Vice President Mike Pence stands next to President Donald Trump during a press briefing.
ADVERTISEMENT

President Donald Trump tweeted out today, “The Vice President has the power to reject fraudulently chosen electors.”

Vice President Mike Pence does not have the power to reject electoral votes. This is an argument that must be based on a penumbra because it can be found nowhere in the text of the Constitution.

The 12th Amendment reads, “The President of the Senate (the Vice President) shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.”

Notice the word “shall” mentioned twice, that’s important.

Just as the role of Congress is largely ministerial when certifying the Electoral College vote (unless no candidate has a majority), so is the role of the Vice President.

Can you imagine if then Vice President Al Gore rejected Florida’s electoral college votes in 2000 claiming the vote count in that state was fraudulent? Could you imagine the backlash if then Vice President Joe Biden rejected electoral college votes in an attempt to deny Trump his victory in 2016?

The same people pushing this argument now would be screaming bloody murder and rightfully so.

Vice President Pence does not appear to believe he has this power. He sought the rejection of a lawsuit by U.S. Rep. Louie Gohmert, R-Texas, that attempted to expand Pence’s power to overturn the election.

Fortunately, that lawsuit was rejected by an appellate court based on Gohmert’s lack of standing to sue.

Some look at what then Vice President Richard Nixon did in the aftermath of losing the 1960 presidential election to then U.S. Senator John F. Kennedy of Massachusetts. Unlike the popular vote margin, the Electoral College margin wasn’t close. Kennedy had a 100 vote lead. Initially, Nixon was thought to have won Hawaii, but after a recount, it was determined that Kennedy won. The state sent two slates of electors – Republican and Democrat.

Roll Call reports that Nixon resolved the conflict against himself, according to State University of New York professor James A. Gardner said in a webinar organized by the New York State Bar Association.

“He asked for unanimous consent that the votes of the Democratic electors would count,” Gardner said.

Not exactly the model that President Trump wants to be followed. Also, there is the question of whether alternate electoral votes are legally certified in the state something that is required by the Electoral Count Act. Unless there was a full vote by a state’s legislature to accept those alternates, likely not.

1 comment
  1. I am in agreement with you on this on the role of the Vice President. As I pointed out in my prior article, Congress has the power, under the statutes previously discussed, to reject electoral votes based on fraud or illegality. This could lead to a vote, by state delegation in the House of Representatives, which re-elects Trump. They haven’t got the courage or, perhaps, the knowledge to do that. This is a case where the courts and state legislatures, and probably, later today, the Congress, have utterly failed to address fraud and illegality in several states. This sends the dangerous message that fraud and illegality work and we can expect to see them repeated.

    Louie Gohmert did have an interesting argument, which doesn’t accurately apply to the Vice President. He compared the Vice President’s role to that of the Senate in providing “advice and consent” to treaties and judicial and other appointments. A woodenly literal reading of Article 2, section 1 might seen to only allow the Senate to “consent” to treaties and appointments, as the power to withhold consent is not specifically mentioned. He apparently argues that the Vice President has the power to count electoral votes, which implies he has the power to refuse to count invalid votes. The language of the 12th Amendment and 3 U.S.C. section 15 initially limit the Vice President to opening envelopes and handing them to the tellers, who count the vote subject to any objections which may be raised by the representatives after the Vice President announces the vote.

Comments are closed.

Get CT In Your Inbox!

Don't miss a single update.

You May Also Like

Kamala Harris Tanks in New CNN Poll, Biden Bounces Back

U.S. Senator Kamala Harris, D-Calif., dropped 12 points since June in a new CNN poll showing her bump after the first debate was erased after the second.

Shane Vander Hart Discusses The Equality Act on Faith Works Live

Shane Vander Hart joined Michael Demastus and Ian Barrs on Faith Works Live on 99.3 FM The Truth Network to discuss a specific threat to religious liberty.

Impeachment as a Power Fantasy Undermines the Real Thing

Adam Graham: In these polarized times, the bulk of initial support for any impeachment is going to come from a President’s most vociferous opponents because of personal animus.

Gabbard Sues Google for $50 Million After Ad Account Suspension

Tulsi Gabbard’s presidential campaign accused Google of election interference when their advertising account was temporarily suspended after the first debate.