My Take on the Joint Session Jan. 6 & VP Role

Self | 12/23/2020 | LS

[woodpusher]

Under the Constitution, there exists no mechanism to resolve a dispute in which the two houses of Congress cannot agree upon a certified set of electors, and there is no Constitutional role for the courts, including the Supreme Court.

There is a controlling federal law. When the two houses fail to agree, "the votes of the electors whose appointment shall have been certified by the executive of the State, under the seal thereof, shall be counted."

https://law.justia.com/codes/us/2018/title-3/chapter-1/sec-15/

3 U.S.C. § 15

§15. Counting electoral votes in Congress

Congress shall be in session on the sixth day of January succeeding every meeting of the electors. The Senate and House of Representatives shall meet in the Hall of the House of Representatives at the hour of 1 o'clock in the afternoon on that day, and the President of the Senate shall be their presiding officer. Two tellers shall be previously appointed on the part of the Senate and two on the part of the House of Representatives, to whom shall be handed, as they are opened by the President of the Senate, all the certificates and papers purporting to be certificates of the electoral votes, which certificates and papers shall be opened, presented, and acted upon in the alphabetical order of the States, beginning with the letter A; and said tellers, having then read the same in the presence and hearing of the two Houses, shall make a list of the votes as they shall appear from the said certificates; and 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, and, together with a list of the votes, be entered on the Journals of the two Houses. Upon such reading of any such certificate or paper, the President of the Senate shall call for objections, if any. Every objection shall be made in writing, and shall state clearly and concisely, and without argument, the ground thereof, and shall be signed by at least one Senator and one Member of the House of Representatives before the same shall be received. When all objections so made to any vote or paper from a State shall have been received and read, the Senate shall thereupon withdraw, and such objections shall be submitted to the Senate for its decision; and the Speaker of the House of Representatives shall, in like manner, submit such objections to the House of Representatives for its decision; and no electoral vote or votes from any State which shall have been regularly given by electors whose appointment has been lawfully certified to according to section 6 of this title from which but one return has been received shall be rejected, but the two Houses concurrently may reject the vote or votes when they agree that such vote or votes have not been so regularly given by electors whose appointment has been so certified. If more than one return or paper purporting to be a return from a State shall have been received by the President of the Senate, those votes, and those only, shall be counted which shall have been regularly given by the electors who are shown by the determination mentioned in section 5 of this title to have been appointed, if the determination in said section provided for shall have been made, or by such successors or substitutes, in case of a vacancy in the board of electors so ascertained, as have been appointed to fill such vacancy in the mode provided by the laws of the State; but in case there shall arise the question which of two or more of such State authorities determining what electors have been appointed, as mentioned in section 5 of this title, is the lawful tribunal of such State, the votes regularly given of those electors, and those only, of such State shall be counted whose title as electors the two Houses, acting separately, shall concurrently decide is supported by the decision of such State so authorized by its law; and in such case of more than one return or paper purporting to be a return from a State, if there shall have been no such determination of the question in the State aforesaid, then those votes, and those only, shall be counted which the two Houses shall concurrently decide were cast by lawful electors appointed in accordance with the laws of the State, unless the two Houses, acting separately, shall concurrently decide such votes not to be the lawful votes of the legally appointed electors of such State. But if the two Houses shall disagree in respect of the counting of such votes, then, and in that case, the votes of the electors whose appointment shall have been certified by the executive of the State, under the seal thereof, shall be counted. When the two Houses have voted, they shall immediately again meet, and the presiding officer shall then announce the decision of the questions submitted. No votes or papers from any other State shall be acted upon until the objections previously made to the votes or papers from any State shall have been finally disposed of.

[OIFVeteran]

I think your summation is accurate and correct.

[OIFVeteran]

The only problem with this scenario is only the courts could declare that the votes were fraudelent or invalid. No court has done so. Pence cannot just declare the votes fraudelent on his own.

[RideForever]

But if the two Houses shall disagree in respect of the counting of such votes, then, and in that case, the votes of the electors whose appointment shall have been certified by the executive of the State, under the seal thereof, shall be counted.

This is where the courts come into play. They need to get a judge to rule the state election UNLAWFUL, and the GA Governor must recuse himself for being instrumental in the selection and implementation of the machines and malware used to commit election fraud.

