Case Study 1. The Pence Certification, January 6, 2021

What this case study is about

On January 6, 2021, Vice President Mike Pence presided over the joint session of Congress that, by constitutional design and statutory procedure, counts the electoral votes for President. The certification of Joe Biden's election victory was the operational task. The political pressure on Pence to do something other than perform that task was the institutional crisis. The riot at the Capitol that delayed the certification by several hours was the violent expression of that pressure.

This case is sensitive. Many readers will have priors about the events of January 6 from extensive media coverage, from political commentary, or from personal experience. The job of this case study is institutional, not partisan: to explain what the Constitution actually requires of the Vice President in counting electoral votes, what was being asked of Pence in early January 2021, and why the moment matters for understanding how American government works under stress.

We will be honest about the constitutional question, because the Constitution is not silent on it. We will also be careful with the political question, because political analysis of public officials' character belongs in political commentary, not in an introductory textbook. The institutional point is the one we want to leave you with: ceremonial-seeming roles in American government can become consequential at moments of crisis, and they can be consequential in ways that depend on individual choices made under pressure.

Background: how electoral-vote counting works

The constitutional procedure runs roughly as follows.

Voters in each state choose presidential electors on Election Day in November (the Tuesday after the first Monday in November, set by federal statute). The electors meet in their respective state capitals on the first Monday after the second Wednesday in December (December 14 in 2020) and cast their votes. The states certify their electoral votes through governors' certificates of ascertainment and certificates of vote, transmitted to the Senate.

On January 6 (set by statute since 1887), a joint session of Congress meets, presided over by the Vice President as President of the Senate. The Vice President opens the certificates. Tellers appointed by the House and Senate read out each state's results in alphabetical order. After all states are read, the Vice President announces the results. If a candidate has at least 270 electoral votes, that candidate is declared elected. If no candidate reaches 270, the procedure described in the Twelfth Amendment kicks in: the House (voting by state delegation) chooses the President, and the Senate chooses the Vice President.

The Electoral Count Act of 1887 added one further mechanism: members of Congress can object to a state's electoral votes. Under the 1887 act (as it existed on January 6, 2021), an objection raised by at least one Senator and one Representative triggered a debate and separate votes in each chamber on whether to sustain the objection. The objection succeeds only if both chambers vote to sustain it.

That is the procedure. Until January 6, 2021, the procedure had been almost entirely ministerial since the Hayes-Tilden disputed election of 1876, which had spurred the 1887 act in the first place. There had been a few isolated objections in modern history (in 1969, 2001, 2005, and 2017), but in each case the objections failed quickly and the joint session proceeded.

The Eastman memo and the political pressure

In late December 2020 and early January 2021, attorney John Eastman, then a Chapman University law professor advising the Trump campaign, drafted a series of memos arguing for an aggressive legal theory of the Vice President's role on January 6.

The Eastman theory, in its strongest formulations, held that the Vice President possessed unilateral authority — because the constitutional text says he "shall... open all the Certificates and the Votes shall then be counted" — to (a) refuse to count certified electoral votes from states with disputed results, (b) declare those states' electoral votes invalid, (c) "send back" the disputes to state legislatures for further consideration, or (d) declare that no candidate had reached 270 electoral votes and throw the election to the House under the Twelfth Amendment, where the Republican-majority House delegations would be expected to elect Trump.

The Eastman memos were presented at a White House meeting on January 4, 2021, attended by President Trump, Vice President Pence, Eastman, and others. Pence's legal counsel Greg Jacob, his chief of staff Marc Short, and other advisers argued vigorously against the Eastman theory. According to the public record (testimony from Jacob, Short, and others before the House Select Committee investigating January 6, contemporaneous notes, and subsequent published accounts), Pence consulted with former Republican-appointed federal judge J. Michael Luttig — a deeply respected conservative legal voice — who advised him that the Eastman theory was "incorrect at every turn."

Public political pressure on Pence intensified in the days leading up to January 6. Trump publicly stated, repeatedly, that Pence had the power to reject electoral votes. On the morning of January 6, before the joint session began, Trump addressed a rally near the White House and pressed the same point.

Just before noon on January 6, Pence released a public letter to members of Congress stating his position. The letter said, in part, that "it is my considered judgment that my oath to support and defend the Constitution constrains me from claiming unilateral authority to determine which electoral votes should be counted and which should not." Pence's letter cited constitutional text, historical practice, and the structural argument that the framers would not have entrusted such momentous authority to a single official with a personal interest in the outcome.

The constitutional question: the answer is no

The Eastman theory was not, in the technical sense, a "two-sided constitutional question." Reasonable people disagreed about many things in 2020 and continue to disagree about them. The question of whether the Vice President can unilaterally refuse to count certified electoral votes is not one of those disagreements among reasonable constitutionalists.

The case against the Eastman theory rests on five arguments, all of them strong.

Argument from text. The Twelfth Amendment says the votes "shall ... be counted." It does not say "shall be counted unless the Vice President decides otherwise." The verb is mandatory, the actor (in the passive voice) is the joint session and the tellers, and no discretionary authority is conferred on the presiding officer.

