Another Way To Elect A President: The VP's Role (Part 9)

This podcast is part of the Democracy Group.

This is Larry Lessig. The Constitution gives the president of the Senate an extraordinarily important power, the power of being the custodian of the ballots that are sent from the states representing the electoral votes in those states. The vice president is the president of the Senate. And the question we consider in this episode is whether by virtue of having that constitutional status, the vice president has a special sort of power, a power that can't be controlled by Congress if Congress disagrees with the vice president. Stay tuned. So the vice president in this podcast, we have some familiar characters. First of all, Jason, who's been with us throughout. Jason, you want to introduce yourself?

Hey, Larry, it's great to be back as we wind down this series.

Right. And Matt Seligman.

Matt, good to be back on the podcast. Can't believe we're almost into the end of the podcast. And finally to the election.

Yeah, we're actually one week right now from the election, and I'm hoping we're jinxing the need for our podcast because if the election, of course, is absolutely clear, there's no reason to go through any of this. But in the case that we do. And then the third person who's been with us repeatedly, our resident historian, Mike Rosin.

Nice to meet my old friends again and to make new ones.

Great. And we've had one episode, really extraordinarily interesting episode about the Electoral Count act with an author who's spent an enormous amount of his energy trying to understand it and explain it in a conscientious guide. And so we welcome him back. This is Steven Siegel.

Pleasure to be back again. Thank you very much for the invitation.

Our new presenter today is professor at George Washington Law School, and he is an author with Bruce Ackerman of a piece that sets the stage for the puzzle we're going to work through today, which is about the power of the vice president in the context of the counting of the electoral. So, David, I want to start with you. Why don't you first of all introduce yourself and tell anybody anything that you think they should know beyond what I've just said.

My name is David Fontana. I'm a law professor at George Washington University Law School. And I worked on this paper maybe 15 years or so ago now, right in the aftermath of Bush vs Gore, when we thought it was really interesting then and just a matter of history. Never did we think that we would be talking about it and it would be so important again. So thank you for having me and look forward to talking about it.

Great. So, David, introduce us to the history that teed up, the interest that you guys found in the contrast between the first two vice presidents in the first two contested presidential elections and how they thought about their role in the context of the Constitution.

Sure. Well, Bruce Ackerman from Yale Law School, and I found that from the beginning, the way that the Constitution handled the count of the electoral votes just generated significant problem for our presidential elections in really two big ways. First of all, by who was given power to preside over the vote count, and second of all, about how little guidance was given to that presiding officer. The Constitution says that the president of the Senate presides, and the president of the Senate is a vice president of the United States and just says that the vote shall be counted without giving much guidance about what votes should be counted and how to determine what votes.

So let's get the text exactly. It says, the president of the Senate shall, comma, in the presence of the Senate and House of Representatives, comma, open all the certificates, and the votes shall then be counted. Semicolon. Okay. That's the text that's causing all this trouble.

Yes. I don't know. You know, I don't know enough about linguistic history to know what role the passive voice played at the end of the 18th century. But in the 21st century, we use it when we're not sure exactly what to say. And in a lot of ways, it played that role. So in the 1796 and 1800 presidential elections, the sitting vice president was a candidate to be president and would be presiding over the opening of the votes in the Senate, you know, an enormous conflict of interest. And in the Constitution, in some situations when the vice president would be facing this conflict, the Constitution found a workaround. So, for instance, in impeachment trials, when the vice president might have a conflict of interest because they would become the president if the president was impeached and removed from office. The chief justice becomes a presiding officer over impeachment trials, as we saw earlier this year in the impeachment trial of President Trump. But no such rule was made for counting the electoral votes. So the vice president is the one sitting there in the Senate, opening up the votes that will determine whether he or now she will become President of the United States. And. And the second thing is that it doesn't say much about how to determine what votes to count in the first place. So the first two times we really know of that there was at least a meaningful amount of controversy about this was in 1796, and then in 1800 in 1796, John Adams was the vice president and the first contested presidential election in American history. The first potential transition of power, really, one of the first transition of power in world history. Adams would be the presiding officer in the Senate, opening up these votes. And there's a pretty significant rumor out there that there's a problem with the electoral votes from Vermont. While the perception was that this was a technical problem, it was a significant technical problem because Adams was three votes ahead and he was gonna get four votes from Vermont. So if he discounted those four votes from Vermont, he was probably not going to be the second president of the United States. So there was a lot of discussion about this in the newspapers and among political elites before it came time to open the votes in the Sen.

It.

