The Pence Gambit

The absurd notion that the President of Senate is the arbiter and judge of the electoral vote.

“Louie Gohmert” by Gage Skidmore is licensed under CC BY-SA 2.0

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.

Well, then.

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.

FILED UNDER: Campaign 2020, Democracy, US Politics, Voting
Steven L. Taylor
About Steven L. Taylor
Steven L. Taylor is a Professor of Political Science and a College of Arts and Sciences Dean. His main areas of expertise include parties, elections, and the institutional design of democracies. His most recent book is the co-authored A Different Democracy: American Government in a 31-Country Perspective. He earned his Ph.D. from the University of Texas and his BA from the University of California, Irvine. He has been blogging since 2003 (originally at the now defunct Poliblog). Follow Steven on Twitter

Comments

  1. Mike Schilling says:

    I’m still not getting the Gohmert lawsuit. His contention is that the VP has discretion on which electoral votes to certify, and he sued to force Pence to … use discretion?

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  2. Jay L Gischer says:

    Unlike Josh Hawley, Gohmert might well believe all this stuff. Because, you know, someone ideologically aligned with him and loud told him, so it must be true.

    The rest of this makes no sense, because they haven’t read far enough into the statute.

    The House gets to vote, or not vote, to approve a slate. If there’s no vote, the process stalls. If the process hasn’t named a president by Jan 20, the Speaker of the House becomes president.

    This is what makes this ridiculous beyond words.

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  3. Sleeping Dog says:

    Cross posted from today’s forum.

    Ted Cruz and Sens. Ron Johnson (R-Wis.), James Lankford (R-Okla.), Steve Daines (R-Mont.), John Kennedy (R-La.), Marsha Blackburn (R-Tenn.), and Mike Braun (R-Ind.), as well as Sens.-elect Cynthia Lummis (R-Wyo.), Roger Marshall (R-Kan.), Bill Hagerty (R-Tenn.) and Tommy Tuberville (R-Ala.).

    To oppose Biden’s election certification.

    It’s not ending and little by little democracy is dying in America.

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  4. I may be suffering from recency bias, but this has got to be one of the most delusional periods in American politics ever.

    The nearest equivalent I can think of was when significant numbers of Americans believed that 9 million people, a third of them slaves, with an agrarian economy, pitiful infrastructure, a laughable currency and almost non-existent industry could take on a nation of 21 million, none slaves, with a real currency, an industrial economy and something called a ‘navy’ in a modern war.

    I’d say something about the intractable stupidity of the white southerner, but I’m sure there are exceptions.

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  5. Gustopher says:

    At least when this is over, we will know who the true Patriots are, so we can round them up and put them into the FEMA Re-Education Camps.

    I look forward to VP Kamala Harris using the full powers of her office, as detailed between the words in the passive voice in the 12th Amendment to run the show trials, so America can see what thought crimes these True Patriots have committed. I am a traditionalist, so I want the defendants present, gagged, and strapped to gurneys like in Silence of the Lambs.

    We have to be thankful for the foresight of the Founding Fathers that they foresaw this possibility and gave nearly unlimited powers to the Vice President.

    ——

    the bottom line remains that BLM is a peaceful movement and Antifa has mostly been a boogeyman

    After the BLM protests, you can’t even find Gotham City, Metropolis, or the Emerald City on a map. How quickly these things go down the memory hole. Do you seriously believe the Plains States were always so sparsely populated?

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  6. Scott F. says:

    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?

    Simple answer – Gohmert is asking for rightist militias to burn cities to the ground while he can still ‘plausibly’ claim he was asking for overwhelmingly peaceful protests.

    I’m not a lawyer or a constitutional scholar, so this is a legitimate question to those who know more – what does a sitting congressperson need to say before they can be cited for felonious sedition? As a follow-up – what does a sitting congressperson need to say before they can found to have violated House ethics rules? If Gohmert hasn’t crossed the line here, is there a line?

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  7. Gustopher says:

    I may be suffering from recency bias, but this has got to be one of the most delusional periods in American politics ever.

    Tax cuts increase revenue. Saddam Hussein had WMD. Saddam Hussein was behind 9/11. Barrack Hussein Obama was born in Kenya. John McCain was born in the United States. Vince Foster was murdered.

    Oh, and let’s not forget this one, popularized by Hillary Clinton: there’s a vast right wing conspiracy opposed to her husband.

    Also, Obama said that you can keep your doctor 😉

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  8. dazedandconfused says:

    As fund raising for politicians becomes more and more similar to the entertainment industry, there is less and less downside to lying for the politicians in safe districts. “No such thing as bad press in show business.” Gohmert was a judge. The odds he knows this is BS are high.

    Jefferson once mentioned that an informed, educated and engaged electorate populous is essential to a functioning democracy. I doubt he would have viewed a population functioning on the glandular level of sports fans as sufficient.

