In October, writing for
The American Mind, University of California, Berkeley, School of Law Professor (and former Deputy Assistant U.S. Attorney General [under George W. Bush]) John Yoo, as well as University of St. Thomas School of Law Professor (and former Deputy General Counsel of the United States Homeland Security Council [also under Dubya]) Robert Delahunty, related something of keen interest:
- Under the 12th Amendment, “the President of the Senate [i.e., the Vice President] shall, in the Presence of the Senate and House of Representatives, open all the certificates [of the electoral votes of the states] and the votes shall then be counted.” Left unclear is who is to “count” the electors’ votes and how their validity is to be determined.
Over the decades, political figures and legal scholars have offered different answers to these constitutional questions. We suggest that the Vice President’s role is not the merely ministerial one of opening the ballots and then handing them over (to whom?) to be counted. Though the 12th Amendment describes the counting in the passive voice, the language seems to envisage a single, continuous process in which the Vice President both opens and counts the votes.
The check on error or fraud in the count is that the Vice President’s activities are to be done publicly, “in the presence” of Congress. And if “counting” the electors’ votes is the Vice President’s responsibility, then the inextricably intertwined responsibility for judging the validity of those votes must also be his.
Their article, titled
What Happens if No One Wins?, and subtitled, “(t)he Constitution provides for election crises—and its provisions favor Trump,” is essential reading for a time like this, as well as the future, in my humble, non-barrister’s opinion.
Will Pence take advantage of his power under the 12th Amendment? Who is to say he cannot claim that vast fraud and irregularities took place, using Peter Navarro’s 36-page report, The Immaculate Deception, as reason for discarding the official Dem electors? After all, Navarro is hardly some schnook who just fell off the turnip wagon; he simultaneously serves as the Assistant to the President and the Director of Trade and Manufacturing Policy.
Of course, the Electoral Count Act, which specifies how Congress tallies electoral votes, should at least be brought up here, but the Act itself may be unconstitutional, as Yoo and Delahunty argue: “Congress cannot use legislation to dictate how any individual branch of government is to perform its unique duties: Congress could not prescribe how future Senates should conduct an impeachment trial, for example.”
It would be near-impossible to seriously maintain, then, that Pence is violating the law simply because he is following the plain language of the Constitution itself. Needless to mention, a great deal would do exactly that, which, at the very least, would make for some choice free entertainment.
