role to the Vice President, not Congress or the judiciary." In contrast, "Congress has no substantive role in the process."

Congress has continually rejected this view for more than 200 years, and perhaps it is a reason Pence saw no such room for debate. Professors Delahunty and Yoo helpfully examine the history surrounding disputes over counting electoral votes and in places make appropriate conditions on the modesty of their claims. But this Essay explains why Congress, and not the President of the Senate, holds the power to count electoral votes and to resolve disputes over them.

Some details help frame the heart of the controversy. There are potentially three different responsibilities to consider when the House and the Senate join together before the President of the Senate for the counting of electoral votes. First, who presides over the joint session where counting takes place, and what is the role of that presiding officer? Second, who counts the electoral votes? Third, who resolves disputes about those electoral votes?

This Essay answers those questions. First, the presiding officer in the joint session is the President of the Senate, and she acts as any other presiding officer of a legislature. She initiates actions pursuant to precedent, parliamentary procedures, and the wishes of the chamber. And that means the chamber—here, the joint session—can constrain the President of the Senate as presiding officer. Congress did exactly that when it chose to further constrain the distraction of the President of the Senate in the Electoral Count Reform Act of 2022. Second, Congress counts electoral votes. The evidence in the text and structure of the Constitution and congressional practice before the ratification of the Twelfth Amendment supports this interpretation. Third, the power to resolve disputes runs with the power to count. And that means Congress also has the power to resolve disputes about presidential electors.

Separating these responsibilities is crucial because it can be too easy to conflate some of these activities, which in turn elides over the distinctions in responsibilities. When the presiding officer acts, she does so not to count votes, but to preside over the joint session and help it proceed according to the rules and precedents set by Congress. The actions she takes may resemble the substantive act of counting. But close scrutiny of the record reflects that the President of the Senate does not count, and has never counted, votes. That is because the power to count resides in Congress, where the Twelfth Amendment lodges that power.

The full article is here.