Adams was aware of this ahead of time, was thinking about how to handle it. And so was his primary political rival, Thomas Jefferson. And Jefferson was exchanging letters with James Madison. And to, I think we would say now, their credit. Rather than fighting this tooth and nail, Jefferson told Madison basically to stand down. He said, and I think these lines will become really significant if we have a contested election in 2020. He said, Substance and not form should prevail. The phenomenon that we wanted to avoid, the phenomenon of a pseudo president at so early a day. So while, you know, everybody was fairly confident that Vermont meant to vote for Adams, so Jefferson said not to contest the opening of these votes and how these votes were counted or whether they were counted. So Adams, when the day came to open up the votes, Adams stood up, opened up the votes, sat down for a minute to give anybody a chance to object. Nobody objected, including Jefferson's allies, and the votes were counted. Adams became President of the United States in 1800. I think an even more significant conflict arose because there was more of a.

But let's just make sure we emphasize the critical moving part there. The point is that the point that you make and you and Bruce make is that the pause of Adams was Adams signaling to the joint session that he believed it was appropriate for them at that moment to raise an objection if they thought there was an objection to be raised. And so he's giving them time to raise an objection. And when he doesn't hear an objection, then he proceeds.

Yes, this is all scripted in advance. Adams talks in advance about his plan to do this. Jefferson talks in advance with his allies about the plan not to object. And then we know from contemporaneous reports in the annals of Congress, but also in the various newspapers of the day, of all different ideological leanings, that this is exactly what happened, that he sat down and that he sat down for exactly the reason you said. So there's no ambiguity about what he did and why he did it. And also how Jefferson and his allies react to do. I think everybody at the time understood what was going on and why what was going on was going on. In 1800, you know, we have a similar sort of situation, right? We have Jefferson is going to be presiding over opening the votes. Jefferson could be the next president of the United States. And this time the votes come to Washington, and the problems with them is more a surprise. There wasn't much sense that there was any problem in these votes because they were coming from Georgia. There was less newspaper coverage of politics in Georgia at the time. There were fewer connections between Georgia political leaders and sort of the Washington political establishment. So this was sort of a surprise at the last second. And it turned out, and we examined the actual votes, that this was a much more significant problem than what happened in 1796. The Constitution says, and I'll quote the language, that the elector shall make a list of all the persons voted for each, which list they shall sign and certify and transmit sealed to the seat of government of the United States, directed to the president of the Senate. But if you look at the actual votes in the National Archives, it's just very unclear who the electors are and who they plan to vote for. So once again, we're in this situation where the president of the Senate in front of everybody, is standing up to count as it's opening the ballots and figuring out what to do about them, knowing once again that these votes could make a difference whether or not he becomes president. We don't have to go into all the technicalities, but this would have determined whether he was going to be president. Sorry, go ahead.

So he again needs these votes to count for him to win.

Yeah. So these are not mere acts.

Yeah. So like Vermont in 1796, deciding that they don't count is to decide you're not president. And decide that they do count is to decide that you will become president.

So counterfactuals are always difficult. But I think it's fair to say that in both situation, the odds are that Adams would not have become president in 1796 if he hadn't counted the Vermont votes, and Jefferson in 1800 if he hadn't counted the Georgia vote. So in both situations, not only do we have a precedent about what happened and why it happened, but it's an even more important precedent because we know people took it very seriously. Everybody was paying close attention. And so on election Day, Jefferson opens up these Georgia ballots. They look incredibly, procedurally irregular. The tellers who are giving them the votes say out loud so that everybody can hear that there's a problem with the votes. And so newspapers at the time report that they say this. Jefferson does not do what Adams does. He doesn't give anybody an opportunity to object. But still, nobody objects, and nobody says anything after the fact that there's a problem with it, because they assumed that this was who Georgia was going to vote for. There were plenty of reporting at the time that Georgia had voted for Jefferson, was planning to vote for Jefferson. So Jefferson counts the votes, and he and Burr go into the runoff in Congress, and eventually he becomes the next President of the United States. And then in the years to come, there's continual references, particularly to the Jefferson president. There's a book 30 or so years later, later sessions of Congress, people mention this, and they mention 1800, more than 1796. But in both situations, they know that the vice president opened the votes, that there was an opportunity for someone to object that they didn't do so. And in both situations, we know that it was substance over form, that no one really objected because they thought that Vermont meant to vote for Adams in 1796 and Georgia meant to vote for Jefferson in 1800. So going back to what Jefferson said to Madison in 1796, in both situations, part of the precedent is substance over form and avoiding a pseudo president.

But it's important to note the difference between Jefferson and Adams, because it leads some to believe that the vice president, at least according to Jefferson, didn't really have to yield, that it was a power that he had to decide which slate will be counted. And he exercised that power. And though nobody objected, at least there's an argument that even if they had objected, it wouldn't have mattered because he had this power, by virtue of the Constitution, giving the president to the Senate, the power to hold the ballots. So that's what creates this ambiguity. Right? This is the question we have to figure out.

