Posted on 12/23/2020 5:59:12 AM PST by LS
There has been a lot of discussion about Pence's role in the upcoming counting of the elector slates.
In 1797 there was a single challenge from, as I recall, Georgia, whose electors had filled out the paperwork wrong. John Adams, the veep, stood to become president by not entertaining any objections. But when he came to Georgia, he sat down for a moment. Thomas Jefferson had ordered the Democratic Republicans NOT to contest, and after a moment, Adams resumed the count . . . in his favor.
A similar episode happened in 1801 with Jefferson doing the reading and an issue with (as I recall) VT. This time Jefferson did not pause, but kept on reading.
In 1960, Hawaii's electoral votes, which by popular vote should have gone to Nixon, were objected to and awarded to JFK, though they made no difference.
That's the historical precedent.
My understanding of the process is as follows:
1) The two houses meet in Joint Session Jan. 6, I think. 2) Two tellers from the Senate and two tellers from the House tally the electors SUBMITTED BY THE STATES. This would include the Biteme electors from MI, WI, AZ, NV, GA, PA. Those tellers had their lists---which must all agree---to the Vice President who presides over the Senate---to read.
Pence then says, "The state of Alabama gives its x electors to . . .; the state of Alaska gives its x electors to . . ."
3) At any point an objection may be raised to any slate. This must include one senator and one congressman.
4) If say Brooks and Hawley object, Pence would say, "An objection has been raised to the slate from Arizona. The chambers will now retire to discuss the objections."
HE DOES NOT HIMSELF ACCEPT OR REJECT ANYTHING. He merely presides.
5) Presumably, at this point, the Senate walks to the senate chambers (realize, this is a kind of pain in the ass. Now imagine it being done six times). The House of course will accept ALL Biteme slates. For any challenge to be accepted BOTH houses must agree. If they do not, "tie goes to the runner" in this case the slates submitted by the states. Unless both houses agree, not one single Trump slate would be accepted.
6) But even then, how many of you really think that a Trump challenge slate in the Senate would carry? At best we start out with 50 votes, but no Pence to break the tie in this particular case. Tie goes to the runner. So you need 51 of the 53. Minion, Sasshole, MurCowSki, Collins, and probably Grahamnesty would never vote for the Trump slate. My guess is in fact you'd be lucky to get 20 votes for the challenge slate.
But it doesn't matter because tie goes to the runner, the official slate sent by the states.
7) So they meet again in Joint Session after discussions and even if the Senate has voted for the Trump slate, Pence announces AZ's electoral votes go to Biteme.
Note again, Pence has no role of power whatsoever except to as a parliamentarian to accept the objection of a senator/congressman.
Hope this clears up some of the muck.
It does.
Depressing, but it does.
Is there any path?
I think you error on the House vote. In the House each state caucus gets one vote. The Republicans have either 26 or 30 state cauci and Democrats 20 or 24. The Republicans win in the house. In the Senate each Senator gets one vote, Pence votes to break a tie.
I’ve read elsewhere that Pence would be a tie-breaker vote.....
Thanks for that. Sheds a lot of light on all the misinformation out there.
I think now it makes sense why the President’s “invited” his supporters to Washington on the 6th -— nothing like an army of voters chanting “Fight for Trump!”
No, stock, you are confusing two separate events.
IF there are slates that are undecided when the tellers receive them (i.e., a governor has submitted a slate and the legislature submitted a slate, or no one submitted a slate), then the 270 number is not reached. If THAT occurs, then the “state delegation” rule is enforced.
I think the voting for objections is vote by member. Even if I’m wrong, however, do you really think you’ll find 51 senators to overthrow Biteme’s “victory?”
No. Pence is not a tie breaker.
I see no path.
If the Senate is tied 49 to 49 wouldn't Pence cast the tie-breaking vote as President of the Senate?
The 1876 election results are still debated by historians. Tilden had won 184 of 185 needed electoral votes and also led the popular vote by more than 250,000. Four states — Florida, Louisiana, Oregon, South Carolina — claimed victory on both sides of the aisle, forcing Congress to dictate which candidate would receive the 20 electoral votes since the Constitution couldn’t determine the outcome.
With the Democrat power in the House and the Republicans dominating the Senate—similar to 2020—Congress established a bipartisan electoral commission composed of seven Democrats, seven Republicans and one Independent. But, the Independent—Supreme Court Justice David Davis—dropped out of the commission after he was offered a Senate seat. A Republican then replaced him, and the commission voted along strict party lines in favor of Hayes getting the electoral votes.
“I see no path.”
other than State de-certifications
We’ve known that for a while now, but your analysis conspicuously excludes the scenario of multiple states sending multiple slates of electors for some reason, such as 1876. The veracity and effectiveness of those dueling electors in 2020 is still not determined yet, either.
What was the certification process for electors in 1876?
At that time I don’t believe there was a popular vote in each State for the President.
Currently, each State has a certification process, and it is my understanding that Pence will count only those Electors who are State certified.
I hope the Trump team has another plan than to count on favorable votes from the snake pit Congress.
