Pence to decide race? Law profs say VP allowed to 'count' electoral votes
By Bob Unruh
An analysis by two prominent law professors published before the election concluded that if Electoral College votes remain in dispute after they are counted in Congress, the vice president, as presiding officer of the joint session, could choose not to allow certain disputed votes.
The scenario isn't entirely remote, with lawsuits challenging the results in six states and the possibility the U.S. Supreme Court could weigh in.
John Yoo of California-Berkeley and Robert J. Delahunty of St. Thomas University wrote in an analysis published Oct. 19 by the Claremont Institute that Vice President Mike Pence can refuse to count some of the votes if they remain disputed.
The professors concluded that the "constitutional structure" favors President Trump if Election Day "fails to result in a clear winner."
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They cited the "unprecedented" circumstance of the COVID-19 pandemic on the election and envisioned a scenario in which "Trump appears to be the winner on the morning after Election Day, but a 'blue wave' begins in the days and weeks after, and Biden claims a belated, overtime victory."
Just the News reported Norman J. Ornstein of the American Enterprise Institute called the professors' argument "ludicrous on its face."
Attorney Richard Roth of the New York-based Roth Law Firm told Just the News that while the essay "raises several very valid – and very controversial – issues, they all rest on one fact: the certification of election results."
The professors pointed to the Electoral Count Act of 1887, which establishes deadlines for the states to report their official results and for the 538 members of the Electoral College to meet.
"The latter date this year is December 14, or 41 days after Election Day. The state deadline this year is December 8. The date is a safe harbor: if a state reports in time, Congress will accept its electors. The Act provides that if 'any controversy or contest' remains after December 8, Congress will decide which electors—if any—may cast their state’s votes in the Electoral College," they explained.
They also mentioned the constitutional provision that gives to state legislators the power to appoint electors.
"The constitutional question is not whether but how a state legislature could reclaim the appointment of electors. States have provided by statute for the selection of their electors by their voters; therefore it one might argue they may only resume that power with a second, superseding statute. On the other hand, the Constitution specifically designates state legislatures, rather than the executives or a combination of the two, to choose the electors. A state legislature might argue that a past legislature-and-governor cannot constrain its discretion to choose electors today. Is it likely that state legislatures in battleground states could reclaim their constitutional power before the December 8 deadline looms? Probably not.
"While Republicans control the state legislatures in six key battleground states, only two of those states also have Republican governors (Arizona and Florida). In four other contested states Republicans control the legislature, but Democrats control the executive: Michigan, North Carolina, Pennsylvania, Wisconsin. Only if the Constitution allows state legislatures, acting without the governor, to choose the electors, could those states cast electoral votes in a disputed popular election."
However, they said, there's another plausible scenario.
"This requires a closer look at the Electoral Count Act. The Act contemplates a post-election period in which states have the opportunity to resolve any 'controversy or contest' in accordance with their pre-election law through 'judicial or other methods or procedures.' Once this process has reached a definitive conclusion or 'final ascertainment,' the governor is then to certify the electors. But the Act presupposes that all such controversies or contests have run their course before the governor submits the certified list of electors. What if December 8 is at hand and the controversies are still going on?
"Another provision of the Act could come into play. If a State has held an election on November 3 'and has failed to make a choice' by the December 8 deadline, the Act declares that 'the electors may be appointed on a subsequent day [after Nov. 3] in such a manner as the legislature of such State may direct.' That failure could arise from fraud, uncertainty, ongoing recounts or litigation. In those circumstances, a state could be said to have 'failed' to make a choice, and its legislature could pick the electors," they explained.
READ MORE: Pence to decide race? Law profs say VP allowed to 'count' electoral votes
https://www.wnd.com/2020/12/pence-decide-r...
Posted By: Dea. Ron Gray Sr.
Monday, December 28th 2020 at 6:06PM
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