Disqualifying Trump wouldn't necessarily remove him from the political stage

The House of Representatives has impeached Donald Trump for inciting insurrection at the Capitol when Congress was counting electoral votes. The Senate may convict him of that charge. If it does, it will decide whether to disqualify him from “any office of honor, trust, or profit under the United States,” which likely (I think) includes the office of the president.

There are important reasons for the Senate to consider convicting and disqualifying Mr. Trump, and the stigma of disqualification might prevent a future candidacy. But this penalty isn’t a magic trick that would make Mr. Trump disappear from the political stage. It wouldn’t bar him from fundraising for a future presidential candidacy or from appearing on the ballot in a future election. And the question may ultimately return to Congress one day when it counts electoral votes.

The Constitution requires that the president must be at least 35 years old, a natural born citizen, and a resident of the United States for 14 years. There are other tacit requirements, too—for example, one must be alive instead of dead, and a person instead of, say, a dog or a cat. Disqualification from office after impeachment would be another condition.

These eligibility requirements are usually self-policing. Underage or non-citizen candidates rarely attempt to run for president, and major political parties winnow out ineligible candidates. Other disputes over eligibility, like whether Canadian-born Senator Ted Cruz was a “natural born citizen,” never became serious problems because candidates lost elections.

A candidate who runs for president must file with the Federal Election Commission to disclose campaign contribution and expenditure data. But the FEC doesn’t have power to determine whether candidates are eligible.

In 2011, a naturalized citizen, Abdul Hassan, sought to run for president. He admitted he wasn’t a natural born citizen but asked the FEC if he could still run. An advisory legal opinion from the FEC concluded that campaign finance law allowed him to solicit funds for his campaign, and that he wouldn’t be engaging in fraudulently misrepresentation if he did so.

Any candidate, eligible or ineligible, can run a presidential campaign in the United States. Ineligible candidates would not violate any campaign finance laws by soliciting financial contributions or running for president. Congress would need to amend campaign finance laws to bar ineligible candidates from fundraising for office.

Candidates running for office must also file paperwork in states to assure their names appear on the primary and general election ballots. Many states do not investigate the qualifications of candidates seeking elected office. They trust candidates, voters, and political parties to make those judgments and act appropriately.

It’s up to states to decide whether to enact laws to exclude disqualified candidates. But ineligible presidential candidates do sometimes appear on the ballot. Róger Calero, for instance, is a Nicaraguan who resides in the United States and was the Socialist Workers Party candidate for president in 2004 and 2008. He’s not a citizen, much less a natural born citizen, but he appeared on the ballot in New Jersey, New York, and other states in two elections. Or consider Peta Lindsay, who was just 28 years of age when she ran as the Socialism and Liberation Party nominee in 2012 and earned 7791 votes across nine states.

Some states do exclude unqualified presidential candidates. For instance, Colorado requires candidates to affirm under oath that they are qualified. In 2012, Mr. Hassan couldn’t affirm that, and he sued. Then-Judge Neil Gorsuch wrote a judicial opinion affirming the state’s right to exclude Mr. Hassan from appearing on the ballot.

But others have tended toward mischief. After false rumors swirled in 2008 that Barack Obama was not born in the United States, some state legislatures introduced legislation that would require candidates to show their birth certificate as a condition of appearing on the ballot. None became law.

In the event a disqualified candidate appeared on the ballot, he might receive electoral votes from a state, and those electoral votes would be sent to Congress to count. In 1873, Congress refused to count three electoral votes from Georgia cast for Horace Greeley, a candidate who died after Election Day but before the electors met. Congress rejected votes cast for an ineligible candidate.

Under the Electoral Count Act, a member of the House and a member of the Senate may object to counting votes that were not “regularly given.” Both houses of Congress would then need to agree to reject the votes cast for an ineligible candidate.

That means Congress might ultimately be forced to evaluate Mr. Trump’s eligibility when it counted electoral votes.

Yes, during that meeting.

At graduation employment figures for law school graduates in 2018

One underdiscussed statistic, in my view, is the “at graduation” employment figures at law schools.

