Why Mike Pence Can’t Overturn the Electoral College Vote

Inside the 1887 law that took the power to invalidate an election away from the vice president.

On Saturday, Vice President Mike Pence lent support to a quixotic plan by dozens of congressional Republicans, including 11 senators and senators-elect, to challenge and overturn 2020 presidential election results when Congress convenes on January 6 to count the Electoral College votes. This effort is based on no evidence of fraud or irregularities; it will therefore fail, and Joe Biden and Kamala Harris will take office as scheduled on January 20.

Nonetheless, it’s worth considering how we got to this point and what Pence’s role should be in the process.

William Rufus King was the 13th vice president of the United States, but nothing about his brief term in office was normal. Elected on the Democratic ticket with Franklin Pierce in 1852, the long-serving Alabama senator took his oath of office in Matanzas, Cuba, where he was convalescing from a case of tuberculosis. He returned to the United States in April but died at his plantation on April 18, having served as vice president for a mere six weeks, and without ever carrying out any duties of the office. The position remained vacant for the remainder of Pierce’s term, which is why it fell to James Mason of Virginia to officiate the Electoral College count on February 11, 1857.

The grandson of Founding Father George Mason, James was fulfilling a duty spelled out in the 12th Amendment to the Constitution, which requires the president of the Senate to open the states’ certificates of election “in the presence of the Senate and House of Representatives.” Mason got the job because he was Senate President Pro Tempore, empowered in the vice president’s absence to preside over Senate sessions.

But, as Ronald Shafer details in the Washington Post,  Mason ran into a problem when Wisconsin’s rightful Republican electors for John Fremont were challenged by a Democratic congressman from Virginia. Because of a snowstorm, Wisconsin’s electors had been certified in Madison a day past the constitutional deadline. Unsure what to do, Mason unilaterally allowed Fremont’s votes rather than invalidating them on a technicality.

Even though Wisconsin’s votes were not determinative of the outcome, mayhem ensued, as many senators objected to the idea that the presiding officer of the Senate should have the unilateral power to make such a consequential decision. After internal deliberations, an “Act of God” was deemed responsible for the tardiness of Wisconsin’s votes and they were accepted, but it set a precedent for how contested electors should be handled in the future. Congress, not a single man, should decide.

Yet, when South Carolina, Florida and Louisiana offered competing slates for president in 1876, Congress was unable to resolve the dispute and the contested election was settled by a specially appointed commission. After this incident, there was broad recognition that there needed to be a formal process codified by the legislature. But that wasn’t set up for another decade. The Electoral Count Act of 1887 created the rules we use today. Here’s the Congressional Research Service’s current interpretation of the Act:

“Objections to individual state returns must be made in writing by at least one Member each of the Senate and House of Representatives. If an objection meets these requirements, the joint session recesses and the two houses separate and debate the question in their respective chambers for a maximum of two hours. The two houses then vote separately to accept or reject the objection. They then reassemble in joint session, and announce the results of their respective votes. An objection to a state’s electoral vote must be approved by both houses in order for any contested votes to be excluded.”

There is no role in the statute for the president of the Senate—i.e. Mike Pence—other than to oversee the opening and counting of the certificates of the election, and then to announce the results. This is intentional, as there should be no repeat of James Mason’s 1853 attempt to decide a dispute on his own authority.

Still, in a suit that was rejected in federal court on Friday and in federal appeals court on Saturday, Texas Republican Congressman Louie Gohmert and an illegitimate slate of Arizona Trump electors sought to invalidate the Electoral Count Act of 1887 and grant Vice President Mike Pence the sole authority to determine which slates of electors to accept or reject. Pence actually opposed Gohmert’s argument and successfully used Department of Justice lawyers to make his case.

If Pence’s actions seem schizophrenic—endorsing a congressional challenge but rejecting the power to validate one—it’s because he’s trying to find a middle ground between staying in the good graces of President Donald Trump and his supporters and abiding by the law and Constitution.

Congress long ago decided that no one should have the unilateral authority to decide the victors of a presidential election, and Pence knows the country would erupt into violence and disorder if he ignored the 2020 election results and declared Trump the winner.

Yet Trump has been relentless in pursuing efforts to do just that, including his potentially criminal phone call on Saturday with Georgia Secretary of State Brad Raffensperger, in which he begged the election official to “find” the votes he needs to overturn the will of Georgia’s voters.

Fortunately, we have a law that makes clear that Pence cannot provide this kind of criminal service for Trump, and as we’ve seen in recent weeks and months, we have courts willing to uphold that law.

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Martin Longman

Martin Longman is the web editor for the Washington Monthly. See all his writing at ProgressPond.com