[entropy12]

LS, you clearly assured us of a safe & fair election on election day. You were totally wrong. Your credibility is now on par with Baghdad Bob. How in the world could you say such thing like this election will be safe and fair? Have you been in coma for 4 years and not watched Mueller, and Pelosi’s attempt to remove Trump by impeachment under false pretentions of Russia collusion? Have you forgotten the spying on Trump surrogates during campaign?

IDK what constitutional procedures will take place on January 6th, 2021. But I can say for sure, you are no Nostradamus.

[entropy12]

Courts have no role in the US Constitution on events of January 6th. It is entirely up to the people closest to voter’s desires which is state legislatures. Framers purposely and effectively excluded the judiciary for events on January 6th.

Can you show me where in US Constitution it says the presiding officer on January 6th has no power to decide which slate of electors is valid?

[LS]

And I can say, Trump won.

Do you agree?

If not, then there was no fraud.

If the were fraud, I was right.

And you’re no Stephen Hawking.

[LS]

I reviewed Hawaii’s electoral votes in 1960 after this.

In that case, there were THREE “certified” sets of electors, one from the Gov made before the recount showed Nixon won (for Nixon), one from the GOP electors based on that; and one from the JFK electors based on the official recount.

So there was a certification difference in the official slates that were submitted.

Nixon, as veep, merely accepted the latest official certification. He did not rule on the legitimacy of either electoral slate.

[DoodleDawg]

That’s why I keep saying the senate has to be 51.

Fifty. I don't think Purdue or Loeffler will be there because the results of the runoff won't be certified in time. so only 98 will vote.

BTW, though, just a thought on the House “vote by delegation” clause:

Which only kicks in if no candidate has over 269 votes. Not going to happen.

[Dr. Franklin]

Correct, that is, if the governor sends a separate slate (which has indeed happened a couple of times) THEN it is the job of the Congress and Senate in closed session to determine which slate to accept. Pence has no role, except to say, “There is an objection. The houses will now retire to address the objection.”

Well, that's not exactly how the Twelfth Amendment reads.
they shall name in their ballots the person voted for as President, ... and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;--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;
So VPOTUS receives all of the ballots, certificates, etc. Since the legistlature has the plenary right to appoint the electors themselves, VPOTUS could simply ignore certificates from a governor contrary to those sent by the legislature. That can't be succesfully challenged in court. They could try to reject the slate from the legislature, but that would just neutralize those electors. They can't be flipped to the other candidate.

[Dr. Franklin]

But in this situation he is NOT the presiding officer in the Senate. He is the presiding officer of the Joint Session, and does NOT go into session with the Senate.

By tradition, VPOTUS may choose to not preside over a break out session in the Senate on rejecting or affirming a slate of electors, but that doesn't mean he doesn't have the right to do so. U.S. Constitution, Article I, Sec. 3, Clause 4:
The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.
The only time that VPOTUS cannot preside over the Senate is for an impeachment trial of POTUS, as he could have a conflict of interest.

[Dr. Franklin]

Fifty. I don't think Purdue or Loeffler will be there because the results of the runoff won't be certified in time. so only 98 will vote.

Loeffler will continue as a Senator until the Jan. 5th race is certified. Perdue's term will end Jan. 3rd, and will not participate unless either he wins and is certified promptly, OR GA gov. Kemp appoints him to serve until the election is certified, which is theoretically possible, but unlikely.

[Dr. Franklin]

Note again, Pence has no role of power whatsoever except to as a parliamentarian to accept the objection of a senator/congressman.

So much ipse dixit. VPOTUS has the role given to him by the Constitution. He may defer to use all of that power, but he is not required to do nothing.

[SauronOfMordor]

The actual legislation as to the process, for reference sake

https://www.law.cornell.edu/uscode/text/3/15#

[Diggity]

Pence can break the tie on the contested elector slates.

[Jim Noble]

At best we start out with 50 votes

At best you start out with three.

[Diggity]

Sorry, I am in error

[CJ Wolf]

Trump will make a path. This will not stand. Merry Christmas and prayers up.

[Jim Noble]

in this case, the Republican state legislature of Pennsylvania certifying electors voting for Trump

Except they have done no such thing.

[Jim Noble]

When no Electors are appointed from a State (say, Pennsylvania), then the number appointed is 515, not 535, and the number to win falls from 270 to 258.