The Congressional Votes Don’t Matter Here: How the Media Misrepresents Pence Opening an Envelope

A few days ago I was terrified for the wrong reason. Story after story on CNN, NPR, and most other center and center-left outfits was explaining that Joe Biden’s victory in the 2020 Presidential election was a lock.

But it was only a lock because, in terms of the United States Congress, Democrats hold the House of Representatives and also because there are not enough Republicans willing to break norms in the Senate to casually throw out 81 million popular votes (or, more to the point, the subset of 37 Electoral College votes necessary to put the Biden-Harris ticket below 270), which would swing the election to the House, which under a quirk as bizarre as any in US Constitutional law, would then elect the President on a one-state, one-vote basis. This would theoretically work in Donald Trump’s favor because there are, counted this way, more “red” states, or states with Republican majorities in their House delegations, than “blue” ones, thus ensuring at least 26 out of 50 state votes. The House Democratic majority would thereby be rendered irrelevant.

That was a mouthful: so let’s break it down a bit. It was terrifying to me because the core media message was, essentially, that what stood between Republicans and what would effectively be a coup was just the numbers: in a future Presidential election in which Republicans held both houses (which will happen sooner or later) and the Republican candidate lost the electoral vote (which will also probably eventually happen at the same time), they could simply jettison precedent and vote to reject the Electoral College’s certified results. It would be abhorrent and unethical and would likely bring down the democracy, but within the powers of the Congress.

Except, I now realize, it’s not. I’m not a lawyer or a legal scholar or a historian, but conveniently, the Constitution is a Google away. I’m not sure why CNN doesn’t also realize this, but the issue here is not that Republicans don’t have the votes to stage a coup (this time around, anyway): it’s that the Constitution doesn’t, anywhere, give Congress the authority to reject the certified results of the Electoral College. Congress simply has no veto power in this domain. The Vice President’s job is to open the envelope and count the electoral votes, plain and simple.

Think this is an exaggeration, a too-simple reading of a complicated legal grey area? Okay, let’s look at what the Constitution, and specifically the 12th Amendment, says, which leaves surprisingly little ambiguity. Ready?

The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate; — 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; — The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice.

So, the President of the Senate (that’s Mike Pence, for those unaware), “shall…open all the certificates and the votes shall then be counted.” The lead vote-getter wins if the electoral votes are “a majority of the whole number of Electors appointed,” in this instance, 270. That’s it. The only meaningful thing that has changed since the Amendment’s ratification in 1803 is that the President and Vice-President now run on one ticket, so that by “electing” them separately, the Electoral College is essentially counting the same popular vote by each state twice.

You’re free to read the rest of it for some proviso such as, “unless one Representative and one Senator object, after which the ratification of the Electoral College’s vote shall devolve to the whole of Congress.” There’s nothing of the kind to be found, as Congress does not ratify the results. The Congress has no legal means to ignore or reassign electoral votes. It has no authority to affirm or reject the vote of the Electoral College. Its job is basically to sit there while the votes get counted, an empty formality in the present day, as we already know what the vote totals are from when they were counted on December 14.

The confusion here seems to arise from a broad reading of the Electoral Count Act of 1887, which (already under dubious Constitutional rationale) creates the current system of Congressional objection and resolution. Meant, apparently, to address issues left over from the disputed election of 1876, it applies in instances in which states either: a) send competing slates of electors to Congress; or b) the slate of electors of a given state or states was/were not lawfully certified at the state level. Although the statute itself seems to run significantly against the grain of the 12th Amendment, that contention is immaterial here. Neither of the conditions that it is meant to address exist in this election. Each state sent one slate of electors and each state formally certified the results on time. There is nothing in the law that grants any room for objections because members of Congress dislike the results of a given state’s election. Republicans in Congress are threatening, in principle, anyway, to use a power that they do not have: there are no actual disputes at the state level, and, ergo, there is nothing for the Congress to resolve.

So, it doesn’t matter if 140 Republican Representatives decide to object. It wouldn’t matter if they were joined by 140 Democratic Reps. It wouldn’t matter if the entirety of Congress voted 538–0 to object to the outcome of the election, any more than it would matter if I randomly assembled 538 Proud Boys who were also unanimous in their opposition to the popular vote or the Electoral College vote or the outcomes of the local school board election. Any such vote taken by Congress is at best a nonbinding resolution and at worst a crime. All of the threatened Republican sabre-rattling on January 6 is futile either as a minority of majority exercise. Neither the Vice-President nor the House nor the Senate has any legal authority to do anything besides, respectively, counting the votes or waiting for the tally to be announced.

I mentioned at the top that I was terrified for the wrong reason. I thought that the “wrong” Congress had the means to undo the will of the states in electing the President, and that only precedent and fear of reprisal had thus far stopped it from doing so. It actually has no such means, unless no candidate reaches a majority of the electoral votes, something exceedingly unlikely (although a tie is still possible) in the current two-party system. But I am still deeply concerned that one of the two major parties lays claim to such an authority and that the media at best fail to vigorously correct that misconception.

If no one agrees to follow the law, one of these years, the military will end up settling what should have been a political process. That, too, is unsettling. So far as we assume, however, the rule of law and lawful transitions of power, the election is already in every way over and has been since December 14. There is nothing left to happen on January 6 besides Mike Pence opening envelopes and declaring Joe Biden and Kamala Harris the winners. The ship has sailed.

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