Another Way To Elect A President: The VP's Role (Part 9)
Nov 3, 2020
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David Fontana, a legal expert from GW Law, joins to unpack the Vice President's constitutional role in the electoral vote counting process. He highlights historical tensions, referencing moments like Bush vs. Gore and the contentious elections of 1796 and 1800. The discussion delves into the Electoral Count Act and legal frameworks influencing the Vice President's authority. Fontana also explores the implications of procedural irregularities and the necessity of congressional unity, urging reflection on the evolving complexities of American democracy.
The Constitution assigns the vice president a critical but ambiguous role in counting electoral votes, lacking clear guidelines for managing disputes.
Historical precedents from vice presidents John Adams and Thomas Jefferson illustrate that political context often influences how electoral disputes are resolved.
The Electoral Count Act of 1887 established formal procedures limiting the vice president's power, emphasizing a collaborative oversight role during electoral counts.
Deep dives
The Constitutional Role of the Vice President
The role of the vice president as presiding officer of the Senate during the counting of electoral votes is both critical and ambiguous. The Constitution designates the vice president as the custodian of the electoral ballots but offers little guidance on how to manage disputes over vote counting. This constitutional framework raises questions about whether the vice president possesses unilateral power to decide which electoral votes to count, particularly during contested elections. Historical cases, notably the elections of 1796 and 1800, highlight the potential conflict of interest when the vice president is a candidate for the presidency.
Historical Precedents in Electoral Counting
In examining early electoral disputes, the actions of vice presidents John Adams and Thomas Jefferson serve as critical examples. During the 1796 election, Adams faced a significant decision regarding contested votes from Vermont, where he chose not to challenge the counting process, signaling a precedent of substance over form. In 1800, Jefferson similarly counted irregular votes from Georgia without deferring to objections, which reinforces the argument that vice presidents might have substantial discretion during electoral counts. Both instances suggest that political context, rather than strict legal authority, played a pivotal role in shaping how the votes were counted.
Congressional Control Over Electoral Processes
Historical analysis reveals that Congress has consistently asserted control over the electoral counting process through various resolutions and rules. The powers related to counting votes have been delineated by legislative actions since the early 19th century, with recognized instances where Congress has established procedures that the vice president must follow. Notably, from 1837 onwards, concurrent resolutions were adopted that reinforced the idea that the counting process involved tellers appointed by Congress, thereby limiting the vice president's role to that of presiding officer without authority to make independent decisions. This collective history underscores Congress's intent to maintain oversight during elections, especially in regards to contested electoral votes.
The Impact of the Electoral Count Act
The Electoral Count Act (ECA) of 1887 further clarifies the protocols surrounding electoral vote counting, stripping substantial power from the vice president. The ECA specifies the process by which the vice president must conduct the count, mandating that he submit ballots to tellers and that any objections must be formally recorded. By insisting on this level of procedural adherence, the ECA aims to eliminate any unilateral interpretations of what the vice president could decide. Consequently, the Act establishes a framework that limits the vice president’s authority primarily to that of a facilitator rather than a decisive figure in electoral outcomes.
The Potential for Political Hardball
Despite the ECA's framework, concerns arise regarding what might happen if a vice president, acting contrary to established rules, attempts to assert authority during the electoral count. The scenario wherein the vice president, such as Mike Pence, disregards the ECA and claims authority over electoral slates illustrates the tension between legal structure and political maneuvering. If faced with a divided Congress, the vice president's actions may go unchallenged, raising the possibility of unprecedented political outcomes. Such situations highlight the fragility of established processes and the potential for conflict when interpretations of constitutional power come into play.
In this last regular episode of our mini-series about the road to selecting a president, we are joined by David Fontana of GW Law to talk about the Vice President. What role does the Constitution give the Vice President in counting electoral votes? And can this be manipulated?
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