Yeah. And I think. I mean, one thing to say about the time is that because this is such an important action that Adams took in 1796 and Jefferson in 1800, there's an enormous amount of commentary in letters that people are exchanging and in newspapers. And in both situations in 1796 and 1800, all observers from both major political parties at the time and remember, the 1790s are in many ways more partisan than the 2010s and 2020. Everybody thought that it was not just for Adams and Jefferson to decide. So Adams made that very clear by sitting down, But Jefferson, after the fact, would say to people, and this was reported in all sorts of newspapers, that he thought it meaningful that the Federalists did not object. There were two members of the Georgia delegation sitting there when Jefferson opened the votes who did not object. And they stood enormously to object if Georgia votes didn't count. And then for these complicated reasons, we don't need to go into. There's a pretty decent chance that a Federalist might have been the next president of the United States. So not just not Jefferson, but someone from the opposing political party. So, you know what originalists would say, you know, the sort of public. Meaning, the public understanding at the time, I think, was not that there was some unilateral or final authority for either Adams and 1796 or Jefferson in 1800 to decide this with significance on their own.

Okay, so this is a time when people take precedent very seriously. And there's. And not just legal precedent, political precedent. And so there's a question whether this has established a precedent that in some sense sets the president of the Senate above the joint session, at least from the standpoint of deciding which slates will count. I want to bring Mike in now because Mike's done a lot of work trying to understand what happens afterwards in the period leading up to what we'll then talk about with the Electoral Count Act. And I just wonder, Mike, does this give you a. Does the history that you've studied try to resolve the question of who actually controls the count in the context of the presidential election?

It does. And as I read the history, Congress, starting in 1793, gives itself the power to make the count. In 1793, the two houses adopt concurrent resolutions that say that the President of the Senate will open the certificates, give them to the tellers, and that the tellers count the vote and give that back to the president of the Senate who announces the totals. This resolution is also adopted in 1797. It's not adopted in 1801, I think just because the House was scrambling to figure out what its rules would be for contingent election. Nor is it adopted in 1805. But then from 1809 to 1861, every four years, the two chambers adopt a resolution under which the president of the Senate opens the certificates. They're given to the tellers, and the tellers count. If you look at the journals of the two chambers, the House journal uniformly describes what the tellers do as counting. The Senate journal uniformly describes it as ascertaining the votes. So as I read it, it's clear that it's the tellers who are doing the counting, the tellers who have been appointed by their respective chambers. There are four episodes between 1817 and 1857 that I think shed light on this. In 1817, 1821 and 1837, there's a question of whether Indiana, Missouri and Michigan have been admitted to the Union in time to participate in the presidential election. And let's talk about 1837. If for no other reason, then the President of the Senate is Vice President apparent President elect Martin Van Buren. And in all three cases, Congress can't resolve the question of whether or not these states have been admitted. In 1821 and in 1837, they prescribed the form of the statement that will go into the two journals about the vote in 1837. The statement is, if Michigan is a state, then Martin Van Buren has received 170 of 294 electoral votes. If Michigan is not a state, then Martin Van Buren has received 167 out of 291. This isn't left to the discretion of the President and the Senate. It's agreed upon beforehand by the two chambers. The other relevant episode happens in 1857 when the electors had to give their votes on Wednesday, December 3rd. There was a terrible blizzard in Madison, Wisconsin that day, and the electors can't meet until the next day. And much to their credit, they sign their transmission, they date their transmission honestly as December 4th. It's sent into Washington and the two chambers beforehand debate what they're going to do when President of the Senate James Mason, who's a senator from Virginia, gets to Wisconsin, he reads the votes and they have a similar form of uncertainty about whether or not to include the votes. Some members object that Wisconsin's votes shouldn't be counted. And Mason responds, I'm not going to entertain your objections. Not because he's exercising his authority as President of the Senate, but because in the concurrent resolution adopted that year, it said that the only thing that would be done in this session would be to count the votes. It didn't allow for the entertainment of objections. So this to me is another example of Congress asserting its power to control the process by which the votes are counted.

So is there any example in this period where you have a kind of wannabe President of the Senate or wannabe Superman in the President of the Senate who's trying to resist anything that Congress is doing or does everybody yield to the idea that ultimately the control of the process is a control granted to Congress.

Well, I think the 1857 episode will be interpreted by certain parties as evidence that the president of the Senate is in control. But I think a better reading is the president of the Senate is abiding by the rules established by the two chambers. The only other case is in 1809 when there's disagreement in the journals about whether the Senate Journal says that the president of the Senate opened the votes and counted them. The House Journal and the Annals of Congress say he opened the votes and the tellers counted them. And I think there's good. And because there was a resolution in place saying that it would go as recorded in the House Journal and the Annals, I think that's the better reading, and it's just a mistake in the part of the Senate Journal.

