Seth Barrett Tillman reminded me of this classic article by originalist writer Vasan Kesavan, Is the Electoral Count Act Unconstitutional?, 80 N. Carolina L. Rev. 1653 (2002), which anticipates some of the current issues relating to the Vice President’s power (see here and here).
Among other things, the article asks whether the Vice President counts the electoral votes (recall that under the Twelfth Amendment “The President of the Senate [i.e., the Vice President] shall, in the presence of the Senate and the House of Representatives, open all the certificates and the votes shall then be counted”). Kesavan says this does not in itself empower the Vice President to count the votes (contra John Eastman), and on further reflection that seems right to me. We should conclude that the passive voice (“the votes shall then be counted”) is there for a reason, and the most evident reason is to not specify who counts. If the intent was to constitutionally designate the Vice President, it would have been easy to say “the President of the Senate shall then count the votes.”
Kesavan next says that if the Constitution doesn’t specify who counts, Congress can make that determination. I agree with that too. The necessary-and-proper power gives Congress power to carry into execution the power to count, including specifying who is to do it.
Finally, Kesavan says that Congress cannot specify the Vice President as the person who counts. Here I disagree (and thus would defend this part of the Electoral Count Act). I see no textual limit on Congress’ power to decide who counts. Kesavan says there is an implied constitutional limit on conflicts of interest that prevents Congress from vesting the counting power in the Vice President (who may be a candidate). That’s way too much implication for me. The Constitution creates potential conflicts of interest in lots of places. If Congress is worried about a conflict of interest here (and maybe it should be), it can vest the counting power elsewhere, or (as the Electoral Count Act does) put substantial limits on it.
At the end of the section (pp. 1709-1710), Kesavan takes up a question that implicates the Vice President’s tie-breaking power:
A final consideration is whether the President of the Senate has a vote in the counting function when questions arise. Although the counting of electoral votes takes place in the presence of the President of the Senate, the President of the Senate participates no more in the counting function than she participates in trial of impeachment–in neither case does the Vice President have a vote. The Constitution carefully circumscribes the participation of the Vice President in the business of the Senate: “The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.” The joint convention of the Senate and House of Representatives–assembled for the purpose of the electoral count–is most decidedly not the Senate. To be sure, the Electoral Count Act provides that, upon any objection to an electoral vote, the Senate shall separately withdraw to consider the objection. Notwithstanding constitutional objections to this bicameralism, neither textual nor structural reasons suggest that the President of the Senate’s tie-breaking vote in the Article I business of the Senate applies to any Article II business of the Senate in counting electoral votes.
The first part of this paragraph seems fine. But the last part seems unsupported. Kesavan assumes that the Vice President’s tie breaking power relates only to “the Article I business of the Senate” (anticipating Laurence Tribe’s recent argument relating to appointments). But Kesavan provides no reason to think the tie-breaking power is limited to “Article I business.” He says there is no textual reason to think the power extends beyond Article I — but I think instead that because the text has no such limit, one should not be implied.
In a long textual footnote (note 246), he continues:
As a related matter, it is not at all clear that the Vice President may cast a tie-breaking vote in a contingency election for Vice President in the Senate should there be no winner under the electoral college mode of vice presidential election. U.S. Const. amend. XII provides:
The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice.
There are some very good reasons to seriously doubt that the Vice President could cast such a tie-breaking vote. As a textual matter, the Vice President is not a “Senator” and the Twelfth Amendment ostensibly requires a majority of the whole number of Senators–today, fifty-one Senators. If there is no majority of Senators in a contingency election for Vice President in the Senate, the Senate would have to choose again. …
Agreed. The textual analysis is conclusive. The Vice President is not a Senator, and a “majority of the whole number [of Senators]” is required. But then he adds, somewhat tentatively:
Finally, if the theory is that the Vice President’s power to cast tie-breaking votes only applies to Article I business (legislation and the internal matters of the Senate, including the election of Senate officers and the appointment of Senate committees) and not to Article II or Twelfth Amendment business, then it would also follow that the Vice President would not have a tie-breaking vote under the Treaty Clause or the Appointments Clause, which both appear in Article II. See U.S. Const. art. II, §2, cl. 2. This appears to be the case, reinforcing the arguments above. It is not possible for the Vice President to cast a tie-breaking vote with respect to treaties which require a two-thirds majority of Senators, see id., but it is possible for the Vice President to do so with respect to presidential nominations under the Appointments Clause, which only require a majority of Senators. Notwithstanding, Alexander Hamilton intimated early on that the Vice President could not cast a tie-breaking vote on presidential nominations under the Appointments Clause. See The Federalist No. 69, at 389 (Alexander Hamilton) (Clinton Rossiter ed., Mentor 1999) (1961) (“In the national government, if the Senate should be divided, no appointment could be made; in the government of New York, if the council should be divided, the governor can turn the scale and confirm his own nomination.”). The lack of mention of the Vice President is surprising given that he discussed the Vice President (and her tie-breaking vote) in the immediately preceding essay, see The Federalist No. 68, at 47 (Alexander Hamilton) (Clinton Rossiter ed., Mentor 1999) (1961), but perhaps he thought that the Vice President would not necessarily act in accordance with the President’s interests (recall that prior to the development of the party system, the Vice President was merely the runner-up in the presidential election and oftentimes the chief opponent of the President). Only once in our nation’s history, to my knowledge, has a Vice President cast a tie-breaking vote on a presidential appointment. In 1832, President Andrew Jackson nominated Senator Martin Van Buren as ambassador to Great Britain. The Senate split evenly, and Vice President Calhoun broke the tie by voting against President Jackson’s nomination. … Vice President Calhoun’s negative vote was unnecessary of course, as a tie vote is widely considered to be defeated, though some accounts treat his vote as the “deciding vote.”
I disagree for multiple reasons. First, the theory preventing the Vice President from breaking a tie on the Senate’s selection of a Vice President is not that the tie-breaking power is limited to Article I. Rather, it’s that the text of the Twelfth Amendment specifically rejects the power in that situation (as Kesavan argues). But the Twelfth Amendment language is different from the appointments clause. Second, the only non-textual support he gives for excluding the tie-breaking power from appointments votes is the quote from Hamilton. But that quote is unpersuasive for the reasons discussed I discussed in previous posts. And Kesavan himself anticipates a key objection: Hamilton didn’t mention the tie-breaking power because he was talking in Federalist 69 about the President’s power, not the Vice President’s power. As Kesavan says, “perhaps he [Hamilton] thought the Vice President would not necessarily act in accordance with the President’s interests” — I’m sure that’s what Hamilton thought, no “perhaps” about it. Under the original design and prior to the party system, the Vice President would most likely be a rival of the President, not an ally.
In any event, it’s an interesting and thoughtful paper, even if I don’t agree with some of it, and impressively relevant today for something written 20 years ago.
NOTE: This article was originally posted at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.
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