The Ministerial Role of the President of the Senate in Counting Electoral Votes: A Post-January 6 Perspective

Despite decisively losing the 2020 popular and electoral votes, Donald Trump attempted to retain presidential power by trying to persuade Vice President Mike Pence to misuse his role as President of the Senate during the electoral vote count to withhold some votes from former Vice President Joe Biden. Pence refused, and Biden’s election was recognized, but only after some Trump supporters violently assaulted the United States Capitol Building and personnel there. Congress subsequently passed legislation to address the process of counting electoral votes, which in part clarified the President of the Senate’s limited and ministerial role in the process. Although further legal clarity is a virtue, the President of the Senate’s limited role in the process was evident prior to January 6, 2021, permitting no legitimate controversy. Various modes of constitutional argument coalesced to dictate that result, and the Electoral Count Act of 1887 and historical practice reinforced that conclusion. Amidst the unprecedented misbehavior of the day, Trump’s asserted position that Pence could refuse to count certain Biden electoral votes represented a shocking assault on fundamental principles of American government and a departure from basic norms of constitutional behavior. This article explores the textual, historical, and structural constitutional arguments that compel the conclusion that the President of the Senate’s role in counting the electoral votes is entirely ministerial and formal and shows how the Electoral Count Act of 1887 supported that conclusion