Apart from recent separation of powers issues entirely brought on by Trump’s enemies, Mike Pence still has some ‘splaining to do about the powers of his office and his initiative. Given the hysteria about Trump’s inartfully framed complaint that some crimes exceed the limits of the Constitution, let us look again at an early 2021 episode that is not forgotten and is still in search of a better answer.

There would be no mention in the Constitution of a Vice President (VP) presiding over the counting of state Electoral College (EC) votes if it were a mere perfunctory duty. For if you can mail in votes, why not just mail in EC votes and start popping corks (winners) or veins (losers?) It surely would have more a justification than the Speaker-initiated proxy voting of the last couple of years. 

Public domain image.

But if I were VP at the time, I would have counted the votes as received and then made a goodbye speech excoriating the results of at least two or three of the clearly fraudulent state results. That way, I would have done what the Constitution requires and yet make clear that ‘it isn’t over until it’s over.’ By leaving the scene, I would say I was not going to take the oath of office of VP in January no matter what, and thereby negate a conflict-of-interest claim. I would have shown both loyalty and adherence to the Constitution—and, oh, what a howl still would arise!

My recollection is that the 12th Amendment has provisions that extend into March for this kind of election when a clear winner for President is still not chosen. Time enough for the Court? As a byproduct, the eye on cheating would be sharper and we would not have had the reprise of the steal in 2022. Fool me twice, shame on me.

The VP is not required to sit and swallow it silently while one or more rogue states want(s) the election result to orbit its (their) own manufactured slate(s). And you thought the EC was the ‘be all and end all’ of the choice of President? 

No one should think that the EC process precludes any challenges. If one does, it puts two things in focus: 1) a party or person that wants to manipulate elections without challenge gets complete protection from the EC process (see the dismissal of the punted Texas v. Pennsylvania), and 2) the desire to coordinate such manipulation is, by extension, also protected and cannot be challenged. The benefits to cheaters improve when you add in the difficulty in putting together a remedy under severe compression when December 13 rolls around and when the Vice President later does his count of the votes. 

You don’t need to imagine this terrible situation for we saw it play out in real-time in 2020 and 2022:  The Dems obliterate the election process and think that their widely variable election methods and modes through the many marginal states cannot possibly go unrewarded. The Founders cannot have intended to lock in this type of cheating—and, if they failed to consider the possibility, the later-enacted 14th Amendment still provides a remedy.

EC and slate counting cannot automatically withstand the 14th Amendment when it comes to due process and equal protection under the law provisions. The 14th, which the Left so loved and used for leveraging purposes in the 20th century and since, could (and should) be the left’s undoing in what we saw in 2020 and 2022, which was ‘time ran out’ election jurisprudence. By recognizing that the EC process cannot reasonably be used to facilitate cheating and that the 14th Amendment provides a way out, one or two courageous judges could return normalcy and justice to the process.

It has always been a common understanding that the denial of justice for technical reasons should not always hold sway. The stakes in context can be new or just plain high. Timing and calendars must yield to justice. You often hear what appears to be departures from practice and precedent when you see words like ‘in the interest of justice’ in a decision.

Pence had a duty and an opportunity. He missed an opportunity to stem a blood flow. Fraud in elections can result in a judgment that the election did not take place. And the aggrieved are everywhere. It is going to be taken up sooner or later, and I shudder if it is never taken up.