John Yoo has teamed up with Robert Delahunty, his coauthor of some of the infamous torture memos during the George W. Bush administration, to devise a blueprint for the vice president to decide the outcome of presidential elections. This legal theory will be published in a forthcoming 82-page law review article in the Case Western Reserve Law Review.
In their article, the two radical right-wing law professors do not say that former Vice President Mike Pence should have refused to count the Electoral College votes and handed the 2020 election to Donald Trump. That is because no state had submitted competing slates of electors — for example, one slate from a Democratic governor for Joe Biden and another slate from a Republican legislature for Trump. If states had tendered more than one slate of electors, Yoo and Delahunty argue that Pence could have decided which slate to count.
Although the authors of the U.S. Constitution created three co-equal branches of government to check and balance each other, Yoo has always favored the executive branch. Whether advising the president how he could torture with impunity or championing the “unitary executive,” Yoo has sought to relegate Congress (the legislative branch) to a lesser role.
Twisting the law to fit his nefarious agenda isn’t new to Yoo. When New Yorker writer Jane Mayer interviewed him, Yoo told her that Congress “can’t prevent the president from ordering torture.” When asked if any law prohibited the president from “crushing the testicles of the person’s child,” Yoo responded, “No treaty.” Mayer then asked him whether another law forbade it. Yoo said, “I think it depends on why the president thinks he needs to do that.” But the Convention Against Torture, a treaty the U.S. has ratified, outlaws torture without exception.
Yoo also sought to empower the president to explicitly override the will of Congress. He inserted the phrase “unitary executive” into Bush’s signing statements attached to legislation, in which the president reserved the right to disobey any parts of congressional statutes he disagreed with.
Under Yoo and Delahunty’s scheme, a GOP-led state legislature could transmit a slate of electors to a Republican vice president who could choose to count that slate over a competing slate from the state’s Democratic governor, thereby ceding the presidential election to the Republican candidate. The extensive gerrymandering of state legislatures to benefit Republicans increases the likelihood that this scenario will occur.
The 12th Amendment, enacted in 1804, sets forth the process for counting electoral votes. It says, “The President of the Senate [the vice president] shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.” It goes on to say that if neither candidate gets a majority of the electoral votes, “the House of Representatives shall choose immediately, by ballot, the President.” But the amendment doesn’t specify who should count the votes or how to resolve disputes about a state’s electoral slate.
To fill those gaps, Congress passed the Electoral Count Act in 1887, which allows governors to certify the state’s electoral slate. Although the vice president, sitting as president of the Senate, can accept or reject electoral votes, Congress can overrule his determination. If the House and Senate cannot agree, the slate certified by the state governor prevails. In the 2020 election, Pence counted the electoral votes from Arizona and Pennsylvania for Biden. Although a handful of GOP congress members challenged Pence’s decision, those challenges were rejected by both the House and the Senate.
Yoo and Delahunty think the Electoral Count Act is unconstitutional even though the Supreme Court has never struck it down. Using an originalist analysis, they say that Congress shouldn’t play a role in deciding which votes to count, despite the fact that the drafters of the Constitution named the House of Representatives to choose the president if neither candidate garners a majority of electoral votes. Generally rejected by courts and legal scholars, originalism is a vehicle to achieve a right-wing result under the guise of following the understanding or intent at the time the Constitution was written.
Trump lawyer John Eastman also thought the Electoral Count Act was unconstitutional and concocted a plan for Pence to execute a coup d’etat on January 6, 2021. Under Eastman’s proposal, Pence would accept Trump’s bogus claims of widespread voter fraud and reject electors or delay the vote count. Then the House of Representatives would choose the president. Each state would get one vote and since Republicans controlled 26 state delegations, they would have a majority to make Trump president. To his credit, Pence refused to go along with Eastman’s plan.
In April, U.S. District Court Judge David O. Carter found it more likely than not that Trump and Eastman committed the federal crime of conspiracy to defraud the United States. Carter wrote, “In his discussion with the Vice President’s counsel, Dr. Eastman ‘acknowledged’ the ‘100 percent consistent historical practice since the time of the Founding’ that the Vice President did not have the authority to act as the memo proposed.” Carter called the attempt by Trump and Eastman a “coup in search of a legal theory.”
Yoo and Delahunty write in their forthcoming article that the 12th Amendment grants the vice president almost total authority to resolve any disputes about which set of electoral votes to count. They do allow for judicial review by the courts, which Trump packed with Republican judges.
The strategy that Yoo and Delahunty propose could lead to a situation in which a Republican vice president counts an electoral slate presented by a GOP-controlled state legislature. If the vice president’s decision is challenged, the right-wing Supreme Court — now loaded with originalists — would uphold it.
This would present a dangerous threat to the fundamental right to vote, the separation of powers, and our already imperiled democratic system.