I want to amplify one point in George Thomas’ excellent essay about John Eastman’s attempt to subvert the constitutional will of the public in 2020. Eastman’s reading of the Twelfth Amendment as giving the Vice President wholesale authority over the counting of votes is constitutionally implausible. The only official duty of the Vice President is to open the ballots. The Twelfth Amendment says, in what one can only assume was a deliberately separate sentence, that the ballots “shall then be counted.” To believe the Vice President wields total authority over the counting, one must assume that the separate sentence is, for all intents and purposes, surplusage. One would have further to assume that Congress is present simply to witness a procedure in which members are entirely uninvolved except as spectators. And one would have to assume, finally, that the Framers of the 12th Amendment, who wrote it after a contentious election involving a sitting Vice President, put their faith in one individual’s unchecked virtue.
It is superfluous to detail all that, given that those asserting this power for the Vice President are not constitutionally serious. (A sign of seriousness would be having made the same claim in 2000.) But an additional point needs to be made: Strictly speaking, and read without reference to the rest of the amendment, the language on the counting procedure is obscure as to who does the counting. Framers who were willing to leave that procedure to the passive voice must have made another assumption: sufficient virtue in the people and their governors that they would not attempt or permit a constitutional coup. Put otherwise, the amendment’s passive voice is written for a people committed to republicanism. As Madison noted, there is no legal substitute for a public and politicians who can clear that low bar.