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December 24, 2020
by Carmine Sabia
In spite of what the mainstream media, Democrats and even conventional wisdom tells you, there could be one more way that President Donald Trump can remain President of the United States.
It has never been tested, but the Twelfth Amendment appears to provide a path for Vice President Mike Pence, acting as President of the Senate, to deliver the White House back to President Trump on January 6, 2021.
It is not via the use of martial law or the Insurrection Act, as has been bandied about, but something far less confrontational.
The Twelfth Amendment states that on January 6, beginning at 1p.m. EST Congress will commence counting the Electoral Votes for president and vice president and the presiding officer is the President of the Senate, who is the Vice President of the United States.
“Upon such reading of any such certificate or paper, the President of the Senate shall call for objections, if any. Every objection shall be made in writing, and shall state clearly and concisely, and without argument, the ground thereof, and shall be signed by at least one Senator and one Member of the House of Representatives before the same shall be received. When all objections so made to any vote or paper from a State shall have been received and read, the Senate shall thereupon withdraw, and such objections shall be submitted to the Senate for its decision; and the Speaker of the House of Representatives shall, in like manner, submit such objections to the House of Representatives for its decision; and no electoral vote or votes from any State which shall have been regularly given by electors whose appointment has been lawfully certified to according to section 6 of this title from which but one return has been received shall be rejected, but the two Houses concurrently may reject the vote or votes when they agree that such vote or votes have not been so regularly given by electors whose appointment has been so certified,” it says.
The likelihood of the challenges being successful in a Democrat controlled House and in a Senate of weak Republicans in highly unlikely.
But that is not the end of the story. Follow along as it gets complicated here.
The Amendment calls for the counting of the votes but “The Senate and House of Representatives shall meet in the Hall of the House of Representatives at the hour of 1 o’clock in the afternoon on that day, and the President of the Senate shall be their presiding officer. Two tellers shall be previously appointed on the part of the Senate and two on the part of the House of Representatives, to whom shall be handed, as they are opened by the President of the Senate, all the certificates and papers purporting to be certificates of the electoral votes, which certificates and papers shall be opened, presented, and acted upon in the alphabetical order of the States, beginning with the letter A; and said tellers, having then read the same in the presence and hearing of the two Houses, shall make a list of the votes as they shall appear from the said certificates; and the votes having been ascertained and counted according to the rules in this subchapter provided, the result of the same shall be delivered to the President of the Senate, who shall thereupon announce the state of the vote, which announcement shall be deemed a sufficient declaration of the persons, if any, elected President and Vice President of the United States, and, together with a list of the votes, be entered on the Journals of the two Houses. it is not specific about how to do it,” it says.
What that means is that Pence opens the votes and the counting begins, but it does not specify who counts the votes.
One reading would suggest that it is the vice president, in this case Pence, who counts the votes. That could also mean that it is he who can reject certain votes.
Imagine a scenario where Pence says “We are not counting the votes from these state because we believe we have evidence of fraud and therefore we are counting this alternate slate of electors.”
This is a longshot scenario, but it could conceivably happen, giving President Trump the electoral votes needed to win and setting up a showdown at the Supreme Court.
In a piece for The American Mind written in October, University of California, Berkeley, School of Law Professor and former Deputy Assistant U.S. Attorney General under former President George W. Bush, John Yoo, alongside University of St. Thomas School of Law Professor Robert Delahunty, said the following.
Under the 12th Amendment, “the President of the Senate [i.e., the Vice President] shall, in the Presence of the Senate and House of Representatives, open all the certificates [of the electoral votes of the states] and the votes shall then be counted.” Left unclear is who is to “count” the electors’ votes and how their validity is to be determined.
Over the decades, political figures and legal scholars have offered different answers to these constitutional questions. We suggest that the Vice President’s role is not the merely ministerial one of opening the ballots and then handing them over (to whom?) to be counted. Though the 12th Amendment describes the counting in the passive voice, the language seems to envisage a single, continuous process in which the Vice President both opens and counts the votes.
The check on error or fraud in the count is that the Vice President’s activities are to be done publicly, “in the presence” of Congress. And if “counting” the electors’ votes is the Vice President’s responsibility, then the inextricably intertwined responsibility for judging the validity of those votes must also be his.
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