In a Hypothetical Alternate Universe - What Might Vice President Mike Pence do Today?

Official White House Photo by D. Myles Cullen

Caveat — the legality and constitutionality of the ideas and alternatives discussed below are unresolved.  Don’t let anyone tell you any different.  The only time anything similar to this circumstance happened was in the connection with the Presidential Election of 1876, between Rutherford B. Hayes and Samuel Tilden.

That was the election that followed the two terms of Pres. Ulysses Grant and the former Confederate States were chaffing under the presence of federal/Union troops in southern cities, and the policies of “Reconstruction” that existed to protect the rights of freed slaves.

Hayes was the Republican Governor of Ohio, and Tilden was the Democrat Governor of New York.  Tilden was regarded as having easily won the popular vote, and in the meeting of the Electoral College it was expected that he would win that vote as well.  But when the votes were counted, the outcome was 184 to 165 for Tilden — with 185 votes needed to win.

The votes from three Southern States — Florida, South Carolina, and Louisiana, with a combined 20 electoral votes — had not been counted.  The states have Republican-controlled state governments, and they refused to certify Electors for Tilden even though it was accepted that Tilden had won the popular vote in each state.  Tilden had won his home state of New York and all the formerly Confederate States, while Hayes won all the other states.  Withholding the 20 Electoral votes of Florida, South Carolina, and Louisiana deprived Tilden of the majority he needed to capture the Presidency.

Before addressing how that problem was resolved, I want to focus on some hard political truths — as I see them.

Any maneuver that would ultimately work to return Pres. Trump to office for a second term will be condemned by the media worldwide, in the halls of Congress, state capitals across the country, and foreign capitals around the world.  Any second term for Pres. Trump will be deemed “illegitimate” from its first minute, and it will be denounced on the basis that the efforts to put him back into office validates all the warnings about him being an authoritarian and aspiring to be a dictator.  Any policy efforts he might try to advance in a second term would be resisted in every imaginable way.  Ever Obama appointed judge will go out of his/her way to tie up in legal proceedings anything that is attempted.  Every liberal interest group imaginable will be found to have standing to challenge any action they don’t like.  The machinery of government will grind to a halt.  The federal bureaucracy is, by a significant majority, pro-Biden and will not willingly go along.  It will be a bona fide “constitutional crisis”, not some academic exercise.

He would be subject to non-stop impeachment inquiries by the Democrat-led House of Representatives with a slim majority and control the Judiciary Committee for the next two years.

President Trump has no constituency for a second term other than the MAGA base.  The establishments of both parties want to move on — he’s a threat to both since he first ventured into politics.  World leaders do not like his unpredictability and willingness to shake-up established orders.  They much prefer all the old alliances from which they have benefitted so well since the end of World War II.  President Trump might not have had the most consistent and clear-viewed foreign policy, but what he did believe was that the policies that had been put in place by the two parties over the past four decades were not working to the benefit of the American people — so he started changing them.

Those are all reasons why I think Vice President Pence will do nothing more than open the envelopes and have the Clerk read the votes.  Pence expects to continue with a career in politics in 2022 and beyond.  If he was to take any steps towards an effort to secure a second term for Pres. Trump, his political epitaph would begin and end with that fact.  He would have no future in politics beyond a second term as VP.

While VP Pence has been a loyal member of the Trump Administration, prior to being selected by candidate Trump to be his running mate, Pence would not have been identified as a “MAGA” guy.  He is an establishment “Reagan Republican” from a well-established GOP lineage in the State of Indiana.

The course of action that I layout below as a THEORETICAL option is one that would take extraordinary political will, and likely require payment of a huge political price.

The option is not one that Pres. Trump can carry out on his own.  It is an option that can only be executed by the Republican establishment politicians in the House and Senate.

Did I mention that the GOP Establishment has never been a supporter of the President and is anxious to see him pass from the scene so they can get back to running the party as they envision it — even if it means suffering through one term of a Biden Presidency?

In this article that I wrote yesterday, I did a deconstruction of the language of the Twelfth Amendment and what it describes as the process for determining the results of the meeting of the Electoral College.

I noted that I was saving for this article a discussion of the Electoral Count Act — 3 U.S.C. Sec. 15.