Okay, so we don't. So then to put it again in a more precise way, we don't have any example of any vice president acting against the rules that Congress has adopted for determining how the votes will be counted in the period between the Jefferson Count in 1801 and the ultimate count. You said you went up to 1865. Is that.

Well, I. The chambers adopt concurrent resolutions through 1861. In 1865, they adopt a permanent rule, Joint Rule 22, which incorporates the same process. The extension is that now either House can veto the acceptance of electoral votes from a given state, and that remains in place until the Electoral Count act of 1877.

Okay. But again, the important question here is we don't have any example of the vice president acting against Congress in this period.

No.

Okay. All right. So this brings us to the third stage in this process, which is the Electoral Count Act. We've already had a really wonderful episode talking about the Electoral Count act and how it's going to deal, or is intended to deal with problem of multiple slates and other questions like that. But, Stephen, today, I want you to help us understand how it thinks about this problem or this question of what inherent power the vice president might have and what the framers of the Electoral Count act thought their power was vis a vis anything the vice president thought he might have.

Okay. Well, the Electoral Count act tries to do two things. It tries to create rules for an expeditious meeting and drain all power that is possible away from the vice president in his constitutional role as custodian of the ballots before they are brought to Congress, and then also in his statutory role as the chair of the meeting. I just want to mention Two things. He does have a role as the President of the Senate when the Senate meets, should there be an objection. And he has powers from that source that have not within what the ECA is about. Also, electoral counts have been broadcast live by C SPAN for a while, and anyone who is interested could watch some of the counts and see this in action. There are videos on the web of previous recordings, including the interesting one in 2001 and in 2005, when Senator Boxer and a Congressman made an objection and the Houses had to deal with it. But what the ECA says, first of all with regard to the Vice President's role as custodian, is that he is to bring all certificates he has received and all papers purporting to be certificates to the chamber. Precedent before the act is that he would bring all the papers up to the date of the meeting. There is some precedent about his refusing to bring papers that arrived after the meeting. There is some earlier precedent that if even one House asked him to bring papers that he hadn't brought, he would bring it. But what's interesting about the Electoral Count act is that it commands the Vice President to bring all papers that purport to be certificates. Then it says, as people have been discussing, that he is to open the certificates. And then after he opens them, that's when his constitutional roll ends. He's to hand them to the tellers, and the tellers read and report on what the contents of the certificates say. And at that point, the Vice President calls for objections. Let me also add that the ECA commands the Vice President, as chair of the meeting, to proceed in alphabetical order of the States. Precedent and tradition. This isn't in the wording of the statute, is that he hands the papers to the tailors in the order in which they were received. The idea is they're trying to cover as much as possible to make the Vice President an automaton who follows these detailed instructions on what he does with the papers. So he hands the papers to the tellers, who open and read them. And then after all the papers for a state are dealt with, he calls for objections. If there are no objections, presuming there's then one certificate, and he says the Vice President, the telezotic, count the votes as they are in the papers if there are objections, and all objections must be in writing, signed by one Senator and by one member of Congress. There is no discussion, there's no choice. The Houses separate and have two hours to vote and discuss, to discuss and vote on the objection. When they come Back, the Vice President reads the result of each House's decision. And then, under precedent, not in the wording of the statute, but as the chair would do of the House of Representatives or of the Senate, he announces whether the objection has been sustained or not and tells the tellers to count the votes according to the decision.

Okay, so just one historical detail. So we've talked in our earlier podcast about 1876 and the multiple slates from 1876, but how many other times have there been these, quote, purported slates of electors that they've had to work through? I mean, has there ever been kind of, you know, the Kiwanis Club sends in their slates, and you've got to, like, acknowledge the Kiwanis Club sent a slate. But we're not going to count the Kiwanis Club slate.

Okay, well, before the ECA, there were multiple slates in 1872 that were dealt with. After the ECA, there was immediately in the first election under the ECA in 1888, there was an obviously sarcastic joke set of returns from Oregon signed by Sam McDowell, Governor de jure of Oregon. And the Vice President brought those certificates to the meeting and asked for, after they were opened, asked for unanimous consent that the other set, the set with all the proper seals signed by Governor. Interesting. For all people in law school, Sylvester Pennoyer was the governor, and he asked for unanimous consent that the certificates with the proper seals be counted. Okay, so there was a second time in 1960, there were two sets, and again, it was resolved with Richard Nixon without one. You said a precedent saying, let us accept the Democratic electors based upon the court action.

Okay, and then one other question, and this is actually for Mike and Steven, and it sounds like a kind of crazy question. I'm going to put this in the Jump the Shark scenario that we're going to have in our last episode. But it's been suggested to me by someone I have enormous respect for. Is there any case where, when the House has separated to consider an objection, the House has voted one vote per state as opposed to one vote per member of the House?

