by Michael C. Dorf
In our response to the appalling memo by John Eastman, Professor Buchanan, Professor Tribe, and I cheekily noted the temptation to run with Eastman's analysis in the next election, because doing so would license Vice President Harris to ensure a Democratic victory in the event that a Republican wins the 2024 Presidential election. Nonetheless, we explained that this conclusion is hardly the best reading of the Constitution's text and would run counter to the basic principle that no one should be a judge in their own cause: because the sitting Vice President is usually a candidate either for re-election or for the Presidency, it makes little sense to assign to the VP the unilateral power to rule on anything of great importance regarding the outcome of a Presidential election.
With a caveat I'll add at the very end of today's essay, I (speaking for myself without having consulted Professor Tribe or Professor Buchanan) will stick with that conclusion here. However, before doing so, I want to consider an argument to the contrary offered by serious scholars, not by the likes of former Professor Eastman.
In a draft article first uploaded to SSRN in March and very recently updated, Boston University Law Professors Jack Beermann and Gary Lawson argue that the VP in fact plays a very substantial role in resolving a certain kind of dispute over the Electoral College. Although I disagree with their bottom line and think that they make some errors, their article is generally thoughtful and, duly corrected, points the way towards a path through the chaos that could ensue with Trump loyalists in state legislatures.
(1) Begin with a point that Beermann and Lawson (whom I'll call "B&G") get right. They reject the radical "independent state legislature" theory--under which a state legislature, independent of the state's governor and its courts--gets to set rules governing Presidential elections, with federal courts then strictly enforcing the letter of those rules. The best available debunking of the independent state legislature theory is in a draft paper by University of Illinois College of Law Dean Vikram Amar. Dean Amar and his brother, Yale Law School Professor Akhil Amar, are the co-authors of a revised version of the paper that is forthcoming in the Supreme Court Review, but it is not available in linkable form.
Although B&G do not go into the detail that the Amar brothers do in exposing all that is wrong with the independent state legislature theory, their analysis is sound. Their bottom line is that whether a state court decision construing a state law is correct, even in the context of a Presidential election, depends on state law all the way down, including the state's law of how to construe statutes. They thus reject the view taken by three Justices in Bush v. Gore that Article II's assignment to state legislatures of the power to "direct" the "manner" by which the state appoints its electors implies hyper-textualism in construing acts of the legislature.
To be sure, B&G do not address the best argument in the scholarly literature for limiting federal court deference to state court determinations of state law affecting Presidential elections, which can be found in Columbia Law Professor Henry Monaghan's 2003 article in the Columbia Law Review, but then, even Monaghan does not exactly endorse hyper-textualism--and I think that the arguments offered by B&G as well as by the Amar brothers and by Justice Ginsburg's dissent in Bush v. Gore are ultimately more persuasive than Monaghan's position anyway.
The bottom line on this first point is that if B&G are right that state courts deserve the usual deference they receive in construing state law, then the next time around the Supreme Court would have no business interfering with, say, a ruling by the state high court in Pennsylvania, Michigan, or Wisconsin approving of a gubernatorial directive that liberally construes state law in favor of the right to vote.
(2) B&G also get at least a couple of things wrong.
(a) In discussing the procedure set forth in the Twelfth Amendment, B&G repeat the familiar view that if no candidate receives a majority of the total possible electoral votes, i.e., if no candidate receives at least 270 electoral votes, the House of Representatives, voting by state delegations, chooses the President. As Professor Buchanan, Professor Tribe, and I argued last year--in the essay that Eastman cited for the one proposition he got right--that's simply not what the Twelfth Amendment says. Here's the crucial part of our analysis from a year ago:
[The Twelfth Amendment says that "t]he person having the greatest number of votes shall be the President, if such number be a majority of the whole number of electors appointed" (emphasis added). We have italicized that last word—appointed—to emphasize that the Constitution does not say that a candidate must win a majority of the potential number of theoretically eligible electors who might have been appointed. He or she must win only a majority of the electors who were actually appointed. In the scenario in which the Electoral Count Act is set aside so that Pennsylvania’s votes do not count, its 20 votes are subtracted from both the numerator and the denominator.
