Posted on 08/03/2023 6:00:55 AM PDT by george76
Pence has repeatedly maintained he lacked the constitutional authority to send the elections results back to the contested states for review and insisted he saw no evidence of voter fraud swaying the outcome of the 2020 election.
Special Counsel Jack Smith's most recent indictment of former President Donald Trump repeatedly referenced former Vice President Mike Pence objecting to Trump's efforts to overturn the election and insisting that the vice president had no authority to halt the electoral certification process.
Pence has repeatedly maintained he lacked the constitutional authority to send the elections results back to the contested states for review and insisted he saw no evidence of voter fraud swaying the outcome of the 2020 election, a point Smith notes early in the indictment.
The former vice president's own words prior to the events of the Jan. 6, 2021, Capitol riot, however, seem to contradict his post-vice-presidency narrative.
Video footage from a public address less than one week prior to the electoral certification on Jan. 6, 2021 shows Pence expressing concerns about election irregularities in the contest and vows to hear the objections of his supporters during the certification process, seemingly suggesting he held a belief in his authority to do so.
"I know we all got doubts about the election. I share the concerns of millions of Americans about voting irregularities," he told supporters on Jan. 4. "I promise you this Wednesday. We'll have our day in Congress. We'll hear the objections. We'll hear the evidence."
...
Pence made the remarks during a rally to support then-GOP Sens. Kelly Loeffler and David Perdue in the Georgia runoff elections.
Smith's indictment includes six other co-conspirators with whom Trump allegedly conspired to unlawfully overturn the election. One of those individuals, he alleges, put forward plans outlining the theory that Pence could deem the elector slates from seven disputed states invalid.
"The Defendant's Vice President-who personally stood to gain by remaining in office as part of the Defendant's ticket and whom the Defendant asked to study fraud allegations-told the Defendant that he had seen no evidence of outcome-determinative fraud," the indictment states.
...
Pence on Monday blamed Trump's efforts on a gaggle of "crackpot lawyers" for telling Trump "what his itching ears wanted to hear."
"You know, I’m a student of American history. And the first time I heard in early December somebody suggest that as vice president I might be able to decide which votes to reject and which to accept. I knew that it was false... I dismissed it out of hand," he said.
You don’t make sense, as Pence doesn’t. You are contradicting yourself.
Either the objections were potentially meaningful or they weren’t.
His latter statement indicates listening to objections is meaningless or that he determined a priori that the objections would “fall on their face” as you put it.
Either way he is pandering.
“ None of them was successful.”
This indicates there was a possibility of being “successful.” Can you define what you mean by successful?
And how does that relate to Pence’s later comment, “ as vice president I might be able to decide which votes to reject and which to accept. I knew that it was false” which contradicts your assertion they could have been successful.
Doesn’t matter. The Constitution says only that the President of the Senate shall . . . open all Certificates and the Votes shall be counted.”
Now, EVERY state has two sets of electors (maybe three if an independent has gained a lot of support). The controversy arises over which set of electors the veep opens. The implication of precedent is that he has the authority to “open” or “not open” any certificates he deems improper, fraudulent, or otherwise tainted.
The 20th Amendment in no way speaks to any of this; does not in anyway address the precendent of 1796 or 1800. In fact it has nothing to do with the veep’s powers/authority. In 1876, the states DID certify their slates, which the veep DID NOT ACCEPT. Again, 20th says nothing whatsoever about that.
If the VP only has one sealed envelope from any given state, there's no question about which one gets counted.
Other sets of electors can be sent from any given state. In 2020, only one of them was properly sealed by a person authorized to act on behalf of the state in question. This is why it was of utmost importance for someone else in a position of authority in a contested state to inform Congress about a disputed slate of electors. That could have been done by a governor, a secretary of state (if duly authorized to act on behalf of the state), or -- better yet -- a formal act of the state legislature. NONE OF THIS EVER HAPPENED.
Sen. Tom Cotton's public statement about why he would not support any objections to the certified electors on January 6th was very instructive in this regard. He made it clear that he would have had no problem objecting to the electors from another state, but only if someone acting in an official capacity on behalf of the state notified Congress of a disputed slate of electors.
He closed his statement with a warning: If objections like this in the joint session of Congress become routine, then the U.S. would become a de facto parliamentary government where the President is elected by Congress.
Do you know the procedural details about what happened in Congress on January 6th? I’m only asking because I don’t want to bother typing a long response with a lot of information you already know. Thanks.
“…as vice president I might be able to decide which votes to reject and which to accept. I knew that it was false“
Address that comment in context of procedural details and your comment that objections “fell on their face.”
They contradict each other.
OK — thanks. I will post a response to that in a little while!
Ok.
In the joint session of Congress to certify a presidential election in January of the year following the election, the VP functions as the President of the Senate. That's a constitutional role. In that capacity, his only role is to vote in the event of a tie in a Senate vote. That's it.
So in this capacity, he had no authority to accept or reject any sealed certificates of electoral votes from any state. What he COULD do -- and by all accounts what VP Pence DID do on January 6th -- was to accept any motion from the floor of the joint session to object to any state's electoral votes. This happened several times. An objection is only acted upon if it is supported by at least one member of each house of Congress.
Once that happens for any given state's electors, the two houses of Congress adjourn to their respective chambers to vote on the objection. That's it.
At least one member of the House and one member of the Senate objected to Arizona's electoral votes. The Representatives and Senators went to their chambers and voted on the objection. The vote failed by a wide margin in both the House and Senate. The same thing happened with Pennsylvania.
There were other states where a House member or a Senator objected to the electoral votes, but these were the only two that met the minimum threshold of one objection from each house. All the others didn't even come to a floor vote because they didn't meet that threshold.
