Thread: Pence Power – What is it? Recently, I’ve read a lot about the powers of the president of the senate (that’s the VP). Many talking about this feel that for Pence to refuse to present the dem electoral votes on Jan 6, the Electoral Count Act must be ignored/set aside ...

2/ ...or even declared unconstitutional either because the VP’s constitutional power to count votes is absolute so it overrides contradictory parts of the ECA or because the entire ECA is unconstitutional or otherwise.

3/ That could happen, but I don’t even think we have to go that far, in fact, I think it is helpful if we don’t. I think Pence is well within his power under the ECA (and the Constitution) to present no votes for counting in the contested states. I don't see the conflict.

4/ The constitutional power of the VP to count the votes is found in the 12th Amendment which states, “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…”

5/ "The votes shall then be counted" by whom? Well, the only person doing anything in that sentence is the President of the Senate. He does the meaningful counting according to the 12th. And the ECA agrees! (See the rules of textualism, noscitur a sociis, &/or associated words)

6/ The ECA makes it even clearer that the VP does the counting and that includes not counting! Section 15 of the ECA lays out the procedure of opening the votes, counting, and reading them. It says, AFTER READING, the President of the Senate shall call for objections.

7/ Objections and votes in the Houses are messy and unpredictable. We'd prefer to not go that route. We'd need every Republican senator to vote in favor of an objection - ugh. What’s clean and easy, would be for Pence to present no votes. But can he?

8/ I’ve previously suggested that we never arrive at the objection stage of section 15 because the VP doesn’t have to choose a set of votes to count rather he can present both sets (see my previous thread). https://twitter.com/TheKBTweets/status/1343668726621757441?s=20

9/ We can also avoid objections if Pence doesn't count contested votes. The ECA says BEFORE READING the VP will hand to the tellers as they are “OPENED BY THE PRESIDENT OF THE SENATE, all the certificates & papers purporting to be certificates...

10/ ...which certificates & papers shall be opened, presented, AND ACTED UPON…” “[A]nd acted upon” is an interesting phrase here. There is no mention of the legislature in this part of the section. Rather, every action performed in this part refers to the VP.

11/ Let’s really break it down from the beginning: Two tellers are appointed by the Senate and two by the House (“Two tellers shall be previously appointed on the part of the Senate and two on the part of the House of Representatives”)

12/ The VP does the opening and handing to the tellers (“And they will be handed AS THEY ARE OPENED BY THE PRESIDENT OF THE SENATE”)

13/ “Of all the certificates and papers purporting to be certificates of the electoral votes” (again I argue “all” and “papers purporting to be” are very important for other reasons...)

14/ Now here’s an interesting part. The sentence goes on to say “...which certificates and papers shall be opened, presented, and acted upon in the alphabetical order of the States, beginning with the letter A…”

15/ So who “opens, presents, and acts upon”? The ECA just told us who opens. It says the VP. The statute does not say who presents and acts upon, but it lumps those actions in with an action it delegates to the VP. (rules of textualism, noscitur a sociis &/or associated words)

16/ This interpretation is consistent with the precedent set by Nixon in 1961 wherein he presented only one of three sets of votes. He "acted upon" the three sets he had, made a decision as to which, if any, was proper, and counted those votes.

17/ Once again I'm reminded of the rules of statutory interpretation. Read below a paragraph from the attached: https://crsreports.congress.gov/product/pdf/R/R45153

18/ "Often, a statutory dispute will turn on the meaning of only a few words. Courts will interpret those words, though, in light of the full statutory context. To gather evidence of statutory meaning, a judge may turn to the rest of the provision, ...

19/ to the act as a whole, or to similar provisions elsewhere in the law. As the Supreme Court said in one opinion, “Statutory construction ... is a holistic endeavor. A provision that may seem ambiguous in isolation is often
clarified by the remainder of the statutory scheme...”

19/ Note that the Act says "acts upon." It doesn't say "counts" or "reads," rather it says ACTS. "Acts" is not passive. It is not ceremonial. (plain meaning rule) It has been treated as such in the past.

20/ Then, the ECA says the tellers read the certificates and papers, makes a list of the votes, and the votes “having been ascertained and counted,” deliver the results to the VP who announces the “state of the vote.”

21/ Wait, when were they “ascertained” and “counted”? That’s different than “acted upon”? It stands to reason that “acted upon” is something different than “counted” and happens BEFORE the counting. (plain meaning rule)

22/ So, the VP has the power to act upon the certificates and papers he just opened by counting them or doing some other act, like THROWING THEM OUT. And THEN the power to COUNT the votes.

23/ Lastly, this is the correct reading of the ECA, because it is harmonious with the Constitution. (avoidance of constitutional issues). I'm not saying what Pence will or should do. I'm just saying that he CAN.

@threadreaderapp unroll, please.