On Wednesday afternoon, Congress will convene for a joint session to certify state electors and make Joe Biden’s election victory official. Once his 306 electoral college votes are formalized, no potential hurdles remain between the president-elect and his inevitable inauguration in two weeks (January 20).
Conversely, it’s Donald Trump’s last chance to challenge the validity – and potentially overturn – the 2020 presidential election, which he claims was rife with voter fraud.
So far, in their post-Election Day efforts to overturn the results, the President and his allies’ complaints have fallen on deaf ears. The judicial branch has repeatedly shot down every meaningful lawsuit brought on the incumbent’s behalf, amounting to dozens of consecutive legal losses.
Now, Donald Trump and company are counting on a once-in-a-lifetime Hail Mary gambit to keep his dreams of a second term in the White House alive.
To execute any of the 2-3 longshot political maneuvers successfully, he’ll need the cooperation of either Vice President Mike Pence or a congregation of Republicans in both chambers of Congress.
(And not just average levels of cooperation and support; Trump needs friends who are willing to risk tearing this country in two. Because if Donald Trump’s attempts to remain in power are successful, the United States is headed towards a new type of insurgent Civil War.)
Fortunately (for Democrats and Americans who prioritize stability over political ideology), the probability of Trump’s congressional allies mounting a significant challenge to Biden’s win is minimal.
Because, while the odds of the 2020 presidential election being overturned are infinitesimal, the repercussions of Wednesday’s proceedings will echo through the 2022 midterms and probably beyond even the 2024 Republican primaries and subsequent general election.
What matters more than the unlikely success of this final attempt at overturning the election is how this week’s political choices will determine who inherits the President’s loyal supporters moving forward.
The “Pence Card”
The Vice President has the power to reject fraudulently chosen electors.
— Donald J. Trump (@realDonaldTrump) January 5, 2021
Donald Trump has put his Vice President in an unenviable position. This week, the President went public with his desire for Pence, acting as the President of the Senate, to intervene on his behalf by refusing to certify electors in contested states. The request triggered a flurry of activity and hot takes on both sides of the issue.
Before we get into the feasibility of Mike Pence attempting such a thing, let’s analyze what Trump is asking his VP to do.
In researching this scenario, I turned to Robert Barnes, a prominent attorney, and political commentator best known for winning hundreds-of-thousands of dollars betting on Donald Trump at underdog odds in 2016.
I obtained the following information from videos and written posts published by Mr. Barnes to his Locals.com subscription page.
- The standing Vice President of the United States) serves as the President of the Senate. His duty is the opening and counting of the electoral certificates from each state. Technically, the electoral vote doesn’t get counted until Congress convenes on January 6 to certify the electoral college results.
- Taking an originalist view of the constitution, the President of the Senate / Vice President of the United States, presiding over the certification process, could then choose which electors to count and which states’ electoral certificates to leave in the envelope and not include. Pence could decide not to open or count any electors from contested states where he has reason to believe the election was held in a manner that was irregular or unconstitutional.
- Another possibility is that Pence could count multiple electors assigning them to Trump and Biden both. In some contested states, Trump electors convened and certified themselves as electors.
- However, there are questions as to whether this is constitutional. If it is legal, the question becomes whether there’s any review process in place to be undertaken by either Congress or the judiciary.
Barnes explains that these possibilities are rooted in the language used in Article II, Section 1, Clause 2 of the United States Constitution. The 12th Amendment, ratified in 1804 due to the contested 1800 presidential election, uses identical language, save for some minor changes in capitalizations.
Article II, Section 1, Clauses 2
“The President of the Senate shall, in the presence of the Senate and the House of Representatives, open all the certificates, and the vote shall then be counted.”
When examining the above texts, Barnes emphasizes the use of the word “shall” instead of “may.”
In both cases, he points out the US Constitution merely notes that members of the House and Senate will be present to witness and authenticate the counting, not that they have any power or a participatory role.
- Mr. Barnes says that there’s a legal argument for Vice President Pence having the power to determine which electoral certificates to open and count.
- Other scholars argue that he has the power to decide which certificates to open, but not which to count.
- In both cases, Congress’s role in such a scenario is undefined – all the constitution says is that they must be present.
From there, we have centuries of interpretations written by legal scholars and other precedent defining decisions – some of which conflict.