Among 145 USNWR-ranked schools sharing data, the median at graduation employment rate was 56.1%. The median among all USNWR-ranked schools at 10 months after graduation was 83.3%. So there is substantial movement in those 10 months after graduation—passing the bar exam, moving to a new city, places of employment with limited resources hiring at the time they have an opening rather than years out, and so on. (The aggregate at-graduation employment metric, which is not the figure reported below, is just 4% of the overall USNWR ranking.)

Nevertheless, the ABA’s required disclosure employment data only includes the 10-month figures. USNWR collects and discloses the at-graduation employment rates, too. For students wondering about job security and likelihood of obtaining a position (and the ability to begin paying down debt promptly), at-graduation is an interesting figure. It’s also a figure that might relate to “elite” employment outcomes, like judicial clerkships (including state court clerkships) and big law firm associate positions—those are the kind that hire out months if not years in advance of a start date. It might be the case that government or public interest positions hire more frequently after graduation, a different way of thinking about these figures.

So below at graduation employment outcomes for the Class of 2018. USNWR includes full-time, long-term, bar passage-required and J.D.-advantage jobs that are not funded by a law school in this category.

School	Employed at grad 2018
Columbia	94.2%
Virginia	92.3%
Cornell	91.3%
Penn	90.9%
Chicago	90.3%
Stanford	90.2%
Northwestern	90.0%
NYU	89.5%
Harvard	88.8%
Duke	88.2%
Michigan	84.2%
Seton Hall	84.2%
Berkeley	83.8%
Yale	82.8%
Vanderbilt	81.0%
Minnesota	79.7%
Georgetown	78.5%
Arizona State	77.9%
Washington & Lee	77.0%
Washington University (St. Louis)	76.1%
Fordham	74.4%
Texas	73.1%
Iowa	73.0%
BYU	72.3%
Rutgers	70.5%
UCLA	70.3%
USC	69.8%
George Washington	69.8%
Villanova	69.6%
Boston University	68.1%
Penn State-Dickinson	66.7%
UC-Davis	66.1%
St. Louis	66.0%
Notre Dame	65.9%
North Carolina	65.8%
Uconn	65.6%
Kansas	64.7%
Georgia	64.6%
St. John's	64.6%
Florida	64.4%
Illinois	64.4%
Ohio State	64.3%
William & Mary	64.2%
Kentucky	63.9%
Boston College	63.7%
Maryland	63.6%
Baylor	63.6%
Utah	63.0%
Albany	63.0%
Tulane	62.9%
Alabama	61.6%
UC-Irvine	61.4%
Tennessee	61.4%
Emory	59.9%
Temple	59.8%
Richmond	59.7%
Nebraska	59.6%
Wake Forest	59.2%
Louisville	58.7%
Creighton	58.7%
Hofstra	58.6%
Colorado	58.5%
George Mason	58.4%
Baltimore	58.3%
SMU	57.9%
Cardozo	57.0%
Toldeo	56.9%
Arizona	56.6%
UNLV	56.6%
Oklahoma	56.3%
Mercer	56.3%
Wisconsin	56.2%
Indiana-Bloomington	56.1%
Maine	56.0%
Washburn	55.0%
Washington	53.8%
Missouri	53.8%
LSU	53.7%
Houston	53.5%
South Carolina	53.4%
Penn State-University Park	52.0%
Drake	52.0%
Wayne State	51.8%
Syracuse	51.7%
Gonzaga	51.5%
Loyola Chicago	50.3%
Brooklyn	50.0%
DePaul	50.0%
American	49.1%
Marquette	48.8%
Pace	48.8%
New York Law School	48.7%
South Dakota	48.7%
Georgia State	48.6%
Miami	48.5%
Denver	48.1%
Cincinnati	47.8%
Howard	47.4%
Buffalo	46.6%
University of St. Thomas	46.5%
Tulsa	45.7%
Hawaii	45.3%
Florida International	45.2%
Loyola Law School-Los Angeles	45.0%
Montana	44.9%
Arkansas	44.2%
Northeastern	44.1%
New Hampshire	43.8%
New Mexico	43.8%
Michigan State	43.5%
Catholic	43.3%
Duquense	43.3%
Texas Tech	43.2%
Quinnipiac	42.7%
Wyoming	42.4%
Illinois-Chicago (John Marshall)	42.0%
Vermont	42.0%
West Virginia	41.8%
Pepperdine	41.7%
Florida State	41.1%
Drexel-Pennsylvania	41.1%
Stetson	41.0%
Suffolk	41.0%
Case Western Reserve	40.5%
Chicago-Kent	40.5%
San Diego	40.2%
Missouri	40.0%
Akron	40.0%
Texas A&M	39.9%
Memphis	39.8%
Oregon	39.5%
Santa Clara	39.2%
UC-Hastings	38.3%
Lewis & Clark	38.2%
Pittsburgh	37.8%
Indiana-Indianapolis	36.6%
Cleveland State	36.4%
Mitchell Hamline	34.4%
Mississippi	34.1%
Chapman	32.8%
Seattle	30.2%
Dayton	28.2%
Belmont	26.9%
Loyola New Orleans	26.1%
Willamette	26.0%

