Efforts by President Donald Trump and congressional republicans to subvert the clerk-like, ministerial and ceremonial counting of electoral votes on January 6, is a witches’ brew for undermining the Constitution and American Democracy.
Sen. Ben Sasse (R-Neb), has justly characterized as a “dangerous ploy,” the efforts of President Donald Trump and a handful of congressional republicans to overturn President-elect Joe Biden’s electoral college victory. Trump’s pitch to Vice-President Mike Pence to throw out the duly certified votes for President-elect Joe Biden, based on republicans’ plans to object to counting those votes grounded on false and debunked claims of voter fraud, is “playing with fire.” Sen. Sasse is correct: the plan is “designed to disenfranchise millions of Americans simply because they voted for someone in a different party.” He is right to remind us that, “We ought to be better than that.”
By constitutional design—Article II and the 12th Amendment--the certification proceedings on January 6 are designed to be ceremonial, with Vice-President Pence serving in his capacity as “president of the Senate,” performing the perfunctory task of “counting” the results of the Electoral College. Both houses of Congress gather for a joint session. The vice president is instructed by the Constitution to open the ballot envelopes, hand them to “tellers,” ask members of Congress if there are any objections to the results in any state, announce the votes on any objections and, finally, announce the result of the electoral college vote.
The vice-president’s purely ministerial role, devoid of substantive powers to tamper with the results, was fortified by The Electoral Count Act of 1887, enacted to prevent a recurrence of the turmoil that surrounded the presidential election of 1876. This statute, part of the law of the land, denies to the vice president authority to ignore, discount or otherwise throw out the votes of a particular state. The statute directs the vice-president to open “all certificates and papers purporting to be” electoral votes.
This statute also imposes sharp constraints on congressional temptation to reverse the outcome of the Electoral College vote. An objection to the results of the vote in a particular state by a member of one of the chambers requires an objection to the same state by a member of the other chamber. Sen. Josh Hawley (R-Mo.) has stated that he will object to the results of the election in Pennsylvania. He will have the support of one or more republican members of the House, which will serve to trigger in each chamber of Congress a two-hour debate on whether the electors of Pennsylvania will be accepted by Congress.
There is virtually zero chance of that happening, simply because the law requires that rejection of the results in a particular state, in this instance, Pennsylvania, must win the support of a majority of members in both the House and the Senate. Control of the House by the Democratic Party precludes the chance that the electors from Pennsylvania will be rejected. It is also likely that the plan to overturn the election will be defeated by moderate members of the Senate who do not want their legacies sullied by participation in a scheme to deny the will of the voters.
President Trump and Rep. Louis Gohmert (R-Tx), assert that Vice-President Pence possesses the discretionary authority to ignore the Constitution and The Electoral Count Act by refusing to “accept” the electoral votes in swing states, which would deliver the presidential election to Trump. Neither Trump nor Gohmert cares much about the intentions of the founding fathers or the drafters of the governing statute, but Pence might. He might have the strength of character and the requisite integrity to obey the law of the land, as well as sufficient personal motive to protect his reputation.
President Trump’s attempt to persuade Vice-President Pence to shirk his constitutional duty and to betray his oath of office is but the most recent of Trump’s efforts to overturn the election results and cling to power. Some 50 state and federal courts have rejected Trump’s lawsuits in rulings laced with sharp reminders that the president’s lawyers failed to present evidence of voter fraud sufficient to alter the outcome of the 2020 election.
Trump’s failure to win in the nation’s courts was accompanied by failure to persuade state officials, including several republicans, to corrupt the Electoral College process. Now, the president, hoping to hold power and stay in office by illegitimate means, places his final hopes in the hands of the vice-president and congressional republicans whom, he prays, will abandon the Constitution and surrender the fundamental principle of American Democracy—the right of the people to choose their representatives.
This cynical, anti-democratic maneuver is not consistent with the electoral process, or the system, for which our forefathers fought the American Revolution. Nor is it in any way consistent with the hopes and dreams of Washington and Hamilton and Madison, and others who wrote the Constitution that exalts government of, by and for the people. Let us hope that January 6, 2021, is not a day that will live in infamy.
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David Adler is president of The Alturas Institute, created to advance American Democracy through promotion of the Constitution, civic education, equal protection and gender equality. He has lectured nationally and internationally on the Constitution and the Bill of Rights. His scholarly writings have been quoted by the US Supreme Court, lower federal courts and by both Republicans and Democrats in Congress.