At issue here is what role the vice president actually is supposed to play in the counting of the Electoral College votes from the states — and whether the current language of the law leaves too much to interpretation.
The language was put in place following the 1876 presidential election between Republican Rutherford B. Hayes and Democrat Samuel Tilden, when Oregon, Louisiana, Florida and South Carolina submitted two different slates of electors. A commission was then formed to decide which slate of electors should be recognized, and narrowly voted in Hayes’ favor.
Soon after, an effort began to clarify the language surrounding electoral vote counting. “The president of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted,” reads Article II, Section 1 of the US Constitution.
That effort led to the Electoral Count Act, which was designed to clear up issues like the ones that came up in 1876.
Here’s the relevant piece of that act:
“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, if the determination in said section provided for shall have been made, or by such successors or substitutes, in case of a vacancy in the board of electors so ascertained, as have been appointed to fill such vacancy in the mode provided by the laws of the State; 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, the votes regularly given of those electors, and those only, of such State shall be counted whose title as electors the two Houses, acting separately, shall concurrently decide is supported by the decision of such State so authorized by its law.”
Even before Trump’s latest missive, there had been some interest among Republicans — particularly in the Senate — to clarify and codify the role the vice president should play in the counting of the Electoral College votes.
Legislation in Congress tends to be entirely momentum-driven. Elected officials are reactive by nature — letting outside events have undue influence on what they do (and don’t do).
That’s where Trump’s statement comes in. He makes it crystal clear (again) that he believes that Pence absolutely had the power to throw the election to the House — by citing the double slates of electors in seven states.
There can now be no debate that there is a clear and present danger to the ability of Congress to verify the Electoral College count — in 2024 and beyond. Which means that, if reforms to the Electoral Count Act winds up happening, you have, in a weird way, Donald Trump to thank for it.