As I point out in a recent interview, the failure of the Trump legal team and its allies to understand the Constitution’s rules on presidential elections has cost them dearly. They have evidence of fraud and other election irregularities. But they have not used that evidence well.
The Constitution says that the Vice-President, as President of the Senate, is the presiding officer when a joint session of Congress oversees the counting of president electors. Some of the president’s advocates claim that gives Vice President Mike Pence unlimited discretion over the counting. They say that when the joint session meets on January 6, Pence may unilaterally decide between rival slates of electors.
In pursuance of this theory, Rep. Louie Gohmert (R.-Tex) has sued the vice president. Gohmert asserts that the federal laws on elector-counting are unconstitutional because they are inconsistent with the 12th amendment. He claims the vice president “may exercise the exclusive authority and sole discretion in determining which electoral votes to count for a given State.” He argues that Pence should appoint a Republican slate for Arizona.
The trial and appeals courts have dismissed the case for lack of standing. But if the plaintiffs had standing, their case still would be very weak. Here’s why:
* As the vice president observes, he is not a proper defendant. He has done nothing that makes him the bad guy here.
* The Gohmert complaint points out that state legislatures can choose electors, but it fails to mention that the constitutionally-authorized deadline for doing so (December 14) passed without the Arizona legislature reversing the result certified under procedures fixed by the legislature.
* Instead, the complaint says that “members of the Arizona Legislature” selected the GOP slate. But it also failed to mention that these members were only a minority of the legislature, acting on their own.
* It is highly unlikely the 12th Amendment gives one person uncontrolled discretion over the presidential and vice presidential electoral counting. This is particularly so when that person is the vice president—someone who may be (as in this election) one of the candidates himself.
* A legal principle says that when a result seems unlikely, you don’t assume it is correct unless the governing law clearly compels it. But the 12th amendment does not clearly determine that the vice president has exclusive authority to count the ballots. Quite the contrary. It says only that “the 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.” It gives the Veep authority to open the ballots, but does not specify who counts them.
* When the Constitution or law is silent, normal parliamentary procedure is to proceed according to the rules specified by the parliamentary body. That means rules adopted by the joint session of Congress, not by the presiding officer.
* Congress has set forth those rules in federal statutes. The plaintiffs claim the statutes (which they wrongly attribute to a single enactment) are unconstitutional. However, once again their lack of constitutional understanding caused them to lose an opportunity: The statute is not unconstitutional, because it contradicts the 12th amendment—which it doesn’t. The statute may be unconstitutional because it intrudes on a federal function.
To explain: When Congress comes into joint counting session, it is not acting as the federal legislature. It is acting as an assembly exercising a function directly mandated by the Constitution. Federal functions usually are exempt from statutory regulation.
On the other hand, the joint session may—expressly or impliedly—agree voluntarily to follow the statutory procedures. If the joint session does not object to using established legal procedures, then it is deemed to accept them. Dyer v. Blair, 390 F. Supp. 1291 (N.D. Ill. 1975) (Justice John Paul Stevens).
But that is surely the joint session’s decision, not the decision of the presiding officer.
