He must allow due process and the presentation of evidence.
Unlike Missouri senator Josh Hawley, who is challenging the results of the Electoral College, Vice President Pence is probably not looking forward to Wednesday.
The vice president can take little comfort from the Saturday decision by the Fifth Circuit U.S. Court of Appeals upholding a district court’s dismissal of a lawsuit by Texas representative Louie Gohmert and others. Both courts rightly ruled that none of the plaintiffs had “standing” to bring the lawsuit against Pence. As Trump’s Justice Department argued, the plaintiffs sued the wrong person.
As president of the Senate, the vice president normally would have only a ceremonial role in counting the electoral votes. Only rarely have lawmakers raised an objection to the qualifications of a slate of state electors before the assembled senators and representatives.
But in keeping with the rest of 2020, November’s election was not normal. The resulting contest over the validity of electoral votes is deepening political polarization. Whether the proceeding produces a high or a low moment in our constitutional history will largely depend on how the vice president “presides.”
Affording the members and senators an opportunity to fully present evidence in a totally transparent process will require the objectors to “put up or shut up.” If the objectors’ evidence is not convincing, public opinion will force them to shut up. Denying the objectors the opportunity, however, would only fuel the claims of fraud. Many people, not knowing whether the objectors did or did not have convincing evidence, would rightly wonder what was being hidden. So would the world.
The vice president’s role in a contested presidential election is both symbolic and ministerial. Under Article II, the Twelfth, and the 20th Amendments, the states elect the president. The vice president’s obligation as president of the Senate is, therefore, to “preserve, protect and defend” the collective power and exclusive authority of the States to elect the president. As president of the Senate, the vice president represents “the United States” and is equally obligated to represent the interests of both the disputed and undisputed states.
There are those who oppose and would abolish the Electoral College. Unless and until they succeed, however, the Constitution provides that each state shall appoint electors who vote for the presidential candidates. As after the 2000 and 2016 presidential elections, Americans are being reminded that it’s state electors who actually elect the president.
On Wednesday, Mike Pence as president of the Senate will be the “presiding officer” over the joint session of Congress at which the votes of the electors are counted. In that capacity, he will “preside” over the filing of objections and the presentation of the evidence supporting them. “Presiding” does not mean, as Representative Gohmert contends, that as president of the Senate Pence unilaterally can decide which slates of electors to accept. Nevertheless, it is his duty — and his alone — to ensure that the joint session hears a full, fair, and transparent presentation of the facts in accordance both with the Constitution and standard parliamentary procedure.
Q: What is the role of the joint session of Congress at which the vice president presides?
A: Under the Twelfth Amendment, the House and the Senate are witnesses to the counting of the electoral votes, and they are judges of the qualifications of the electors. They perform exactly the same function as their state “poll watcher” counterparts.
Q: What limits are there on judging objections made to the qualifications of the disputed electors?
A: That the electors in the disputed states were not “appoint[ed] in such manner as [its] Legislature . . . direct[ed] . . .” as required by Article II Section 1. Accordingly, the main question for the House and Senate, meeting jointly, is: “Did State X conduct its election in accordance with the rules established by its legislature?” If the answer is “Yes,” and the electors got enough votes to win the election, the electors are qualified and their votes must be counted.
Q: What happens if the joint session decides that an elector or slate of electors was not appointed “as the Legislature . . . direct[ed]”?
A: The votes of improperly appointed electors would be invalid.
Q: What if the House and Senate disagree about whether one or more slate(s) of electors was properly appointed?
A: That’s where it gets complex and potentially controversial in terms of the Constitution’s provisions and the Electoral Count Act. Unfortunately for Pence, there is no option to refer these questions to the Supreme Court. The two houses of Congress must do what they once did — engage in serious constitutional debate. But given the ideological and partisan divisions in both houses, we know that will not happen.
In part for that reason, many of those supporting President Trump’s voter-fraud allegations have uncritically accepted the “living Constitution” view that only federal courts can settle important questions. They have not heeded the late Justice Antonin Scalia’s many reminders that, because of the inability of anyone to establish standing, quite a number of constitutional issues cannot be resolved by the Supreme Court.
Some of those issues are inherently political, meaning that they must be resolved by the political branches, not the courts. Too many Americans seem to have forgotten that democratic self-government requires an active and vigilant Congress.
Pence’s role, like that of the members of Congress over whom he “presides,” will be political. That is, they are all members of the political branches, per the Constitution. But “political” need not equate with “partisan.” Members of Congress called upon to judge the evidence presented will be making political judgments. Ideally, they should be free of partisanship, though realistically they may not be. A “presider,” however, cannot act as a partisan.
The challenge for Pence is that he can be neither a partisan nor a mere “potted plant.” As presider, Pence must make some difficult decisions on parliamentary procedure. The Electoral Count Act that governs Wednesday’s proceedings is not a model of clarity. Section 17 of the Act allows for objections to “the counting of any electoral vote or votes from any State or other question arising from the matter.” The first written objections by at least one House member and senator to a slate of electors will be to counting the votes of Arizona’s electors, because Arizona did not follow its own rules for selecting electors. The next objection will be to challenge the accuracy of the vote counts that support the electors’ claims to vote in the first place.
Pence can permit no argument on these (or any other) objections, as the Act sets the place of “argument” in the House and Senate, respectively, but he can demand that the objectors present evidence. Under the Act, each house has only two hours to consider and debate the objections, and each must decide what to do within five days. The only way the nation — and the world — will hear the evidence is if the vice president demands that it be presented to the joint session. Only after the evidence is presented should he entertain a motion under the Act directing the two houses to separate and consider the objections.
As difficult as it may be at this point, Pence must maintain order. Section 18 of the Act gives him “the power to preserve order.” He has no discretion. He must receive all objections properly raised, and without entertaining any argument for or against the objections; he must demand the evidence because the Electoral Count Act allows each house only two hours to debate the merits of each objection. Two hours is not enough time to present and debate evidence, and both houses must operate on the same set of facts. Ensuring that they do so is up to Pence alone.
Another wrinkle in the process is that at least eleven Republican senators have said that they will not vote without having an emergency ten-day commission to consider all the evidence. Congress established such a body in 1887 to hear evidence in the disputed Hayes-Tilden election of 1876, but the difficulties of managing that commission’s work led to the adoption of the Electoral Count Act of 1887. The situation today is different from what it was in 1876. If a majority of senators demand a commission and refuse to vote, then what?
The answer to this question depends on how Pence presides. The Act puts a five-day limit on the entire process. Therefore, the statute does not permit Pence to allow a ten-day emergency commission. Due process requires the evidence to be heard before members vote on the objections.
Pence’s responsibility is to see that the presentation of the evidence and the votes take place within this five-day period.
The presiding role played by Pence is pivotal to the future of our democratic republic. He must behave in a clearly impartial and completely transparent manner. On the one hand, he must allow the objectors an opportunity to offer their evidence. It may well be that the evidence presented falls dramatically short. On the other hand, if the evidence is strong, Pence by his presence will need to maintain decorum in an overheated environment. The American people — and the world — will be watching and ultimately judging the evidence, the arguments, and the process.
John Fund is National Affairs Reporter for National Review. John S. Baker Jr. is a law professor emeritus at Louisiana State University.