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Rep. Louie Gohmert (R-Texas) and President Donald Trump's defeated electors appear to be suing Vice President Mike Pence in a Federal Court in Texas. Gohmert and a handful of the electors sued Pence in federal court on Monday in a long-shot bid to throw out the rules that govern Congress' counting of electoral votes next week.

It’s an effort they hope will permit Pence — who is tasked with leading the Jan. 6 session of the House and Senate — to simply ignore President-elect Joe Biden's electors and count Trump's losing slates instead.

The lawsuit asserts that the 1887 law known as the Electoral Count Act, the vague statute that has long governed the electoral vote counting process with minimal drama, unconstitutionally binds Pence from exercising total authority to choose which votes to count.

"Under the Twelfth Amendment, Defendant Pence alone has the exclusive authority and sole discretion to open and permit the counting of the electoral votes for a given state, and where there are competing slates of electors, or where there is objection to any single slate of electors, to determine which electors’ votes, or whether none, shall be counted,"

the suit contends.

Can the Vice President ignore electors or is he just more of a figure ''Image'' and has no real authority? What's the procedure if he were to refuse? Is there a secondary (Secretary, etc..) who it goes to?

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  • 4
    Which language in the twelfth amendment purportedly grants Pence discretion over the process of counting votes? As far as I can see there is none.
    – phoog
    Dec 29 '20 at 0:25
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    It's not about legality really, more of he just said "I don't want to do it." who would need to do it?
    – Noah
    Dec 29 '20 at 0:29
  • Suppose we take the politics out of it, and just for the sake of argument, assume that there's a VP (and the "tellers") who aren't real good at arithmetic?
    – jamesqf
    Dec 29 '20 at 16:48
  • If he can't or won't count the EVs, someone else will, like in 1969
    – dandavis
    Dec 29 '20 at 22:34
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The SCOTUS is the only body that could decide. But the process, as described in the Constitution, doesn't seem to allow for the Vice President in his role as President of the Senate to exercise much judgement.

they shall sign and certify [their ballots], and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;

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;

The person having the greatest number of votes for President, shall be the President

The plain text reading, the original intention and the precedent indicate that the role of the VP is to ensure that the count is accurate. He can't refuse to count votes based on his beliefs of preferences. He is merely a ballot counting machine and expected to be accurate.

The details in the 1887 act say that vote counters (two from the House and two from the Senate) are appointed. They count and tally the votes and pass the result to the President of the Senate:

the votes having been ascertained and counted according to the rules in this subchapter provided, the result of the same shall be delivered to the President of the Senate, who shall thereupon announce the state of the vote, which announcement shall be deemed a sufficient declaration of the persons, if any, elected President and Vice President

If there are objections, these are discussed separately in the House and the Senate, and a slate can be rejected if both chambers determine that the votes are not from the electors chosen by the State. They can't reject a vote for any other reason.

Again the President of the Senate has no role to play here (except to break a tie in the Senate)

So the Role of the Vice President is to:

  1. Open the envelopes

  2. Read out the result

  3. Break ties in the Senate.

In particular, it is the two chambers who determine which electors’ votes, or whether none, shall be counted, and not the Vice President.

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  • Excellent answer! IF the VP is pressured by republicans to not count/participate or refuse, what than or can he not refuse atll?
    – Noah
    Dec 29 '20 at 2:00
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    @Noah there are several inaccuracies in this answer. A notable one is that the constitution does not say that the votes must be counted by the president of the Senate, and in fact they traditionally are not. Rather, a number of "tellers" are appointed to do the counting. Another is that any court can invalidate an act of congress; this power is not limited to the supreme court. Another is that no court can interfere with the counting of electoral votes, not even the supreme court.
    – phoog
    Dec 29 '20 at 4:37
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    I describe the tellers in the answer please read again In particular I don't say that the VP does the counting. Rather that they oversee the count by the tellers. . . . The court can judge on any aspect of the constitution. There is no limit on what "interpretation" means, as that is a matter for the court. So your "interpretation" that the court can't interfere is a matter that only the court can decide....
    – James K
    Dec 29 '20 at 11:54
  • Yes, you describe the tellers in the answer, but the assertion that the constitution intends the president of the senate to be "a ballot counting machine" does in fact imply that the VP does the counting. The most reasonable interpretation of the provision is that congress collectively counts the ballots (in joint session with the president of the senate presiding). Court precedent on other constitutional questions (e.g. impeachment) is quite clear that federal courts would only rule on this question that it is "non justiciable," meaning that they cannot rule on the merits of the question.
    – phoog
    Dec 31 '20 at 16:34
  • ok "part of a ballot counting machine". The implication here is that his role is not one requireing judgment. Constitutionally he could do the counting himself. It just says "he opens them and then they are counted.
    – James K
    Dec 31 '20 at 16:37
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During the first meeting of the Senate in 2021, a Senate Concurrent Resolution will be proposed by unanimous consent. Following is the resolution from January 3, 2017. The responsibility of the President of the Senate, with respect to certificates, is shown emboldened.

