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- A vice president wouldn’t have the power to do what Ramaswamy suggests during the joint congressional session to count the electoral votes.
- The Constitution is clear that counting the electoral votes, not passing legislation, is the purpose of the joint session.
- Even if that obstacle could somehow be circumvented, Democratic cooperation in both chambers would have been needed to pass a new election law in the way Ramaswamy suggests. Yet the issues surrounding election law are so thorny and partisan that they could not have been passed quickly, if at all.
Republican presidential candidate Vivek Ramaswamy recently said former Vice President Mike Pence missed a "historic opportunity" on Jan. 6, 2021, to push for significant changes to the U.S. election process.
Pence led a joint session of Congress that day in accordance with his constitutional duty to count slates of electors; the results showed a clear presidential win for Democrat Joe Biden.
In an Aug. 27 appearance on NBC’s "Meet the Press," Ramaswamy said that if he’d been in Pence’s position, he would have advocated for single-day voting on Election Day, paper ballots and government-issued IDs checked at polling places.
"In my capacity as president of the Senate, I would have led through that level of reform, then, on that condition, certified the election results, served it up to the president — President Trump then — to sign that into law," Ramaswamy said.
It’s not unusual that Ramaswamy would challenge the actions of a rival; Pence is also competing for the 2024 Republican nomination for president.
But how practical is the scenario Ramaswamy lays out? Can a vice president put conditions on the constitutionally mandated certification process, using it to leverage a desired legislative outcome?
No — for multiple reasons. A vice president wouldn’t have that power. The Constitution is clear that counting the electoral votes, not passing legislation, is the joint session’s purpose. Democratic cooperation in both chambers would have been needed. And the issues surrounding election policy are so thorny and partisan that Congress has rarely passed laws on the subject in recent decades. Rapid passage of what Ramaswamy proposed, at a time of national division over the election results, would have faced enormous legal and practical obstacles.
Given the multiple levels of procedural and legal barriers to making such reforms of election law at the drop of a hat, Matthew Green, a politics professor at the Catholic University of America, dismissed Ramaswamy’s scenario: "It's not a serious idea," he said.
The first obstacle, according to both Pence and most legal scholars, was that the Constitution’s 12th 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."
Most legal experts said this constitutional language meant the vice president’s duty was opening the envelopes with the results, not deciding the outcome.
Also, the 1887 Electoral Count Act, which applied when Pence was handed this task, provided other procedural details but gave the vice president no power to reject votes.
To eliminate any future wiggle room in the law, Congress in 2022 passed several clarifications of the act, including that the vice president’s role in counting electoral votes is strictly "ministerial" — that is, ceremonial.
But even if the 2022 law had not been passed, Ramaswamy’s scenario had other problems.
"The vice president has very little power to push federal legislation — and no authority to set conditions for counting states' electoral votes," said Mark Lindeman, policy and strategy director at Verified Voting, an organization with expertise on election security.
In theory, Congress has the authority to pass the legislative agenda Ramaswamy outlined on "Meet the Press." But it could not have happened as quickly or neatly as the candidate envisioned — and experts say it would have been highly unlikely, given Congress’ history on election reform.
"Pence or anyone else could always encourage Congress to pass laws changing how elections are run, but there is no provision that would allow him (or anyone else) to condition the acceptance of lawfully submitted state electors on changing election rules going forward," said Rebecca Green, election law professor at the College of William & Mary.
The vice president has neither the authority to introduce legislation nor guide it through the Senate, said Don Wolfensberger, a congressional scholar at the Woodrow Wilson International Center for Scholars. The vice president "can only break tie votes on bills and preside over the counting of electoral ballots," Wolfensberger said.
Also, electoral vote counting is a specific congressional task specified in the Constitution, experts in congressional procedure said. A session called to count electoral votes cannot also perform legislative tasks, particularly before its constitutionally mandated task of counting is completed.
"Once the joint session convenes to count the votes, the count has to be completed before Congress can return to the business of legislating," said Richard Pildes, a constitutional law professor at New York University.
And counting the votes first, before passing the legislation, would remove the critical leverage for passing the agenda that Ramaswamy envisioned.
The earliest Congress could have acted upon Ramaswamy’s agenda would have been after finishing the joint session and separating into two chambers to debate and pass a law, said Gregory Koger, a University of Miami political scientist.
And even if that unprecedented scenario had happened, it would have been "impossible" as a practical matter to get a majority of the House and three-fifths of the Senate to agree to landmark legislation quickly, said Matthew Green, the Catholic University of America politics professor.
Congress has rarely been able to come to agreement in recent years on proposed overhauls of how rank-and-file voters register or cast ballots because the issues are complex and it’s hard to get bipartisan cooperation, Koger said.
"If a vice president had attempted to hold the electoral count hostage to force action, it is more likely that would have led to impeachment of the vice president than a legislative breakthrough on this contentious issue," Koger said.
Ramaswamy’s "Meet the Press" comments stood in contrast to what he wrote about Pence and Jan. 6 in his 2022 book, "Nation of Victims: Identity Politics, the Death of Merit, and the Path Back to Excellence."
"Mike Pence, a man I have great respect for, decided it was his constitutional duty to resist the president’s attempts to get him to unilaterally overturn the results of the election, even in the face of the January 6 Capitol riot," Ramaswamy wrote. "Our institutions did hold, in the end. But they shouldn’t have been tested. … The fact that all of our governmental institutions so unanimously found no evidence of significant fraud is telling."
We asked a Ramaswamy’s campaign spokesperson to point to anything in the Constitution or federal law that would have allowed the vice president to certify election results only if electoral reform were passed first. We received no response.
Ramaswamy said Pence on Jan. 6, 2021, could have approved the 2020 electoral votes on the condition that Congress pass an overhaul of election law.
Ramaswamy did not explain what legal authority he believes would have allowed that scenario, and legal experts said the idea falls apart on multiple levels.
A vice president wouldn’t have that power. The Constitution is clear that counting the electoral votes, not passing legislation, is the purpose of the joint session. Democratic cooperation in both chambers would have been needed to pass a new election law. And the issues surrounding election law are so thorny and partisan that Congress has rarely passed laws on the subject in recent decades.
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Meet the Press, Transcript, Aug. 27, 2023
Verified Voting, Election day equipment 2024, Accessed Aug. 28, 2023
Email interview, Rebecca Green, William and Mary law professor and co-director, Election Law Program, Aug. 28, 2023
Email interview, Richard Hasen, UCLA professor of law and political science, director, Safeguarding Democracy Project, Aug. 27, 2023
Email interview, Don Wolfensberger, Bipartisan Policy Center fellow, and congressional scholar at the Woodrow Wilson International Center for Scholars, Aug. 27, 2023
Email interview with Gregory Koger, University of Miami political scientist, Aug. 28, 2023
Email interview with Matthew Green, Catholic University of America politics professor, Aug. 28, 2023
Email interview, Richard Pildes, New York University school of law professor, Aug. 28, 2023
Email interview, Mark Lindeman, policy and strategy director at Verified Voting, Aug. 28, 2023
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