Would Vice President Kamala Harris Have a Constitutional Duty to Discount Any Electoral Votes for Donald Trump?

Presidential electors have the power (and therefore perhaps the responsibility as well) to enforce Section Three. In perhaps half the states, the question is more complicated, because state laws purport to bind the electors in various ways to vote for their party’s candidate rather than making their own determination, and the Supreme Court has recently upheld such laws. But even working within that paradigm, states and their legislatures have their own duties to uphold the Constitution. That means they have a responsibility to arrange that their electors do not elect a constitutionally disqualified candidate, which should be reflected in their laws.

If the voter and presidential electors do select a disqualified candidate for the Presidency, we do not believe that Congress (or the Vice President) have the power to reject that candidate when the votes are counted in joint session. Whatever the extent of Congress’s and the Vice President’s authority to count the electoral votes, or determine the authenticity of submitted votes—i.e., was this the act of the electors of the state?—we do not believe that they have the authority to evaluate the decisions or actors of the electors themselves. So if a properly selected elector submits a vote for a constitutionally disqualified individual it should still be counted.

Still, once those votes are counted, a disqualified candidate does not become president, even if he has the most votes. This is made explicit by the (self-executing) command of Section Three of the Twentieth Amendment, which sets the constitutional terms of a President’s term. It states that at “the time fixed for the beginning of [the President’s] term,” “if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified.” The language thus specifically confirms the possibility of a failure to qualify, and specifies the consequences of that failure. If the President-elect is covered by Section Three, he cannot become President—unless Congress chooses (by supermajority votes) to remove Section Three’s disability.