S. CON. RES. 2

Resolved by the Senate (the House of Representatives concurring), That the two Houses of Congress shall meet in the Hall of the House of Representatives on Friday, the 6th day of January 2017, at 1 o’clock post meridian, pursuant to the requirements of the Constitution and laws relating to the election of President and Vice President of the United States, and the President of the Senate shall be their Presiding Officer; that two tellers shall be previously appointed by the President of the Senate on the part of the Senate and two by the Speaker on the part of the House of Representatives, to whom shall be handed, as they are opened by the President of the Senate, all the certificates and papers purporting to be certificates of the electoral votes, which certificates and papers shall be opened, presented, and acted upon in the alphabetical order of the States, beginning with the letter "A"; and said tellers, having then read the same in the presence and hearing of the two Houses, shall make a list of the votes as they shall appear from said certificates; and the votes having been ascertained and counted in the manner and according to the rules by law provided, the result of the same shall be delivered to the President of the Senate, who shall thereupon announce the state of the vote, which announcement shall be deemed a sufficient declaration of the persons, if any, elected President and Vice President of the United States, and, together With a list of the votes, be entered on the Journals of the two Houses.

After the Senate approves the resolution, the House concurs; thus providing for the January 6th joint session. On January 6th, the joint session is held pursuant to the resolution.

Assuming a resolution with the same wording, the President of the Senate is required to open "all the certificates and papers purporting to be certificates of the electoral votes, ...". Furthermore, because any objections to the certificate of any state must be made in writing and signed before the counting of any votes, Senators and Representatives are aware of which certificates are to be opened and their sequence. Any deviation from the required and known sequence would give rise to an objection. There is no rule nor procedure to resolve the objection; therefore, no apparent means to continue with the count until the proper certificates have been opened and read.


Can the Vice President ignore electors or is he just more of a figure ''Image'' and has no real authority?

It is more ceremonial, than anything else. Just as having the Speaker sit next to the President of the Senate during the count is ceremonial.

What's the procedure if he were to refuse?

The is no apparent procedure beyond the possible objection and delay as mentioned above.

Is there a secondary (Secretary, etc..) who it goes to?

No.

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  • @user - I adjusted the wording after referring to the Congressional Record for a prior objection.
    – Rick Smith
    Dec 31 '20 at 13:17
  • Your answer is based on the assumption that the ECA is still in force. It is not clear however that the Congress will adopt a resolution with the same wording if the Texas judge will annul the ECA as unconstitutional. As GOP still have 51:48 majority in the Senate the new rules for counting and objecting the votes will hardly be timely agreed.
    – user
    Dec 31 '20 at 13:18
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    @user - My answer is based on the concurrent resolution (which is based on the ECA). A finding that the ECA is unconstitutional does not invalidate the concurrent resolution, which was the means for setting the rules for the counting of votes before the ECA became law.
    – Rick Smith
    Dec 31 '20 at 13:26
  • But the cited resolution is from 2017. It is only your assumption that there will be the resolution with the same wording adopted by the new Congress before 6.01.2021.
    – user
    Dec 31 '20 at 13:29
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    @user - Perhaps anarchy. The concurrent resolution establishes the rules. Without rules there is anarchy. In terms of easily searchable resolutions, there has been one every four years since 1973, normally S.Con.Res.1. Before the ECA, there were debates in the House and Senate to establish the rules. Whether that resulted in a concurrent resolution, I don't know; but, I did read the text of the debate establishing the rules for one election before the ECA.
    – Rick Smith
    Dec 31 '20 at 14:58

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