B&G do not offer an argument against this view. They simply adopt the conventional but wrong wisdom that any tally under 270 throws the election into the House.
Why does that matter? Because the core of their argument is that when the Twelfth Amendment assigns to the Vice President the task of opening the certificates it is best read to exclude a role for the assembled members of Congress. Part of the basis for their arresting conclusion that the VP but not Congress resolves disputes over potentially competing slates of electors is that the House's role is limited to the resolution of elections where no one gets an absolute majority of potential electors. But because that reading is wrong, it casts doubt on their conclusions about the VP's role.
(b) B&G get a key provision of the Electoral Count Act wrong too. They write that "section 5 of the Act provides that only state laws enacted prior to the election may conclusively determine disputes over the appointment of the electors and only if the results of the dispute are made at least six days prior to the time of the meeting of the electors." That's not true. Section 5 says that if a state meets the deadline, then no challenge to its slate will be entertained. Failure to meet the deadline doesn't disqualify a state's electors, but satisfying it ensures that they will be counted when Congress convenes for that purpose.
Why does this error matter? Well, for one thing, because Section 5 has already been tacitly approved as constitutional by the Supreme Court. The majority opinion in Bush v. Gore attributed to the Florida legislature the intent to satisfy the safe-harbor deadline as the ground for not remanding to the state courts for a statewide recount under a uniform standard, which would have otherwise been the logical remedy if there were sufficient time. By effectively telling Florida that there was no time left to conduct a new recount in light of Section 5 of the Electoral Count Act, the Bush v. Gore Court was at least implicitly acknowledging the Act's validity.
That's important because it casts doubt on the doubts that B&G cast on the Electoral Count Act itself. Although there may be aspects of the Act that could be challenged as unconstitutional, the one aspect that seems like it should be most secure is what it says about timing. In addition to having received the Supreme Court's implicit approval in Bush v. Gore, there is the matter of Article II, Section 1, which gives Congress the power to "determine the time of choosing the electors . . . ." The safe harbor provision and other aspects of the Electoral Count Act governing timing are constitutional exercises of that power.
(3) That brings me to my major points of disagreement with B&G. They articulate and defend the thesis that: (a) neither house of Congress, singly or collectively, has any constitutionally proper role to play in resolving a dispute over what counts as a properly certified electoral slate; (b) that power is lodged in the VP (or other presiding officer of the Senate in the VP's absence); and (c) the decision of the VP (or other presiding officer) should be subject to judicial review.
I disagree with all of these propositions. The text of the Twelfth Amendment assigns to the "President of the Senate" (usually the VP) the task of "open[ing] all the certificates," going on to state that "the votes shall then be counted." B&G correctly note that this language is hardly pellucid. Who does the counting? Who decides what is a certificate in the event of multiple purported certificates or a seeming defect in one? The text doesn't say, but given the conflict of interest that will often beset the VP, Congress itself--which is presumably assembled there for some reason--seems like a better candidate.
What about judicial review? B&G offer it in part as a solution to the conflict of interest the VP faces, but it introduces its own problem, which they do not address: timing. If there is a genuine dispute over the validity of a certificate in the joint session on January 6, there will be precious little time for the Supreme Court to resolve that dispute in time for inauguration, much less for a smooth transition. There is a role for courts--especially state courts--to play in resolving disputes over how a state's electors are appointed and vote, but quite sensibly, the Electoral Count Act's safe harbor provision strongly incentivizes the resolution of those disputes before the joint session, so that what occurs there will be purely ceremonial.
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Notwithstanding all of the foregoing, I can envision circumstances in which I would think that the B&G procedure should be followed. The fundamental problem with Eastman's and Trump's efforts to enlist VP Pence in their plot was that the plot aimed to undercut American democracy by invalidating completely legitimate votes counted by reliable means. If the shoe were on the other foot--if VP Harris or the courts acting in mid-January were needed not in an effort to steal a Presidential election but to prevent a Trumped up Congress and state apparatchiks from stealing it--then perhaps all bets would be off. After all, the Constitution is not a suicide pact.