Counting Electoral Votes: How the Constitution Empowers Congress—and Not the Vice President—to Resolve Electoral Disputes

Key Points

• The vice president does not have “plenary” authority under the Constitution to settle disputes over Electoral College votes.
• Analysis of the Constitution’s history, text, and underlying principles, along with early practices, legislation, and debates, affirms that Congress possesses that authority.
• Accordingly, the Electoral Count Reform Act of 2022, which recognizes congressional authority to resolve electoral disputes and denies the vice president any substantive power in these matters, is fully consonant with constitutional theory and practice.

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Executive Summary

For most of American history, the formal process that certified the winner of the presidential election—a joint session of Congress, presided over by the vice president (serving as president of the Senate), that opened and counted each state’s electoral votes—passed with little public notice. The constitutionally required voting by the Electoral College and the subsequent tabulation were mere formalities between the general election and inauguration. Consequently, since the disputed presidential election of 1876, the details of the process and the respective powers and authorities of Congress and the vice president during the counting process have attracted little attention.

That changed with the 2020 presidential election. Claiming fraud and illegality, President Donald Trump urged Vice President Mike Pence, when Pence presided over the vote count on January 6, to either throw out electoral votes for Joe Biden from half a dozen states or return them to state legislatures for further investigation. As a result, Trump supporters came to believe that if Pence did what Trump called the “right thing,”¹ the incumbent president would begin a second term on January 20, 2021.

This event has resurrected the question of whether, under the Constitution, Congress or the vice president has final say in counting the Electoral College votes. We argue, contrary to the former president, his lawyers, and some legal scholars, that this authority resides with Congress and not the vice president—and that the Electoral Count Reform Act of 2022, which affirms that view, is constitutional.

Our analysis proceeds in five stages.

First, we show that the framers viewed the vice presidency as an insignificant office, virtually an afterthought. It was conceived only in the Constitutional Convention’s last days to provide a successor to the president if the office became vacant and to incentivize presidential electors, who were to cast two votes, to look beyond their local favorites. To give the vice president something to do, he was then made president of the Senate, possessing the single substantive power to break ties. In short, it is highly unlikely the Constitution’s framers would have given the vice president a potentially crucial say in selecting a president.

Next, we analyze the relevant language in the Constitution: “The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted,”² language repeated in the 12th Amendment. The shift from the active voice—the president of the Senate shall “open all the Certificates”—to the passive—“and the Votes shall then be counted”— implies that someone other than the vice president would count the votes. If the framers intended to vest the counting authority in the vice president, they would have simply written, “The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates and count the Votes.”

Third, the natural reading of the necessary and proper clause grants Congress the authority to legislate and regulate the counting of electoral votes and provide a mechanism to resolve disputes. This was amply demonstrated in legislation passed in 1792 that reached deeply into the electoral process and again in 1800, when majorities in the House and Senate respectively passed measures that had Congress or an appointed committee resolving disputes. In these debates, not a single member opposed to the proposed measures put forward the alternative idea that it was the vice president’s role to settle contested votes. The silence here is telling.

Fourth, and consistent with our analysis of the language above, congressional records for the first five presidential elections show Congress doing the actual counting through tellers appointed by the Senate and the House and drawn from their members. As president of the Senate, the vice president opened the sealed packets and handed the certificates verifying the electors’ names and recorded votes to the clerk, who then transmitted the papers to the tellers for inspection and totaling. From these early vote counts, it is clear that (1) the members of the House and Senate were not mere observers and, in turn, (2) the vice president’s role was essentially ministerial.

Finally, we maintain that the principles and structure of the American constitutional order are inimical to allowing the discretion and will of an individual (especially one who often has a personal stake in the outcome) to decide presidential elections. The founders’ understanding of the norms of republican government and the rule of law, the requirement for checks and balances, and Madison’s principle that “no man is allowed to be a judge in his own cause”³ all point toward Congress, not the vice president, possessing that power. As Vice President Pence aptly articulated to his staff,

There was no way that our framers, who [abhorred] concentrated power, who had broken away from the tyranny of George III, would ever have put one person, particularly not a person who had a direct interest in the outcome because they were on the ticket for the election, in a role to have decisive impact on the outcome of the election.⁴

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Notes

1. Brian Naylor, “Read Trump’s Jan. 6 Speech, a Key Part of Impeachment Trial,” National Public Radio, February 10, 2021, https://www.npr.org/2021/02/10/966396848/read-trumps-jan-6-speech-a-key-part-of-impeachment-trial.
2. US Const. art. II, § 1, cl. 3.
3. Alexander Hamilton, James Madison, and John Jay, The Federalist Papers, ed. Clinton Rossiter (New York: New American Library, 2003), 74.
4. National Public Radio, “Here’s Every Word of the Third Jan. 6 Committee Hearing on Its Investigation,” June 16, 2022, https://www.npr.org/2022/06/16/1105683634/transcript-jan-6-committee.