Wednesday, January 6, 2021

No, Vice President Mike Pence Cannot Hand the Election to Trump

Today, scores of Republicans in the House and Senate are planning to attack American democracy by challenging the electoral vote in six separate states.  Although these members of the Sedition Caucus claim they are standing on principle and against election fraud, not coincidentally they only found such fraud in battleground states that President Trump lost.  Not surprisingly, they do not have a problem with the rest of the races on the ballots.  Apparently, the fraud conspiracy launched by Democrats and RINOs to "steal" the election only applied to the top of the ballot.

When did my Republican Party become the Party of Stupid?  That is unfair...there is GOP stupid (think Rep.  Louie Gohmert) and then you have Republicans who are plenty smart, but have absolutely no principles or integrity (think Sen. Josh Hawley and Sen. Ted Cruz).  I actually think the latter is worse than the former.


The 12th Amendment lays out how the Electoral College works:

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;-The person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President-The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.

After the constitutional crisis resulting from the 1876 election, Congress passed the Electoral Count Act which further clarifies Congress' role as to the counting of electoral votes:

Congress shall be in session on the sixth day of January succeeding every meeting of the electors. The Senate and House of Representatives shall meet in the Hall of the House of Representatives at the hour of 1 o’clock in the afternoon on that day, and the President of the Senate shall be their presiding officer. Two tellers shall be previously appointed on the part of the Senate and two on the part of the House of Representatives, to whom shall be handed, as they are opened by the President of the Senate, all the certificates and papers purporting to be certificates of the electoral votes, which certificates and papers shall be opened, presented, and acted upon in the alphabetical order of the States, beginning with the letter A; and said tellers, having then read the same in the presence and hearing of the two Houses, shall make a list of the votes as they shall appear from the said certificates; and the votes having been ascertained and counted according to the rules in this subchapter provided, the result of the same shall be delivered to the President of the Senate, who shall thereupon announce the state of the vote, which announcement shall be deemed a sufficient declaration of the persons, if any, elected President and Vice President of the United States, and, together with a list of the votes, be entered on the Journals of the two Houses. Upon such reading of any such certificate or paper, the President of the Senate shall call for objections, if any. Every objection shall be made in writing, and shall state clearly and concisely, and without argument, the ground thereof, and shall be signed by at least one Senator and one Member of the House of Representatives before the same shall be received. When all objections so made to any vote or paper from a State shall have been received and read, the Senate shall thereupon withdraw, and such objections shall be submitted to the Senate for its decision; and the Speaker of the House of Representatives shall, in like manner, submit such objections to the House of Representatives for its decision; and no electoral vote or votes from any State which shall have been regularly given by electors whose appointment has been lawfully certified to according to section 6 of this title from which but one return has been received shall be rejected, but the two Houses concurrently may reject the vote or votes when they agree that such vote or votes have not been so regularly given by electors whose appointment has been so certified. 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; and in such case of more than one return or paper purporting to be a return from a State, if there shall have been no such determination of the question in the State aforesaid, then those votes, and those only, shall be counted which the two Houses shall concurrently decide were cast by lawful electors appointed in accordance with the laws of the State, unless the two Houses, acting separately, shall concurrently decide such votes not to be the lawful votes of the legally appointed electors of such State. But if the two Houses shall disagree in respect of the counting of such votes, then, and in that case, the votes of the electors whose appointment shall have been certified by the executive of the State, under the seal thereof, shall be counted. When the two Houses have voted, they shall immediately again meet, and the presiding officer shall then announce the decision of the questions submitted. No votes or papers from any other State shall be acted upon until the objections previously made to the votes or papers from any State shall have been finally disposed of.

The Electoral Vote Act makes clear that the job of the President of the Senate, i.e. the Vice President, is merely to open the envelopes containing the electoral certificates and Congress' role is to count those electoral votes.  Vice President Pence has no power to pick and choose which slates of electors he is willing to accept.  Further, under the Act, Congress has no role whatsoever in terms of judging how individual states conducted their elections which led those states to certify the appointment of electors.  The only role Congress has is judging how those electors cast their votes to ensure they were done in a regular manner.  An irregular manner might be, for example, Congress finding out electors had been bribed to change their vote.  

Today highlights yet another problem with the Electoral College.  What if both houses of Congress were solidly controlled by Republicans and the vote, especially the electoral vote, had been closer?  One could see Republican members of Congress who are wanting to curry favor with President Trump simply voting to hand the election to Trump.  Sure the Constitution does not allow them to do that, but in the Trump era we have learned that constitutional limits and democratic values don't mean a lot to many Republicans.

Fortunately, it looks like a sizable group of Senate Republicans have realized that trashing the Constitution to ingratiate themselves with losing presidential candidate Donald Trump is not worth it.  This is especially true given the fact Trump's antics have now cost Republicans two Senate seats in Georgia and control of the U.S. Senate.

As I've warned on these pages before, the problem with the Electoral College is not that a President can win the electoral vote while losing the popular vote. The problem is the archaic machinery that is associated with how the Electoral College works, including that electors are real people, not numbers.  A reform to the Electoral College could be the elimination of actual electors so that the award of electoral votes is automatic upon state certification. 

Make no mistake about it, what the Sedition Caucus is doing today undermines federalism and American democratic values. There is nothing remotely  "conservative" or patriotic about what they are doing.  They are advocating burning down our Republic to ingratiate themselves with Donald Trump and his personality cult.  It's disgusting.

OOP's short takes:

  • Prior to November's election, Trump had to know that it was likely that Biden would win the popular vote in states with sufficient electoral votes to win the election.  Yet, Trump seems genuinely surprised that Biden will be declared the winner today.  I expect that Trump was advised of the convoluted, archaic process leading up to today and simply assumed that Republican local, state and national officials would use their role in the process to hand him the election.
  • Appointed Republican Senator Kelly Loeffler proved to be a spectacularly bad candidate.  She might even be as horrific a candidate as former Arizona Senator Martha McSally, who also only made it into the Senate via gubernatorial appointment.  Not ironically, both Loeffler and McSally stupidly lashed themselves unapologetically to Donald Trump in a swing state where Trump was not particularly popular and the voters were clamoring for someone who would be independent-minded.
  • After the Georgia debacle, it appears some Republicans in Congress are finally turning on Trump, apparently hopeful that we will simply forget the fact that for four years they have enabled the very worst behavior from Trump.   Hell no.  We should never forget how how these Republicans trashed the conservative movement and the legacy of Ronald Reagan to go all in on Trump's ugly brand of politics.
  • I really think Congress should consider impeaching Trump for that phone call to Georgia Secretary of State Brad Raffensperger in which Trump strongly suggested that Raffensperger could be prosecuted if he didn't manufacture enough votes to give him the election in Georgia.  (Yes, an ex-President can be impeached.)  I cannot imagine any behavior being more impeachable than that.  I am not so sure that Republican Senators will be that thrilled about supporting him once again, particularly since he'll no longer be in power.  While Trump will be out of office in two weeks, the impeachment process would disqualify Trump from ever running for President again.  I know a lot of Republicans in Congress, particularly, in the Senate where the 2/3 vote is needed, would like that outcome.  Whether they would publicly vote for it is a lot more questionable.

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