Robert Barnes’s Cited Docs
If you’d like to dig into the nitty-gritty details of all the possibilities, I suggest checking out Robert Barnes’s Locals.com page, or some of the following resources (also obtained from Barnes):
Theory vs. Practice
For our purposes, I’m more interested in reality. I don’t say that to discount Mr. Barnes’s legal expertise, only to argue that what’s possible under originalist interpretations of the constitution isn’t necessarily relevant to how legislative and judicial branches are operating this election cycle.
It wasn’t long ago that conservative lawyers endorsed Texas v. Pennsylvania’s legal viability, and the Court shot that down with a vague two-line ruling based on lack of standing without giving the evidence detailed in the lawsuit an ounce of consideration.
Texas v. Pennsylvania
The dismissal wasn’t particularly surprising; the issue of Texas’ standing was always in question. However, not explaining why Texas lacked standing to enforce the Electors Clause — thus avoiding committing a legal opinion to paper that could be referenced in future elections, should they wish to issue a contradictory ruling – was telling.
In the current political climate, the establishment has no interest in entertaining such questions.
Even if Trump’s Vice President plays the “Pence Card,” someone in Congress will assert the right to intervene and count the unopened electoral certificates themselves.
The media and political elite on both sides of the aisle will support the move, the public will never hear about any of the more nuanced legal details, and Washington, DC, will continue chugging along, full speed ahead towards Joe Biden’s Inauguration Day.
Again, whether the arguments for leaving some certificates closed are constitutionally sound or not won’t matter. Nobody will even be forced to step in because Mike Pence will not rock the boat to that degree.
He’ll open every certificate and count every elector in adherence to political norms, much to Donald Trump’s chagrin. And while that decision will save Pence from venomous outrage and media scrutiny in the immediate, it will probably sink any hopes he has of being the Republican presidential nominee in 2024.
The hardcore Trump followers will exert immense influence over the GOP for the next several years, and they aren’t interested in political norms or a “smooth transition of power.”
They are convinced the election was stolen from them and see anyone who doesn’t exhaust every perceivable option on Donald Trump’s behalf as a traitor.
So, when Democrats, moderate Republicans, and legal scholars from every corner of the nation come forward to praise Pence’s maturity and respect for political decorum, — simultaneously maintaining Trump’s “Pence Card” never had a legal leg to stand on in the first place — MAGA world isn’t going to hear it.
As soon as President Trump tweeted that the Vice President could intervene on his behalf, Pence’s fate was mostly sealed.
If Vice President @Mike_Pence comes through for us, we will win the Presidency. Many States want to decertify the mistake they made in certifying incorrect & even fraudulent numbers in a process NOT approved by their State Legislatures (which it must be). Mike can send it back!
— Donald J. Trump (@realDonaldTrump) January 6, 2021
If his reluctance to launch a constitutional challenge is noted, the 2024 GOP frontrunner can forget about winning over Trump supporters, or probably even securing his former running mate’s endorsement — an endorsement with the potential to decide the next Republican presidential primary.
Republican Objections to the Certification Process
On December 13, I wrote about the Supreme Court’s rejection of Texas v. Pennsylvania. In that piece, I included a section detailing Trump’s remaining options, which included what’s being discussed for Wednesday.
The Electoral Count Act of 1887 allows Congress to object if one House member & one Senator both object to a given state’s electors. Both chambers of Congress then convene for two hours to negotiate and vote on the objection.
From my research, it appears that both chambers of Congress must certify every state’s electoral votes. So, if only one side votes to uphold the objection, the election cannot yet be certified.
That second paragraph is still up for debate.
The general consensus is that both chambers must uphold each objection to a state’s electors. If that’s the case, the President’s Hail Mary is already a lost cause; otherwise, there’s still an outside chance that Trump-loyal members of Congress can slow things down.
If Pence is lucky, his role (or lack thereof) in today’s last-ditch challenges to the legitimacy of Joe Biden’s victory will be overshadowed and obscured by Republicans who intend to launch objections over Pennsylvania, Georgia, Arizona, Wisconsin, Michigan, and Nevada.
Potential MAGA Heirs & Trump Allies
In the last couple of weeks, a relatively large contingent of Republicans has pledged to object to certifying disputed states on Donald Trump’s behalf.
The two most notable names in the bunch are Texas Sen. Ted Cruz and Missouri Sen. Josh Hawley, who are promising early picks to win the 2024 GOP nomination.
- Cruz was the last man standing against Trump in 2016 and shares much of the same anti-establishment appeal, with a better understanding of how US politics work.