I'm unaware of that.

And that provision for the contingent election is a very special provision.

Okay, so we have no example.

Let me point out one last way that the Electoral Count act limits the powers in an interesting, significant way. When the entire count is over, the act calls for the tellers to pass the sheets and the totals that they've been keeping to the Vice President, who then reads the totals. He just states the numbers. He does not. And it's clear from the legislative history. He is not to make an announcement of whether or not anybody has been elected president. His announcement of the votes is to be taken as a statement of who, if anyone, and I suppose what would happen if the constitutional majority wasn't written. The House would return and immediately turn. But the vice president has no authority to declare a victor. He only is to read the vote totals as they are passed on to him by the tellers.

Okay, so let's just make sure that we understand where we are in this arc of the narrative. Right. So we began with this puzzle that might suggest, given Jefferson's behavior in 1801, that the vice president has some superpowers inside of the process for counting the electoral votes. Then Mike Rozin suggests in a series of examples that in fact, Congress believed and acted as if it had the power. And there were no cases in that period until the Electoral Count act where any vice president acted against the rules declared by Congress. Instead, the vice president was always acting in concert with the rules of Congress. And then Steve has just given us the culmination of that understanding, expressed in the plain language of the statute, but also in the expectation of those who were enacting it, to crystallize the view that Congress was taking control of this process. And as we saw in the ECA episode, its main objective was to make sure that most of the decision struggle, decisional struggles, would happen in the states. But regardless, it was Congress that thought it had the power to regulate it, and it regulated it in a way that didn't leave the vice president with any superpowers. Okay, this is a significant way to sum this all up, because I want to go to Jason now and ask Jason to help us remember. I mean, we've talked about this so many times in this podcast, it's almost as if we're obsessed.

Right.

But help us remember a little bit about a recent case the Supreme Court decided. What was it called? Oh, yeah, Cefalo, about the electors and the power of electors to exercise their discretion. A point which we thought the history suggested that they in fact had a discretion. But the Supreme Court offered a pretty powerful way to interpret the law based on the practice where the convention. That had developed in a way which in some sense might be thought to have amended the Constitution. But just bring us up to speed on that so we understand how that plays into this story.

I remember it well, Larry, like it was just yesterday. Those. Yeah. As regular listeners will know, Larry and I each argued a case in the U.S. supreme Court in the spring about the role of presidential electors and whether state laws that require presidential electors to vote for the presidential and vice presidential candidates that receive the most votes in the state at the general election, whether presidential lectures can be required, coerced, sanctioned and induced to vote for those people, even if they wish to exercise discretion for a safety valve reason or some other reason. We had thought, thanks in part to Mike Rosin's wonderful research, that Larry, as you said, the history was extremely conclusive. There was good evidence that the framers themselves thought electors ought to have discretion and used words to that effect. There was a relatively unbroken history, not relatively an unbroken history of electors from time to time exercising discretion and Congress accepting that up into the time that states first started passing laws like the ones that the Supreme Court considered in the 1910s. So there was 130 years of just nothing at all in this space. And then Starting in the 1910s, a few states passed these so called binding laws, but they were never really triggered. And even into the modern era, Congress has an unbroken record of accepting votes cast against pledger expectation. And so we took that to the Supreme Court and the Supreme Court said thank you, we don't care. And they said thank you, we don't care because. And here I'm quoting from Justice Kagan's opinion that got seven justices to sign on to. She said our whole experience as a nation points in the opposite direction of the history that you, Larry and Jason pointed to. And that experience, she says, is yeah, there's the occasional rogue votes, but it's really about the expectation. It's really about the long settled and established practice, the 99% of what electors themselves do and that everybody expects them to do and not how Congress dealt with it in the 1% of the cases where something strange has happened. And so Larry, I'll leave it to you to sort of give your explanation. You know, we thought history went one way and long established practice, the Supreme Court said long established practice went the other way. I think the interesting part of the opinion is it did something with established practice. The question is what? And you know, as we've discussed, I don't know where I'll throw it back to you to sort of get go to the panel and see where does long established practice go here? Since we really thought it was on our side in the Electra cases, but it proved not to be.

Well, we can give up that fight. And let's just officially from now on agree we're gonna give up that fight. Never will it appear again in this Podcast. But I think the important thing about that fight is that the Court was really giving extraordinary power to a doctrine that had been announced earlier by the Court in a case called Noel Canning. And the basic principle of Noel Canning was where you've got an ambiguity in the history, the actual practice of our tradition liquidates. The meaning of the Constitution liquidates in the sense of, like, now we know what it means. And the line from Kagan's opinion, I thought was so powerful. We're not going to quibble about this, but we would certainly quibble about this. But she identified one case where she thought that the electors had acted with discretion, which was the first case of 1796.

