Good law review article on powers in a contested election
The VP has certain powers, such as not counting electors from a contested state.
https://lawecommons.luc.edu/cgi/viewcontent.cgi?article=2719&context=luclj
Suppose, because of a cyberattack or otherwise, it is determined
pursuant to 3 U.S.C. § 15, that a state has failed to appoint any electors
and therefore has not valid electoral votes to count. How is that state to
be considered in the calculation of whether any candidate has won a
“majority” of electoral votes, as required by the Twelfth Amendment?
The amendment states: “the person having the greatest number of votes
for President, shall be the President, if such number be a majority of the
whole number of electors appointed.” Normally, the number necessary
for a majority is 270 because 538 is the total number of electors
nationally. But if a state chose not to participate, then presumably its
number would be subtracted from the denominator of 538. Is the same
true if the state wanted to participate but was prevented from doing so
because of a cyberattack? What if the state thought it appointed electors,
but there was a dispute about this appointment, with the consequence that
Congress refused to count any electoral votes from the state? Is this latter
situation the same as a cyberattack that prevents appointment, or different
for purposes of calculating the Twelfth Amendment denominator? In
other words, is this denominator issue a unitary one, or is it instead
variable depending on the particular circumstances that causes problems
with the appointment of a state’s electors? And, relatedly, what if the
Senate and House diverge on how to handle this issue; is there a
mechanism for determining an answer in the event of a bicameral
divergence on this point?
E. Completion or Incompletion of the Electoral Count?
Given that 3 U.S.C. § 15 requires the counting process to consider one
state at a time in alphabetical order, what happens if Congress appears to
be stuck on a particular state (before any candidate has reached an
indisputable majority of all electoral votes in the count)? Does the vice
president of the United States, as President of the Senate and thus
presiding officer over the special electoral count procedure under the
Twelfth Amendment and 3 U.S.C. § 15, have constitutional or statutory
authority to insist upon completion of the count in a timely manner
(before noon on January 20), if the two chambers of Congress otherwise
would remain mired in a dispute over a particular state?
There are various provisions of the Electoral Count Act that endeavor
to move the count along, so that it does not become stuck or bogged
down. 3 U.S.C. § 15 itself provides: “When the two Houses have voted,
they shall immediately again meet, and the presiding officer shall then
announce the decision of the questions submitted.” This provision seems
to authorize the vice president to make some definitive pronouncements
in light of disagreement between the two chambers. But the extent of the
vice president’s authority is unclear in this regard. And the very next (and
last) sentence of 3 U.S.C. § 15 arguably cuts against permitting the vice
president to take up the next state if there are unresolved matters
concerning the state under immediate consideration: “No votes or papers
from any other State shall be acted upon until the objections previously
made to the votes or papers from any State shall have been finally
disposed of.”
See also