Sonny Tufts
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- Apr 25, 2012
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The peculiar passive-voice phrasing of this crucial sentence opens up the possibility of interpreting it to provide that the “President of the Senate” has the exclusive constitutional authority to determine which “certificates” to “open” and thus which electoral votes “to be counted.”
That would be a strained reading. Had the drafters intended the President of the Senate to have such authority the sentence would have read the “President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and count the votes.”
If one body could decide the question one way, while another body could reach the opposite conclusion, then there inevitably is a stalemate unless and until a single authority is identified with the power to settle the matter once and for all.
Not necessarily. If both bodies have enacted a statute such as the Electoral Count Act, there might not be a stalemate.
The Congressional Record of the passage of the Electoral Count Act records the opinion of many prominent legislators who held the view that the President of the Senate opens and counts the votes
Yet the Act as passed didn’t adopt this view with regard to determining which electoral votes to count.
Regarding the constitutionality of the Electoral Count Act, Mr. Kesavan is of the view that SCOTUS implicitly viewed that it was in Bush v. Gore:
While 3 U.S.C. 15 sets forth the rules for counting (and not counting) electoral votes, 3 U.S.C. 5, the specific federal statutory provision at issue in Bush v. Gore, sets forth the so-called "safe harbor" provision for counting electoral votes with respect to a state's determination of any controversy or contest concerning the appointment of its electors. Bush v. Gore indicates that there must be nine votes on the Supreme Court for the proposition that 3 U.S.C. 5 is constitutional. Although neither party briefed or argued the constitutionality of this provision of the Electoral Count Act, each of the Justices must have reached an independent, antecedent determination that 3 U.S.C. 5 passes constitutional muster. Curiously, Bush v. Gore, for all that it did address regarding presidential election, did not address the heart of the Electoral Count Act - 3 U.S.C. 15. Only Justice Breyer, with Justices Stevens and Ginsburg concurring, even mentioned this key section, and he did so approvingly. The prevailing wisdom, in the Supreme Court and elsewhere, is that the Electoral Count Act is constitutional. 80 North Carolina Law Rev. at 1659-1660 (footnotes omitted)
In any event, this is all academic unless and until a state legislature sends a slate of electors different from that which has previously been submitted. That is, unless one wants to argue that, contrary to the Constitution, Pence could count the votes of electors who’ve been appointed by the Pittsburgh Kiwanis Club, the University of Michigan physics department, two barflies from a pub in Georgia, a group of disgruntled GOP legislators from Wisconsin, or any other non-legislative body. Even Pence isn’t stupid enough to do that.