Don’t expect Mike Pence to save us on January 6

There’s been a lot written about the power Vice President Pence has to turn the stolen election around on January 6. Many commentators on various sites (including AT) have weighed in, some expressing hope, while other have expressed doubt Pence would do the right thing.

But it appears all of this is moot, as Bill Jacobson, founder of Legal Insurrection writes:

A claim has circulated widely in the past few days that Vice President Mike Pence, as President of the Senate, has the power and discretion to reject certifications. If Pence had such power and chose to exercise it, it would be over, but he doesn’t.

Jacobson cites relevant language from the Constitution (Article II, Section I, after the 12th Amendment) to support his assertion and then summarizes.

Note the words. “Shall … open all the Certificates” and “the Votes shall then be counted.” Shall is mandatory, there is no discretion. The certificates must be opened by Pence, and the votes must be counted (it’s unclear who does the counting, but the votes must be counted regardless). 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.

There is an interesting legal question of what would happen if a state authority presented conflicting votes — for example the legislature certified one set of electors but the executive branch certified a different set — but that has not happened here. No state authority has certified more than one set of electors. A bunch of legislators acting on their own getting together outside the constitutional certification process to announce electors is not presented for counting any more than if I got together with some friends and we delivered an envelope to Pence with our chosen slate of electors. Maybe if legislatures (not legislators) had so acted, we would have a legal conundrum, but that has not happened.

The Congressional legislation provides a mechanism for objections to be raised and resolved. Neither the constitution nor the legislation makes the Vice President king for a day.

Jacobson also addresses the original source for the idea that Pence had the authority to reject the votes, noting that his views were overstated, taken out of context, sometimes contradictory, and culled from law reviews (which are opinions).

I have no reason to doubt Jacobson’s understanding. He has a fine legal mind and calls things as he sees them, even if the message is hard to hear. And I can’t recall a time (though no doubt there was a least one) when he was wrong. So perhaps it’s best not to be hoping that Vice President Pence do something that he has no lawful power to do.

But Congressman Louie Gohmert is trying to change that. He sued Pence in an effort to expand the Vice President’s role in rejecting the votes. Yesterday, Pence asked a federal judge to reject the case, stating that he is not the proper defendant and that any potential relief should be sought in the House and the Senate. Of course, Biden’s lawyers are poised to weigh in on all of this, and on and on it goes.

Meanwhile, the number of Congressional representatives who plan to challenge the Electoral College vote appears to be growing rapidly. Two members of the house stated there are now at least 140 members, if not more, who will object. This includes nearly all, if not all, of the GOP representatives from Pennsylvania.

If that’s true and each member who objects is granted 2 hours for debate, the time until Pence goes through the ceremonial motion of making the vote official could stretch for days beyond January 6.

At some other time, for some other reason, one might take pleasure in feeling like we were sticking it to the left by doing this. And don’t get me wrong, I want to see as many Republicans as possible object to this fraud. But the matter is so grave and the implications so far-reaching, that I find cold comfort in this news.

Like tens of millions of Americans, I want this fixed!

This fraud should not be allowed to stand, yet I fear that it will. It’s hard to wrap one’s mind around all the evil that has rained down on us, with so much more yet to come.

But let me not end on that note, and instead, on this first day of the New Year, share this beautiful post by Sundance over at the Conservative Treehouse/The Last Refuge: here. It’s like a little blessing.

Caricature by Donkey Hotey (cropped) CC BY-SA 2.0  license