But.

But she says, quote, but the electors cannot rest a claim of historical tradition on one counted vote in over 200 years. Okay, so actually, I should correct that. Actually, she was talking about the 1969 vote, right? She was talking about the vote where they deliberated about whether they would count a faithless elector vote, and they decided to count it. But the point about that, which is, I think, interesting and important for this story, is that at most, what David's work with Bruce Ackerman shows us is that there was a question at the very beginning of superpowers that might be vested in the Vice President. But to paraphrase Elena, but the Vice President cannot rest a claim of historical tradition on one rushed vote in over 200 years of American history, because that's what it is. It's that Jefferson didn't say, sit down the way Adams sat down. That's the essence of claiming that he has this special power. And so I think if you were to apply the principle in a parallel way, you must conclude that what happened over the course of this history is that Congress asserted its power to control the process of counting. Everybody yielded to it. Noel Canning principle would say we've liquidated on that principle. There's no more ambiguity about whether there's that principle. Okay, that gets us almost to where one would want to get if one wanted to avoid the potential of the Vice president. President throwing a monkey wrench into this process. But it doesn't quite finish it up. So, Matt, you've been sitting patiently and quietly conniving a little bit about exactly how you can still cause trouble with the Vice President. So what might be the procedure or what might happen? That still raises the effective question of whether the Vice President has effective power, even though it's not given to him by virtue of anything in the Constitution, and certainly not by the eca.

In short, the Question is, what if Mike Pence disagrees and he asserts the power to count the votes in the way that he deems to be appropriate? What then? So everything that we've been talking about so far and the arguments that have been given on, on the basis of history and then on the basis of the liquidating principle from Noel Canning and then Chafalo, the principle there, I think, is a cogent argument to the Supreme Court about why, if we apply those principles, that should yield the result that the Vice President, in his role as President of the Senate, does not have the constitutional or statutory authority to count the electoral votes in the matter that he sees fit. And in particular, the problem case that would arise is he doesn't have the subsidiary power to determine the validity of one slate versus another slate, as Professor Siegel has explained so lucidly. That's something that, that's a question that was addressed in the Electoral Count act. And Congress asserted, and the role, and that role has been unquestioned for centuries now, has asserted the role that it gets to determine how the validity question is answered. And the Electoral Count act gives a rather complicated procedure for doing so. But the point is that the Vice President doesn't have that power. So what happens on January 6th if Mike Pence, in his role as Vice president, presiding as President of the Senate, says, I hear what you're saying, but in my view, the President of the Senate does have authority because the 12th Amendment, the text of the 12th Amendment, doesn't give Congress the authority to control my role as presiding officer of this count. And therefore I'm going to ignore the procedures that are laid out so carefully in the Electoral Count Act. And I say that the slate of electors that was submitted by the Kiwanis Club of Boca Raton, Florida, is the one that is the one that's valid. And as a result of that, I have to update the hypothetical that Professor Fontana and Professor Ackerman talked about. The real life scenario from the election of 1800. Mike Pence counts himself and Donald Trump back into the presidency and vice presidency.

Okay, so just be clear about this. So if he says that it would certainly be possible for both houses of Congress to vote to overturn that judgment, there'd be an objection, there'd be a vote on whether he was right or not. And it's possible that both houses of Congress would say, no, you're not right, Mike Pence, you're wrong. And so he would be overruled right under.

It's possible. But let's assume, let's imagine for a second, that Republicans retain control of the Senate into the next. The next congressional session. And so remember that the counting of the electoral votes takes place on January 6th, which is the new Senate, which takes office on January 3rd. So we're at this point talking about the new Senate. We'll complicate that picture in our final episode. So, but imagine the Republicans retain the Senate. And so now you have divided partisan control of the two houses of Congress. And now let's imagine that under the stern leadership of Senate Majority Leader Mitch McConnell, the Republican Senate does not vote to overrule the ruling of Vice President Mike Pence as presiding officer. So then you don't have a unified Congress saying that what the President of the Senate, Mike Pence, is doing is illegitimate. And then what happens? So here we have a situation where it would be great if a court could intervene and tell us what the law requires. Unfortunately, I think there are a couple problems with that. First, at this point, we are in completely uncharted territory, and we're only two weeks to the day before inauguration. So this as accelerated a timeframe for litigation as Bush v. Gore was. This is vastly worse and more complicated. And I think that there's a powerful argument that courts don't have jurisdiction to weigh in on this question. So we've talked a little bit before about the political question doctrine, which is a doctrine that federal courts deploy to say when there's a question of usually constitutional law that courts shouldn't weigh in on. And it's because usually it's because the Constitution has textually committed this decision to a coordinate political branch. And there's an argument here that the parties that may have a role in deciding the question here are the Vice President and Congress, but courts are nowhere to be found. And so you can imagine, especially under the leadership of John Roberts, who is, I think, would be shy to intervene in a matter like this unless it was absolutely necessary, is he going to step in? Is the Supreme Court going to step in and say, no, this isn't a political question, unlike, for example, partisan gerrymandering, which came up just a couple years ago. And this is something where the Supreme Court is going to listen to the cogent arguments of Larry Lessig and Jason Harrell and say that the constitutional meaning of the 12th Amendment has been liquidated over the last two centuries, and it clearly, in that new sort of liquidated understanding, gives the Vice President no role. So that's what would be required at that point to provide clarity.

