On January 6, a joint session of Congress will open with Vice President Pence presiding as President of the Senate. His power will be plenary and unappealable. You heard that right. As President of the Senate, every objection comes directly to him, and he can rule any objection “out of order” or “denied.” Even the Supreme Court has no say in this. I’m not saying that the scenario below is the best possibility, but rather that it is possible. A host of political and legal considerations must be explored before that fateful day.
The contested states of Arizona, Georgia, Michigan, Nevada, Pennsylvania, and Wisconsin have sent dueling slates of electors to DC. Even New Mexico has joined the party. This means that the VP has to decide how he will handle the situation when two sealed envelopes are handed to him from any of those states. But first, the rest of the story.
Article II, Section 1 of the Constitution gives state legislatures “plenary authority” as enunciated in Bush v. Gore. This is key, since the counting of votes is discussed in Article II, the 12th Amendment and 3 USC 15. To this we must add the history of counting and objections recounted by Alexander Macris (here and here). Put bluntly, it’s as clear as mud.
Macris points out that, even with Constitutional deficiencies in Georgia, Thomas Jefferson blithely counted the defective Georgia electoral votes, effectively voting himself into the Presidency. This demonstrates that the President of the Senate is the final authority on any motions or objections during the vote counting. There is no appeal.
With this background, suppose the VP decides to take matters into his own hand. He begins the session with, “On assuming the Vice Presidency, I swore an oath to preserve, protect, and defend the Constitution and to be certain that the laws are faithfully executed. During this assembly I will carry out that oath with great care.” Pence is announcing that what he’s about to do is his Constitutional duty.
Let’s use Georgia as an example. When Georgia is announced, there will be two sealed envelopes purporting to be “electoral votes” from Georgia. Pence holds them up, still sealed, and reads the following:
An election is a process of counting votes for candidates. Only valid, lawful votes may be counted. A valid lawful vote is:
- Cast by an eligible, properly registered elector as prescribed by laws enacted by the state legislature
- Cast in a timely manner, as prescribed by laws enacted by the state legislature
- Cast in a proper form as prescribed by laws enacted by the state legislature.
Any process that does not follow these rules is not an election. Anything that proceeds from it cannot be regarded as having any lawful import.
The legislature of the State of Georgia passed a governing statute which included procedures for signature matching on absentee ballots, a requirement that all absentee ballots be requested by a legitimate voter, and provisions for election monitors to be meaningfully present at all times while votes were counted.
The Georgia Secretary of State, who is not empowered by Constitution to make changes to election law, entered into a Consent Decree that gutted the absentee ballot provisions of the law passed by the Georgia legislature. The processes that were followed were contrary to that law. Further, the State of Georgia, in unprecedented concert with other states, suspended counting of ballots in the middle of the night, covering their conspiracy with a false claim of a “water main break.” We now know from surveillance video that many thousands of “ballots” were counted unlawfully in the absence of legally required observers.
Finally, the State of Georgia used fatally flawed Dominion voting machines that have been demonstrated to be unreliable. In testing, the error rate of Dominion machines has exceeded 60%, far in excess of legally permissible limits. This alone is far more than enough to swing an election.
Since the state of Georgia has failed to follow the law established by its legislature, it has not conducted a presidential election. Therefore, no “presidential electors” were “elected” in Georgia. “Electors” “certified” by non-legislative actors pursuant to this process are in fact not “presidential electors.” The competing slate of “electors” is similarly deficient, having not been elected through a presidential election.
Therefore the Chair rules that Georgia has not transmitted the votes of any presidential electors to this body. Georgia presents zero votes for Donald Trump and zero votes for Joseph Biden.
Obviously, the VP may choose to revise the text. The central point is that the VP, as the presiding officer and final authority, has the unquestionable power to declare that the states in question have not conducted presidential elections. There will be wailing and gnashing of teeth, but no one has the authority to override his decision.
The statement says nothing about who might or might not have “won” the contested states. Rather, by not following their own laws, as enacted by their own legislatures, they have violated Article II, Section 1. Thus they have not conducted an election, and their results are void.
If the votes of all six contested states (excluding New Mexico) are registered as zero, President Trump will have 232 votes, and Joe Biden will have 222. The 12th Amendment says,
“…the votes shall then be counted: – The person having the greatest number of votes for President, shall be the President…”
In plain language, Donald Trump will be re-elected, since he has a majority of the actual electoral votes. There will be no need to involve the House of Representatives to resolve a contingent election.
Richard Nixon chose not to contest the 1960 election because he felt that winning that way would lead to an ungovernable country. If VP Pence does this, that same argument might be made. But is the country even governable now? Blue states such as California, Oregon, Washington, New York, New Jersey, and Michigan are already operating in an openly lawless manner with their “emergency” “COVID related” restrictions. Their denial of the rights of law-abiding citizens is horrific. How much worse would things be if the VP lived up to his oath and upheld the law?
Ted Noel posts on multiple sites as DoctorTed and @vidzette.
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