Argument from structure. The Vice President is, by election, often a candidate or co-partisan in the election being counted. (In 2020, Pence himself was on the losing ticket — though he was, throughout, scrupulously professional about that.) Granting the presiding officer unilateral authority over the outcome creates a structural incentive problem the Founders almost certainly would not have created on purpose. Article II's careful separation of the elector function from federal officers reflects a concern about exactly this problem.

Argument from history. From 1789 onward, Vice Presidents have presided over electoral-vote counts that included losing tickets they were on (John Adams, Thomas Jefferson, John Calhoun, Martin Van Buren, John Breckinridge, Hannibal Hamlin, Schuyler Colfax, William Wheeler, Charles Fairbanks, Thomas Marshall, Charles Dawes, Charles Curtis, John Nance Garner, Henry Wallace, Alben Barkley, Richard Nixon — who in 1961 announced his own loss to John F. Kennedy — Hubert Humphrey, Walter Mondale, Dan Quayle, Al Gore — who in 2001 announced his own loss to George W. Bush — Dick Cheney, and others). In no case did any of them claim unilateral authority to alter the outcome. The Eastman theory was advanced for the first time, in any serious form, in late 2020.

Argument from statute. The Electoral Count Act of 1887 specifies in detail how disputes over electoral votes are to be resolved. The procedure runs through the joint session and is decided by votes of both chambers. The act assumes that the Vice President's role is ministerial; it never grants the VP the authorities Eastman claimed.

Argument from democratic theory. A constitutional system that allowed a single official, the Vice President, to throw out millions of voters' votes would be at odds with the foundational premise of representative democracy. The fact that no Vice President had ever claimed such authority, despite many opportunities (Nixon, Gore), is evidence that the constitutional culture had recognized this all along.

After January 6, 2021, both chambers of Congress in 2022 passed the Electoral Count Reform Act, a bipartisan effort that, among other things, explicitly clarifies that the Vice President's role in counting electoral votes is ministerial. The reform does not change the underlying constitutional analysis — that analysis was clear before 2021 — but it forecloses any future attempt to revive the Eastman theory through ambiguity in the statutory text. The bipartisan vote in favor (with substantial majorities in both chambers, including many members across the political spectrum) is itself evidence of how broadly the underlying constitutional conclusion is shared.

The institutional point

The institutional point of this case is not about Pence personally, and not about Trump personally. It is about how American government is supposed to work, and how it actually held up under pressure.

The constitutional design relies on officials performing their duties faithfully, even when they would politically prefer not to. It relies on the Speaker forwarding articles of impeachment to the Senate when the House has voted them out, even if the Speaker's party would prefer not to. It relies on the Chief Justice presiding over an impeachment trial fairly, even if the defendant is from the Chief Justice's party. It relies on the Vice President counting electoral votes ministerially, even when the count produces a result the Vice President's ticket lost.

These ceremonial-seeming roles are not, in fact, ceremonial in the sense of unimportant. They are ceremonial in the sense of ritual, in the technical anthropological sense: structured performances that hold the system together by making participation public, witnessable, and reproducible. When the rituals are performed, the system works. When they are not — when an official refuses to do the role as designed — the system can buckle.

On January 6, 2021, the system held. Pence performed the role as designed. The certification was completed (after the Capitol was secured following the riot). The transition proceeded. American constitutional government worked, in the technical sense.

It worked because Pence, his counsel, his chief of staff, the senior staff at the Department of Justice, the Department of Defense leadership, and a number of members of Congress (Republican and Democratic) chose to perform their roles. It is worth noting, as an institutional point, that the system's working depended on those individual choices. A different set of choices, by some of those officials, could have produced a different outcome — not because the constitutional answer was unclear, but because constitutional answers do not enforce themselves.

This is the durable lesson of the case. The Constitution is a piece of paper. The institutions described in this chapter — the Vice Presidency, the Cabinet, the EOP — are constituted by the people who fill them. Whether they perform as designed depends, ultimately, on those people. That is a strength of the system in many cases (responsive to changing circumstances) and a vulnerability in others (susceptible to bad actors or weak ones). The structural answer is not to "fix" the system through some new amendment that removes human judgment, because no such fix is fully possible. It is to take seriously the staffing of these institutions — including, particularly, the staffing of seemingly ceremonial roles — because the staffing matters.

Discussion questions

1. The Eastman theory was advanced as a "constitutional argument" by people including law professors and members of Congress. The argument was, in the technical sense, weak. How does an introductory textbook talk about a legal argument that is genuinely weak — without drifting into partisan dismissal — and what is the difference between a weak argument and a contestable argument?
2. The Vice President's role on January 6 was specified by the Constitution and clarified by statute (the 1887 act, then the 2022 reform). Are there other ceremonial-seeming roles in American government that you can identify which might similarly become consequential at a moment of crisis? List three and explain why.
3. The case turned partly on Vice President Pence's individual judgment. How should we feel, institutionally, about a system whose proper functioning depends on individual officials choosing to do the right thing? What are the structural alternatives, and what are their costs?