Will Trump Play the Pence Card?

Over the last month, I’ve provided a number of possible paths for President Trump to be re-elected. This article will explain the simplest, most direct, constitutional path to the President’s re-election and the reasons why some paths are, in my opinion, less viable.

Opinions vary on if, and how President Trump might pull off a win when the electoral college votes are read in the joint session of Congress on January 6th. Differences of opinion are generally based on which statutes are accepted as authoritative and which legal precedents are cited. The likely behavior of certain individuals has not been given much consideration by political pundits, but the behavior of certain people makes some paths less likely to succeed.

Some people hope that a court will issue a favorable ruling that decertifies the electoral votes of certain states or overturns the results of an election. While these pursuits are noble, judges appear to be unwilling to take action on them. In the end, I doubt the courts will play a major role in the outcome of this election.

Efforts are underway to pressure state legislators to reverse the actions of governors who certified electors following illegal or fraudulent elections. There is certainly evidence of election fraud and some states violated state or federal law (or the constitution) in the way they administered their elections. State legislators should take action, but it is unknown if they will, and those who are trying to are opposed by people who are trying to run out the clock. I don’t think we can depend on state legislators to make an impact on the final outcome.

Some believe the best chance for the President to be re-elected is to have members of the House and the Senate object to the votes of electors on January 6th. The electoral count act (3 U.S. Code § 15) makes provision for this. Once an objection to a state’s electoral vote is made and seconded, the House and Senate separately debate the objection, and a vote to either sustain or overrule the objection is taken in each chamber.

To sustain an objection in the Senate, nearly every Republican must vote in favor of it, including never-Trumpers like Mitt Romney, Susan Collins, and Lisa Murkowski. Only a couple of Senators have so far expressed interest in considering objections to electors. I doubt that an objection would be sustained in the Senate. And as hard as it will be in the Senate, it will be more difficult in the House due to the Democrat majority. While I think that encouraging Senators and Representatives to object to electors is a goal worth pursuing, but I’m not convinced that approach will succeed. There is also an effort underway to pressure members of Congress to hold hearings on election fraud, but there seems to be little interest on the part of congressional leaders.

Any of the above tactics could be successful, but I think the odds of any of them succeeding are small, because of the predictable behavior of the individuals involved.

Donald Trump knows that the decision-makers in these efforts are pitted against him. Do you think he would trust his presidency and the fate of the nation to people that he knows are working against him?

I think not.

I think, rather than putting his fate in the hands of people he can’t depend on, he would maintain control of the process to the greatest degree possible.

An important election precedent was set in the 1960 Presidential race between John F. Kennedy and Richard Nixon. In a close race in the state of Hawaii, Nixon was declared the winner. In order to meet the “safe harbor” deadline of Dec 13th, Hawaii’s Governor signed a certificate of ascertainment for Nixon’s electors.

Hawaii’s popular vote was disputed, and a judge ordered a recount. On the day when electors had to cast their votes (Dec 19th), Kennedy had taken the lead, but the final tally was weeks away. Because the outcome was not settled, electors for both Nixon and Kennedy met in the capitol that day and cast their votes.

On December 28th, the recount was finished, and Kennedy was declared the winner in Hawaii. The governor sent a revised certificate of ascertainment dated January 4th, 1961, just two days before Congress met to count the votes.

In the rare case when a state submits two slates of electors, the Electoral Count Act provides guidance on how to determine which slate should be accepted. The process provided is confusing and contradictory. Depending on how you interpret the instructions, several options are available.

During the 1960 election, Richard Nixon as Vice-President presided over the count in Congress. Here is how he resolved the dispute (source):

In order not to delay the further count of the electoral vote here, the Chair, without the intent of establishing a precedent, suggests that the electors named in the certificate of the Governor of Hawaii dated January 4, 1961, be considered as the lawful electors from the State of Hawaii. If there be no objection in this joint convention, the Chair will instruct the tellers-and he now does-to count the votes of those electors named in the certificate of the Governor of Hawaii dated January 4, 1961-those votes having been cast for John F. Kennedy, of Massachusetts, for President and Lyndon B. Johnson, of Texas, for Vice President.

Nixon made a unilateral decision to disqualify his own elector’s votes while submitting only the votes for Kennedy. This was done, despite the fact that his electors were the only ones with a certificate that met the safe-harbor deadline. Nixon said he did not intend to establish a precedent, nevertheless, he did establish one. In doing so, he demonstrated the authority exercised by the officer who presides over a joint session of Congress as they count the votes of the electoral college. Some argue that the Vice-President has limited authority over the vote-counting process, but he has the power to make discretionary decisions regarding procedural rules, as Nixon demonstrated.