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  9. JohnSF says:

    The crazy is both fractal and asymptopic.
    Following a link from a UK commentator yesterday, ended up on the Trump twitter line, and thence on a couple of other right Republican timelines.

    So. It appears the latest thing is, Pence, by disavowing the Gohmert suit, has proved himself disloyal to Trump. (Cue lots of Q)
    Therefore, as disloyalty to Trump is, of course, treason, Trump can therefore order Pence’s arrest and removal without impeachment, and summary replacement(!) as “acting” VP without need for Congressional approval (!!)
    Opinion seems to vary about whether the replacement would be Flynn or Pompeo; or if Pompeo’s role is limited to organising the military intervention and tribunals(!!!) as indicated by the coded messages in his tweet images (!!!!). Seriously.
    And said Trump nominee could, of course, shoulder aside Senator Grassley.

    Origin for much of this seems to be Lin Wood.
    Leading to others who retain a fingernail grasp on reality to denounce Wood as insane or self-serving; one person making this argument being known for recommending that Trump hand over his campaign to overturn the election to Roger Stone. ROFLMAO.

    The sheer density of this argumentation threatens to rip a hole in the space-time continuum, opening a singularity gateway to new and vaster universes of shtupid, wherein Idiot Gods revel in the sound of discordant piping.

    (Look 2020, just go away, will you? It’s over, OK?)

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  10. Mikey says:

    @JohnSF:

    (Look 2020, just go away, will you? It’s over, OK?)

    It’s not officially over until 12:01 PM on January 20.

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  11. JohnSF says:

    @Mikey:
    Can’t come soon enough.
    Must be even more wearing for you guys.

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  12. Michael Cain says:

    @Michael Reynolds:

    The nearest equivalent I can think of was when significant numbers of Americans believed that 9 million people, a third of them slaves, with an agrarian economy, pitiful infrastructure, a laughable currency and almost non-existent industry could take on a nation of 21 million, none slaves, with a real currency, an industrial economy and something called a ‘navy’ in a modern war.

    And yet, they came surprisingly close to dragging it out long enough, and making it painful enough, that the industrial side would give up.

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  13. JohnSF says:

    It appears McConnells attempt to hold the line against the headbangers has failed.
    Looks like Cruz cannot bear Hawley picking up all the all the pay and praise in Lugburz, and has jumped into the wrastlin’ ring leading a pack of other hyenas senators.
    And how it must pain them to be “following” Ted Cruz. 🙂

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  14. @Michael Reynolds: At least that set of behaviors was vested in an understood reality that the South’s economy and political power required the continuation (and westward expansion) of slavery.

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  15. @Sleeping Dog: It is extremely disturbing.

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  16. JohnSF says:

    @Michael Reynolds:
    Perhaps; but Lincoln himself was at times doubtful he would win in 1864.

    “This morning, as for some days past, it seems exceedingly probable that this Administration will not be re-elected. Then it will be my duty to so co-operate with the President-elect as to save the Union between the election and the inauguration; as he will have secured his election on such ground that he can not possibly save it afterwards.”

    If Sherman had failed at Atlanta…

    Or earlier, if Maryland, Delaware and Kentucky had jumped the other way?

    The balance of power was overwhelmingly in favour of the Union; the balance of politics, less so.

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  17. Barry says:

    @Michael Cain: Their belief was that there was no way that the US could project the massive force needed, and no way that the US would suffer the casualties.

    Ex ante, not crazy.
    Ex post, crazy.

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  18. JohnSF says:

    @Sleeping Dog:
    @JohnSF:
    Sorry there Sleeping Dog, missed your prior post on this.

    The only possible upside of this sorry business is that it may shift the elections in Georgia.
    Though if that would be adequate compensation for a considerable number of United States Senators abandoning reason, I’m uncertain.

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  19. Kathy says:

    I no longer think Trump ought to be prosecuted.

    He ought to be committed.

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  20. Gustopher says:

    @Michael Reynolds:

    The nearest equivalent I can think of was when significant numbers of Americans believed that 9 million people, a third of them slaves, with an agrarian economy, pitiful infrastructure, a laughable currency and almost non-existent industry could take on a nation of 21 million, none slaves, with a real currency, an industrial economy and something called a ‘navy’ in a modern war.

    Given that there hadn’t been a modern war up to that point, the logistics don’t seem so implausible. Warfare was completely reinvented during that war.

    The question still ended up being “Does the North have the wherewithal to occupy the South indefinitely, and impose a new social order?”, and the answer was “Well, for a few years, sure, but at some point they’ll get bored, and the Reconstruction will fail.”

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  21. Gustopher says:

    @dazedandconfused:

    Gohmert was a judge. The odds he knows this is BS are high.

    You’re assuming he was a competent judge, and that he hasn’t suffered a cognitive decline in the meantime.