- Hawley is hoping to take on the mantle of conservative populism into the post-Trump future of the GOP and has been vocal in his opposition to Mitch McConnell and establishment Republicans.
The following Senators have committed to raising objections on Wednesday:
- Ron Johnson, R-Wis.;
- James Lankford, R-Okla.;
- Steve Daines, R-Mont.;
- John Kennedy, R-La.;
- Marsha Blackburn, R-Tenn., and
- Mike Braun, R-Ind.
These Senator-elects will be speaking up as well:
- Cynthia Lummis, R-Wyo.;
- Roger Marshall, R-Kansas;
- Bill Hagerty, R-Tenn., and
- Tommy Tuberville, R-Ala.
Somebody has to stand up. 74 million Americans are not going to be told their voices don’t matter pic.twitter.com/DMa7sRyoAh
— Josh Hawley (@HawleyMO) December 31, 2020
This week, Ted Cruz released a joint statement along with the Republican Senators/Senator-elects above to call for Republicans and Democrats alike to support the following:
“Congress should immediately appoint an Electoral Commission, with full investigatory and fact-finding authority, to conduct an emergency 10-day audit of the election returns in the disputed states. Once completed, individual states would evaluate the Commission’s findings and could convene a special legislative session to certify a change in their vote, if needed.”
The statement also covers historical precedents for contested elections before finishing with a promise to reject electors from “disputed states”:
“Accordingly, we intend to vote on January 6 to reject the electors from disputed states as not ‘regularly given’ and ‘lawfully certified’ (the statutory requisite), unless and until that emergency 10-day audit is completed.”
However, even with GOP members of both the House and Senate objecting to the electors from contested states, they are doubtful to have the institutional support to force anything more than a couple of hours of performative inter-party debate.
Assuming both chambers must vote to reject challenged electors, there’s no scenario in which the Democrat-controlled House would elect to uphold any objections. It wouldn’t matter what evidence was presented – not that there will be any.
Furthermore, prominent Republicans like Mitch McConnell, Mitt Romney, and Tom Cotton are against Trump’s continued attempts to overturn the election result.
How can you certify an election when the numbers being certified are verifiably WRONG. You will see the real numbers tonight during my speech, but especially on JANUARY 6th. @SenTomCotton Republicans have pluses & minuses, but one thing is sure, THEY NEVER FORGET!
— Donald J. Trump (@realDonaldTrump) January 4, 2021
Under no circumstance – barring one of the most shocking plot twists since Hillary lost in 2016 – does Donald Trump have the support required to pull off a caper of this magnitude.
Having secured their tax cut for the wealthy, appointed hundreds of conservative federal judges, and three Supreme Court justices, McConnell and the moderates have no further use for Donald Trump. They’ll be working with other establishment figures from both sides of the aisle to move on from the Trump era, with a desire to return the Republican Party to its neoconservative roots.
The “Surrender Caucus” within the Republican Party will go down in infamy as weak and ineffective “guardians” of our Nation, who were willing to accept the certification of fraudulent presidential numbers!
— Donald J. Trump (@realDonaldTrump) January 4, 2021
Looking To 2024
Make no mistake; Wednesday’s congressional fireworks and the ongoing “Stop the Steal” protests taking place in Washington, DC will not earn Donald Trump a second term in the Oval Office – at least not this year. Everything that happens is political theater, with an eye on 2024.
I expect Sens. Hawley and Cruz to be the most vocal opponents of certification, despite both being fully aware that it won’t make a difference.
The two chambers will convene for two hours, engage in some performative debate, and every objection will be shot down by both the House and Senate.
However, on Thursday morning, I suspect we’ll have a much clearer picture of the GOP’s future.
Who’s trying to capture the Trump supporters versus trying to pull the party back towards the center on trade, immigration, and deficit hawkery?
- My money is on Ted Cruz being the biggest beneficiary, followed closely by Josh Hawley.
- Of course, there’s always a slight chance Trump himself decides to run it back next election cycle. If so, the “stolen election” story could be a serious asset.
- On the other side of the equation, Tom Cotton and Mike Pence’s 2024 odds will take the most significant hits for being perceived as disloyal to President Trump.
Meanwhile, MAGA nation – the massive voting bloc, ownership of which is at the heart of this struggle — is poised to continue taking to the streets, where they’ve already seen several altercations with police. Let’s just hope for the nation’s sake that the political fighting is mostly contained to Capitol Hill.
Wednesday will likely set the table for the GOP’s future. If Trump and his supporters play this straight, they can live to fight another day in four years.