After two months of failed efforts to pressure local election officials, state legislatures, and even his own attorney general to help overturn November’s presidential election, President Donald Trump on Tuesday set up a new scapegoat for his defeat: Mike Pence. In a late-morning tweet, Trump claimed that Pence has the unilateral authority during Wednesday’s joint session of Congress to overturn the results of the entire presidential election on the basis of fraud claims that have been universally rejected in court.
“The Vice President has the power to reject fraudulently chosen electors,” the president wrote.
Whether or not Pence actually does have that authority is an open constitutional question. Either way, it’s a long shot. If he shows up on Wednesday to preside over the joint session, Pence is almost certain to declare the accurate count of Joe Biden’s 306–232 electoral vote victory. Obeying Trump’s wishes would amount to an attempted American coup, and Pence has not indicated any willingness to take such bold action.
That doesn’t mean Wednesday’s certification will go smoothly. In light of Trump’s increasingly desperate plays to overturn the election results, it’s worth considering how the joint session could actually play out.
First, it’s important to understand the process of Wednesday’s joint session and what it is Trump is actually suggesting. Every four years, Congress meets to count the Electoral College vote with the president of the Senate—the vice president, unless he or she abstains—presiding per the 12th Amendment of the Constitution. This is ordinarily a pro forma session with the vice president serving a ministerial role of simply reading the votes that are presented to him.
In the past, members of Congress from both parties have raised objections to particular state electoral counts in accordance with the Electoral Count Act of 1887, but this has always been a symbolic gesture with no prospect of actually changing vote tallies. In order to raise an objection, one senator and one member of the House of Representatives must submit a signed statement objecting to a state’s electors when that state’s count is read by the president of the Senate. At that point, the two chambers are meant to separate and hold up to two hours of debate followed by votes on the challenge. If majorities of each chamber agree on a disputed slate of electors, that should be the end of the matter, and the votes should be counted in accordance with Congress’ wishes. If there is a split vote, the Electoral Count Act says that the Electoral College slate presented by the state’s governor is by default viewed as the correct one.
More than a dozen Republican senators have said they will sign on to various objections, promising to make this year’s electoral count a spectacle of kayfabe sedition. More than enough Republican senators have pledged to join their Democratic colleagues and the Democratic-controlled House to vote down any such objections. Even if the Republican-controlled Senate and the Democratic-controlled House do split the vote, the Electoral College slate sent by the governor in each state would be counted, confirming Biden’s victory. So no matter what Pence does on Wednesday, Joe Biden’s victory will be counted in Congress.
But that outcome hinges on the assumption that the Electoral Count Act—which has governed the process for more than 130 years—is followed. Some constitutional scholars believe that the act may be unconstitutional, or that the 12th Amendment overrides the act and gives the presiding officer of the Senate the power to rule unilaterally on disputed votes. That theory, presumably, is what informed Trump’s tweet on Tuesday.
Ned Foley, the director of the election law program at the Ohio State University and one of the leading constitutional scholars on the Electoral Count Act, told me that—while he views the act as constitutional—“the literature has conflicting views in it.”
“I think it would really be an abuse of authority on the part of the Senate president to basically embargo anything that was submitted,” Foley told me when we discussed the possibility of a vice presidential override back in September.
But the law does not offer much to prevent a vice president from going rogue.
“The statute is structured to let the two bodies, the Senate and the House, deliberate on anything that gets submitted that purports to be a state’s electoral votes,” Foley said. “But the vice president is the presiding officer, and if he were to say, ‘This is frivolous,’ or ‘This is too late,’ or ‘This is preposterous, I’m not going to bother the chambers, I’m not going to dignify this thing,’ he would have to be overruled. And there isn’t really a mechanism to overrule him.”
In other words: The loopholes in the Electoral Count Act and the 12th Amendment leave the system open to the exact sort of abuse that Trump is pushing.
“The better reading of [the statute] is that if both chambers wanted to overrule [the vice president], they could insist on the receipt of the piece of the paper, but even that is a little unclear,” Foley said.