This year, no less than five, and by some accounts, as many as seven states have submitted two slates of electors. Although the media insist that only Biden electors are valid for these states, the Electoral Count Act says:

…all the certificates and papers purporting to be certificates of the electoral votes, which certificates and papers shall be opened.

Even if a certificate from an elector was not certified by the state’s governor, it is supposed to be considered.

Vice-President Mike Pence will preside over the vote count in Congress on January 6th. He has received intelligence briefings on election fraud and interference that members of Congress haven’t. He must decide which, if any, votes from disputed states will be rejected. A number of states violated the law in the manner in which they conducted their elections. In some states, fraud was committed. Pence has more detailed information on these matters than anyone involved in the process. He could reject the electoral votes—both those for Biden and those for Trump—based on his knowledge of fraud and interference.

For example, Pence could reject all electors from the states of Nevada, Arizona, Pennsylvania, Georgia, Michigan, and Wisconsin. If he did, the resulting electoral vote count would be 227 votes for Joe Biden and 232 for Donald Trump. There is no provision in the Electoral Count Act (or any other law) stating that the number of votes needed to win (270) must be reduced if some votes are rejected. Pence could declare Trump the winner by a simple majority of the votes that were counted.

 

 

Let’s look at a second scenario. If Pence did not feel he had a strong enough reason for disqualifying the votes of Arizona and Nevada, he could reject the votes of all electors from Wisconsin, Michigan, Georgia, and Pennsylvania on the grounds that these four states expanded vote by mail in contravention of state and federal law. The rejection of votes from those four states would leave Biden with more votes than Trump (244-232), but both candidates would fall short of the 270 votes needed to win.

Because there is no rule indicating that the number of votes needed to win changes if some votes are disqualified, Pence could declare that both candidates would still need 270 votes to win. He could determine that since the 270 vote requirement was not met, a continent election must be held as prescribed by the 12th amendment.

In a contingent election, the House of Representatives would immediately take a vote to decide the next President. The vote in the House is one vote per state delegation. On January 6th, Republicans will hold a 26-21 state delegation majority over Democrats with three states tied.

The Senate would hold a vote to decide the next Vice-President. Republicans hold a 50-46 majority in the Senate with 2 seats controlled by third parties and 2 seats in Georgia on the ballot January 5th, the day before the electoral votes are counted.

In the contingent election, if the House voted along party lines, Trump would be re-elected. In the Senate, if Republicans maintained their majority, and if they voted along party lines, Pence would be re-elected.

These two scenarios put the outcome of the election in control of Trump and Pence to the greatest degree possible while minimizing the roles played by unpredictable people. This approach is constitutionally defensible, and there is historical precedent to support it. If I was President Trump, this is the path I would take.

There are concerns over what Trump’s opponents in Congress are likely to do. For that reason, the safest strategy is to avoid asking them to do anything risky. The risk to never-Trumpers is eliminated if Pence disqualifies electors from several states and either declares Trump the winner by a simple majority (scenario 1 above) or triggers a continent election (scenario 2). In the first scenario, never-Trumpers play no part. In the second, they would simply go along with the process Pence chose and blame him for the outcome.

Democrats would object if this were to happen. The only remedy available would be a lawsuit contesting the process. We’ve already seen how little interest the courts have in hearing election-related cases. Democrats might be angry, but they would have to live with the outcome.

There would likely be civil unrest if something like this were to happen, but regardless of which candidate wins, there are going to be unhappy people. If rioting got out of hand, I would expect Trump to mobilize the national guard to bring it under control.

I think all efforts should continue to get state legislators to rescind illegitimate electors. Attorneys should continue asking the courts for constitutional remedies. Members of Congress should be pressured to oppose electors from states that violated the law and hearings should be held to expose election fraud and interference. We don’t know which route will prove to be the most effective and I do not wish to discourage these efforts. The purpose of this article is to suggest that perhaps a plan is in place that hasn’t been made public—one that keeps much of the process under the President’s control.

p.s. Ivan Raiklin has suggested that today (December 23rd) is an important day for Vice-President Pence to take action.  3 U.S. Code § 12 says that if by the fourth Wednesday in December, the President of the Senate (Pence) has not received certificates of votes, he must contact states to receive them. I believe he has already received them. Whether he considers them to be valid is a matter to be decided on January 6th. I don’t think anything more is required of Pence between now and then, and I don’t think inaction on his part should be interpreted as indifference to the process.