Enforced by who? This is actually where Pence’s role comes into play - not in the scenario depicted in your original post - as per the US Constitution Pence would be serving in the Congress as the authority at that moment to choose which electors are the valid ones.
There is a US Code that you are likely referring to, enacted after 1876 that touches on who he should select, but many believe that Code is in violation of he Constitution, and therefore not legal as it is not an actual Constitutional Ammendment.
You have it correctly stated. The only way this goes in Trump’s favor is if he states submit competing slates of electors - one from the SoS / governor, and one from the Assembly.
However, we both know that no such outcome will occur - because, as is the case with most in Congress, in the several state assemblies, even where they hold a majority, most of the Republicans are pathetic spineless cowards. They put political expediency and their careers ahead of moral truth and election integrity. Their oath to uphold, protect and defend the United States Constitution means nothing to them in practice.
That only occurs where there exists competing slates of electors submitted from a state.
Thanx for the explanation. I wonder, was the false narrative that Pence could not read electors and choose an alternate meant to fool we the people who support Trump into focusing hope on a false assertion? Never doubt the scumedia’s penchant for LYING. The four estate eagerly transmogrified into the fifth column of the enemy of we the people.
In a contested 2020 election, Democratic governors and Republican state legislatures could send competing electors to be counted at the Jan. 6, 2021 joint session of Congress.
Similar to 1876, the Republican Senate and Democratic House would disagree on which electors to accept. However, in the media environment of 2020, it would be virtually impossible for the two houses of Congress to reach a backroom deal to resolve their dispute as happened in 1876.
Democrats would argue that the Electoral Count Act of 1877—passed in order to avoid a repeat of 1876—favors the electors certified by state governors; in this case, the Democratic governor of Pennsylvania certifying electors voting for Biden.
Republicans, on the other hand, would argue that the Electoral Count Act is unconstitutional, as the Constitution clearly allows state legislatures to certify electors; in this case, the Republican state legislature of Pennsylvania certifying electors voting for Trump.
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.
Republicans, supported by legal and historical precedent, would argue that under the language of the 12th amendment, which reads, “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 President of the Senate—Vice President Mike Pence—has the sole discretion to break a deadlock between the Senate and the House, and to either accept or dismiss disputed electors.
As Edward B. Foley explains, in such a scenario, “Some Republicans take the especially aggressive position that Mike Pence, as President of the Senate, has the unilateral authority under the Twelfth Amendment to decide which certificate of electoral votes from Pennsylvania is the authoritative one entitled to be counted in Congress and that he, accordingly, will count the certificate from the electors appointed by the state legislature because the Constitution authorizes the state legislature to choose the method of appointing electors. These Republicans point to the historical pedigree of this position, observing that Republicans made the same argument during the disputed election of 1876 and that at least some recent law journal scholarship has supported this position. Unembarrassed by the apparent conflict of interest caused by Mike Pence simultaneously being a candidate for reelection and arbiter of the electoral dispute, these Republicans observe that Thomas Jefferson was in essentially the same position during the disputed election of 1800 and yet the Twelfth Amendment left this provision in place when Congress rewrote the procedures for the Electoral College afterwards. While it is true that an incumbent Vice President might have a direct personal stake in the electoral dispute to be resolved, the Republicans argue, at least the glare of the spotlight is focused on whatever the vice president does in this situation, and everyone will be able to judge whether the vice president acted honorably or dishonorably in resolving the dispute.”
“This interpretation of the Twelfth Amendment is bolstered, moreover, by the further observation that the responsibility to definitively decide which electoral votes from each state are entitled to be counted must be lodged ultimately in some singular authority of the federal government. If one body could decide the question one way, while another body could reach the opposite conclusion, then there inevitably is a stalemate unless and until a single authority is identified with the power to settle the matter once and for all. Given the language of the Twelfth Amendment, whatever its ambiguity and potential policy objections, there is no other possible single authority to identify for this purpose besides the President of the Senate. This role could have been vested in the chief justice of the United States, as is the constitutional authority to preside over the trial of an impeachment of the president. Or disputes of this nature could have been referred directly to the Supreme Court, as a singular corporate body, for definitive resolution there. But the Constitution does neither; nor does it make any other such provision. Thus, according to this argument, the inevitable implication of the Twelfth Amendment’s text is that it vests this ultimate singular authority, for better or worse, in the President of the Senate. Subject only to the joint observational role of the Senate and House of Representatives, the President of the Senate decides authoritatively what ‘certificates’ from the states to ‘open’ and thus what electoral votes are ‘to be counted.’”
Vice President Pence would then either accept the electors submitted by the Republican legislatures voting for Trump, or dismiss them as disputed and not have them counted. In this new, reduced total of electors, a remaining majority still delivers Trump a victory.
If a majority is not reached, then under the 12th amendment, “the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote.” If Republicans maintain their current 26-state House majority by state delegation, they are thereby able in this scenario to reelect President Trump for a second term.
https://nationalinterest.org/feature/donald-trumps-stealthy-road-victory-172235
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