Tomorrow Vice President Pence will preside over the joint session of Congress where the votes of the Electoral College will be opened and counted. A number of commentators have suggested that Pence’s presiding role allows him discretion to ignore electoral votes from the several states that show clear evidence of massive vote fraud and President Trump has raised interest in this view by tweeting about “the Pence card.”
The great conservative law professor William Jacobson from Legal Insurrection (much more prestigious than saying he is from Cornell, where half the campus has been trying to “cancel” him for years), throws cold water on the #PenceCard idea. Pointing to Article II section 1 as modified by the 12th Amendment Professor Jacobson says that we just need to “note the words”:
“…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 shall be the President, if such Number be a Majority of the whole Number of Electors appointed…”
Note the words. “Shall … open all the Certificates” and “the Votes shall then be counted.” Shall is mandatory, there is no discretion.
Hence:
No Vice President (whether Mike Pence, Al Gore or future VP Kamala Harris) performing the function of opening the votes has discretion to reject votes. No Vice President has authority to accept votes presented through some extra-constitutional other process.
Title 3 chapter 1 U.S. Code section 15 – Counting electoral votes in Congress
But Professor Jacobson’s critique is based just on what the Constitution itself says about counting the electoral votes, which is only a minimal outline. To implement this constitutional requirement Congress passed a rather elaborate set of procedures to be followed in 3 U.S. Code § 15: “Counting electoral votes in Congress.”
In particular 3 U.S. Code § 15 adds a vetting process that is to be followed, first for making sure that the electoral college votes are all legally certified according to applicable federal law and the laws of each elector’s home state and second to enable and resolve challenges to the legitimacy of any electors or votes.
3 U.S. Code § 15 also designates a very important second role for the President of the Senate. In addition to opening the certificates he is now also called upon to receive the results of the vetting process and then to deliver the last word:
… 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…
The wording is important here. The vice president isn’t told to announce the tally of the vote but the “state” of the vote. That can be interpreted as an invitation to opine, and the subject that the joint session has just been occupying itself with is the legality of the various electors, so Pence is in-effect invited to opine on the legality of the electors where there is indeed much to say.
Overlap with the challenges that Hawley (Senate) and Brooks (House) will be introducing
There will be some things to say, for instance, about the legality of electors who represent the results of elections that were conducted using procedures that are at odds with state laws. The Pennsylvania executive and judicial branches went directly against state law when they decided to mass mail multiple unsolicited applications for mail-in ballots to pretty much every address in the state, available for anyone to harvest and vote with little to no verification of legality. Going against state law (and PA isn’t the only state that did it) is a big deal because the Constitution gives it specifically to the legislatures of the states to determine state election procedures.
But this will be among the challenges that will already have been raised in the challenge phase. If the challenges are upheld by majority vote (highly unlikely thanks to the politics, not the merits) then these votes will already be struck and Pence won’t need to say anything about them. If these challenges are overcome by the majority that it will be harder for Pence to use them as grounds for imposing his own judgement that they need to be invalidated as the fruit of an illegal tree.
It is for this reason that Edward Davis penned his urgent appeal: “GOP congressional challenges to electors would be a catastrophic tactical mistake,” writing:
Pence refusing to certify the electoral votes of fraud-ridden states — something difficult to imagine in the first place — would be rendered a virtual impossibility following a vote in both houses of Congress that shoots down the challenge to Biden electors in these states.
No need to worry Mr. Davis, because there is a hugely more powerful grounds on which Pence can nullify the tainted electors: a grounds of constitutional necessity, where the constitutional judgements involved have already been determined by the Supreme Court to be for Misters Trump and Pence to decide.
The Article IV guarantee of a republican form of government is fundamentally about open and honest elections
From the National Constitution Center (via Conservative Treehouse):
At its core, the Guarantee Clause provides for majority rule. A republican government is one in which the people govern through elections. This is the constant refrain of the Federalist Papers. Alexander Hamilton, for example, put it this way in The Federalist No. 57: “The elective mode of obtaining rulers is the characteristic policy of republican government.
These elections obviously cannot be fake, which instead of letting the people decide steals their decision-making power from them, creating a definitively unrepublican form, which is exactly what we have in now in at least a half a dozen Tainted States of America (PA, GA, MI, WI, AZ and NV).
No need to recap here the massive evidence that Democrat vote fraud and election fraud in the tainted states was many times larger than Biden’s narrow edge in the vote tally.