It is pursuant to the ECA that members of the House and Senate are announcing their intention to file “Objections” to the votes of Electors from particular states.  The basic provisions of the ECA are that Objections must be submitted in writing, and must be signed by both a member of the House and a Senator.  Once an objection is properly made, the two Houses of Congress convene in separate sessions, debate the Objection for up to 2 hours, vote to sustained or reject the Objection, reconvene in Joint Session, and announce the results of their vote.  If both Houses agree to sustain the Objection then the Electoral votes are disallowed.  If either House votes to overrule the Objection, then the Electoral votes stand.

The ECA was passed in 1887 to prevent a recurrence of the problems that plagued the Hayes-Tilden Presidental election ten years earlier in 1876.  When the 20 votes from Florida, South Carolina, and Louisiana were withheld from Democrat Samuel Tilden, preventing him from getting the 185 needed to win, Congress created a “Commission” to study the voting in those 3 states in an effort to break the deadlock.  There were 15 members appointed to the Commission — five members from the House, five from the Senate, and five members of the Supreme Court.  The partisan makeup of the Commission, however, was 8 Republicans and 7 Democrats.

An informal compromise was eventually reached by which the 20 Electoral votes would be awarded to Hayes — giving him 185 and the Presidency — in exchange for Hayes’ promise to withdraw federal troops from the Southern states and end many of the “Reconstruction” programs.  The “compromise” passed by a vote of 8-7 along party lines, with the Republican members of the Commission delivering the agreement and the Presidency to Republican candidate Hayes.  Both Houses of Congress ratified the agreement in the “Compromise of 1877”, and the election stalemate was broken with Rutherford Hayes being sworn in as President.

There is a compelling argument that the ECA passed in 1887 is unconstitutional, and almost no argument that it is not.  There has simply never been any reason to mount a court challenge to the Act — assuming one would be possible.

The ECA modifies the constitutional process adopted by three-fourths of the States through the adoption of the Twelfth Amendment and provides a mechanism for Congress to disallow Electoral votes which is wholly absent from the text of the Constitution.  By adopting the ECA Congress conferred upon itself an authority in the selection of a President that the Constitution does not provide, and that in and of itself violates “Separation of Powers” principles.

There is no basis upon which it can be enforced if it is violated.  If VP Pence, as President of the Senate, refuses to recognize “Objections” signed by both a House member and a Senator, who would bring a suit?  What Court has jurisdiction over one member of Congress suing another member of Congress over a refusal to follow the procedures of the ECA, and instead strictly follow the process described in the text of the Constitution?  If VP Pence, acting as President of the Senate, disregards the ECA by not recognizing the “Objection” procedure, who is the plaintiff? What is the remedy?  What is the status of the government while that process plays itself out?

I don’t think there is a judicial remedy for any failure to follow the provisions of the statute. Therefore, it can be disregarded without legal consequence.

So, if the President of the Senate rules objections out of order, what might happen next?  In my view, the text of the 12th Amendment provides the answer.

The 12th Amendment reads, in pertinent part:

The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;-The person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President.

But what happens if Pence, as President of the Senate, refuses to open the sealed certificates from Arizona, or Oregon, or Pennsylvania, or Wisconsin on the basis that he has concluded the Electors were not properly appointed in accord with the laws of those states?

Is there no one empowered by the Constitution to make a judgment as to the legitimacy of Electors and the votes delivered by them as described in the Twelfth Amendment?

The ECA confers such authority on the Congress as a whole — without a Constitutional amendment.  Upon what authority does Congress take that role for itself?

If Congress cannot take that role for itself absent a constitutional amendment, is there no one who can?

The 12th Amendment doesn’t provide an alternative.  Nancy P. or Chucky S. can’t rush the dais and open the envelopes in the VP’s place.  The 12th Amendment lays out a procedure that was passed by 2/3 of each the House and Senate and ratified by 3/4 of the States. That process doesn’t name other Congressional officials to take action, but the President of the Senate — BY DESIGN a member of the Executive Branch — is mentioned.

Because every state has appointed electors, for there to be a winner there must be 270 votes for a candidate — just as was the case in 1876.  Without those 4 states, neither candidate has 270 electoral votes.

The Twelfth Amendment provides the remedy for this problem — “if no person have such majority … the House of Representatives shall choose immediately, by ballot, the President.”

“Immediately” — no court challenges, no protests in the street, no walkouts for press conferences on the Capitol steps.  THAT is the remedy in the Constitution — nothing else.