Algebra and geometry as prerequisites to the bar exam

From the Colorado Supreme Court, 1898:

Applicants who are not members of the bar, as above prescribed, shall present a thirty-count certificate from the regents of the university of the state of New York, or shall satisfy said committee that they graduated from a high school or preparatory school whose standing shall be approved by the committee, or were admitted as regular students to some college or university, approved as aforesaid, or before enter­ing upon said clerkship or attendance at a law school, or within one year thereafter, or before September 13, 1899, they passed an examination before the state superintendent of public instruction, in the following subjects: English lit­erature, civil government, algebra to quadratic equations, plane geometry, general history, history of England, history of the United States, and the written answers to the ques­tions in the above named subjects shall be examined as to spelling, grammar, composition and rhetoric. The said exam­inations shall be conducted in connection with the regular county examinations of teachers.

Law school inputs, outputs, and rankings: a guide for prospective law students

As we approach another law school rankings season, Dean Paul Caron has compiled a tentative ranking of the “admissions” metrics that USNWR uses as a component of its law school rankings methodology. Median LSAT score of the incoming class, median UGPA of the incoming class, and acceptance rate are 25% of the rankings.

Interestingly, in my judgment, it’s also probably one of the readiest way for a prospective law student to judge which school are most overvalued and undervalued by USNWR.

Law school inputs are, I think, probably the very weakest measure of law school quality from a student’s perspective. Prospective students, I think, care far less about the academic credentials of those around them, and far more about, say, their employment outcomes, their debt levels, or even the profession’s perception of their institution. (Above the Law’s rankings long ago focused on outputs over inputs. Professor C.J. Ryan has also looked to “value-added” rankings, what law schools add value to the student experience.)

Indeed, it’s remarkable to me that just 20% of the rankings focus on employment and bar outcomes, while 25% on admissions statistics. We know law schools spend significant resources on distorting admissions practices to meet UNSWR metrics.

But if you’re a student, which is better? To be at a law school with a median LSAT of 170 but a 50% high-quality job placement rate? Or at a law school with a median LSAT of 160 but an 80% high-quality job placement rate? One could look at the same figures for students who graduate with a low debt-to-income ratio, too.

Admissions-centered rankings, then, can help a prospective law student discern which schools are overvalued and undervalued by existing rankings, and discount accordingly. If two schools sit beside each other in the USNWR ranking, it might be because one has much better inputs and another much better outputs. Or if there are two schools that appear to disparate, it might be only because of a disparity of inputs, not outputs.

This isn’t to say that law school inputs are unimportant. They are important—to law schools, not (mostly) to law students. They are important to predict likelihood of success in law school, so law schools want to admit students with high likelihood of success. (For marginal students admitted to a school, it might be relevant to them as an indicator of the challenges they may face in the first-year curriculum in particular.)

But those figures aren’t generally, in my judgment, useful for prospective law students. Separating the components of the rankings can provide better information in decisionmaking.

