THE PESKY PASSIVE VOICE

I hate the passive voice.  Ask anyone who has worked with me. I strike it out every time I see it.  It is a dumb way to write, as it obscures the actor.  So, for example, had I led off this blog using the passive voice, I would have said “the passive voice is hated.”  And you might have reasonably asked “by whom?”

I raise this, because the passive tense is at the center of a lawsuit that Representative Louie Gohmert filed on Sunday against Vice President Mike Pence.  Gohmert contends that the Electoral Count Act (adopted in 1887) unconstitutionally requires Vice President Pence, in his role as President of the Senate, to count the electoral votes of the states as certified by those states.  Representative Gohmert’s lawsuit contends that the 12^th Amendment to the United States Constitution gives the Vice President unlimited discretion to reject the votes of any electors.  Conveniently, that would allow Vice President Pence to ignore the votes of electors from “contested” states and hand the election to President Trump (and Vice President Pence).

But here’s where the passive tense rears its ugly head.  The 12^th Amendment states:

The electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate. 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[.]

So, it’s clear that the President of the Senate receives the sealed vote totals and opens them.  But it’s less clear that the Senate President does the counting.  For some unknown reason, whoever drafted the Amendment used the passive voice. So all we really know is that the votes have to be counted.  We don’t really know who does the counting.  The Electoral Count Act provides some clarity to the Amendment.  Which means it’s not unconstitutional.

Representative Gohmert contends that the Amendment clearly provides the Senate President with “the exclusive authority and sole discretion to open and permit the counting of the electoral votes for a given state, and . . . to determine which electors’ votes, or whether none, shall be counted.”  But that’s not what the Amendment says.

There are many problems with Representative Gohmert’s lawsuit, including laches (can you wait 133 years to challenge a statute) and standing (isn’t Vice President Pence the real party in interest) but that pesky passive voice may prove to be its undoing.  Only in 2020!