|Vice President Mike Pence|
apparently an "MD" of some sort, lays out the argument in an article published in the "American Thinker":
On January 6, a joint session of Congress will open with Vice President Pence presiding as president of the Senate. His power will be plenary and unappealable. You heard that right. As president of the Senate, every objection comes directly to him, and he can rule any objection "out of order" or "denied." His task will be to fulfill his oath of office to protect and defend the Constitution of the United States and to ensure that the laws be faithfully executed. This is a high standard of performance, and V.P. Pence will have two choices. He can roll over on "certified" electors, or he can uphold the law.
Article II, Section 1 of the Constitution gives state legislatures "plenary authority" as enunciated in Bush v. Gore. This is key, since the counting of votes is discussed in Article II, the 12th Amendment, and 3 USC 15. To this we must add the history of counting and objections recounted by Alexander Macris (here and here). Put bluntly, it's as clear as mud. Add to that the fact that the contested states of Arizona, Georgia, Michigan, New Mexico, Nevada, Pennsylvania, and Wisconsin have sent dueling slates of electors to D.C. This means that the V.P. has to decide how he will handle the situation when two sealed envelopes are handed to him from any of those states.
Macris points out that in 1800, even with constitutional deficiencies in Georgia, Thomas Jefferson blithely counted defective electoral votes from Georgia, effectively voting himself into the presidency. This demonstrates that the president of the Senate is the final authority on any motions or objections during the vote-counting. There is no appeal. That doesn't mean there won't be any outrage. Whatever Pence does, people will be angry. But what does the law demand?
Seven contested states clearly violated their own laws. Rather than list the facts, which have been detailed in multiple articles, we must consider the following:
An election is a process of counting votes for candidates. Only valid, lawful votes may be counted. A valid lawful vote is:
- Cast by an eligible, properly registered elector as prescribed by laws enacted by the state Legislature.
- Cast in a timely manner, as prescribed by laws enacted by the state Legislature.
- Cast in a proper form as prescribed by laws enacted by the state Legislature.
Any process that does not follow these rules is not an election. Anything that proceeds from it cannot be regarded as having any lawful import.
If there are a handful of improper votes, we can suggest that there was in fact an election, perhaps tainted, but the election wasn't materially harmed. But when the people charged with managing the election decide to ignore the law, whatever process they supervise is not the process defined by the law. Therefore, it is not an election.
This leaves V.P. Pence with a dilemma. He is a gentleman who regards our governmental traditions with a degree of reverence, so he will be reluctant to take any bold action. But as an honorable man, faced with massive illegality, he must act to protect the law. Consider how things might go down as the two closed envelopes from Georgia are handed to the V.P. Rather than opening them, he says:
The central point is that the VP, as the presiding officer and final authority, has the unquestionable authority to declare that the states in question have not conducted presidential elections. There will be wailing and gnashing of teeth, but no one has the authority to override his decision.
The statement says nothing about who might or might not have "won" the contested states. Rather, by not following their own laws, as enacted by their own legislatures, they have violated Article II, Section 1. Thus, they have not conducted an election, and their results are void.
If the votes of all seven contested states are registered as zero, President Trump will have 232 votes, and Joe Biden will have 222. The 12th Amendment says, "[T]he votes shall then be counted[.] ... The person having the greatest number of votes for President, shall be the President[.]"
In plain language, Donald Trump will be re-elected, since he has a majority of the actual electoral votes. There will be no need to involve the House of Representatives to resolve a contingent election.
So Dr. Ted's position is, screw federalism, screw democratic elections, the Vice President of the United States has the absolute power to judge the winner of a Presidential election by simply disregarding the election that took place in certain states, and there is nothing anyone can do to challenge his decision. Silly me.
When I taught political science, I told my students that the Vice-President had two jobs: to preside over the Senate and take over as President should he resign or die in office. Apparently, I overlooked the fact that the Vice-President is the absolute and final judge of all presidential elections, which makes him the most powerful officeholder in the country.
One of President Trump's lawyers, Jenna Ellis, who curiously bills herself as a "constitutional law attorney," retweeted Dr. Ted's article with the notation that it is an "Interesting piece." To which "Doctor Ted" tweeted that his idea is "in the White House now." Meanwhile, Trump had more than one meeting with Pence last week. Given Trump's obsession with his effort to overturn the election, those meetings were almost certainly about Pence's role on January 6th.
For the first time in his life, Pence is going to have to stand up to Trump and tell him "no." That won't win him support in the Trump world, but it may let him win back some of the respect he's given away these past four years as Trump's boot-licking sidekick.
OOP's short takes:
- Trump has announced that he is holding a rally in Georgia the day before the state holds the two run-off races which will decide control of the Senate. Unfortunately, for Republicans Sen. Kelly Loeffler and Sen. David Perdue, 2 million Georgians have already voted by absentee (Georgia is a no excuse absentee voting state) or at early voting locations. (Early voting ends in Georgia on Thursday.) In the November 3rd election, more than half of the 5 million votes cast in Georgia were done by mail or early voting. Democrat Joe Biden won 65% of the the 1.3 million absentee ballots returned during that election.
- While the Georgia Republican Party has tried to push absentee voting, the party has been undercut by Trump's demonization of the mail-in votes. Thus, it looks like once again the Republicans will have to rely on heavy election day turnout, in the midst of a pandemic, to offset the early and absentee ballots which favor the Democratic Senate challengers Rafael Warnock and Jon Ossoff.
- Atlanta Lawyer Lin Wood suggested via tweet that Purdue and Loeffler should be arrested, apparently for not supporting sufficiently President Trump's claims of voter fraud in Georgia. Wood also encouraged Republicans to "break" the election in the state by refusing to vote because of voter fraud in the state and then real conservatives could be appointed after the United States Supreme Court invalidates the election. Interestingly, while Wood is a fervent Trump supporter, he has long identified as a Democrat and has contributed to Democratic candidates. Of course, that also describes Donald Trump up until 2015, when he decided to pretend to be a Republican in order to seek, successfully, the GOP nomination.