Would-be faithless 2016 presidential electors return as electors in 2020, faithful this time

We can look back at the 2016 faithless elector litigation to see what happened to the many who attempted (or were successfully in their attempts) to vote for someone other than Donald Trump or Hillary Clinton. I anticipated that parties would change how they select and scrutinize presidential electors in 2020. There were no faithless elector this time and, on the heels of Chiafalo v. Washington, faithless elector laws would be enforceable. In 2020, there were not even attempts at casting faithless votes.

But, despite all that, several would-be faithless electors—and one, in fact, faithess elector—from 2016 were still chosen as electors. We can find out who they are. From the Archivist:

Vinzenz Koller, California: he wanted to cast a vote for someone other than Mrs. Clinton and Tim Kaine in 2016 and filed a lawsuit, but he ultimately voted for them. He was a Democratic elector in 2020, too.

Polly Baca, Colorado: she was one of the three plaintiffs in Baca v. Colorado Department of State who sought to vote for someone other than Mrs. Clinton and Mr. Kaine in 2016. Micheal Baca was the lead plaintiff who attempted to cast a faithless vote and was replaced. Ms. Baca ended up voting consistent with her pledge. (She was also the reason Justice Sonia Sotomayor had to recuse from the case.) She was a Democratic elector in 2020, too.

David Bright, Maine: he attempted to cast a vote for Bernie Sanders for president in 2016, but, upon a re-vote in Maine, cast a vote for Mrs. Clinton. He was a Democratic elector in 2020, too.

Muhammad Abdurrahman, Minnesota: he attempted to cast a vote for Mr. Sanders for president in 2016, and he was replaced. He sued, and he lost. He was selected an elector again in 2020.

I’m surprised that these individuals made it again as electors. But, maybe added pressure from the party, litigation culminating in Chiafalo, and simply different political circumstances in 2020 (e.g., these Democratic electors felt it more important to vote for Joe Biden in the face of Mr. Trump’s efforts to “decertify” and otherwise contest election results in several states) ensured they’d vote consistent with their promise and their party’s nominee.

The presidential electors from GeneralMagnifico

On the heels of the decision of Vice President Pence, as advised by the Senate parliamentarian, to present only one slate of presidential electors to Congress in a joint session, someone passed along this detail from the Washington Post:

Some of the arguments were spurious, officials said. One included the certification of the electoral college votes in 1801, when Vice President Thomas Jefferson ruled electors from Georgia as defective. Another was that Pence could disregard some states because they sent in multiple electoral ballots. When the vice president’s team met with the parliamentarian, they learned that people send fake electoral college votes every year, including one sender who signs them “GeneralMagnifico,” a senior administration official said. The 1800 election had nothing to do with the current election, officials said.

Can the Senate expel Ted Cruz and Josh Hawley for their actions during the counting of electoral votes?

A few years ago, there was a flurry of discussion about the possibility of expelling Roy Moore in the event he won the Senate election in Alabama. There’d been discussion in recent years about Senator Roland Burris, Senator Bob Menendez, Senator Al Franken, and Representative John Conyers.

A new question has arisen: can the Senate expel Senators Ted Cruz and Josh Hawley for their actions during the counting of electoral votes? (I use “actions” broadly, subject to what I write below.)

Here’s the text of the Constitution:

Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member.

As I’ve explained before, there are few contours to the power to expel, except that it must occur by a two-thirds vote. That vote is mostly a procedural check, and the substance has largely been left to the Senate to flesh out. (Congress can also punish—censure or reprimand are the usual forms—by a simple majority.) No one’s been expelled from the Senate since the Civil War, but investigations have prompted resignations in recent years. And most recent cases have turned on criminal charges, but not all. Wikipedia has a quick and convenient summary of Senate and House cases.

I also note a couple of precedents in some of these Senate decisions (and I noted here, Congress can always overturn its own precedents, but it usually loathe to do so): “First, the Senate has typically wondered whether it has the power to expel members for conduct that arose prior to the candidate taking office. (Some earlier debates actually focused on whether it had to arise during that existing term in office and not from a preceding term, but recent Senate investigations have moved away from that view.) Second, the Senate has generally refused to expel a member for conduct known to the voters at the time of the election, the notion being that it's not for the Senate to expel a member with such baggage sent by the voters.”

