Thread by @Matt_Seligman

“Even more chilling, Mr. Vance’s pledge about what he would have done in Mr. Pence’s place on Jan. 6, 2021, is a promise about what Mr. Vance will do on Jan. 6, 2029, should he preside over the electoral count as vice president.”

Me in @nytopinion:

nytimes.com/2024/10/01/opi…

@JDVance has repeatedly said he would have interfered with the electoral count on Jan. 6, 2021, if he had been VP.

There can be no doubt that this is part of why he, and not Mike Pence, will debate tonight as Donald Trump’s running mate.

And there can be no doubt that it makes Vance a grave threat to democracy and the rule of law to whom the American people must deny the power of the vice presidency.

Here’s why:

The Twelfth Amendment says “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.”

In 2020, it triggered the most serious threat to American democracy since the Civil War.

Lawyers like John Eastman told Trump and Pence that this meant the VP (who is also the president of the Senate) could reject electoral votes, delay the electoral count, “send it back to the states,” or in some other way unilaterally interfere with the electoral count.

Earlier this year and after a multi-week trial, a judge in California recommended Eastman for disbarment for his role in Trump’s attempt to overturn the 2020 election.

I served as an expert witness for the California Bar against Eastman. Here’s my report. papers.ssrn.com/sol3/papers.cf…

I testified that there is no legal or historical basis for Eastman’s—and now Vance’s—claim that the Constitution gives the VP any substantive role in the electoral count.

The original meaning of the Constitution, which conservatives like Vance claim to revere, is clear on that.

So here’s the history, hopefully to put this issue to rest once and for all:

From the very first electoral count in 1789, Congress appointed a few of its own members as “tellers” who actually counted the electoral votes. They made a table that appears in the original records of Congress. Here’s what the table looked like in the Senate Journal in 1789:

(I compiled the original records from the House Journal, the Senate Journal, the Annals of Congress, the Register of Debates, and the Congressional Globe for every electoral count from 1789 until 1861: .)papers.ssrn.com/sol3/papers.cf…

In 1805, just months after the Twelfth Amendment was ratified, VP Aaron Burr presided over the electoral count and made clear that Congress’s tellers count the electoral votes:

“You will now proceed gentleman, said he, to count the votes as the Constitution and laws direct.”

(You can find the records of Congress, including the Annals of Congress, on Congress’s website: . For 1805, the pdf is here: )congress.gov/browse
congress.gov/annals-of-cong…

There were disputes about electoral counts in 1817, 1821, 1837, and 1857. Each time, Congress—and not the Vice President—resolved the dispute.

Here’s what happened:

In 1817, 1821, and 1837, the disputes centered on whether a territory that became a state after the election but before the count could cast electoral votes. The disputed votes never made a difference in the outcome, so Congress punted each time.

Here’s the resolution from 1821:

In 1857, a snowstorm in Wisconsin prevented its electors from voting on the right day. Again it didn’t make a difference in the outcome in the Electoral College, so again Congress punted on the issue.

And the president of the Senate expressly disclaimed any power to resolve it:

In 1865, Congress adopted Joint Rule 22 to resolve objections to electoral votes. In 1877 it enacted the Electoral Commission Act to resolve the hotly contested election of 1876 between Samuel Tilden and Rutherford B. Hayes. And in 1887 it enacted the Electoral Count Act.

The history is clear: from the very first electoral count and throughout our history, Congress controlled the electoral count and resolved any disputes about electoral votes. The VP, in her role as president of the Senate, has no constitutional authority in the electoral count.

That’s the history. Which brings us back to the present, and JD Vance.

Vance knows all this. Or at least he should, as a candidate for an office whose constitutional powers he has repeatedly asserted he would abuse in the most blatant assault on our democracy imaginable.

How blatant? If Vance becomes vice president, then he—not the term-limited Trump—will be the presumptive Republican nominee for president. Vance is saying that *he* will have the power to decide whether *he* wins the 2028 election.

@JDVance is a grave risk to the rule of law in America. That is why the American people must deny him the power he has promised to abuse.