UPDATE:
Vice President Mike Pence will not attempt to oppose President-elect Joe Biden’s victory, rejecting President Donald Trump’s attempt to pressure him into unilaterally blocking the election results.
“It is my considered judgment that my oath to support and defend the Constitution constrains me from claiming unilateral authority to determine which electoral votes should be counted and which should not,” Pence wrote to lawmakers in a three-page letter.
ORIGINAL:
Lawmakers are hours away from finalizing President-elect Joe Biden’s victory, turning aside President Donald Trump’s last-ditch effort to reverse 2020 election and install himself for a second term.
But they’re watching for rogue maneuvers by Vice President Mike Pence, who is constitutionally required to preside over the joint session of Congress at which Biden’s electors will be counted. Trump has unleashed a pressure campaign against Pence in the last 24 hours, falsely declaring that he has the unilateral authority to simply ignore Biden’s certified electors and send the race back to the states.
Though Pence has hinted that he’ll operate in the traditional mold of vice presidents at these crucial transition-of-power sessions, Democrats are preparing contingencies should the vice president diverge.
One thing is clear: the tenor of the day will be obvious within the first few minutes of the potentially day-long session. Pence is required to begin counting electoral votes alphabetically by state. When he arrives at Arizona — the first of Biden’s states on the list that Trump has contested — Pence will be forced to make his intentions known.
Although the Constitution and laws dictate that Pence is simply to read out the certified votes of the state, lawmakers are worried he might attempt to introduce an unofficial slate of rival electors who claimed to cast ballots for Trump or simply declare Arizona’s election invalid and seek to bypass it in the count. In this worst-case scenario, Congress would be forced to step in and override his decision. If Pence simply introduces Biden’s electors, they will likely be challenged by Republican lawmakers under processes laid out in federal law, which would require both chambers to separately debate the matter and vote. Those efforts are already doomed in both branches.
The potential for Pence to upend the session, while remote, is an example of the contingency planning that Democrats have had to undertake, as Trump has partnered with diehard loyalists in Congress to squeeze Pence and other Republicans into efforts to challenge the democratic results of the election.
“If Vice President @Mike_Pence comes through for us, we will win the Presidency,” Trump tweeted Wednesday morning. He also used a rally at the White House to deride what he termed “weak Republicans” who refused to help him subvert the election. “We have to primary the hell out of the ones who don’t fight.”
Trump’s pressure campaign has fractured the GOP and activated thousands of MAGA marchers to descend on D.C. — drawing acute security concerns in the capital.
“I hope the Democrats, and even more importantly, the weak and ineffective RINO section of the Republican Party, are looking at the thousands of people pouring into D.C,” Trump tweeted Tuesday afternoon. “They won’t stand for a landslide election victory to be stolen.”
But Republicans also entered Wednesday in a deflated state after losing one — and likely both — Senate runoff races in Georgia, an outcome that seems poised to relegate them to minority status in the chamber and dash hopes of operating as a counterweight to the Biden presidency. It led some of Trump’s Republican detractors to question the wisdom of proceeding with a process aimed at delegitimizing the election results.
Inside the Capitol, the effort has splintered Trump’s party, with more than 100 House Republicans and at least a dozen Senate Republicans objecting to Biden’s victory while Senate GOP leadership warned their caucus against the effort. Already, senators are signaling they’ll challenge results in Arizona, Georgia and Pennsylvania. Biden earned 306 electoral votes to Trump’s 232, and a wave of legal challenges by Trump to reverse several states’ results failed at every level of state and federal court.
Pence has sent public signals that he’s likely to adopt a traditional approach to the Wednesday session.
He told Trump at a Tuesday lunch that he will simply follow procedures allowing GOP objections and possibly make a statement related to election fraud during the process, two White House sources told POLITICO. But late Tuesday, Trump denied the suggestion and went even further, alleging that he and Pence are in complete agreement that Pence has unilateral power to “decertify” election results in multiple states and deny Biden the presidency.
Pence does not have that authority, either under the Constitution or the laws governing the counting of electoral votes, but Trump’s attempt to box him in suggests he’s seeking to pin his defeat on Pence’s required actions.
“All Mike Pence has to do is send them back to the States, AND WE WIN. Do it Mike, this is a time for extreme courage!” Trump tweeted Wednesday morning.
People familiar with the vice president’s thinking said he will be guided by the Constitution and plans to follow the law as written when he presides over the joint session, suggesting he will ignore calls to unilaterally reject Biden’s electors, despite the blow it could deliver to his own presidential ambitions.
In fact, Pence has spent the weeks leading up to this moment poring over legal opinions related to the 133-year-old Electoral Count Act, which governs the proceedings, and consulting with chief of staff Marc Short and General Counsel Greg Jacob about his role. Part of his intense preparation included a Sunday night visit to the Senate parliamentarian to discuss his statutory obligations.
Ahead of his role Thursday, Pence has said little publicly, other than that he expects to entertain Republican challenges to Biden’s electors from key states, indicating that he anticipates introducing Biden’s electors — a decision Trump has pressed him to refuse to make. In years past, the vice president’s ceremonial role has barely merited a mention — except for the awkwardness of 2001 and 2017, when Al Gore and Joe Biden were required to certify their rivals’ victories.
If Pence doesn’t break with tradition, the bulk of the action will occur when Republicans lodge formal challenges to the results, which will be read one state at a time. House Republicans plan to challenge six states, though Senate Republicans have only so far embraced three. Each successfully submitted objection will tee up two hours of debate for each state and likely result in an all-night session. For each state challenge, the House and Senate must recess the joint session and split up to separately debate and vote on them.