The actions of Messrs. Cruz and Hawley arose during their time in office and were not known to voters, so these precedents don’t materially address these concerns.

Another might be for Congress to specify with some precision what was the inappropriate behavior—signing onto an objection under the Electoral Count Act, that, in my view, was shameless and lacking in law and fact; speaking in support of an attempt to overturn the presidential election; voting after the riot consistent with the demands of the rioters; and so on. Speech might be different from behavior. The timing of events may matter, too.

But the fact that a member of Congress engaged in what might otherwise be constitutionally-protected speech is not enough to insulate one from punishment—although, to date, it hasn’t risen to anyone’s expulsion. Consider (on the House side) Representative Joe Wilson’s “You lie!” moment, which led to a formal House reprimand. Lesser charges like censure or reprimand—the Constitution authorizes these by a simple majority—are easier to secure.

Beyond that, it becomes a political judgment of the Senate. I don’t have much more insight to offer at the moment than that. It might be that the Senate would not move forward with anything that would result in failure (i.e., if it did not feel it could secure a majority vote or a 2/3 expulsion vote), but I don’t know how it would assess that. I also think it would look hard at any precedent it would set. My assumption is the Senate would not move forward with expulsion, although it might choose to censure (even then, it might conclude that branding them as martyrs might embolden such actions in the future, another political judgment). But beyond that, it remains within the purview of the Senate’s power to determine what constitutes actions rising to the level of expulsion-worthy behavior. Its history since the Civil War (and in recent years) suggests it’s unlikely to do so.

California bar exam jumps after lowering of cut score

Last summer, I covered the potential changes as the California state bar lowered its cut score from 144 to 139. The October 2020 exam (administered online) was the first such exam. The statistics have been released. A few quick takes, including some comparisons to last year.

First time applicants declined slightly year over year, from 5198 to 4999. (It might be that some of the recent closures or loss of ABA accreditation from some law schools has yielded a decline in prospective test-takers.) Repeaters increased significantly, from 3008 to 3733. Repeaters appeared to be down in most other jurisdictions around the country. But given California’s very high cut score, which yields a high failure rate, students who may have otherwise been inclined not to repeat found value in trying again with a lower cut score.

The first-time pass rate among California ABA-accredited law schools rose from 71.3% to 84%. This is a big jump and good news for many law schools. Part might be the loss of some more marginal formerly-accredited schools in this figure. But the bulk is assuredly because California test-takers are more capable than the typical test-taker, and while 139 is still a relatively high cut score, it swept in a lot of new passers. The out-of-state ABA pass rate rose from 73% to 78%, not as dramatic.

Among California accredited schools, the first-time pass rate rose from 26.2% to 40%, as I suggested would provide an opportunity for such schools to thrive.

The repeater rate also rose significantly, from 26.7% to 43.0%. The raw total of passing repeaters doubled from around 800 to around 1600.

We’ll know more about race, school-specific data, and foreign attorneys when more data is released. We’ll see if longer-term access to justice or attorney discipline rates are affected. But it’s good news for law schools and law students in the state of California.

Parliamentarian tweaks in counting of electoral votes reduce opportunities for multiple slates of electors and defer more to Congress

I noticed on January 6 some of the language that Vice President Mike Pence used during the counting of electoral votes was a little different than past years. Two consequential tweaks in the language occurred. First, Mr. Pence affirmed that he was only presenting certain certificates to Congress, and explained which ones. Second, Mr. Pence emphasized that the congressional tellers had verified the regularity and authenticity of the certificates of the vote.

Here’s how Alaska proceeded in 2001. First, the predicate at the beginning of the session.

The VICE PRESIDENT. Mr. Speaker and Members of Congress, the Senate and the House or Representatives, pursuant to the requirements of the Constitution and the laws of the United States, are meeting in joint session for the purpose of opening the certificates and ascertaining and counting the votes of the electors of the several States for President and Vice President.

After ascertainment has been had that the certificates are authentic and correct in form, the tellers will count and make a list of the votes cast by the electors of the several States.

The tellers on the part of the two Houses will take their places at the Clerk’s desk.

The tellers, Senator DODD and Senator MCCONNELL on the part of the Senate, and Mr. THOMAS and Mr. FATTAH on the part of the House, took their places at the desk.

