In an October article anticipating a potentially disputed election, Professor Scott R. Anderson noted:
Throughout U.S. history, some have argued that this constitutional role and related statutory authority provide the vice president with some substantive authority over the counting process, including by determining which electoral votes should be counted in cases of dispute...
So according to this prominent professor, opinion has long been divided on what the vice president is empowered to do in his vote-counting role. Ivan Raiklin is hardly alone in his argument. It should not surprise us. Constitutional law frequently is not black and white, as seen in the numerous 5-4 Supreme Court decisions by Justices applying the same law to the same facts.
In other words, Pence should go for it. He need only interpret “votes” as votes from states not in dispute, and count them accordingly. He could declare, “I will not count the Biden electors, or the competing slates of Trump electors, in disputed states where there is overwhelming credible evidence of systemic fraud.” Thus would he restore the election win to President Trump, from whom it was audaciously stolen.
What would Pence have to lose? A commenter at Legal Insurrection observed:
Pence should refuse to count votes from the contested states, and dare someone to sue him in court. Then the SCOTUS can simply docket that for January 21, 2021.
If the SCOTUS can’t stop states from stealing elections, they damn well don’t have the power to stop Pence from counting the votes any way he wants to.
And we do not owe them anything more than that.
*In an October article anticipating a potentially disputed election, Professor Scott R. Anderson noted:*
*Throughout U.S. history, some have argued that this constitutional role and related statutory authority provide the vice president with some substantive authority over the counting process, including by determining which electoral votes should be counted in cases of dispute...*
*So according to this prominent professor, opinion has long been divided on what the vice president is empowered to do in his vote-counting role. Ivan Raiklin is hardly alone in his argument. It should not surprise us. Constitutional law frequently is not black and white, as seen in the numerous 5-4 Supreme Court decisions by Justices applying the same law to the same facts.*
*In other words, Pence should go for it. He need only interpret “votes” as votes from states not in dispute, and count them accordingly. He could declare, “I will not count the Biden electors, or the competing slates of Trump electors, in disputed states where there is overwhelming credible evidence of systemic fraud.” Thus would he restore the election win to President Trump, from whom it was audaciously stolen.*
*What would Pence have to lose? A commenter at Legal Insurrection observed:*
*Pence should refuse to count votes from the contested states, and dare someone to sue him in court. Then the SCOTUS can simply docket that for January 21, 2021.*
*If the SCOTUS can’t stop states from stealing elections, they damn well don’t have the power to stop Pence from counting the votes any way he wants to.*
And we do not owe them anything more than that.
(post is archived)