    Rudy Giuliani was a prosecutor, who successfully prosecuted the mafia in NYC. Now, he is a sad and dangerous joke. There were always bits of the sad and dangerous joke in him from the beginning (I blame bad breeding… not his parents, necessarily, but when he married his cousin, and then had that annulled a few years later because she was his cousin…), but most people didn’t define him that way.

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  22. JohnSF says:

    @Gustopher:
    Franco-Austrian War aka Second Italian War of Independence 1859?
    Arguably where the use of rifled muskets showed old style close quarters combat and charges ineffective.
    IIRC the abhorrence of Napoleon III at the scale of the carnage was part of the reason why he chose a negotiated concession by the Austrians rather than assault the “Quadrilateral”.

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  23. Mikey says:

    @JohnSF:

    Must be even more wearing for you guys.

    Yeah, I’m tired. The constant tension, feeling of “what shitty thing is coming next because you know something shitty is coming,” it’s exhausting.

    I know Trump and his worshipers aren’t going away after January 20, but he and they will be on the outside. Having competent leadership that has the national interest as its primary concern will reduce the anxiety a lot.

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  24. @JohnSF: @Gustopher:
    And the Crimean War which saw explosive artillery and railroads and the Minié ball, though I don’t know how extensively. Civil War generals were in a position to know better. You can march across a field if the enemy has space/time for a single volley, but not if they have the distance to get off three volleys. Rifled barrels were not exactly secret technology.

    The South did well in the division of the general officer corps, and they had the advantage of interior lines. But they couldn’t even produce their own boots, they had this big river cutting right through the confederacy, and a massive fifth column. There were multiple paths to success for the Union, and only a very narrow path for the south. If the North was determined to win, it was going to win.

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  25. JohnSF says:

    @Michael Reynolds:
    True.
    It was the sheer willpower of Lincoln that was the key, though.
    The politics were so iffy.
    Lincoln, IMHO is the towering, essential, crucial figure of modern history (ie post 1700), above any and all others, and be damned to marxist economic inevitabilism 🙂
    Lincoln, also Grant, and also perhaps Sherman.
    Sometimes history sends those you need.

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  26. Hal_10000 says:

    The Pence card is nonsense. The most he could do is still the official electoral vote. If he really wants to, he could drag it out until January 20, at which point Pelosi becomes President.

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  27. Just nutha ignint cracker says:

    @JohnSF:

    So. It appears the latest thing is, Pence, by disavowing the Gohmert suit, has proved himself disloyal to Trump. (Cue lots of Q)

    Okay! That explains why he’s rotated from his previous position to “welcomes the efforts of members of the House and Senate to use the authority they have under the law to raise objections and bring forward evidence before the Congress and the American people on Jan. 6th.”

    Maybe the revolution will be televised after all. I’m sure it will get killer ratings!

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  28. JohnSF says:

    @Hal_10000:
    Ah, but if Pence is replaced by executive fiat, and Flynn is declared Vice president under emergency powers, and if Pompeo rings the capitol with troops and sends any objectors to Gitmo under military tribunals, and Roberts is expelled from the Supreme Court because Epstein is still alive, and Wood and Powell are appointed to the Court, and Roger Stone is appointed Pope of the Americas, and the Kraken rises from the depths and dances the f@ckin fandango on the White House lawn…

    Who’s gonna to look foolish then eh? Eh?

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  29. DrDaveT says:

    @Gustopher:

    After the BLM protests, you can’t even find Gotham City, Metropolis, or the Emerald City on a map. How quickly these things go down the memory hole. Do you seriously believe the Plains States were always so sparsely populated?

    Bravo.

    ObSFReference: “Thus We Frustrate Charlemagne”, by R. A. Lafferty.

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  30. Teve says:
  31. Michael Reynolds says:

    @JohnSF:
    I took my nom de plume from Ulysses Grant – lousy president, great general, great man and great writer.

    I admire Grant for having been poor and desperate and not only surviving, but having the integrity to manumit a slave he inherited when selling the man would have meant serious and much-needed cash. And for acknowledging the unpopular truth that the Mexican War was naked American imperialism. And because he only drank to excess when separated from his wife – 48 hours after my wife goes out of town I’m edging into schizophrenia. And of course for understanding that it was a war of attrition not so much a war of maneuver. But most of all because with cancer eating his throat he wrote his memoirs at the behest of Mark Twain, and ensured his family’s financial well-being. That’s a damn writer.

    But I would never take Lincoln’s name as a pseudonym. There are great men, like Grant, and then there’s Lincoln.

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  32. Joe says:

    Michael Reynolds and JohnSF: I happened to be in Grant’s Galena last March (since the pandemic had recently made Paris unattainable) and it occurred to me how entirely odd it was that frontier Illinois produced two such improbable and complete rustics – Lincoln and Grant – to save the union. If you had taken a snapshot of those two 10 years before the Civil War, it would have been laughable to suggest either would have any impact, let alone establish modern American history.

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