At the start of the January 6 Joint Session of Congress, Vice President Mike Pence will preside according to his Constitutional duty as President of the Senate.
According to analysis by the American Thinker, at this time, Mike Pence’s “power will be plenary and unappealable… As president of the Senate, every objection comes directly to him, and he can rule any objection ‘out of order’ or ‘denied.’ His task will be to fulfill his oath of office to protect and defend the Constitution of the United States and to ensure that the laws be faithfully executed. This is a high standard of performance, and V.P. Pence will have two choices. He can roll over on ‘certified’ electors, or he can uphold the law.”
Article II, Section 1 of the Constitution gives state legislatures “plenary authority.” This power was reinforced in Bush v. Gore. Counting of votes is discussed in Article II, as well as the 12th Amendment and 3 USC 15.
The contested battleground states of Georgia, Arizona, New Mexico, Michigan, Nevada, Wisconsin, and Pennsylvania have all sent dueling slates of electors to D.C., with the state legislatures sending electors for President Trump, and the governors or secretaries of state sending electors for Joe Biden. Mike Pence now has to decide how he will handle the situation, as two sealed envelopes will be given to him from each of these state.
The analysis points to multiple historical examples, including that “in 1800, even with constitutional deficiencies in Georgia, Thomas Jefferson blithely counted defective electoral votes from Georgia, effectively voting himself into the presidency. This demonstrates that the president of the Senate is the final authority on any motions or objections during the vote-counting. There is no appeal.”
The report also notes the rules surrounding elections, and that these seven contested states violated their own election laws.
“An election is a process of counting votes for candidates. Only valid, lawful votes may be counted. A valid lawful vote is:
- Cast by an eligible, properly registered elector as prescribed by laws enacted by the state Legislature.
- Cast in a timely manner, as prescribed by laws enacted by the state Legislature.
- Cast in a proper form as prescribed by laws enacted by the state Legislature.
Any process that does not follow these rules is not an election. Anything that proceeds from it cannot be regarded as having any lawful import.”
The analysis provides an analogy for the recent election: “Imagine a golf tournament where every bad shot by one player gets a do-over, but the competing player has to follow USGA rules in detail. One player gets to drop freely out of hazards, but the other has to tackle every embedded ball as it lies. The result is a travesty. The same thing applies to elections. If there are a handful of improper votes, we can suggest that there was in fact an election, perhaps tainted, but the election wasn’t materially harmed. But when the people charged with managing the election decide to ignore the law, whatever process they supervise is not the process defined by the law. Therefore, it is not an election.”
Vice President Pence is now faced with a dilemma: following tradition and simply accepting votes even if he believes they are tainted, or fighting against illegality in the election and accepting the dueling electors from state legislatures. He also has a third option: refusing to accept either slate of electors.
The analysis provides a possible statement to be made by Mike Pence, which reads:
“In my hand are envelopes purporting to contain electoral votes from Georgia. They are competing for consideration, so it is essential that I consider the law that governs this. That law, according to the Legislature of Georgia and Article II, Section 1 of the U.S. Constitution is the Georgia statute that includes procedures for signature-matching on absentee ballots, a requirement that all absentee ballots be first requested by a legitimate voter, and that election monitors be meaningfully present at all times while votes were counted.
The Georgia secretary of state, who is not empowered by the U.S. Constitution to make changes to election law, entered into a Consent Decree that gutted these protections enacted by the Georgia Legislature. The processes that he prescribed and were ultimately followed were manifestly contrary to that law. Further, the State of Georgia, in unprecedented concert with other states, suspended counting of ballots in the middle of the night, covering its conspiracy with a false claim of a ‘water main break.’ We now know from surveillance video that many thousands of ‘ballots’ were counted unlawfully in the absence of legally required observers.
Finally, the State of Georgia, under the authority of secretary of state Brad Raffensperger, a non-legislative actor, used fatally flawed Dominion voting machines that have been demonstrated to be unreliable. In testing, the error rate of Dominion machines has exceeded 60%, far in excess of legal limits. They are designed to facilitate fraud without creating the legally required paper trail. This alone is far more than enough to swing an election.
Since the state of Georgia has failed to follow the election law established by its legislature under Article II, Section 1 of the Constitution, it has not conducted a presidential election. Therefore, no ‘presidential electors’ were appointed in Georgia. Further, ‘electors’ ‘certified’ by non-legislative actors pursuant to this process are in fact not ‘presidential electors.’ The competing slate of ‘electors’ is similarly deficient, having not been elected through a presidential election.
Therefore, the chair rules that Georgia has not transmitted the votes of any presidential electors to this body. Georgia presents zero votes for Donald Trump and zero votes for Joseph Biden.”
The point of all of this is that, as presiding officer and final authority, Mike Pence has the authority to declare that these contested states have not conducted presidential elections.
Making this declaration says nothing about who “won” the election in these states. Instead, it says that by not following their own laws, they have violated Article II, Section 1 of the Constitution, which means that the results are void.
If the electors for each of these seven contested states are thrown out, President Trump will have 232 votes, while Joe Biden will have only 222. According to the 12th Amendment, “the votes shall then be counted … The person having the greatest number of votes for President, shall be the President.”