Okay, but even, but I don't even Think it's even. That would work, right? Because even under the narrow view of what the presiding officer's role is, he doesn't have to claim a constitutional authority to make a judgment, make a decision, and then Congress can overturn that decision. But Congress has got to overturn that decision. There's got to be a vote of the body to overturn it. So he doesn't say that. He doesn't have to say the Electoral Count act is unconstitutional. He's just got to say, my judgment is this is the slate that will count. And in that point it's even harder to imagine the Supreme Court stepping in because to the extent he's exercising his discretion as presiding officer, it might be harder to imagine the Court correcting his discretion as opposed to the court correcting his judgment that the Electoral Count act doesn't bind him or that he has constitutional authority beyond the power of Congress. So I think a problem here is he's presiding officer, and nothing in the Constitution necessitates that he be presiding officer.

Right.

I mean, they could have appointed Jason to be presiding officer of this as well.

They should.

Yes, I agree. But it's because he's presiding officer and he has to make judgments. And those judgments can only be overruled by Congress voting. Is it clear how Congress would vote? Would they separate into chambers and then vote one each chamber? Or is it plausible that you consider the joint session as a single body?

There is no joint sessions. The two houses assembled concurrently.

I see. So, yes, they would have to do it separately. So I think this is where the concern Dave and Bruce raised originally, even though we've marshaled, I think, an absolutely slap, knock em down constitutional argument bolstered by our defeat in Cefalo, to show that absolutely under the law, there's no way the Vice President has any special power. In fact, in the end, if the Vice President plays hardball and just says what the Vice President says and can't get two, two houses of Congress to disagree with them, maybe in the end he has that power, whether the framers of Congress intended it or not.

And the arc of history, I think, informs, informs our understanding of the role, the political and the moral role that the Vice President plays here. Because we heard about the early history. Professor Fontana talked about the election of 1890, I'm sorry, 1796 and 1800. And in both of those cases, Adams and then Jefferson counted the votes that ultimately elevated themselves to power. But they did so under circumstances where there wasn't a real decision. But there's another Historical example that goes the other way, which was Al Gore presiding over the count of the election of 2000. And he, as we well know, had reasons for personal dissatisfaction with the way that the litigation and the counting of people's votes in Florida had gone. And theoretically, he could have tried to assert some role as presiding officer under the Electoral Count act or in his constitutional role under the 12th Amendment, but he did not do so. And that's another dimension of a politician declining to play the hardest of hardballs, even though it came at great personal sacrifice.

He wouldn't even let the objection. He wouldn't even let the objection be recorded because, you know, obviously he conspired with every senator to tell the senators do not sign the objection. That was raised by the DC Delegate. Right. Was it the DC Delegate? Yeah, the DC Elector.

Can I say to.

No.

Woodland.

Okay. Regardless, we couldn't get. We couldn't get the House in the Senate to object. And that was probably. That was certainly something to Al Gordman.

Can I say two things about the liquidation idea really quickly?

Yeah.

So, first is, you know, not saying that this is how people will think, but in terms of maybe how they should think. Liquidation, as you said, is premised on the idea of some sort of initial ambiguity. And if we abstract up levels of generality from the text of the Constitution about the role of the vice president, it would be incredibly anomalous for the vice president to have this sort of power in the constitutional structure. They were very well aware that picking the president was as important as anything they were going to put in the Constitution. And. And they were also very certain that the vice president would not be important. So they did not mean to make the vice president play a crucial role in doing this most important thing. Second thing is, I think we're overreading the Jefferson president for the Superman or woman theory, because, again, the first thing that happens when they're meeting together is that the tellers note the problem with the vote, not Jefferson. Everybody there could object, and they don't object. So that doesn't stand for the idea that the vice president has this unlimited unmitigated power this stands for, even though he. He didn't stand up and sit down. There was a public airing of a potential problem. Some of the tellers were Federalists, Some of the people sitting there were Federalists, and they didn't object. So I don't know that it's any different than the Adams precedent. And the idea that there was a public airing of a potential problem and they didn't Vote, but through their knowing silence said, we have no problem with this. It maybe would have been different if they actually wrote down on a sheet of paper, we're fine with this. But it's not all that different because everybody knew what the objection was. It was reported in dozens of newspapers at the time. And so I don't know that the Jefferson precedent stands in the first place for the idea that the vice president is Superman.

