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Response to Wanderlust988 (Reply #35)

Sat Sep 26, 2020, 01:13 AM

37. Nope. The president of the senate opens and counts in the presence of congress

At least that’s a plausible interpretation of The Constitution. It would probably have to go to The Supreme Court if it got that far.


https://lawecommons.luc.edu/cgi/viewcontent.cgi?article=2719&context=luclj

The Constitution itself says remarkably little relevant to this topic, and what it does say is shockingly ambiguous. Here is the applicable text of the Twelfth Amendment:

[T]he 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.33


The first thing to observe about this constitutional language is that the critical sentence is written in the passive voice: “the votes shall then be counted.” Here, thus, is the first frustrating ambiguity. It could be the “President of the Senate” who does the counting; or, after the President of the Senate has finished the role of “open[ing] the certificates” then the whole Congress, in this special joint session, collectively counts the electoral votes.

Either way, this language contains no provision for what to do in the event of a dispute, whether with respect to the “certificates” to be “open[ed]” or with respect to the “votes” contained therein. It certainly says nothing about what to do if the President of the Senate has received two conflicting certificates of electoral votes from the same state, each
certificate purporting to come from the state’s authoritatively appointed electors. As the distinguished jurist Joseph Story observed early in the nineteenth century, this crucial constitutional language in the Twelfth Amendment appears to have been written without imaging that it might ever be possible for this sort of dispute to arise.34

Despite its ambiguity, or perhaps because of it, the peculiar passive- voice phrasing of this crucial sentence opens up the possibility of interpreting it to provide that the “President of the Senate” has the exclusive constitutional authority to determine which “certificates” to “open” and thus which electoral votes “to be counted.” This interpretation can derive support from the observation that the President of the Senate is the only officer, or instrumentality, of government given an active role in the process of opening the certificates and counting the electoral votes from the states. The Senate and House of Representatives, on this view, have an observational role only. The opening and counting are conducted in their “presence”—for the sake of transparency—but these two legislative bodies do not actually take any actions of their own in this opening and counting process. How could they? Under the Constitution, the Senate and the House of Representatives only act separately, as entirely distinct legislative chambers. They have no constitutional way to act together as one amalgamated corpus. Thus, they can only watch as the President of the Senate opens the certificates of electoral votes from the states and announces the count of the electoral votes contained therein.

This interpretation of the Twelfth Amendment is bolstered, moreover, by the further observation that the responsibility to definitively decide which electoral votes from each state are entitled to be counted must be lodged ultimately in some singular authority of the federal government. If one body could decide the question one way, while another body could reach the opposite conclusion, then there inevitably is a stalemate unless and until a single authority is identified with the power to settle the matter once and for all. Given the language of the Twelfth Amendment, whatever its ambiguity and potential policy objections, there is no other possible single authority to identify for this purpose besides the President of the Senate.


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LineLineLineReply Nope. The president of the senate opens and counts in the presence of congress
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