Who Counts: The 12th Amendment, The Vice President, And The Electoral Count

by John Yoo, Robert Delahunty
via SSRN
Friday, April 15, 2022
Image credit: 
istock

ABSTRACT

Under the 12th Amendment of the U.S. Constitution, the Vice President opens the electoral votes for President before both houses of Congress. Would she have the constitutional authority to resolve disputes over the legitimacy of the electoral votes? If so, what types of disputes? This article argues that, while the constitutional text is ambiguous, its best reading makes the Vice President, as President of the Senate, the only federal institution to judge the legitimacy of electoral votes, subject in limited cases to judicial review.

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