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.