Don’t Expect Mike Pence to Save us on January 6

Carol Brown, 

There’s been a lot written about the power Vice President Pence has to turn the stolen election around on January 6. Many commentators on various sites (including AT) have weighed in, some expressing hope, while other have expressed doubt Pence would do the right thing.

But it appears all of this is moot, as Bill Jacobson, founder of Legal Insurrection writes:

A claim has circulated widely in the past few days that Vice President Mike Pence, as President of the Senate, has the power and discretion to reject certifications. If Pence had such power and chose to exercise it, it would be over, but he doesn’t.

Jacobson cites relevant language from the Constitution (Article II, Section I, after the 12th Amendment) to support his assertion and then summarizes.

Note the words. “Shall … open all the Certificates” and “the Votes shall then be counted.” Shall is mandatory, there is no discretion. The certificates must be opened by Pence, and the votes must be counted (it’s unclear who does the counting, but the votes must be counted regardless). No Vice President (whether Mike Pence, Al Gore or future VP Kamala Harris) performing the function of opening the votes has discretion to reject votes. No Vice President has authority to accept votes presented through some extra-constitutional other process.

There is an interesting legal question of what would happen if a state authority presented conflicting votes — for example the legislature certified one set of electors but the executive branch certified a different set — but that has not happened here. No state authority has certified more than one set of electors. A bunch of legislators acting on their own getting together outside the constitutional certification process to announce electors is not presented for counting any more than if I got together with some friends and we delivered an envelope to Pence with our chosen slate of electors. Maybe if legislatures (not legislators) had so acted, we would have a legal conundrum, but that has not happened.

The Congressional legislation provides a mechanism for objections to be raised and resolved. Neither the constitution nor the legislation makes the Vice President king for a day.

Jacobson also addresses the original source for the idea that Pence had the authority to reject the votes, noting that his views were overstated, taken out of context, sometimes contradictory, and culled from law reviews (which are opinions).

Read the Whole Article

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