The news is changing by the hour regarding the events of Jan. 6, when the presidential electoral votes are officially opened and counted in Washington, D.C. Considering the pending lawsuits, the conflicting historical precedents, the ambiguity of the relevant Constitutional provisions, and the 1887 Electoral Count Act being the worst written statute in the history of mankind; I’m not sure anyone on the planet can predict what will happen on Jan. 6.
But here are the most likely options that could develop.
Option one, only a few Republicans have the courage to fight for the Constitution and object to the lawlessness. Their objections are ignored and it’s business as usual in D.C. as the media declared results are rubber stamped by Congress and half the country is left with very little faith that we are still a constitutional republic. This scenario would award Biden the win. But with 140 Republican Representatives, and now several Republican Senators, announcing they will contest the results this scenario seems relatively unlikely.
The second option is Congress attempting to follow the 1887 Electoral Count Act, which is universally viewed as an incomprehensible federal statute, and unconstitutional by many experts and scholars. In this scenario, objections to disputed electoral votes results in the House and Senate debating the issue separately in their own chambers.
This leads to a few fiery speeches and forces every member of Congress to go on record either supporting or opposing the dangerous precedent being set by the unconstitutional election schemes in some states. But in the end both chambers vote to count the Biden electors certified by the governor of each of the suspect states, even though the Constitution provides for no such standard or process.
In the next scenario the Senate miraculously rejects the contested states, the House argues that both chambers must reject or else the electors are counted, and everyone waits on the Supreme Court to rule.
But lest the Constitution be followed and Trump get a second term, the court determines that only Pennsylvania will be the sacrificial lamb and her 20 electoral votes tossed due to the unconstitutional voting that took place. This symbolic gesture leaves Biden with the other illegally cast votes and enough to still break 270 for the win.
In the last option, Vice-President Pence, as President of the Senate empowered by the 12th Amendment as the presiding officer, has authority to open and count the ballots and choose whether to hear objections or not. There is precedent for this approach with past Vice Presidents having arbitrarily overruled objections from members and deciding on their own whether to count disputed ballots.
Jefferson in 1800, Nixon in 1961 and Gore in 2001 accepted or rejected disputed slates of electors with no input from Congress. In this scenario Pence could, as the President of the Senate, reject all seven states with dual electors and chaos would ensue. With 84 electoral votes taken out, Pence declares that Trump has won a “majority of the whole number of electors chosen,” with his 232 votes being a majority of the remaining 453 electors chosen.
What Should Happen
While these are all options, the real question is, what should happen?A balanced approach would be for Vice-President Pence to exercise part of his duty under the Constitution, but leave the final decision to Congress.
First, Pence declares that he has two sets of electors from seven states and needs more evidence to decide which, if any, to count. He acknowledges the objections from 140 House Members and a dozen Senators. Pence then allows Senators and Congressmen to submit evidence and testimony before the Joint Session, or follows the Jan. 2 request by a dozen Senators to have an emergency 10-Day hearing to investigate.
Second, after a fair review of the evidence, Pence declares it is obvious some states were unable to determine who actually won the legal votes cast in their state and although historical precedent and the 12th Amendment empower him to make the decision on his own, he wishes to comply as reasonably as possible with the 1887 Electoral Count Act and seeks the input of both the House and Senate.
As presiding officer, he instructs the House to vote per the 12th Amendment, which is 1 vote per state. He instructs both chambers to vote upon a recommendation to reject or accept each of the 7 states in question. He advises the Joint Session that in any case in which both chambers decide to accept or reject, he will do so; but in any case in which the House and Senate disagree, he will make the final decision.
Lastly, if no candidate has 270 after all ballots have been counted or rejected, then legitimate questions will immediately be raised as to whether the “whole number of electors chosen” should remain 538 since the disputed states “chose” but were not counted.
Since there is historical precedent for both changing the denominator of this equation and keeping it the same, Pence, as President of the Senate, rules that the whole number remains 538 and if no one gets above 270, then the 12th Amendment requires a contingent election in the House with each state receiving one vote. With Republicans holding a majority of states, Trump wins.
These are all scenarios that could happen, and some of them absolutely should happen.
Unfortunately, faith in the backbone of Republican officials is at an all-time low, but perhaps on Jan. 6 courage will be contagious and we will all be surprised by bold leaders upholding the rule of law and the Constitution.
