Joseph M. Bessette and Gary J. Schmitt have a report at AEI titled Counting Electoral Votes: How the Constitution Empowers Congress—and Not the Vice President—to Resolve Electoral Disputes

Key Points

  • The vice president does not have “plenary” authority under the Constitution to settle disputes over Electoral College votes.
  • Analysis of the Constitution’s history, text, and underlying principles, along with early practices, legislation, and debates, affirms that Congress possesses that authority.
  • Accordingly, the Electoral Count Reform Act of 2022, which recognizes congressional authority to resolve electoral disputes and denies the vice president any substantive power in these matters, is fully consonant with constitutional theory and practice.
The  concluding paragraphs:
Key principles of the American constitutional order strongly contradict the notion that the framers vested in the vice president the unilateral authority to resolve Electoral College disputes: (1) the framers’ understanding of responsible, or accountable, republican government; (2) checks and balances in the constitutional structure; (3) Madison’s principle that “no man is allowed to be a judge in his own cause because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity” and (4) the rule of law.
The framers may rightly be criticized for, apparently, not having considered the problem of contested electoral votes when they designed their fairly intricate system of presidential elections. Fortunately, the document they crafted fully empowers Congress to devise procedures for resolving such controversies.