Here is a hypothetical of an alternative scenario by which the President of the Senate might be responsible for making the decision to refuse to recognize Electors.

In a closely contested Presidential Election, the outcome comes down to the result of a single state — like in 2000 in Florida or 2004 in Ohio.  But for our hypothetical let’s call the key state Westphalia.

Westphalia is predominantly a “one-party” state, with all levels of state government controlled by Party A.  But in the lead-up to the Presidential election, the Governor — a member of Party A — announces new harsh COVID lockdown orders.  As a backlash against the orders, the voters in Westphalia narrowly vote for the Presidential candidate for Party B, which is announced to the media and the public, and the electoral votes of Westphalia are the difference upon with the outcome of the election is based.

After the meeting of the Electoral College and submission of the List of votes to the Governor as required by the Twelfth Amendment, behind closed doors and with the help of only one loyal staffer, the Governor certifies Electoral Votes for the Candidate of Party A, contrary to the announced vote outcome. The Certification is sealed and sent to the National Archivist without anyone know what the Governor has done.

But on the day of the Joint Session of Congress, prior to the President of the Senate opening the certificates, the staffer communicates to a Senator from Westphalia what the Governor has done, and that the Electoral votes as contained in the Certificates will actually total a win for the Candidate of Party A and not the Candidate of Party B.

Under the language of the Twelfth Amendment, is anyone empowered to prevent the misconduct of the Westphalia Governor, which everyone recognizes, from having an effect?

Who could wield that authority other than the one Constitutional Officer mentioned in the Twelfth Amendment?  TheTwelfth Amendment mentions NOTHING about Congess “certifying” the results of the Electoral college vote — Congress only counts the votes.  The votes are in the sealed Certificates.

If the designation of the “President of the Senate” is for no purpose other than to perform a ministerial or ceremonial act. then why name him at all — and why pick the one Officer of Congress who is actually a member of the Executive Branch?

If you accept that when everyone recognizes that misconduct has created a situation that must be addressed, how do you justify not recognizing such authority in a situation where the misconduct is disputed?  The authority either exists or it does not exist.

In my opinion, the language of the Twelfth Amendment was intended to prevent disputes or uncertainties in the States from delaying the organization of, or paralyzing the operation of the Executive Branch of the Federal Government.  That is why the language directs that the House shall “immediately” move to a vote to choose a President from the top 3 recipients of Electoral votes if there is no majority from the Electoral College.

It is 21st Century historical ignorance that assumes the Founders would be “outraged” by the “disenfranchisement” of voters.  Selection of the President wasn’t done by popular vote at the time of the founding, and selecting a President by a vote of state congressional delegations was the functional equivalent of a vote by the Legislature of each state, which is the way states chose their Electoral College members at the time of the founding.

The drafters of the Twelfth Amendment, and the state legislatures which adopted it, provided a political solution for a political problem.  They knew that the politicians charged with carrying out that political solution would thereafter be accountable to the voters of their states for the choices they made.

In my view, as a theoretical matter, Vice President Pence could throw the matter into the House of Representatives for an immediate vote to choose the next President by refusing to open the Certificates from the four disputed states.  That is a political act that he would then be accountable for to the House which might pursue impeachment of him for having done so.

The House delegations would then vote in accordance with the process described in the Twelfth Amendment.  The GOP now controls 27 House delegations while the Democrats control only 20, and three are evenly divided.

In a sheer political power play, the GOP House delegations could choose Pres. Trump to serve a second term.  That would be a political act and it would bear political costs.  Not only would Democrats be enraged, but some number of Republicans might be upset by what they might see as a naked power grab.  The 2022 midterm elections could be a bloodbath as the Democrat party would be motivated to come out and vote against GOP incumbents in the delegations that chose Pres. Trump like no election ever in history — a fact that House members would have to seriously consider in determining how each state delegation should cast its one vote.

A second term of a Trump Presidency would suffer from all the dysfunction that I described in my opening paragraphs above.

For me, no matter how much Pres. Trump’s MAGA base might desire to see that outcome happen, the political costs are simply too high.  Not “risks” — costs.

But more importantly, it would require the GOP establishment to carry out the effort.

Did I mention that the GOP establishment is not altogether unhappy to see President Trump fade from the scene?