Prof. Jacobsen says Pence cannot nullify electors from the tainted states, but he fails to account Pence’s inherent power to enforce the republican guarantee

Flopping Aces ^ | 01-05-21 | Alec Rawls

[Starman417]

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:

[DCBryan1]

Our Founding Fathers would have already been shooting......

[DannyTN]

Trump rally vs Biden rally? Winner take all!!!

[READINABLUESTATE]

“Shall” as in shall not be infringed?

[PGR88]

Pence should not certify it, and kick it back to the states

[HeadOn]

Bingo. If Pence “shall” abide by a strict reading of the Constitution, then I want a machine gun. And a bazooka. And I want to carry them without a permit.