Back To 1876 And Mike Pence

Over the weekend, since the third Trump indictment, I've begun to see renewed references to the 1876 election, the Compromise of 1877, and the Electoral Count Act of 1887. Trump's strategy, given assertions that the 2020 vote counts in several states were irregular, was to throw the election into the House of Representatives per the Twelfth Amendment of the US Constitution, as intepreted by the Electoral Count Act of 1887. This post at the National Constitutional Center from December 15, 2020, anticipates and explains this strategy:

Federal law requires the states to deliver certified electoral college results to the vice president, serving as president of the Senate, and other parties by December 23. Then a joint meeting of Congress is required by the 12th Amendment to count the electoral votes and declare the winners of the presidential election. The session on January 6, 2021 starts at 1 p.m.

Objections at that meeting about electors will be settled using a process established by the Electoral Count Act of 1887. The law has its origins in the contested presidential election of 1876 between Samuel Tilden and Rutherford B. Hayes. Several states during the 1876 election sent rival electoral ballots to be considered by Congress, which lacked a procedure to decide among contested slates of electors. The short-term solution was a special 15-person commission (including five House Representatives, five Senators, and five Supreme Court justices) to decide the election, which went to Hayes. In the end, the participating Supreme Court justices cast the deciding votes, after the House and Senate members voted on party lines.

The Electoral Count Act of 1887 and several federal statutes address questions about contested electors that land in Congress. The Congressional Research Service’s current interpretation of the Electoral Count Act explains its understanding of the process when it comes to objections to electoral votes.

“Objections to individual state returns must be made in writing by at least one Member each of the Senate and House of Representatives. If an objection meets these requirements, the joint session recesses and the two houses separate and debate the question in their respective chambers for a maximum of two hours,” the CRS said. “The two houses then vote separately to accept or reject the objection. They then reassemble in joint session, and announce the results of their respective votes. An objection to a state’s electoral vote must be approved by both houses in order for any contested votes to be excluded.”

As Trump's lawyer Christina Bobb explained in yesterday's post, Trump's congressional allies began the process by having one senator and one congressman object to the Arizona electors, Pence in his role as President of the Senate recessed the joint session, and the process of debate began. This was interrupted by the incursion of a crowd of demonstrators into the Capitol, which in effect stopped the process. As Ms Bobb pointed out, this was contrary to the interests of Trump and his allies, and the actual origins of the incursion are still unclear.

While there are questions about the vice president's role in such proceedings, the Electoral Count Act does provide that the vice president in his role as President of the Senate presides over them. Vice President Pence appears to have vacillated over his precise powers on January 6.

[Trump's] Attorney John Lauro said on CBS’ “Face the Nation” on Sunday that Mr. Trump’s defense team believes Mr. Pence’s court testimony could be crucial in exonerating the former president of any wrongdoing in the so-called Jan. 6 case.

. . . “The reason why Vice President Pence will be so important to the defense is . . . number one, he agrees that John Eastman, who gave legal advice to President Trump, was an esteemed legal scholar,” Mr. Lauro told the outlet. “Number two, he agrees that there were election irregularities, fraud, unlawful actions at the state level. All of that will eviscerate any allegation of criminal intent on the part of President Trump,” he added.

Mr. Lauro added that Mr. Pence believed doubts around the 2020 election were legitimate enough to warrant debate during the proceedings on Jan. 6, 2021, when lawmakers assembled Capitol Hill to certify the Electoral College vote.

Ahead of Jan. 6, Mr. Pence’s chief of staff said that the former vice president welcomed an effort by some lawmakers to raise objections on Jan. 6.

. . . Mr. Lauro added that there was a “constitutional disagreement” between Mr. Trump and Mr. Pence around whether the vice president at the time had the legal authority to reject questionable electoral votes and kick the issue back to the states for further debate or audit.

The attorney said that, at the end of the day, what Mr. Trump wanted from Mr. Pence to do on Jan. 6 was not to overturn the results of the election but stop the counting of electoral votes to allow further debate at the state level.

“The ultimate ask of Vice President Pence was to pause the counts and allow the states to weigh in,” Mr. Lauro said.

We must assume that Pence agreed sufficiently with Trump's interpretation of his role that he did in fact recognize the objections of one senator and one congressman and begin the process of debate in the individual houses, but that process was interrupted and never resumed. The link above continues,

In an appearance on CNN’s “State of the Union,” Mr. Pence insisted that Mr. Trump’s team had asked him outright to overturn the results of the election.

“They were asking me to overturn the election. I had no right to overturn the election,” Mr. Pence told the outlet.

There seems, though, to be a general understanding that while interpretations of the Electoral Count Act may differ, Pence had already followed provisions of the act by placing the January 6 joint session in recess for separate debate on the Arizona objections. This debate never concluded, and apparently the joint session never resumed to hear subsequent objections on January 6 after the incursion. At no point in the process does there appear to have been any real opportuinity for Pence to "overturn the election". On the other hand, he never had an opportunity to continue to preside under the provisions of the act to hear further objections to other states' electors.

It's hard to avoid thinking that the various pressures Pence has faced since January 6, 2021 have left him confused over even his generally acknowledged role as president of the joint session that day. That he's now a candidate for the Republican nomination against Trump gives him some incentive to claim Trump wanted him to "overturn the election", but voters so far are rejecting this.

Former Vice President Pence on Friday faced heckling from supporters of former President Donald Trump outside a campaign stop in Londonderry, N.H.

“Why did you sell out the people?” one heckler can be heard saying in a video taken outside of the event and shared across social media.

Pence's current claim, from the link farther above, is “From sometime in the middle of December, the president began to be told that I had some authority to reject or return votes back to the states. I had no such authority. No vice president in American history had ever asserted that authority and no one ever should.”

But as far as I can tell, he was asked only preside over the joint session of congress specified in the Electoral Count Act and recess the session for debate once the specified objections were received. But no ther vice president had been called upon to do this, ever, since the need to invoke the act had never some up since 1887, even though this was completely legal, and it was what Pence did in fact do before the demonstators broke into the Capitol. For whatever reason, the separate debates over the Arizona electors were never concluded, and the joint session never resumed to hear addional objections to other states' electors. It almost sounds as though Pence was complicit in this and simply stopped the process specified in the Electoral Count Act, possibly because even though it was constitutional, he was prevailed upon to stop it due to the potential outcome.

What last weeK's indictment has done has been simply to reopen the 2020 election and raise both old and new questions about the events of January 6, which simply increases the chance that the existing accepted narratives will collapse. It was an unwise move by the deep state to do this. On the other hand, Mike Pence's reputation will now be irredeemably destroyed.