The VICE PRESIDENT. The Chair will open the certificates in alphabetical order and pass to the tellers the certificates showing the votes of the electors in each State, and the tellers will then read, count, and announce the result in each State.

Then to Alaska specifically.

The VICE PRESIDENT. The Chair hands to the tellers the certificate of the electors for President and Vice President of the State of Alaska, and they will read the certificate and will count and make a list of the votes cast by that State.

Mr. THOMAS (one of the tellers). We, the undersigned, being duly elected electors for the State of Alaska, do hereby certify that on the 18th day of December, 2000, A.D., in the Municipality of Anchorage, State of Alaska, duly and regularly met and by authority of law vested in us, voted for President of the United States of America with the following result: For President, George W. Bush, 3 votes.

We, the undersigned, being the duly elected electors for the State of Alaska, do hereby certify that on the 18th day of December, 2000, A.D., in the Municipality of Anchorage, State of Alaska, duly and regularly met and by authority of law vested in us, voted for Vice President of the United States of America with the following result: for Vice President, Dick Cheney, 3 votes.

Signed by the pertinent electors and duly attested.

Mr. President, the certificate of the electoral vote of the State of Alaska seems to be regular in form and authentic, and it appears therefrom that George W. Bush of the State of Texas received 3 votes for President, and Dick Cheney of the State of Wyoming received 3 votes for Vice President.

The VICE PRESIDENT. Is there objection?

The Chair hears no objection.

There was no objection.

Here’s Alaska 2005, with the relevant predicate:

The VICE PRESIDENT. Mr. Speaker and Members of Congress, pursuant to the Constitution and laws of the United States, the Senate and House of Representatives are meeting in joint session to verify the certificates and count the votes of the electors of the several States for President and Vice President of the United States.

After ascertainment has been had that the certificates are authentic and correct in form, the tellers will count and make a list of the votes cast by the electors of the several States.

The tellers on the part of the two Houses will please take their places at the Clerk’s desk.

The tellers, Mr. LOTT and Mr. JOHNSON on the part of the Senate, and Mr. NEY and Mr. LARSON of Connecticut on the part of the House, took their places at the desk.

The VICE PRESIDENT. Without objection, the tellers will dispense with reading formal portions of the certificates.

There was no objection.

This is a slight change to the verbs, but not, I think, material.

Here’s how Alaska went:

Mr. NEY (one of the tellers). Mr. President, the certificate of the electoral vote of the State of Alaska seems to be regular in form and authentic, and it appears therefrom that George W. Bush of the State of Texas received 3 votes for President and Dick Cheney of the State of Wyoming received 3 votes for Vice President.

Note that the vice president did not speak before or after.

It was a similar process in 2009 nor in 2013, which were not included in the congressional record, but the Vice President did not speak before presenting the certificates. There was also a similar process in 2017, even in light of multiple attempted objections.

The predicate in 2021 was the same:

Madam Speaker, Members of Congress, pursuant to the Constitution and the laws of the United States, the Senate and House of Representatives are meeting in joint session to verify the certificates and count the votes of the electors of the several States for President and Vice President of the United States.

After ascertainment has been had that the certificates are authentic and correct in form, the tellers will count and make a list of the votes cast by the electors of the several States.

The tellers on the part of the two Houses will take their places at the Clerk’s desk.

The tellers, Mr. BLUNT and Ms. KLOBUCHAR on the part of the Senate, and Ms. LOFGREN and Mr. RODNEY DAVIS of Illinois on the part of the House, took their places at the desk.

The VICE PRESIDENT. Without objection, the tellers will dispense with the reading of the formal portions of the certificates.

There was no objection.

Here’s how Alaska went:

The VICE PRESIDENT. Hearing none, this certificate from Alaska, the Parliamentarian has advised me, is the only certificate of vote from that State that purports to be a return from the State and that has annexed to it a certificate from an authority of the State purporting to appoint and ascertain electors.

Ms. LOFGREN. Mr. President, the certificate of the electoral vote of the State of Alaska seems to be regular in form and authentic, and it appears therefrom that Donald J. Trump of the State of Florida received 3 votes for President and MICHAEL R. PENCE of the State of Indiana received 3 votes for Vice President.