Only people who get their information from our rigorously spun and censored internet monopolies and big-media corporations, all run by the most radical left elements of our radical left Democratic Party, can pretend not to know about the vast infrastructure for vote stealing that many Democrat-run states have intentionally put in place:
♦ Electronic voting machines designed at the behest of communist regimes for the express purpose of stealing elections
♦ Mass mailing of unsolicited unverifiable out-of-custody mail-in ballots
♦ Plus older tricks like never cleaning up the voter rolls and not requiring i.d. to vote and of course not allowing Republicans to observe the verifications or the vote counts
Even with all these dirty tricks in full play Democrats still had to yank the plug on election-night vote counting in the Tainted States so they could close the gap with massive wee-hour ballot dumps, almost all for Biden. Hundreds of affidavits attest to the scope of the executed fraud. On the honest vote the Democrats almost certainly would have lost not just the presidency but the House and Senate as well.
If the party of election fraud manages to pull off this massive steal then all of its recently expanded infrastructure for vote stealing will be cemented in place and there will never be another honest election in America. We will become just be one more communist hellhole where an un-free people never again has the power to vote out their rotten government masters.
The guarantee clause is a grant of power, particularly to the president, to do whatever it takes to prevent this demise of our republican system of government, or else the guarantee has fails to be a guarantee. It also creates a constitutional duty to do whatever it takes to thwart any eruption of unrepublican government. If fake democracy crops up in any state it’s power must be vitiated and its existence expunged.
The president’s power to enforce the republican guarantee is inherent and plenary, and so is the vice president’s where he has his own independent role
The republican guarantee is the only guarantee in the Constitution, suggesting that it is the only constitutional provision that absolutely cannot give way to any other constitutional provision, and the reason is obvious. If we lose our republican form of government we lose everything. It is the ark in which all other constitutional values are carried. It is the tree from which every fruit of liberty grows.
Tomorrow Pence will face two competing constitutional demands. If he refuses to include the electors from the tainted states in his announced final electoral vote tally on the grounds that they are the illegitimate fruit of unrepublican phony-elections he will arguably be exceeding his authority under Article II section 1 and the 12th Amendment. If he goes the other way and validates electors from the tainted states, enabling election fraud to steal the presidency, our republic will be lost forever and Pence will have violated his constitutional duty to uphold the republican guarantee.
Which should take priority? Of course it has to be the guarantee, or it fails to be a guarantee, but this priority also follows from the logic of our particular situation. Consider a simple thought experiment:
One would normally expect that thwarting and expunging an unrepublican form of state government would require a president to deploy his war powers. He would likely have to invade the rogue unrepublican state in which case all official agents of the state, including senators, representatives and electors, would be liable to military capture and detention.
They would not have any protected status as U.S. senators or representatives because their state’s unrepublican process for selecting such office holders has been deemed by the federal government to be illegitimate. Obviously no one would suggest in this situation that we still have to count the electoral votes that the unrepublican state’s fake elections have produced. We would not let an unrepublican power that we are at war with choose our president for us!
The whole idea when enforcing the guarantee clause is to expunge the unrepublican form of government and its influence. Nothing could be more perverse than to at the same time let an unrepublican state’s phony election results weigh in our national elections as if they were legitimate.
That would be how you lose a war, and yes, unrepublican government is something we are supposed to war against if it ever crops up here, and now it has.
Nobody can sue over unrepublican government so enforcement must come from the political branches where SCOTUS has already declared that it will defer to their judgments
Everyone should be able to sue when they are deprived of the republican form of government that the constitution guarantees to them but the Supreme Court’s longstanding position is that it is not the Court’s job to enforce the republican guarantee. Guarantee clause claims usually raise “political questions” which in the Court’s opinion can only be resolved by the political branches, so if the guarantee is to actually be a guarantee the political branches must take action sufficient to thwart the influence of and ultimately to expunge any unrepublican form of state government that may emerge.
The Court’s demurral leaves it to Pence to decide for himself whether he thinks his guarantee clause duty not to count electors from the tainted states is more important than whether such action might overstep his constitutional authority under Article II. SCOTUS, if it follows the precedents it has set, will acknowledge that this judgment of what priority the republican guarantee should be given is for Pence to make, not for the Court to make, so long as his judgment is reasonable.
