Opinion
Will Pence Do the Right Thing?
On Jan. 6, the vice president will preside as Congress
counts the Electoral College’s votes. Let’s hope that he doesn’t do the
unthinkable — and unconstitutional.
By Neal K.
Katyal and John Monsky
Mr. Katyal,
a law professor at Georgetown, is a former acting solicitor general of the
United States. Mr. Monsky is the creator of the American History Unbound Series
of multimedia productions that covers watershed moments in American history and
a board member of the New-York Historical Society.
Dec. 29,
2020, 5:00 a.m. ET
President
Trump recently tweeted that “the ‘Justice’ Department and FBI have done nothing
about the 2020 Presidential Election Voter Fraud,” followed by these more
ominous lines: “Never give up. See everyone in D.C. on January 6th.”
The
unmistakable reference is to the day Congress will count the Electoral
College’s votes, with Vice President Mike Pence presiding. Mr. Trump is leaning
on the vice president and congressional allies to invalidate the November
election by throwing out duly certified votes for Joe Biden.
Mr. Pence
thus far has not said he would do anything like that, but his language is
worrisome. Last week, he said: “We’re going to keep fighting until every legal
vote is counted. We’re going to win Georgia, we’re going to save America,” as a
crowd screamed, “Stop the steal.”
And some
Republicans won’t let up. On Monday, Representative Louie Gohmert of Texas and
other politicians filed a frivolous lawsuit, which has multiple fatal flaws in
both form and substance, in an attempt to force the vice president to appoint
pro-Trump electors.
Mr. Trump
himself has criticized virtually everyone’s view of the election, from that of
the Supreme Court to the F.B.I. to Senator Mitch McConnell, but he has never
attacked Mr. Pence, suggesting he has hopes for the vice president.
But as a
matter of constitutional text and history, any effort on Jan. 6 is doomed to
fail. It would also be profoundly anti-democratic and unconstitutional.
Both
Article II of the Constitution and the 12th Amendment say that the votes of the
Electoral College are to be opened by the “president of the Senate,” meaning
the vice president. The Electoral Count Act, passed in 1887 to avoid chaotic
counts like the one that followed the 1876 election, adds important details. It
provides a detailed timeline to tabulate electoral votes, culminating with the
final count to take place on Jan. 6, and it delineates the powers of the vice
president.
He is to be
the “presiding officer” (meaning he is to preserve order and decorum), open the
ballot envelopes, provide those results to a group of tellers, call for any
objection by members of Congress, announce the results of any votes on
objections, and ultimately announce the result of the vote.
Nothing in
either the text of the Constitution or the Electoral Count Act gives the vice
president any substantive powers. His powers are ministerial, and that
circumscribed role makes general sense: The whole point of an election is to
let the people decide who will rule them. If an incumbent could simply maneuver
to keep himself in office — after all, a maneuver to protect Mr. Trump also
protects Mr. Pence — the most foundational precept of our government would be
gravely undermined. In America, “we the people,” not “we, the vice president,”
control our destiny.
The
drafters of the Electoral Count Act consciously insisted on this weakened role
for the vice president. They guarded against any pretense he might have to
throw out a particular state’s votes, saying that the vice president must open
“all certificates and papers purporting to be” electoral votes. They further
said, in the event of a dispute, both chambers of Congress would have to
disagree with a particular state’s slate of electoral votes to reject them. And
they made it difficult for Congress to disagree, adding measures such as a
“safe harbor” provision and deference to certification by state officials.
In this
election, certification is clear. There are no ongoing legal challenges in the
states of any merit whatsoever. All challenges have lost, spectacularly and
often, in the courts. The states and the electors have spoken their will.
Neither Vice President Pence nor the loyal followers of President Trump have a
valid basis to contest anything.
To be sure,
this structure creates awkwardness, as it forces the vice president to announce
the result even when personally unfavorable.
After the
close election of 1960, Richard Nixon, as vice president, counted the votes for
his opponent, John Kennedy. Al Gore, in perhaps one of the more dramatic
moments of our Republic’s short history, counted the votes and reported them in
favor of George W. Bush.
Watching
Mr. Gore count the votes, shut off all challenges and deliver the presidency to
Mr. Bush was a powerful moment in our democracy. By the time he counted the
votes, America and the world knew where he stood. And we were all lifted up
when Mr. Gore, at the end, asked God to bless the new president and vice
president and joined the chamber in applause.
Republican
leaders — including Senators McConnell, Roy Blunt and John Thune — have
recognized the outcome of the election, despite the president’s wrath. Mr.
McConnell put it in clear terms: “The Electoral College has spoken. So today, I
want to congratulate President-elect Joe Biden.”
Notably,
Mr. Pence has been silent. He has not even acknowledged the historic win by
Kamala Harris, the nation’s first female, first African-American and first
Asian-American vice president.
He now
stands on the edge of history as he begins his most consequential act of
leadership. The question for Vice President Pence, as well as other members of
Congress, is which side of history he wants to come down on. Can he show the
integrity demonstrated by every previous presidential administration? The
American people accept a graceful loser, but a sore loser never goes down well in
the history books.
We urge Mr.
Pence to study our first president. After the Revolutionary War, the artist
Benjamin West reported that King George had asked him what General Washington
would do now that America was independent. West said that Washington would give
up power and go back to farming. King George responded with words to the effect
that “if he does that, he will be the greatest man in the world.”
Indeed,
Washington did so, surrendering command of the army to Congress and returning
to Mount Vernon for years until he was elected president. And he again
relinquished power eight years later, even though many would have been happy to
keep him president for life. Washington in this way fully realized the American
Republic, because there is no Republic without the peaceful transfer of power.
And it’s
now up to Mr. Pence to recognize exactly that. Like all those that have come
before him, he should count the votes as they have been certified and do
everything he can to oppose those who would do otherwise. This is no time for
anyone to be a bystander — our Republic is on the line.
Neal Katyal
(@neal_katyal), a former acting solicitor general of the United States and the
author of “Impeach: The Case Against Donald Trump,” is a law professor at
Georgetown. John Monsky is the creator of the American History Unbound Series
of multimedia productions that covers watershed moments in American History and
is a board member of the New-York Historical Society.
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