The VICE PRESIDENT. Are there any objections to counting the certificate of vote of the State of Alaska that the teller has verified appears to be regular in form and authentic?
There was no objection.

The introductory line offers several caveats—that expressly disclaim responsibility of the vice president taking unilateral action, and that also limits what was presented to Congress.

First, the Senate parliamentarian advised the Vice President about the form of the certificates. This was a decision by a congressional actor, not the Vice President.

Second, the “purports” language tracks a provision from 3 U.S.C. § 15, the Electoral Count Act:

Two tellers shall be previously appointed on the part of the Senate and two on the part of the House of Representatives, to whom shall be handed, as they are opened by the President of the Senate, all the certificates and papers purporting to be certificates of the electoral votes, which certificates and papers shall be opened, presented, and acted upon in the alphabetical order . . . . If more than one return or paper purporting to be a return from a State shall have been received by the President of the Senate, those votes, and those only, shall be counted which shall have been regularly given by the electors who are shown by the determination mentioned in section 5 of this title to have been appointed . . . but in case there shall arise the question which of two or more of such State authorities determining what electors have been appointed, as mentioned in section 5 of this title, is the lawful tribunal of such State . . .

Section 5 refers to “determination of any controversy or contest concerning the appointment of all or any of the electors,” “so far as the ascertainment of the electors appointed by such State is concerned.” Section 6 requires states to send “a certificate of such ascertainment of the electors appointed.”

Let’s return to the language Mr. Pence used:

. . . purports to be a return from the State and that has annexed to it a certificate from an authority of the State purporting to appoint and ascertain electors . . . .

This harmonizes several provisions of the Electoral Count Act. “Purporting” is not just anything, but purporting to be a return from a State. It has to have some imprimatur of the State on it. If there is more than one, only count the certificate that meets Section 5’s appointment, which includes sending a certificate of ascertainment to Congress under Section 6. And further bolstering that “purports” is tied to some state authority, the question of two or more certificates turns on “two or more such State authorities,” disputing “the lawful tribunal of such State.”

All of this ties into next component, which Mr. Pence explains includes only those certificates “annexed to it a certificate from an authority of the State purporting to appoint and ascertain electors.” This again includes the “authority” language about the multiple returns in Section 15.

While several “alternative slates” of electors were allegedly submitted to the Vice President and to the National Archives, none could meet these conditions. In particular, none had annexed a certificate from “an authority of the State purporting to appoint and ascertain electors.” The ascertainment is crucial, because it provides the popular vote totals in each states to identify which electors received the most votes. While some “alternative slates” could have mailed in their votes, none included a certificate of what the vote totals were in their states of their appointment. And certainly none claimed to be “an authority of the state.”

At the same time, this does not give the Vice President (or, really, the Senate parliamentarian) unfettered discretion. It is a formal assessment of the statutory language, and here no alternative certificates met it. IT also abides by the fact that Vice President Richard Nixon in 1961 presented certificates with some state authority—both had the governor’s signature.

Let’s turn to how Mr. Pence closed the reading of votes. Like Mr. Gore, he awaited objections after each state, but he included additional language:

Are there any objections to counting the certificate of vote of the State of Alaska that the teller has verified appears to be regular in form and authentic?

There was no objection.

Now, the tellers already say that the certificates “seem to be regular in form” and that it “appears” what the vote is. But this language ties a ribbon on it—the teller, a member of Congress, has “verified” its regularity and authenticity. Any objection, then, is an objection to an act of a teller’s verification that the certificate was “regularly given.”

Maybe the language isn’t really needed here. But it provides additional framing that the question is one of Congress counting—and Congress verifying—not the Vice President. In a way, while Congress is limited in what papers “purporting” to be from a State are presented to it, the verification of the tellers is an added element of description of empowerment.

The script is, in my judgment, a good one, consistent with the Electoral Count Act’s provisions and carefully threads the needle of controlling what Congress does while reserving to its judgment potential legitimate questions. It may well be a script here to stay in future electoral counting.