Tag: Twelfth Amendment

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What the 12th Amendment Presumes

Greg Weiner

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, … Continue reading What the 12th Amendment Presumes

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More on the Supposed Certification of Electoral College Votes

Greg Weiner

The New York Times reports this morning that former Vice President Mike Pence defended his role in (the article’s word, not Pence’s) “certifying” the results of the 2020 presidential election. As I’ve written here before, the Vice President, like the Congress, has no such power. Constitutionally, the Vice President presides over the counting of Electoral College ballots; the winner “shall be” the president. The semantics matter. Presiding is a passive role; “certifying” suggests the candidate with a majority of electoral votes becomes President-Elect only after some affirming act on the part of Congress or the Vice President. Pence deserves credit … Continue reading More on the Supposed Certification of Electoral College Votes

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Congress’ Authority to Certify Presidential Elections is a Phantasm

Greg Weiner

There is growing angst (see, for example, here and here) that a Republican House and Senate would refuse to certify the results of the 2024 presidential election if they are dissatisfied with the outcome. The concern, which has ample basis in the Trump tautology that any election he loses was rigged because he lost it, presents some interesting constitutional questions. The Constitution itself assigns Congress no role in counting electoral ballots other than witnessing the procedure. The procedure for objecting to electoral votes is entirely statutory. The 12th Amendment is clear on the passivity of Congress’ role:  The President of the Senate shall, in the presence … Continue reading Congress’ Authority to Certify Presidential Elections is a Phantasm