Thread:
1/ There is a lot of confusion in mainstream press reports on the process on January 6. The @nytimes has gotten it wrong as I note below. These mistakes could be very significant depending on what VP Pence does. I’ll explain. https://twitter.com/rossgarber/status/1344635847442898945

2/ The Constitution does not explicitly give Congress any role in counting Electoral College votes, other than to be present when they are counted. Congress gave itself a role by passing a statute, the Electoral Count Act, which some have argued is unconstitutional.

3/ Here’s what the 12th Amendment to the Constitution says about the counting of Electoral College votes:
“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.”

4/ The 12th Amendment explicitly gives the president of the Senate (VP Pence) a role: he opens the vote certificates. Then the language switches to the passive tense and says “the votes shall then be counted.”

5/ The 12th Amendment does not say that Congress has any role in the counting. It is not unreasonable to argue that were it intended that Congress would have a role in counting electoral votes, the 12th Amendment would say so.

6/ The argument is that a reasonable interpretation of the 12th Amendment is that it is the President of the Senate who does the counting. (Notably, though, the 12th Amendment also says the votes *shall* be counted. Shall, as in mandatory. As in he doesn’t get to pick and choose)

7/ In his book on 1876 election, Chief Justice Rehnquist referenced the interpretation that the President of the Senate was solely responsible for counting electoral votes and noted that “this was not the only way to read” the 12th Amendment. But he did not suggest it was silly.

8/ In fact, when the 1876 Electoral College votes from several states were disputed, Republicans made this exact argument. This led to concern that the President of the Senate might indeed invoke 12th Amendment powers to unilaterally make decisions about Electoral College slates.

9/ The immediate result was that Congress formed a Commission like the one @SenTedCruz et al. are proposing to sort it out. That Commission included Supreme Court justices. After a bargain was struck, its recommendations were ratified by Congress, naming the Republican POTUS.

10/ In an effort to try to avoid such a debacle in the future, Congress passed the Electoral Count Act. It has been criticized for having ambiguous language. (It does.) It has also long been argued that the Act is unconstitutional.

11/ Some have argued that a statute is an unlawful vehicle to make Congressional rules. Some have also argued that it contravenes the 12th Amendment, which as I’ve noted above, mentions the President of the Senate, but does not give Congress a role in counting electoral votes.

12/ FWIW, in 1960, Hawaii submitted two slates of Electors, one for Nixon (original count) and one for Kennedy (recount). Nixon was VP (President of the Senate). He declared, without objection, that Kennedy got the Hawaii votes. Congress didn’t follow the ECA.

13/ VP Pence hasn’t said what he intends to do (or not do) on January 6. But the above is the constitutional, historical, and legal context in which this is all playing out.