(TheRedWire.com) – Over the last year, critics have talked a lot about the relationship between former President Donald Trump and Vice President Mike Pence. After the January 6, 2021, riot on Capitol Hill, both men felt betrayed by the other. The president made it clear he was unhappy with his vice president over Pence’s unwillingness to call for a temporary halt to certifying the Electoral Vote, awarding Joe Biden the presidency instead. Some Republicans voted not to certify the election to investigate allegations of voter irregularities and voter fraud. Still, the majority of Congress voted to accept the Electoral College ballots and award the White House to Joe Biden.
After months of fighting in courts leading up to January 6, judges weren’t interested in becoming involved in the electoral process. Two battleground states have taken over a year to recognize voting issues and rule several controversial voting practices unconstitutional based on their state charters. Yet, when certifying the Electoral College vote, Pence said he didn’t have the Constitutional power to overturn the 2020 election. On Sunday evening, January 30, Trump called out Pence, saying he was wrong, and he could have overturned the election but didn’t.
Could Pence Have Overturned the Election?
On Monday, January 17, a Wisconsin judge ruled the state Election Commission didn’t have the authority in law to place 500 drop boxes statewide, and groups illegally picked up absentee ballots and cast them on behalf of voters. On Friday, January 28, a Pennsylvania state judge ruled the state legislature passed Act 77 in 2019, allowing no-excuse mail-in voting in violation of the state Constitution – which says that the only means of voting allowable is in person, with limited exceptions for absentee ballots.
So, that brings us to Vice President Pence. On Sunday, Trump said for the first time Pence had the right to change the outcome of the election by refusing to certify the Electoral College. He further stated the former vice president didn’t exercise his power but could have overturned the election.
The question is, is it that simple?
Electoral Count Act Is Too Vague
The US Constitution left it up to Congress to decide the rules of certifying the Electoral College. In 1877, Congress faced a crisis over how four states reported their Electoral count totals, creating a question about voter integrity. In response, President Ulysses S. Grant signed the Electoral Commission Act into law. Congress tasked the commission with deciding which Electoral votes were legal and which were questionable.
In 1887, Congress passed the Electoral Count Act to spell out the specific process for certifying the Electoral College during a joint session of Congress. Due to gaps in the law, it does not require the vice president to certify the election. Still, questions exist if the vice president is bound to the Electoral College after Congress certifies the results.
Clearly, Pence felt obligated in the spirit of the Constitution and the Electoral Count Act to avoid overturning the Electoral College determination. The question Trump poses is, could the vice president unilaterally disagree with Congress and in effect veto Congress’ certification of the Electoral College? The answer is maybe. It’s not clear how the courts would rule, but it’s more likely they would err on the side of Congress regarding the vice president’s authority. The framers never intended for one person or group to make rules and laws for citizens without checks and balances. It’s difficult to see how the courts would permit a vice president to overturn an election.
It might be noteworthy that Trump’s comment disappeared from his website. It may not mean much, but it doesn’t change the president’s feelings about what he saw as an opportunity to right a wrong.
In the days ahead, Congress may pass bipartisan reforms to the Electoral Count Act to more clearly and specifically spell out the process for certifying the Electoral College.
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