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Douglas Andrews / Jan. 6, 2021

Mike Pence’s Electoral Predicament

The vice president is both thoughtful and capable, but he’s powerless to overturn the election singlehandedly.

Mike Pence is in a tough spot. The toughest of spots. He’s been an exemplary vice president and the unsung hero of the Trump administration. He’s been loyal to the letter and dignified at every turn, and his selection by Donald Trump was the best decision that then-candidate Trump ever made.

Now, however, at a joint session of Congress, Pence is being asked to do the impossible: reject the electors chosen by certain states during today’s roll call, and thereby singlehandedly upend the 2020 presidential election.

“States want to correct their votes, which they now know were based on irregularities and fraud, plus corrupt process never received legislative approval,” tweeted President Trump this morning. “All Mike Pence has to do is send them back to the States, AND WE WIN. Do it Mike, this is a time for extreme courage!”

“The Vice President has the power to reject fraudulently chosen electors,” President Trump tweeted yesterday. But Jay Sekulow, President Trump’s personal attorney and lead outside counsel during the impeachment hearings, disagrees.

“Some have speculated that the vice president could simply say, ‘I’m not going to accept these electors,’ that he has the authority to do that under the Constitution,” Sekulow said Tuesday during an in-depth discussion on his radio show. “I actually don’t think that’s what the Constitution has in mind. If that were the case, any vice president could refuse any election. It’s more of a ministerial procedural function.”

In short, Vice President Pence has the constitutional power to open the envelopes containing each state’s slate of electors. The clerk, however, does the counting. As the Washington Examiner’s Mica Soellner reports, “Pence will preside over a roll call of states. … If at least one senator and one House member object to the results from a state, a debate up to two hours long can take place regarding the results. Each chamber will then vote separately to certify or object to those results.”

Beyond simply presiding over the events, however, Mike Pence is powerless under the Constitution.

A more substantive approach is the Electoral Commission being called for by Texas Senator Ted Cruz and 10 Senate colleagues. In a joint statement issued Sunday, the senators noted the “unprecedented allegations of voter fraud, violations and lax enforcement of election law, and other voting irregularities” that poisoned the 2020 presidential election.

They also noted the troubling reality of recent polling: “39% of Americans believe ‘the election was rigged.’ That belief is held by Republicans (67%), Democrats (17%), and Independents (31%).” (Let those numbers sink in, and try to contemplate the deeply divided nation that a Biden-Harris administration will attempt to govern.)

The senators’ proposal cites the disputed 1876 Hayes-Tilden presidential race as precedent, when, “following serious allegations of fraud and illegal conduct … Congress did not ignore those allegations, nor did the media simply dismiss those raising them as radicals trying to undermine democracy. Instead, Congress appointed an Electoral Commission-consisting of five Senators, five House Members, and five Supreme Court Justices-to consider and resolve the disputed returns.”

The senators continue: “Congress should immediately appoint an Electoral Commission, with full investigatory and fact-finding authority, to conduct an emergency 10-day audit of the election returns in the disputed states. Once completed, individual states would evaluate the Commission’s findings and could convene a special legislative session to certify a change in their vote, if needed.”

Cruz and his colleagues are realistic about their chances, but a 10-day audit could at least deliver some much-needed transparency to our broken election system — a system in which at least 39% of the American people have no confidence.

We’re not sure whether the senators’ efforts will come to any good, but a constitutionally dubious procedural gambit by Vice President Pence certainly isn’t the answer.

“Mike Pence is a man of honor, character and honesty,” President Trump said in 2016, as he introduced his running mate. We agree wholeheartedly, regardless of how today’s events unfold.

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