Thus there is little doubt (I would say no doubt) that Pence has full constitutional power to declare tomorrow that no legal electoral college votes have been received from the tainted states and that the tally of legal votes is 232 for Donald Trump vs. 227 votes for Joe Biden, making Trump the next president.
Pence should just make clear that if his actions can be seen as exceeding his Article II powers he considers them to still be constitutionally justified as a means to enforce the republican guarantee, which as he interprets it has to be given the highest priority. (Technically he doesn’t have to present this argument until the tainted states sue him but it would be important for national understanding to make the case up front.)
By the same token it would also be fully constitutional for President Trump to announce tomorrow or any time before January 20th that he is voiding the 2020 elections as unrepublican and is ordering that the presidential selection and inauguration process be put on hold until the federal government can conduct model open and honest elections in the tainted states, after which the normal post-election selection and inauguration process will begin anew.
Re-running elections would involve temporarily setting aside a host of constitutional provisions but in terms of constitutional values that is a very small price to pay to guarantee that the country proceeds from it’s current predicament in the direction that the voters choose to go, not the direction that the vote counters choose to go.
The only question now is which is the best way to enforce the republican guarantee? Where does the best chance of success lie? Given that some way has to be found to vitiate the unrepublican election results in the tainted states, is tomorrow’s counting of the Electoral College vote a good and logical place to act?
The joint session is such a good place to enforce the republican guarantee that it probably would not even violate Article II
If Pence does invoke the guarantee clause as a grounds for nullifying electors from the tainted states it will actually reveal how 3 U.S. Code § 15 needs to be rectified to bring it into conformity with the Constitution.
The bare outline in Article II includes no vetting or challenges to certify the legality of the process that was used to choose electors. There are serious questions whether the addition of vetting and challenges in 3 U.S. Code § 15 is constitutional (see Tom Cotton’s objection to using them, quoted in the next section).
But once vetting is added it obviously can’t be limited only to the relevant legislated law at the federal and state levels but has to include vetting for conformity with the Constitution as well. That is exactly what Pence would be adding:
“Oops, y’all forgot to screen for legality under the most important law of all, the supreme law of the land, and in particular its most fundamental requirement: that states cannot implement unrepublican election procedures that usurp the will of the people, so I’ll just make this little adjustment in the legal vote tally for you.”
Once the vetting/challenge element of 3 U.S. Code § 15 is opened up in this way to constitutional vetting that makes it more viable constitutionally, so if vetting and challenges are compatible with article II then Pence taking action would seem to be as well.
The only better solution would be to re-run the tainted elections in impeccably open and honest fashion
A guarantee clause remedy really ought to guarantee a republican outcome, where the actual will of the majority prevails, and that is what imposing model open and honest elections achieves. In contrast, dismissal of electoral votes by a vice president is not guaranteed to produce a republican result.
If a vice president from the party of honest elections can on his own authority nullify the fruits of unrepublican phony elections in the counting of electors, that is a process that can also be abused by a vice president who is on the election-stealing side. Pence does in fact have a constitutional duty under the republican guarantee to thwart the Democrats’ criminal attempt to end our republic via mass election fraud but a VP from the party of election stealing could just as easily pretend to have such a duty and use it to nullify honest elections.
This same problem plagues the entire process for challenging electors: that it can be abused. As Tom Cotton put it in his explanation of why he will not be backing Hawley’s challenge:
If Congress purported to overturn the results of the Electoral College, it would not only exceed that power but also establish unwise precedents. First, Congress would take away the power to choose the president from the people, which would essentially end presidential elections and place that power in the hands of whichever party controls Congress.
The Democrats can always abuse the challenge process in 3 U.S. Code § 15. They have been doing it every election. Are they only going to increase their abuse if the Republicans have the gall to use the challenge process honestly and correctly?
Maybe, but when we are faced with an actual outbreak of unrepublican government that is on the verge of ending our republic forever, this is a strange time to worry that the tool we could use to shut the barn door before all the election-stealing horses can escape might be misused in the future to open the barn door to election stealing. If we don’t shut the barn door against tyranny now it will be blown off its hinges and will never close again!
If I was in Pence’s place I would warn President Trump that I was going to do my constitutional duty under the republican guarantee and nullify the electors from the tainted states, then I would urge him to do his duty under the republican guarantee and order a delay in the presidential selection and inauguration process until honest re-runs of the tainted elections can be conducted.