Okay, well, then, so what we're left with is the only thing the vice president could exercise is just pure raw power in the face of a divided Congress. And that's, of course, terrifying for lots of reasons, but that's the only way in which. That's the only ground in which he could be exercising that Superman power. And of course, the only way to guarantee that that wouldn't happen is if it's not a divided Congress.

Right.

Because at least if the Republicans lose control of the Senate, then none of this is significant because anything the vice president can do will be reversed by both houses acting together. But that's where we left, I think, with this anxiety about whether constitutional hardball played by the vice president will be actually this extreme, which I think all of us agree this. I mean, even Dave, whose argument. David and Bruce's article, which is the article that suggests this is a point, even David is conceding that the point is not as strong as at least some on the other side of this battle have been suggesting it might be. Okay, is there any final word anybody wants to add to this settled depression of recognizing that we don't have legal arguments to resist anymore because they're all on our side? It's just the power that might be exercised without any effective control. Stephen?

Yeah. I don't think the wholesale change by Pence is something to be concerned about. But there is a subtle problem. Should there be something that comes in that is not anticipated by the clear rules and the Houses separate, and then they come back and let's say it's a split Congress, they vote, one votes to uphold, one votes to overturn the vice president. What the ECA says with regard not to the ultimate election of the president, but with regard to objections, is that when the House reprovenes, the vice president announces the decision of the questions submitted, and his decision then may be objected to, but the Houses again may split. And that decision, his interpretation of the meaning of the disposition of the objections, leaves a lacuna for the vice president, as the chair of the meeting, to influence the outcome.

Okay. Yeah. And can I add one additional closing Consideration. You know, maybe we should have renamed this series like the 20th Amendment miniseries or something, because it's our favorite amendment that no one talks about. And I don't even think at the Harvard Law School, Larry, take this to the dean. I don't think I Learned about the 20th amendment in all, anything in three years. But I think the 20th amendment adds additional color here because as Mike Rosin has told us, among the primary purposes of that amendment was to move up the seating of new Congress people to two weeks before a new president is inaugurated. Before 1933, that was not the case. And Congress and the new president would take office the same day. So the whole point of having a new Congress present when the votes are counted is totally undermined if the old vice president can just overrule them and exercise this power. So once again, we see yet another data point that Congress holds the power here to count the vote. It starts with this weird passive voice that David, you mentioned and rides through 1933, through the modern era, through the ECA. There's just no argument whatsoever on the other side other than, you know, super crazy hardball. Among the most hardball, the hardest of the of the moves that we've talked about here. And I think that's the stuff of which real violence would be made if this move were tried. So super fascinating history, but I just wanted to throw that out there.

So, Jason, maybe we should have named this podcast Super Crazy Hardball 2020.

Yes, I think this one's super crazy.

Okay, but I'm gonna read that assertion that it's Super Crazy Hardball as your optimistic ending to our episode, which is your classic role in our show, to say that if it's super crazy, it's just not gonna happen, because what super crazy things would be happening in American politics and to have happened to American politics. I don't mean to turn it down, turn this into a downer, Jason, but I'm not sure which way that cuts.

Totally normal. Well, David, I mean, you started off by saying, hey, at least it's not 1796, right? So maybe that's the answer.

Okay, thank you, everybody. We've got one more episode, and I look forward to that conversation that we can have then. But until then, thank you for participating. That's episode eight. In episode nine, the final in this series titled Jumping the Shark, we'll take up scenarios that people are discussing, though, that we think are crazy, but scenarios that just might happen, especially if Congress gives up the obligation to behave in good faith and embraces the possibility of behaving in constitutional hardball. This is Larry Lessig. These podcasts are produced by Equal Citizens US. You can find us on the web at EqualCitizens US and these podcasts at EqualCitizens US. Anotherway. There's a place there where you can share them. Please share them. Please share them. And a place where you can give us your feedback and your ideas. And there's also a link on that website, surprise surprise, where you can help support the production of these podcasts. We are of course giving the analysis pro bono, but the production costs are real costs, so you can find that link at EqualCitizens US. Donate. Stay tuned for the final episode and let's all hope that all nine of these episodes were just purely academic unnecessary in the election of 2020. However you hope that comes out, let's hope it comes out in a clear and decisive way so that we can move on from this cycle to think about what the future holds. This is Larry Lessig. Thanks very much.