Yale Law professor and leading constitutional scholar Bruce Ackerman, for one, has pushed the notion that the president of the Senate has the authority under the 12th Amendment to ignore the Electoral Count Act and unilaterally decide the outcome of the Electoral College count. In September, Ackerman and progressive Rep. Ro Khanna wrote an op-ed in the Los Angeles Times arguing that Pence could basically do whatever he wants, thanks to a precedent established by Thomas Jefferson in 1800.
On Monday, Trump’s personal attorney Rudy Giuliani espoused this notion during a conversation with fellow sedition advocate Charlie Kirk. Like Ackerman and Khanna, Giuliani and Kirk cited the 1800 precedent in which then-Vice President Jefferson made a ruling during the electoral count that ended in his presidential victory.
Giuliani suggested that six—and as many as 10—states would be challenged by congressional Republicans. Those would be the six states Biden won by less than 3 percent—Arizona, Georgia, Michigan, Nevada, Pennsylvania, and Wisconsin—plus some of the states he won by about 10 percent, such as New Mexico and Virginia. Under the Electoral Count Act, the Senate and House would debate any such objections and ultimately vote to make Biden the next president. But under Giuliani’s theory, Pence could just say no.
“He could say, ‘In these states, the election was conducted illegally in these six states. Therefore, I’m throwing their votes out, they’re not certified,’ ” Giuliani suggested. “That would leave Trump at 233, and that would put Biden at 230, nobody has a majority.” If Pence threw out those electoral votes, according to the president’s attorney, the House of Representatives would then “automatically” vote to overturn the election and make Trump president, because the vote is conducted by state delegation and Republicans hold the current advantage in that tally.
Giuliani’s vision can only be described as an utter fantasy. Pence, through Department of Justice attorneys, has suggested in a separate lawsuit he does not want any part in such a scheme. Even if he did, there is virtually no way such an American coup would play out as Giuliani describes. Aside from mass street protests, a general strike, and a stock market collapse that would be prompted by any such attempt to overturn the election, Democratic Speaker of the House Nancy Pelosi still controls one body of Congress and there’s no way she would simply let Mike Pence steal an election.
As Foley explained in September, it’s hard to accurately predict how such a “tug of war” between Pelosi and Pence might actually unfold. The only thing he could say for certain is that it would be utter “chaos.”
“Vice President Pence could insist on saying he’s in charge in some formal sense of maintaining order,” Foley said. “On the other hand, Speaker Pelosi could say, ‘Wait a second, you’re all guests in my chamber here. I’m kicking you out,’ ” Foley told me.
At that point, Foley is not even sure whose orders the sergeant-at-arms of the U.S. House of Representatives, Paul D. Irving, would be constitutionally obliged to obey. Irving’s office did not respond to a request for comment on Tuesday, but a senior House Democratic aide involved in planning efforts for Wednesday told me cryptically, “We are prepared for everything,” when asked about such a scenario.
The closest analogue to this possible chaos, Foley said, is the 1876 election dispute between Rutherford B. Hayes and Samuel J. Tilden that eventually led to a compromise resulting in Hayes’ elevation to the presidency and the tragic demise of Reconstruction in the South.
“The speaker of the House, Samuel Randall, had to call out the sergeant-at-arms against his own members of his Democratic Party,” he said. “The New York Times and the London Times talk about revolvers being pulled out by members, and they had to clear the gallery of spectators because they were afraid of shots being fired.”
That 1876 dispute resulted in the passage of the guidelines of the Electoral Count Act, which Trump is now asking Pence to disregard.
Ultimately, it’ll be on the vice president to decide if he wants to test the constitutional limits of his office while picking a fight with millions of voters, both chambers of Congress, and the sergeant-at-arms. At this point, Trump can only sit back and watch.
“I hope Mike Pence comes through for us, I have to tell you,” Trump told a crowd of rallygoers in Georgia on Monday evening. “Of course, if he doesn’t come through, I won’t like him as much.”
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