“I have to tell you, I hope that our great vice president, our great vice president, comes through for us,” Trump told a crowd in Georgia on Monday night at a rally purportedly for Senate candidates David Perdue and Kelly Loeffler but actually for his own flailing efforts to secure a second term. “He’s a great guy. Because if he doesn’t come through, I won’t like him quite as much.”
On Tuesday, Trump followed up with specifics. “The Vice President has the power to reject fraudulently chosen electors,” he tweeted.
Pence has no such authority ― nor would Senate president pro tem Charles E. Grassley (R-Iowa), if Pence doesn’t have the courage to show up and perform his constitutional duty. Not under the Constitution and not under the applicable statute, the 1887 Electoral Count Act. There are reports Pence has told Trump this and will not derail the process.
Still, until Congress declares Biden the winner, American democracy is facing its greatest challenge since the start of the Civil War at Fort Sumter.
Here is what’s supposed to happen when Congress meets on Wednesday. Under the Electoral Count Act, Congress has promised to accept as “conclusive” any state’s “final determination” of litigation over the appointment of its electors. Consequently, this year the process should be straightforward: There is no doubt about how any state resolved the lawsuits that the Trump campaign and its allies filed to challenge the appointment of electors. Trump lost. Joe Biden’s wins were certified. All that remains — or should — is the ceremonial tallying of those votes.
Even so, Trumpian loyalists in the House and Senate have said they will object to at least some of the state submissions. The law provides for challenges, but only under very limited circumstances, when the electoral vote was not “regularly given” or the electors were not “lawfully certified” under state procedures.
Such objections are supposed to involve the correct identification of the state’s official appointment of the electors under state law — in other words, are the electoral votes being considered by Congress cast by electors the states appointed? They are not supposed to be about the kind of underlying fraud along the lines that Trump has claimed resulted in the election being stolen from him. Even if Trump had such proof — and there has been no such indication in the blizzard of lawsuits challenging the results — the joint session is not the right place to resolve the objections. They are flatly improper under the statute.
Republicans claim they are only doing what Democrats have done in the past. So what? These shenanigans were wrong when the Democrats tried them, albeit on a far smaller and less disruptive scale, and they remain wrong. Is it really too much to ask of the nation’s lawmakers that they follow the law they have written?
There is no reason to panic, because this stunt is doomed to fizzle. The law provides that any objections fail as long as one house of Congress rejects them. It is clear that the challengers lack a majority in either house.
How long this will take remains unclear — because we don’t know how many states Republicans will object to. But with two hours of debate permitted for each objection, plus the time it takes for moving between the joint session and separate debates and votes in each chamber, the whole process could stretch well into Thursday.
Could Pence introduce another monkey wrench, perhaps by presenting “rival” packages of electoral votes for some states? Any such rival slates of electors lack any official pedigree and should be discarded, as required by the law. But Pence — if he is inclined to do Trump’s bidding — might try to force Congress to debate the official and unofficial packages simultaneously. Either way, the two chambers control the outcome; it’s just a question of how to get there.
The remaining wild card would be for Pence to try to make the unconstitutional move of ordering electoral votes for Biden disqualified. The two chambers separately can vote to overrule him. If Pence then says that he is disregarding their action and asserting his supposed power as president of the Senate, the Senate can insist upon its right as a parliamentary body to control the conduct of its presiding officer.
As a last resort, Congress could suspend the counting of electoral votes until Pence relents and abides by its decision. In that extraordinary case, Pence’s term would still end at noon on Jan. 20. The counting would resume with the Senate’s president pro tempore in the chair. Messy, yes, but Biden still would become president.
In this way, Congress can withstand whatever Trump and his allies — including, potentially, Pence — might do in a last-ditch effort to subvert the election.
But the graver danger is how many in Congress support Trump’s subversion. The only solace is that their numbers are not larger — at least not this time. That’s hardly the same as the United States’ great experiment in self-government being safe from serious peril.