Should Kamala Harris participate in disputes over the counting of electoral votes in Congress?

Only twice since the Electoral Count Act of 1887 has Congress entertained formal objections to the counting of presidential electors. If a member of the House and a member of the Senate file a written objection to a state’s presidential electors, each house would separate and deliberate for two hours before voting on the objection.

Senator Kamala Harris of California is the vice president-elect. She can remain in the Senate until she resigns (presumably some time before January 20). The counting of electoral votes is January 6. Should she participate in any votes on any objections?

I say should because I think she can. It’s simply a political decision.

The Twelfth Amendment (and before that, Article II) puts the President of the Senate—the Vice President—in charge of opening electoral college certificates when the votes are counted in Congress. There’s obviously a conflict of interest where the vice president is a candidate—see Thomas Jefferson in 1800, for one, even before the Twelfth Amendment—but the Constitution firmly places this person in this position. Indeed, it’s perhaps made certain losses easier with a gracious loser—Richard Nixon in 1960 and Al Gore in 2000, to name two. Vice President Mike Pence will preside (in his absence, the responsibility would fall to Senator Chuck Grassley), and he, of course, has an interest in these objections, as many vice presidents have before him. But the vice president has played a fairly small role in recent years—Mr. Nixon’s request for unanimous consent to the counting of Democratic electors in Hawaii over a rival slate of Republican electors an outlier, but, one that was against his self-interest and one that expressly sought the consent of Congress.

In both objections lodged since 1887, however, we’ve seen Senators with a stake in the outcome potentially participate. One did participate, one deliberately chose not to.

First, in 1969, a faithless elector in North Carolina had voted for George Wallace instead of Richard Nixon. Members of Congress objected to determine whether to count the vote. Senator Edward Muskie was the losing vice presidential candidate, the running made of Hubert Humphrey. But it was Mr. Muskie, a member of the Senate, who actually signed the objection requesting that the vote for Mr. Wallace not be counted, on the grounds that it was not “regularly given.” In the end. Mr. Muskie voted on the losing side of the objection, as the objection failed in both chambers and the vote for Mr. Wallace was counted. (Incidentally, the losing presidential candidate, Hubert Humphrey, was the vice president and did not preside over the counting of electoral votes, as he was attending a funeral overseas.)

Second, in 2005, Senator Barbara Boxer and Representative Stephanie Tubbs Jones filed an objection that Ohio’s electoral votes were not regularly given. They would have refused to count the 20 electoral votes for George W. Bush and Dick Cheney. The losing candidate, Senator John Kerry, would have been the beneficiary of the objection. But, as reported in a statement printed in the Congressional Record, “I do not believe that there is sufficient evidence to support the objection and change the outcome of the election and I am not joining their protest of the Ohio electors.” It was printed, because Mr. Kerry did not attend the session and did not vote. (He opted to travel to the Middle East to meet with soldiers.) As Senator Mitch McConnell put it at the time, “Senator Kerry said that he would not participate in this petulant protest.”

One political principle, then, that unites these episodes is that Mr. Muskie voted in a way that would have been adverse to his interest as a candidate, and Mr. Kerry refused to participate in a process that would benefited his interests. (Of course, Mr. Kerry might have participated and voted “no” on the objection.) And it might be, then, that Ms. Harris should not participate in a vote that would be beneficial to her interests.

But, that’s for her to decide. This post is simply to note the political process as it’s played out previously. Again, Ms. Harris emphatically can vote on these objections on January 6. The Senate is closely divided on a partisan basis, but, like 2005’s vote that yielded a 74-1 rejection of the objection, I do not expect any votes to be particularly close.

But if she does participate, and if she votes in a way that benefits her candidacy, it would be a contemporary first under the Electoral Count Act.