The Constitution directs states to send their electoral college votes to Congress to be counted in a special joint session. An 1887 statute requires Pence, as president of the Senate, to chair this joint session.
Typically, the session is a formality, but this year, a group of House Republicans, led by Rep. Mo Brooks (R-Ala.), are planning to use the event to try to force Congress to vote on whether to accept or reject the electoral college results. If they can get just one senator to object to the electoral votes of a state, then both congressional chambers will have to debate and vote on whether to accept that state’s submission.
This is a fool’s errand. Even if they find a senator to go along with them, both chambers will certainly affirm Biden’s victory. Senate Majority Leader Mitch McConnell (R-Ky.) knows this, so he has made clear that he hopes no senator will join Brooks, to avoid forcing his GOP caucus to go on record as to whether they are with Trump or against him.
Tommy Tuberville, soon-to-be Republican senator from Alabama, has suggested he will join Brooks, thereby scoring points with Trump. But GOP leadership, including Majority Whip John Thune (R-S.D.), is conveying McConnell’s strong wishes against this.
If McConnell can keep his caucus in line, he can prevent a debacle for Republicans — but only if Pence sides with McConnell and thus against Trump’s wishes.
Pence can wreck McConnell’s strategy — even if no GOP senator joins Brooks’s hopeless cause. That’s because on Dec. 14, Republicans in up to seven states — without any official status whatsoever — purported to cast votes for Trump, claiming Trump would have won their states were it not for fraud.
Although transparently farcical, these rival submissions have reportedly been sent to Pence, who must present them at the Jan. 6 session. The law calls for Congress to consider all “papers purporting to be certificates of electoral votes,” however frivolous they may be.
Pence could support McConnell by asking Congress to reject these ersatz — even delusional — documents. Pence would propose that the joint session simply count, without objection, the obviously official votes from these states. This would follow the model set by Richard Nixon, who, in the same position as Pence for the 1960 election, handled conflicting submissions of electoral votes from Hawaii. Nixon asked whether there was any objection to counting the Hawaiian electoral votes cast for Kennedy; there being none, that’s what happened.
No one should object if Pence proposes the equivalent treatment of Biden votes. But even if House members do, without a senator’s objection, Pence’s proposal dictates the disposition of the state’s submissions. McConnell would get his wish.
But suppose, upon announcing rival returns from a state, Pence says something like, “I believe the votes cast for President Trump are the true votes, and I propose that Congress count those.” This would force a senator and representative, presumably Democrats, to object in writing to Pence’s proposal, and the two chambers would separate to debate and vote on this objection.
Should this happen, the Senate and House will certainly agree to count the official electoral votes for Biden and discard the crackpot votes for Trump. But Pence’s maneuver would make GOP senators take stands on whether they’re with Biden or Trump, even if McConnell manages to convince his entire caucus not to object to Biden’s votes.
Pence should not do this. Reports of his meeting with Brooks and other House members on Monday to discuss strategies for Jan. 6 raise concerns that he might. Although the vice president may want to use his role then to further prove his persistent loyalty to Trump, doing so would exacerbate the horrific damage that Trump has done to the Republican Party and the entire country by his assault on the truth of his defeat.
In an exercise of demagoguery unparalleled in U.S. history, Trump’s incessant and utterly evidence-free claims of a “stolen” election have spurred calls for martial law. The ongoing danger to democracy is an ingrained unwillingness to let an electoral opponent prevail.
As Gabriel Sterling, a Republican election official from Georgia, warned three weeks ago, such behavior risks violence as well as subverting self-government. “It has to stop,” Sterling said.
Pence could help liberate the GOP and the nation from this escalating electoral hysteria. By urging Congress to accept Biden’s victory, and to reject rival submissions aimed at derailing this valid result, Pence can align himself with McConnell in endeavoring to restore rationality within Republican ranks.
Trump or truth? Pence must choose. History will judge.
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