The Pence Gambit
The absurd notion that the President of Senate is the arbiter and judge of the electoral vote.
The latest, although hardly the greatest, gambit in the playbook of election truthers is the notion that Vice President Pence, in his role as President of the Senate, acts as the final judge and arbiter of the validity of electoral votes. This notion is that the 12th Amendment gives the President of the Senate the right not to read a specific states’ vote, and therefore, potentially throw the election to the House (although I have seen some folks even argue that he could decide the election–mostly because they stop reading the text of the amendment).
In a lawsuit that has been tossed out of court (via NPR: Judge Rejects Last-Minute Claim That Pence Can Ignore States’ Presidential Electors), it was argued that:
On January 6th, a joint session of Congress will convene to formally elect the President. The defendant, Vice-President Pence, will preside. Under the Constitution, he has the authority to conduct that proceeding as he sees fit. He may count elector votes certified by a state’s executive, or he can prefer a competing slate of duly qualified electors. He may ignore all electors from a certain state. That is the power bestowed upon him by the Constitution.
This theory of the constitutional powers of the Vice President is asserting that the holder of that office has more power than state legislatures, voters in the state, or the electors themselves. Indeed, the reality of the constitution is absurd enough: that the constitutional power to elect the president is conferred on a mere 538 electors. It is beyond absurd to suggest that the constitution confers the power to ignore those electors to the Vice President.
The logic (I use the word loosely) allegedly comes from this passage in the 12th Amendment (which is the same language originally in Article II, so I am not sure why the amendment is relevant):
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;
It is wholly unclear to me why that would suggest that the VP, in his role as President of Senate, would have to power to unilaterally ignore a state’s certified slate of electors. Reading the brief that was filed doesn’t help me understand.
The best I can determine, this is the “argument”:
Commentators argue that the passive voice in the sentence “and the votes shall then be counted” means that the President of the Senate, the Vice President, has “further powers hidden in the passive voice” which today would be referenced as “discretion.” Bruce Ackerman & David
Fontana, Thomas Jefferson Counts Himself into the Presidency, 90 VA. L. REV. at 629 (2004).
This is consistent with the Framers’ original intent and their inherent bias that a presiding officer was not merely a ceremonial figure, but one that has authority to render substantive decisions in the face of disputes or other disruptions to the electoral process devolved to his mandate.
Ackerman is a respected scholar, but two thoughts. One, if the brief is too lazy to actually tell us what arguments and evidence from the cited article are salient, I see no reason to go figure it out for myself. Two, the title suggests that the article is about the 1800 election, which predates the 12th Amendment.
I am not going to belabor this case (which even Pence, to his credit, rejected–and yes, faint praise). Indeed, I feel like I have already spent more time on it than it deserves. Still, it seems worth noting this ridiculous chapter in this ongoing farce.
Meanwhile, Gohmert, the instigator of this suit, went on Newsmax to suggest that violence may be necessary:
You know, as a responsible adult does.
Although I suppose, that “as violent as Antifa and BLM” can be interpreted in two ways. On the one hand, in reality, Antifa as a threat of significance has been nearly nonexistent and BLM-linked protests have been overwhelmingly peaceful.* On the other, in rightwingworld, these are both extremely dangerous groups that have burned whole cities to the ground.
So which is it that Gohmert is asking for?
A parting note the suit confirms what Jake Tapper reported, and I noted in a post yesterday, that 140 members of the House will agree to contest at least one electoral slate:
Plaintiff Representative Gohmert, along with 140 of his Republican House colleagues have announced that they will object to the counting of state certified electors pledged to former Vice-President Biden
(BTW: the process by which this challenge will take place is detailed in a law that Gohmert’s suit claims is unconstitutional, so ¯\_(ツ)_/¯).
January 6, 2021 may prove to be a loooong day in Congress.
Beyond that, however, it is shaping up to be a day wherein a large chunk of elected Republicans in Congress are going to go on record against democratic elections in favor of alternative facts.
A bit of a side story: there had already been another weird theory about Vice Presidential prerogatives a few weeks again, which had been dubbed the “Pence Card.” Via a story in WaPo on Christmas Eve:
Some Trump supporters are insisting that he could use his role as presiding officer to invalidate the results from various states, causing the hashtag “Pence card” to trend on social media — meaning the pro-Trump forces should play that card.
But that is a misunderstanding of a provision in the U.S. Code saying that if a state does not submit its electoral votes by the fourth Wednesday of December, the vice president should prod the state to send them expeditiously. It does not give the vice president the power to reject any electoral votes.
Still, some Trump supporters are furious with Pence for letting that Dec. 23 deadline pass.
“Pence’s actions today and over this next 2 weeks will determine whether he’s a front-runner for 2024, or a traitor to the Patriot base. Simple as that,” Rogan O’Handley, a conservative activist, tweeted to his nearly 440,000 followers.
I may be suffering from recency bias, but this has got to be one of the most delusional periods in American politics ever.
*I do not want to litigate a sweeping statement about the protests that emerged earlier in the year. I recognize that there were violent confrontations at times and that there was property damage, some quite serious. But, the bottom line remains that BLM is a peaceful movement and Antifa has mostly been a boogeyman. Gohmert here seems to be asserting the boogeyman version of protests that are understood in the mind of Newsmax viewers as violent and destructive.
To be honest trying too hard to parse out what Louie Gohmert means is a fool’s errand.