Congress Does Not “Certify” Presidential Elections

A recurring theme among the seditionists seeking to overturn the election of President-elect Biden is that one more Constitutional step remains. Congress must “certify” the election on January 6th. This is presented as if Congress has a choice. That assertion is wrong. The only Constitutional, or statutory, certifications are of the choices for each state’s electors by each state. That’s it. Beyond that, the role of Congress under both the Constitutional and statutory scheme is as a ministerial bean counter.

Pursuant to Article II of the Constitution each state chooses and certifies their state’s electors however they please. State power to do this is plenary. Accordingly, once done it cannot be challenged.

The 12th Amendment to the Constitution makes that even more clear. It provides that the electors shall meet in their respective states and cast their ballots. The only Constitutional certification is right at this stage. The electors shall sign and seal their votes “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” is the Vice President, but he is merely the designated address for the sealed votes, and the Constitution otherwise confers on neither him, nor the Congress itself, any discretion. The very next sentence of the 12th Amendment makes that clear.

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, if such number be a majority

I emphasize the “shalls” because they establish non-discretionary actions or duties. The Vice President shall open the certificates sent by each state and certified by each state pursuant to the process it chose under Article II. The Vice President has no choice or discretion here. The votes shall then be counted. There is no discretion to not count them afforded by the Constitution to Congress. None. The person receiving the majority shall be the President. Again, there is no discretion.

Under our Constitution, the states have plenary power to decide what color beans get put in their bean bag and whether they are blue beans or red beans. Each state then sends the bag to the Vice President. The Vice President’s only power is to open the bag in front of Congress and Congress’s only power is to count the beans.

The statute at 3 U.S. § 15 largely tracks this entirely ministerial process. The exception is that this statute provides for challenges that must be based on a claim that there are “two or more of such State authorities determining what electors have been appointed.” That is it. That is the only justification. In fact, no legitimate, or even potentially legitimate, “state authorities” have put forth competing slates of electors. Not one state legislature has, not one state governor has. Rather, for each state there is but one slate of electors chosen according to the procedures established by that state and certified as such.

Today Donald Trump tweeted that:

This is plainly false. Our Founders would have been derelict had they created a system where the incumbent administration had unilateral authority to disallow the votes of a challenger. As you can see from the plain words of the Constitution, no such power is conferred upon the Vice President. Trump is delusional.

Retired lawyer & Army vet in The Villages of Florida. Lifelong: Republican (pre-Trump), Constitution buff, science nerd & dog lover. Twitter: @KeithDB80

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