Recently, a blog was posted that explains that the President of the Senate (Pence) has the sole authority to decide which certificates of election to open and count. It points out that there was a dispute in which Georgia's certificate of election was clearly defective, but Jefferson (President of the Senate at the time) chose to count it anyway.
The top comment on the post said "This is actually not true. It was contested & the house had voted 26 times (always in a tie) before rejecting him." This partially true. It is an indisputable fact that Jefferson chose to open and count Georgia's votes despite the defective certificate. If he had not done this, nobody would have had a majority of Electoral votes, and there would be been a contingent election BETWEEN ALL FIVE CANDIDATES WHO RECEIEVED ELECTORAL VOTES. The House of Representatives was Federalist, so John Adams would have won.
However, because he did count the votes, he and Burr had a majority, BUT they were tied. (At the time, each Elector had two votes, and the first place became President and second place became Vice President.) So, there was a contingent election BETWEEN THE TWO OF THEM to decide which would be President and which would be VP. It was a tie for thirty-five times before Hamilton convinced some Federalists to vote for Jefferson in order to prevent Burr from becoming President.
TL;DR: The article is correct that the President of the Senate chooses which votes to count. Jefferson chose to open and count Georgia's certificate, but that left a tie between him and Burr, leading to a contingent election. Mike Pence can choose whether or not to open and count any State's Electoral votes.
Here is the original post and here is a section of a Wikipedia article about Georgia's defective certificate
But then the 12th Amendment was passed to avoid this type of situation from happening again.
There's nothing in the 12th amendment that restricts the process.
It changes the Electoral votes such that each Elector has one vote for President and one for Vice President, rather than two indistinguishable ones. It does NOT change anything related to the counting of the votes.
I meant in regards to Pence's power to choose which electoral votes he wishes to count, or not count.
Yes, that is absolutely right
Pence basically has the power to decide if the slate of votes sent to him followed the laws. It's no different if some random group of people sent an envelope of votes marked Scooby Doo. Who decides if those Scooby Doo votes are legitimate, or not? There is nobody other than Pence, and definitely no political body over him with some kind of oversight powers.
The U.S. Code defines the process. It sounds like it's restricted to what's written, but maybe they have procedural leeway that isn't in writing. But surely something as significant as the VP being able to reject votes would be written somewhere clearly.
https://www.law.cornell.edu/uscode/text/3/15
3 USC 5 sets the conditions of what makes legitimate electoral votes.
https://www.law.cornell.edu/uscode/text/3/5
Pence is granted plenary power over the procedure by the Constitution. The Congress is only granted the ability to challenge a set of electors that is presented before them. They can't make an illegitimate set of electors legitimate through vote.
But 3:5 says it's up to the states to resolve their issues before sending them, and so once certified electors are received, there's no question as to their validity.
I think the hope we're left with is the technical wording of "lawful votes by certified electors". The real issue was whether the electors were certified or not, but we're apparently going to object on the "lawful votes" part, although I doubt that was the original intention.
There would've been an assumption that if the electors were valid, the votes they brought with them wouldn't have been in question. But with legal wording the way it is, I expect that's what the objections will be based on.
No it doesn't. 3 USC 5 says
Any controversy or contest must be resolved before six days of the electors meet.
Electors must be appointed according to laws of the State that were enacted six days before they meet.
The only person capable of determining if that has been followed is Pence. 3 USC 15 goes further in that if there are multiple slates of electors, Pence must determine which upholds section 5. There is actually debate legally whether both should be thrown out because the only way there are two slates of electors is if there is an unresolved controversy or contest.
Right. Controversies must be resolved before the meeting of the electors. Those controversies are to be resolved by the states.
After their controversies are resolve, then they comply with 3:6 and send the list to the Archivist in D.C.
"such determination made pursuant to such law so existing on said day, and made at least six days prior to said time of meeting of the electors, shall be conclusive, and shall govern in the counting of the electoral votes as provided in the Constitution"
The fact that every state has sent certified electors means that they have to all be considered the correct electors. The only question remaining is if the votes (for candidates) were lawful.
"unless the two Houses, acting separately, shall concurrently decide such votes not to be the lawful votes of the legally appointed electors of such State"
Section 6 only covers certification of the electors and the requirements of the State and electors.
Pence is actually not required to consider section 6, but it is used when the House and Senate wish to challenge. The point at which Pence determines if the are electoral votes follow section 5 come before that.
The electoral votes deliver their votes directly to the President of the Senate, whereas the State executive delivers the certification to the Archivist. If the President does not bring the electoral slate to the floor, there is no ability for the Congress to challenge it under section 6.
If there are two slates of electors from a single state, both are to be listed, and it is on Pence alone to determine if one or both meet section 5.
This very scenario came up in 1960 when Nixon counted JFK's electoral votes from Hawaii. As far as anyone knows, the JFK electors never had a certification, but were chosen by Nixon because JFK won the recount of the state instead of his own electors that were certified. There was no requirement of Nixon to make this choice.
You are correct, but that has no bearing on Pence's ability to open and count the Electoral votes.
The Twelve Amendment simply made it so that each Elector had separate votes for President and Vice President
The process is laid out in U.S. Code 3:15 VP opens the envelopes and gives them to tellers who count them, then they give him the total and he announces it, then asks if anyone objects.
Beyond that, I can't see anything that gives him any other powers.
It seems that the VP can choose whether or not to open any particular envelope, right?
"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"
So, you definitely could be right, but I think that sentence could mean two things:
All certificates of the electoral votes shall be opened, presented, and acted upon. The order will be alphabetical.
The order in which the certificates shall be opened, presented, and acted upon is alphabetical.
If number 1, you are right. If 2, that does not preclude the President of the Senate from choosing not to open some.
Either way, I am curious, if Pence chose not to open some, what recourse Congress would have. Maybe they would sue
Yep. We can be sure both sides will fight for the interpretation that best serves them. I once read about a case that was decided the opposite of what anyone would've assumed because of a missing comma that should've been included in a sentence.
This happened in 1960 as well when Nixon decided to use JFK's electoral votes from Hawaii which many think were never actually certified, instead of his own actually certified votes. The fact is, the Constitutional process is so vague, it leaves Pence a lot of power. The 3 USC statutes that attempt to codify guidelines have so many holes, it leaves Pence a lot of power.