GOP congressional challenges to electors would be a catastrophic tactical mistake

In his December 23 video, Dr. Steve Turley summed up two possible roads to victory for President Trump in Congress on Jan. 6, starting with a congressional challenge to disputed Biden electors:

You have to have an objection filed and endorsed by at least one US senator and one US representative.  And once filed and endorsed, both chambers of Congress ... have to have a debate — I believe it's stated to be a two-hour debate — over the merits and demerits of the objection, and then a simple majority is enough to overturn the electors.  Now, again, that's a long shot, but then you've got Vice President Mike Pence poised to make the final decision as to whether to certify the electors after the debate.

But how is this likely to play out?  An objection to electors by Rep. Matt Gaetz, Rep. Mo Brooks, and others would be voted down in Nancy Pelosi's House and fail in the Senate, where senators such as Mitt Romney and Ben Sasse have personal vendettas against President Trump, where Majority Leader Mitch McConnell has congratulated Biden and Harris on winning the election, and where Sen.-Elect Tommy Tuberville is being pressured by colleagues not to endorse any objection.

Making matters worse is the uneven playing field — a handful of GOP legislators versus the Democrats and the media that will be cheering them on against "conspiracy theorists" making "baseless claims."  Expect Democrats and the media to emphasize that Attorney General Bill Barr found no evidence of fraud.  They can sound convincing to the uninformed, who are not aware of the voluminous evidence being collected by Rudy Giuliani and his team.

Why make the challenge when it not only is doomed, but needlessly hands Democrats and their media allies yet another platform, at a time when platforms are being removed from Republicans?  (One troubling example: Dr. Turley and others have been forbidden to discuss evidence of election fraud on YouTube; Turley is now careful about what he says and discusses the fraud only elsewhere.)  And the two-hour debate would be a partisan exercise short on substance, a disservice to Trump, whose team's meticulously gathered evidence deserves weeks, if need be, to be heard in court.

The worst part is that a failed challenge — however noble the effort — would tie the hands of Vice President Pence, undermining his ability to reverse the stolen election by counting only the electoral votes not tainted by evidence of widespread fraud.

Here's why. 

As an Associated Press article on the challenge process notes, "[f]or the objection to be sustained, both chambers must agree to it by a simple majority vote.  If they do not both agree, the original electoral votes are counted[.]"

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. 

This need not be.

My plea to Republican members of Congress: make no objections to electors.  Leave it all to Vice President Pence.

So can Pence really choose not to certify electors who were chosen as a result of widespread cheating?  Constitutional lawyer Ivan Raiklin says he can, but is he a lone voice promoting an unsupported notion in a desperate attempt to help Trump? 

In an October article anticipating a potentially disputed election, Professor Scott R. Anderson noted:

Throughout U.S. history, some have argued that this constitutional role and related statutory authority provide the vice president with some substantive authority over the counting process, including by determining which electoral votes should be counted in cases of dispute[.]

So according to this prominent professor, opinion has long been divided on what the vice president is empowered to do in his vote-counting role.  Ivan Raiklin is hardly alone in his argument.  It should not surprise us.  Constitutional law frequently is not black and white, as seen in the numerous 5-4 Supreme Court decisions by justices applying the same law to the same facts.

In other words, Pence should go for it.  He need only interpret "votes" as votes from states not in dispute and count them accordingly.  He could declare, "I will not count the Biden electors, or the competing slates of Trump electors, in disputed states where there is overwhelming credible evidence of systemic fraud."  Thus would he restore the election win to President Trump, from whom it was audaciously stolen.

What would Pence have to lose?  A commenter at Legal Insurrection observed:

Pence should refuse to count votes from the contested states, and dare someone to sue him in court.  Then the SCOTUS can simply docket that for January 21, 2021.

If the SCOTUS can't stop states from stealing elections, they damn well don't have the power to stop Pence from counting the votes any way he wants to.

One caveat: This has been a season in which everyone seems to be letting us down.  Why expect Pence to be at all different?  The Washington Post reported, "Pence is hoping for a low-key Jan. 6 and is not planning any unnecessary drama, aides said, intending to stick to his perfunctory role.  He is eyeing a trip overseas soon after."

But the Post report might be inaccurate, or this could be Trump disinformation intended to cause the opposition to let down their guard.

As for the mention of no "unnecessary drama" in Pence's plans, that doesn't rule out necessary drama.  The Democratic election theft was bold and shocking.  It calls for a bold, shocking correction.

Drama is unavoidable, with the nation so bitterly divided.  Half of the country, including 30 percent of Democrats, believe that the election was stolen.  Media gaslighting has convinced the other half, including Sen. McConnell and some other leading Republicans, that Biden was really elected.

The vice president faces a "difficult" decision that's not really difficult: will he decline to certify slates of electors produced by what the whole world knows was systemic cheating?  Will he refuse to legitimize a treasonous coup, and thus single-handedly save the republic and change the course of history?  Or do such things happen only in movies?

Image credit: Pixabay public domain.