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
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.