Keep in mind that I have assumed through this whole narrative that the process of lodging and voting on objections -- as laid out in the Electoral Count Act of 1887 -- is even constitutional. It almost certainly isn't, but for the sake of this discussion I will assume it is ... and by all appearances it looks like VP Pence followed the letter of that law in dealing with the objections from the floor in the joint session of Congress on January 6th.
“ At least one member of the House and one member of the Senate objected to Arizona’s electoral votes. The Representatives and Senators went to their chambers and voted on the objection. The vote failed…”
What if the vote succeeded?
Under the provisions of the Electoral Count Act of 1887, that state’s electoral votes would not be counted. There is no constitutional justification for that scenario to ever take place.
I”m gonna think about this.
I don’t think this is right. Clearly the veep has the right to reject any slate handed to him (1796, 1800). Again, no succeeding legislation has changed this.
Clearly there were AUTHORIZED slates in 1876 that were completely rejected, despite being “certified” by “someone in a position of authority.” So that part is totally invalid.
No succeeding legislation was needed to change this. The 12th Amendment was ratified in 1804 to replace Article II, Section 1, Clause 3 of the Constitution. It was done to address the exact scenario you described in the 1800 election. A sitting Vice President who is a candidate in the presidential election has a blatant conflict of interest and has no business rejecting any electoral votes from any states.
Clearly there were AUTHORIZED slates in 1876 that were completely rejected, despite being "certified" by "someone in a position of authority." So that part is totally invalid.
As I understand it, the 1876 election would be an anomaly by modern standards for one important reason: the Southern states were still controlled by the Federal government and occupied by Federal troops in the post-Civil War Reconstruction period, so the political climate in those states was contentious almost by definition. That's why several states submitted competing slates of electors in 1876. Reconstruction formally ended with the Compromise of 1877, and the Electoral Count Act of 1887 was passed in response to the fiasco of the 1876 election and two succeeding close elections in 1880 and 1884.
“In 2020, there wasn’t a single state that submitted more than one slate of electors to Congress after the Electoral College certification in mid-December ”.
That’s really the important thing in all this.
There is no such thing as an anomaly in law. It’s called precedent. And no, the 12th Amendment did NOT change the veep’s counting authority, merely addressed the electoral votes from states so that you got a slate rather than two opposing individuals.
Yes ABSOLUTELY a sitting veep who is a candidate has a conflict of interest and ABSOLUTELY in 1796 it didn’t matter, and in 1960 it didn’t matter.
You are convincing me more and more of the correctness of my position.
It's January of 2001. Al Gore is the sitting Vice President, and he's just "lost" the 2000 election to George W. Bush.
What stops VP Al Gore from rejecting the electoral votes from a handful of states that voted for Bush?
And no, the 12th Amendment did NOT change the veep’s counting authority ...
OK. Let's pretend the 12th Amendment was never adopted. The original Constitution lays out the same role of the VP:
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.
Where does it say the VP, as President of the Senate, has any role in this process other than to "open the Certificates?"
1) Nothing. Gore could have (as Nixon did) counted the votes for his opponent (Bush), or, he could have, as Jefferson did, counted the contested vote for himself, or, he could have (as Adams did) have allowed time for an objection from the floor.
There is NOTHING anywhere, any place that says that the veep/pres of the senate cannot entertain an objection from the floor during the counting. Indeed, quite the contrary, his very authority as “presiding officer of the senate” means he is REQUIRED to.
I answered your second question. He acts DUALLY in a role of veep/counter and as “presider” and is fully empowered to count what he wants, entertain objections. whatever. It does not say, “and in that role he must count only those electoral votes given to him and may not count, reject, or entertain any other electoral votes.”
And 1876 proves fully that this entire situation is fluid.
The Constitution says nothing about entertaining objections from the floor, so that would have to be a matter of statute. That's the only role the process in the 1887 Federal statute plays here -- and I have said here on several occasions that some key provisions of that statute are clearly unconstitutional.
Interestingly, once an objection from the floor is "heard" and recognized by the VP, the VP has less power than anyone else in the room -- because he can only vote on any matter if there is a tie in the Senate chamber.
... and is fully empowered to count what he wants ...
Can you cite a single shred of evidence to support this -- either in the U.S. Constitution or in any Federal statute? Maybe it's just me, but it seems absurd on its face.
It’s just you. Robert Barnes, John Eastman, and many others have argued the presiding officer of the Senate (see senate rules) can entertain objections from the floor at any time.
For one thing, I would be inclined not to give much credence to the input from many lawyers on these matters.
The problem is that a lawyer is an advocate for his client and/or their political agenda, so he is prone to take outlandish positions just because that's what he's paid to do. That's how you end up with some hack like Mark Levin (for example) getting on the airwaves and taking diametrically opposed positions about the VP's authority in the 2000 and 2020 elections.
Secondly, there is a huge distinction between "entertaining objections" and "counting whatever he wants" when it comes to the VP's role as the President of the Senate.
In a presidential election, the role of the states is a plenary role -- which means even Congress cannot override the will of a state when the electoral votes are cast. That doesn't give Congress much leeway at all. In fact, I would suggest that any power given to Congress to reject electors would completely undermine the whole constitutional principle of an independently elected Executive Branch of government.
Ok. We disagree. Barnes has no dog in the fight, and has held this position for years. He has made some detailed historical analyses of why this position is correct.
In your very admission that the wording of the law, powers, etc. is nebulous, you make my point. If the Constitution wanted to define the role of the Veep/President of the Senate in such matters they would have. That they didn’t speaks volumes, and was as I said used on at least four occasions. That’s enough precedent for any lawyer to win on.
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