Three hundred and sixty-four days ago, Vice President Mike Pence affirmed the Electoral College vote in the 2020 election, formalizing Joe Biden’s victory over Donald Trump.
It was a move that Trump — and his base within the GOP — had vehemently opposed, insisting that Pence had discretion as to whether or not he accepted the vote and wound up choosing wrong.
For his part, Pence has repeatedly insisted his hands were tied by the Constitution. “I will always be proud that we did our part on that tragic day to reconvene the Congress and fulfilled our duty under the Constitution and the laws of the United States,” he said in June 2021.
So, who’s right? That’s sort of the problem; there’s enough vagueness around the role of the VP in the electoral process to provide fodder for the likes of Trump and his allies as they desperately sought to overturn the election results.
It’s also why some Republican Senators appear to be open to updating the law in advance of the 2024 presidential race. South Dakota Sen. John Thune, one of the most powerful Republicans in the chamber, told Axios on Tuesday that there was “some interest” among his colleagues for reform the Electoral Count Act of 1887.
Which raises a very simple question: What is the Electoral Count Act — and what does it say, specifically, about the role the vice president and the Congress can and should play in the electoral process?
The specific language comes from the US Code — and was put in place following the 1876 presidential election between Republican Rutherford B. Hayes and Democrat Samuel Tilden. In that race, four states — Oregon, Louisiana, Florida and South Carolina — submitted two slates of electors, reflecting disputes between the two parties over who actually had won. A commission was formed to decide which slate of electors should be recognized; Hayes won by a vote of 8 to 7 on that commission — and became president.
In the wake of that close and contentious election, a movement began to clarify the language related to the counting of the Electoral votes 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,” reads Article II, Section 1.
That effort ultimately led to the Electoral Count Act, which was designed to make clear how issues like multiple Electoral College slates in a single state should be handled. Here’s the pertinent piece of that law — with a warning that it is, um, basically unintelligible:
“If more than one return or paper purporting to be a return from a State shall have been received by the President of the Senate, those votes, and those only, shall be counted which shall have been regularly given by the electors who are shown by the determination mentioned in section 5 of this title to have been appointed, if the determination in said section provided for shall have been made, or by such successors or substitutes, in case of a vacancy in the board of electors so ascertained, as have been appointed to fill such vacancy in the mode provided by the laws of the State; but in case there shall arise the question which of two or more of such State authorities determining what electors have been appointed, as mentioned in section 5 of this title, is the lawful tribunal of such State, the votes regularly given of those electors, and those only, of such State shall be counted whose title as electors the two Houses, acting separately, shall concurrently decide is supported by the decision of such State so authorized by its law.”
Clear as mud, right?
What the passage seems to stipulate is that when there are two conflicting sets of electoral slates from a state, the one that has been affirmed by the governor of the state (“the lawful tribunal”) should be the one that the House and Senate recognize as lawful unless both chambers vote to reject that slate for whatever reason.
Now for what Trump and his team wanted to do, as outlined in a memo from John Eastman, one of the former president’s lawyers. They wanted Pence to refuse to accept the results in seven states where the campaign insisted there were considerable irregularities. Doing so would leave neither Trump nor Biden with the necessary 270 Electoral College votes to be declared the next president. Pence could then invoke the 12th Amendment, which would kick the vote to the House where each state delegation would be allowed one vote. With Republicans having the majority in 26 of the state delegations, Trump would be the winner — albeit very narrowly.
As you can see, the Eastman approach is a hugely tortured reading of the Electoral Count Act. In fact, it’s rightly understood as sort of an end run around the Act — taking advantage of some vagaries in the admittedly confusing language to bend the rules to his will. As Wyoming Rep. Liz Cheney wrote in a January 3, 2021, memo on the planned objections to the Electoral College: “Such objections set an exceptionally dangerous precedent, threatening to steal states’ explicit constitutional responsibility for choosing the President and bestowing it instead on Congress. This is directly at odds with the Constitution’s clear text and our core beliefs as Republicans.”
The January 6 select committee, on which Cheney now serves, is expected to recommend changes to the Electoral Count Act, saying that “the 1887 Electoral Count Act is directly at issue.”
Couple that with Thune’s comment to Axios and there appears to be at least a possibility that Congress examines the 1887 Act in a bipartisan way in the not-too-distant future. Given what we know about Trump’s ongoing efforts to fight the 2020 results — and with 2024 approaching quickly — there’s no time to waste.
