On January 6, 2021, Vice President Mike Pence refused demands that he use his role as President of the Senate to refuse to count electoral votes from six contested states that were certified for Biden. Pence took the position that he had no such constitutional power.
Pence was correct, for the reasons I wrote on December 31, 2020, No Mike Pence Can’t Just Reject Electoral Certifications.
Note the words. “Shall … open all the Certificates” and “the Votes shall then be counted.” Shall is mandatory, there is no discretion. The certificates must be opened by Pence, and the votes must be counted (it’s unclear who does the counting, but the votes must be counted regardless). No Vice President (whether Mike Pence, Al Gore or future VP Kamala Harris) performing the function of opening the votes has discretion to reject votes. No Vice President has authority to accept votes presented through some extra-constitutional other process.There is an interesting legal question of what would happen if a state authority presented conflicting votes — for example the legislature certified one set of electors but the executive branch certified a different set — but that has not happened here. No state authority has certified more than one set of electors. A bunch of legislators acting on their own getting together outside the constitutional certification process to announce electors is not presented for counting any more than if I got together with some friends and we delivered an envelope to Pence with our chosen slate of electors. Maybe if legislatures (not legislators) had so acted, we would have a legal conundrum, but that has not happened.The Congressional legislation provides a mechanism for objections to be raised and resolved. Neither the constitution nor the legislation makes the Vice President king for a day.
After the Capitol Hill riot of January 6, 2021, Democrats have demanded that Pence invoke the 25th Amendment to remove Trump’s presidential powers. The House is debating and voting, as I write, on a resolution demanding Pence do so.
Pence has rejected that demand as contrary to the constitution, and refuses to do so. In a letter released tonight Pence writes:
Dear Madam Speaker:Every American was shocked and saddened by the attack on our Nation’s Capitol last week, and I amgrateful for the leadership that you and other congressional leaders provided in reconvening Congressto complete the people’s business on the very same day. It was a moment that demonstrated to theAmerican people the unity that is still possible in Congress when it is needed most.But now, with just eight days left in the President’s term, you and the Democratic Caucus aredemanding that the Cabinet and I invoke the 25th Amendment. I do not believe that such a course ofaction is in the best interest of our Nation or consistent with our Constitution. Last week, I did notyield to pressure to exert power beyond my constitutional authority to determine the outcome of theelection, and I will not now yield to efforts in the House of Representatives to play political games at atime so serious in the life of our Nation.As you know full well, the 25th Amendment was designed to address Presidential incapacity ordisability. Just a few months ago, when you introduced legislation to create a 25th AmendmentCommission, you said, “[a] President’s fitness for office must be determined by science and facts.”You said then that we must be “[ v ]ery respectful of not making a judgment on the basis of a commentor behavior that we don’t like, but based on a medical decision.” Madam Speaker, you were right.Under our Constitution, the 25th Amendment is not a means of punishment or usurpation. Invokingthe 25th Amendment in such a manner would set a terrible precedent.After the horrific events of this last week, our Administration’s energy is directed to ensuring anorderly transition. The Bible says that “for everything there is a season, and a time for every purposeunder heaven . .. a time to heal, … and a time to build up.” That time is now. In the midst of a globalpandemic, economic hardship for millions of Americans, and the tragic events of January 6th, now isthe time for us to come together, now is the time to heal.I urge you and every member of Congress to avoid actions that would further divide and inflame thepassions of the moment. Work with us to lower the temperature and unite our country as we prepare toinaugurate President-elect Joe Biden as the next President of the United States. I pledge to you that Iwill continue to do my part to work in good faith with the incoming administration to ensure an orderlytransition of power. So help me God.
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