Only if both bodies agree do the Electoral votes then get tossed out. If either body rejects the objection, the Electoral votes stand.
Posted on 12/08/2020 9:09:03 AM PST by Red Badger
In this scenario, for example, when counting Pennsylvania electors, Pence could choose to “count” the slate of electors from the Republican legislature in Harrisburg and not the slate of electors from Democratic Governor Tom Wolf.
Two law professors are arguing the U.S. Constitution's 12th Amendment could empower Vice President Mike Pence to reject contested electors and pave the way for the U.S. House to re-elect President Trump under what's known as a contingent election.
In an October 19 essay at "The American Mind," John Yoo, a law professor at the University of California-Berkeley, and Robert J. Delahunty, a law professor at St. Thomas University, argue that Pence, as presiding officer of the joint congressional session on electors, can refuse to "count" the electoral votes from disputed states.
However, this legal analysis empowering the Vice President faces headwinds as states continue to certify results for Joe Biden over President Trump.
The scholars argue that while the Electoral Count Act of 1887 appears to create "safe harbors" for a state's report of its Electoral College votes, the Act itself might be unconstitutional, because under the 12th Amendment, "the President of the Senate [i.e., the Vice President] shall, in the Presence of the Senate and House of Representatives, open all the certificates [of the electoral votes of the states] and the votes shall then be counted."
Yoo and Delahunty say that "unclear is who is to 'count' the electors' votes and how their validity is to be determined. Over the decades, political figures and legal scholars have offered different answers to these constitutional questions. We suggest that the Vice President's role is not the merely ministerial one of opening the ballots and then handing them over (to whom?) to be counted. Though the 12th Amendment describes the counting in the passive voice, the language seems to envisage a single, continuous process in which the Vice President both opens and counts the votes."
The check on error or fraud in the count is that the Vice President's activities are to be done publicly, "in the presence" of Congress, wrote Yoo and Delahunty, and if "counting" the electors' votes is the Vice President's responsibility, then "the inextricably intertwined responsibility for judging the validity of those votes must also be his. If that reading is correct, then the Electoral Count Act is unconstitutional. Congress cannot use legislation to dictate how any individual branch of government is to perform its unique duties: Congress could not prescribe how future Senates should conduct an impeachment trial, for example. Similarly, we think the better reading is that Vice President Pence would decide between competing slates of electors chosen by state legislators and governors, or decide whether to count votes that remain in litigation."
In this scenario, for example, when counting Pennsylvania electors, Pence could choose to "count" the slate of electors from the Republican legislature in Harrisburg and not the slate of electors from Democratic Governor Tom Wolf.
"We think so, but it's never happened before," Yoo, a visiting fellow at the Hoover Institution, and a visiting scholar at the American Enterprise Institute, told radio host John Batchelor on October 24. "I think my view would be that Vice President Pence, when he opens the votes and counts them, he decides which ones are valid and which ones are invalid."
However, Yoo's comments took place prior to the November 3 election, and a representative for Yoo and Delahunty himself did not respond to a request for comment from Just the News on Monday to provide updated analysis of the more current situation at hand. A spokeswoman for Pence also did not respond to a request for comment from Just the News on Monday.
Norman J. Ornstein, a resident scholar at the American Enterprise Institute, told Just the News via email Monday that he vigorously disagreed with the idea that Pence could reject electors.
"The idea that the Framers wanted a Vice President with a direct interest in the outcome of an election to decide unilaterally its outcome is ludicrous on its face," Ornstein said.
Attorney Richard Roth of The Roth Law Firm, a New York-based litigation firm, told Just the News in an email that while the professors' essay "raises several very valid – and very controversial – issues, they all rest on one fact: the certification of election results."
Noting that the article was written three weeks before the election, Roth said he doesn't think that as of Monday evening there is sufficient "controversy or contest" to invoke the provisions outlined by Yoo and Delahunty because states' certifications of electors have continued apace, with the Trump campaign and its associates repeatedly facing defeats in court.
"Sitting here, the day before the state deadline, it is clear that those potential delays will not come into play," Roth said. "Each of the states which Trump is trying arduously to overturn, has not only completed counting their ballots but also completed the recount. More importantly, each of them – Georgia, Pennsylvania, Michigan, Wisconsin, Nevada and Arizona – have officially certified those results. Thus, because those states worked arduously to complete the tasks in which they were obligated, and because those states, as well as all other states, have certified those results, the dire consequences of the article simply will not come to pass."
Do we really expect Pence to have a spine? Really? Remember who picked him! Trump has never been able to pick a winner. Not really his fault I suppose since the republican ranks are flooded with worthless self service traitors.
Only if both bodies agree do the Electoral votes then get tossed out. If either body rejects the objection, the Electoral votes stand.
PA has filed its response
That’s a very slippery slope which rats would use against us in the next election if Biden were to prevail.
Pence would take the nuclear option only if he never plans to run for public office again. He would be reviled even more then Trump. As a devoted Christian he may feel that he has do it to protect life and freedom of religion. That is the only way I see him taking that action.
Maybe Pence should count the way the states count. Run them thru a reconfigured Dominion tabulator. No matter what you put in Trump is the winner.
The mechanism is there to contest Pence’s judgment about which ballots to open. He still gets to decide which ones he opens.
“Only if both bodies agree do the Electoral votes then get tossed out. If either body rejects the objection, the Electoral votes stand.”
That is really encouraging, so if a state submits two sets of electors and VP Pence has to count all electors then that state’s electors would cancel out, leaving 0 zero electors for that state.
at this stage, I don’t even think Pence will do anything
No, it is not there.
I, for one, refuse to wipe my ass with the Constitution even if it means getting Trump back in the White House for four more years.
I took an oath to Protect and Defend the Constitution of the United States against all enemies, foreign and domestic.
Twelfth Amendment:
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 idea that the Framers wanted a Vice President with a direct interest in the outcome of an election to decide unilaterally its outcome is ludicrous on its face,”
Not to the followers of the mythical Q.
When Pence is in front of Congress to count, he should start with the obvious states: Texas, CA, FL, MA...
Then, he announces to congress he is stopping the count, everybody should go home, and come back in the morning. After which, Pence continues the counting.
After Congress has it’s breakfast the next morning, and re-convenes, they continue from where they left off:
Biden 4, Trump 157,000.
Okay. All the certificates. Who determines which certificates are the value ones? The courts? The secretary of state in the state in question? Or the legislature of the state?
If the courts say one thing and the legislature another, how does Pence work that out? Constitutionally?
And, he should put the whole collection of Electoral votes in a suitcase and keep it under his chair until everyone leaves.
An EXCELLENT idea!!! The rats hoisted on their own petard. And when they complain and screech, just tell them that it seemed to be OK when they did it on the evening of Nov 3rd/4th.
3 U.S. Code § 15 - Counting electoral votes in Congress
...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.
How ‘bout this: Pence kicks all the democrats out of the chamber and counts the votes in secret. Then, when the vote is tallied he can express his surprise that Trump won after all. It’s a Christmas miracle I tell ‘ya.
LMAO, that was classic. Sometimes good humor is the only way you can release the pressure of a tense situation. I’m sure some haughty types may not find it funny though. LMAO again.
LOL, sounds like Standard operating procedure for 2020.
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