Congress can’t interpret the 12th Amendment

In the wake of the 2020 election, many questions arose about the power of the vice president of the United States during the counting of the electoral votes. The 12th Amendment provides that, in the counting of electoral votes, the president of the Senate (the vice president) shall “in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.” The clause is ambiguous; clearly, the vice president is tasked with opening the certificates (the electoral votes certified by the states). It is unclear from the text that the vice-president has authority to count votes. The passive voice says it: “The votes shall then being counted.” Not “shall count .”

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While a detailed analysis of the constitutional text goes beyond the scope of this essay, Professor John Eastman in his now-famous six-page memo on the January 6 situation explained that “[t]here is very solid legal authority, and historical precedent, for the view that the President of the Senate does the counting, including the resolution of disputed electoral votes (as Adams and Jefferson did while Vice President, regarding their own election as President), and all the Members of Congress can do is watch.” Professor Eastman also points out that Article II of the Constitution clearly states that presidential electors from each State shall be appointed “in such Manner as the Legislature thereof may direct” (emphasis added).

Admittedly, even conservative scholars disagree with certain aspects of Professor Eastman’s memo. But the point is this: the authority to open the certified electoral votes from the states and count them, as well as the question of which state-level actor has the final authority to certify election results, are constitutional questions, not statutory ones.

The Electoral Count Act interferes with both of these constitutional issues. Each house must appoint two “tellers” who will receive and record the votes and the certificates that are opened by the vice-president. The vote totals would then be delivered to the vice president to “announce the state of the vote.” The statute also states that if there is more than one slate of presidential electors submitted by a state and there is disagreement between the two houses of Congress about which slate is to be counted, “the votes of the electors whose appointment shall have been certified by the executive of the State” shall be counted (emphasis added).

This could be a problem. This is an issue. If the Constitution grants the vice president the authority to count electoral votes – and again this section of Constitution is unclear – Congress may not pass legislation that multiple “tellers” are appointed by Congress for the purpose of counting electoral votes. The Constitution requires that Congress meet together to verify the election vote. Congress cannot pass legislation that allows each chamber to meet individually. And if the Constitution requires that presidential electors be appointed in such a manner as the legislature of each State directs, Congress may not declare that the slate certified by a state’s executive shall be counted.

Yet a bipartisan group in Congress is very close to reaching an agreement, not that they should stop overstepping their authority by trying to interpret or limit the Constitution, but to overstep a bit further. The full language of this purported January 6 legislation has yet to be revealed, but Sen. Susan Collins assures us that the areas of consensus already reached include “amending the Electoral Count Act to restrain the vice president’s role.” As discussed above, the vice president is given certain constitutional authority in the electoral count process. The legislature does not have the power to limit constitutional authority.

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It isn’t surprising that such a law has been discussed in current political circumstances. The title of the above-cited article reveals the fear behind the action: Congress’ continued fixation on the January 6 riot is purportedly an attempt to “prevent future coups.” Even if one accepts that the January 6 riot was an attempted coup rather than a haphazard protest-turned-riot, Democrats themselves agree that legal ambiguities concerning the counting of electoral votes “could lead to a real constitutional crisis.” A constitutional crisis must be fixed by amending or interpreting the Constitution, not by passing legislation that ultimately attempts to clarify or change the Constitution.

This exercise of Congress authority is unconstitutional and inappropriate. It is also ineffective. Imagine the scenario: there is a repeat of the 2020 presidential election in 2024. Some battleground states have close votes. The allegations include fraud and the violation of state election laws. Vice president has constitutional authority to count votes. He declares some electoral votes illegal and they are either removed from the ballot or returned to the state. A lawsuit will be filed against Congress if it passes the law to “restrict the role of the vice president”, claiming the statute violates the constitutional authority of the vice-president. Vice president Will claim his power comes from the Constitution and the law is unconstitutional. To determine if the vice president is entitled to the powers he asserts, the Court must interpret the constitutional clause. This legislation does not change the fact that the Court must interpret the Constitution. It may also not take into account a statute inconsistent with the Constitution when interpreting the authority of the vice-president.

The questions of whether the vice president has the sole power to count the electoral votes and whether a state’s legislature or executive has the final say in which slate of electoral votes is certified are constitutional questions. The Congress can fill in any gaps or provide information about the process. Congress does not have the authority to make laws that alter or interpret provisions of Constitutional law. The Supreme Court has the judicial power, which extends “to all cases…arising under this Constitution.” To prevent a “constitutional crisis,” the Supreme Court needs to interpret the relevant provisions of the Constitution. The health and wellbeing of the republic depends on the separation of powers. Congress can’t try to resolve ambiguities that it doesn’t like by trying to overstep and do the Courts work.