CMV: The Vice President Should Not Preside Over the Counting of Electoral Votes
There is something strange about the final stage of an American presidential election. When Congress meets in a joint session to count the electoral votes, the person presiding over the process is the President of the Senate — the Vice President of the United States.
The problem is obvious: the Vice President may also be a candidate in the very election whose results are being counted.
This has happened several times in American history. In 1961, Vice President Richard Nixon presided over the counting of the electoral votes after losing the presidential election to John F. Kennedy. In 2001, Vice President Al Gore did the same after losing to George W. Bush. Most recently, in January 2025, Vice President Kamala Harris presided over the counting of the electoral votes and formally announced Donald Trump’s victory after having lost the election to him.
In all of these cases, the outgoing Vice President accepted the result and carried out the constitutional process peacefully. These moments can even be seen as powerful symbols of the peaceful transfer of power.
But a well-designed political system should not have to depend on the personal restraint of politicians.
The issue is not whether Nixon, Gore, Harris, or any future Vice President can be trusted. The issue is whether a presidential candidate should be placed in the position of presiding over a proceeding that formally determines and announces the outcome of his or her own election.
That creates, at the very least, the appearance of a conflict of interest.
The Electoral Count Reform Act of 2022 addressed the most dangerous part of this problem by making clear that the Vice President’s role in counting electoral votes is purely ministerial. The Vice President does not have the power to unilaterally accept, reject, or otherwise determine the validity of a state’s electoral votes.
That was an important reform. But it raises another question: if the Vice President has no substantive authority over the result, why does the Vice President need to preside over the process at all?
I think a better system would be to have the Chief Justice of the United States preside over the joint session in which the electoral votes are counted.
There is already a constitutional precedent for giving the Chief Justice such a role when the Vice President has an obvious potential conflict of interest. The Vice President ordinarily serves as President of the Senate, but when the President of the United States is tried by the Senate after impeachment, the Chief Justice presides instead. One reason this arrangement makes sense is that the Vice President could directly benefit if the President were removed from office.
A similar principle could apply to presidential elections.
The Chief Justice would not decide who becomes President. The role could remain strictly procedural: presiding over the joint session, opening the certificates, supervising the counting process, and announcing the result determined under the Constitution and federal law. Any substantive disputes over electoral votes would still be resolved through the procedures established by law and by Congress, rather than by the Chief Justice personally.
There is, of course, an important constitutional obstacle. The Twelfth Amendment specifically provides that the President of the Senate shall open the electoral vote certificates in the presence of the Senate and House of Representatives. Therefore, completely transferring this responsibility to the Chief Justice would likely require a constitutional amendment rather than ordinary legislation.
Nevertheless, I think it is a reform worth considering.
The peaceful actions of Nixon, Gore, and Harris reflect well on the American tradition of transferring presidential power. But constitutional procedures should ideally be designed so that their legitimacy does not depend on a candidate demonstrating personal restraint.
A presidential candidate should not have to preside over the formal confirmation of his or her own victory or defeat.
Having the Chief Justice preside over the counting of electoral votes would not give the judiciary control over presidential elections. It would simply place a neutral constitutional officer in the chair and remove an unnecessary appearance of conflict of interest from one of the most important ceremonies in American democracy.