Hitchhiker’s Guide to the Vice President’s Role in Electoral College Certification

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The 1/6 committee will present a case on the pressure campaign applied to former Vice President Mike Pence to swing the election in favor of former President Trump.

The plan put in place by attorney John Eastman was to convince Pence to reject the electoral vote of the states in question while he was presiding over the joint session.

Pence indicated he doubted he had any agility in the circumstance — especially after seeking advice from former Indiana senator and former vice president Dan Quayle. Quayle presided over the loss of re-election in the joint session in 1993 when President Bill Clinton defeated President George HW Bush.

The role of the vice president is dictated by the Voter Count Act and the 12th Amendment to the Constitution.

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Congress passed the legislation after the disputed presidential election of 1876 between President Rutherford B. Hayes and Samuel Tilden. Electoral votes were far from certain in Florida, South Carolina, Louisiana and Oregon. There was a sprint to settle the Electoral College tally before Inauguration Day in 1877. Congress created an “Election Commission” to resolve the issues. At that time, the president took office on March 4.

The voter count law states that states choose voters no later than 41 days after the election. This is partly why the Supreme Court hastened to complete Bush versus Gore on December 12, 2000. The decision halted vote counting in Florida, yielding the presidency to George W. Bush.

The United States Supreme Court ruled by a vote of 5 to 4 that Bush was the winner of the 2000 presidential election.
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The United States Supreme Court ruled by a 5-4 vote that Bush was the winner of the 2000 presidential election.
(Brooks Kraft LLC/Corbis via Getty Image)

The 1887 law establishes a “safe harbor” date for states to wrap up vote counts and establish voters early. But what if there are problems with the mail? The cryptic nature of the law could give some states the green light to keep counting — or stop counting.

So what if a state sends inconsistent lists of electoral votes to Congress? Or, if there are disputed electoral votes?

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This is settled in the certification of the electoral college during the joint session of Congress on January 6 – as dictated by the electoral count law.

Also with a role in this: The 12th Amendment to the Constitution.

The 12th Amendment is murky as to what should happen during the certification process. It reads: “The President of the Senate, in the presence of the Senate and the House of Representatives, opens all the certificates and the votes are then counted.”

The United States Capitol building is seen on October 22, 2021 in Washington, DC.  Following a breakfast with U.S. President Joe Biden, House Speaker Nancy Pelosi (D-CA) said Democrats were close to reaching a reconciliation deal.

The United States Capitol building is seen on October 22, 2021 in Washington, DC. Following a breakfast with U.S. President Joe Biden, House Speaker Nancy Pelosi (D-CA) said Democrats were close to reaching a reconciliation deal.
(Anna Moneymaker/Getty Images)

Note the passive voice in the sentence “the votes will then be counted”.

This does not suggest any flexibility on the part of the vice president. Or, is another interpretation that the vice president has a role? It is simply the vice president’s responsibility to report the count – even if there is potential for influence or interference?

The 12th Amendment also says that “the person with the most votes for president shall be president.”

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A vice president flexing his muscles during Electoral College certification isn’t exactly terra nova. There is precedent for the involvement of the Vice Presidency.

Hawaii was not a deciding state in the 1960 presidential election between President John F. Kennedy and future President – ​​then Vice President – ​​Richard Nixon. Kennedy was going to win the White House, regardless of Hawaii’s results. Early results from Hawaii showed Kennedy captured Aloha State by 92 votes. However, a recount showed Nixon winning by 141 votes.

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Nevertheless, Hawaii sent two lists of electoral votes to Washington: one for Nixon and one for Kennedy. The governor signed both lists. According to the book, Hawaii’s electoral votes should have gone to Nixon. But when the joint session of Congress convened in January 1961, Congress and Nixon handed the three electoral votes from Hawaii to Kennedy—even though Nixon probably should have awarded the votes to himself.

Richard Nixon (1913 - 1994) gives a thumbs up after resigning as the 37th President of the United States.  His son-in-law David Eisenhower is with him as he bids farewell to his staff at the White House, Washington DC.

Richard Nixon (1913 – 1994) gives a thumbs up after resigning as the 37th President of the United States. His son-in-law David Eisenhower is with him as he bids farewell to his staff at the White House, Washington DC.
(Gene Forte/Consolidated News Photos/Getty Images)

After Florida’s 2000 election dispute, a cavalcade of Congressional Black Caucus (CBC) members marched through the House chamber well to challenge the result. Vice President Al Gore, then Senate Speaker, and like Nixon, the defeated Democratic nominee, presided.

“Mr. Vice President, I rise to oppose Florida’s 24 fraudulent electoral votes,” said Rep. Maxine Waters (D-CA).

“Is the objection written and signed by a member of the House and a senator? asked Gore.

Congressional rules require that a member of the House and a senator simultaneously challenge a state’s voters list. But Waters had no sponsor in the Senate.

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“The objection is written! Waters snapped. “And I don’t care!

Gore, stood firm, though he stood to benefit the most from Waters’ plea.

“The President will advise that the rules do care,” Gore intoned, sparking applause from across the House chamber.

The issue never came to a vote in both houses because no senator joined the CBC membership.

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Questions arose in January 2005 about the Ohio voters list. In this case, the late Rep. Stephanie Tubbs Jones (D-OH) and former Senator Barbara Boxer (D-CA) teamed up to challenge Ohio’s electoral votes. This sparked separate House and Senate debates and votes to consider Ohio’s slate. But after a short debate, Congress decided that President George W. Bush was victorious in Ohio.

In January 2017, several House Democrats attempted to challenge the certification of former President Trump’s election. However, House Democrats did not have a petitioner in the Senate to spark debate in the House and Senate – ala 2005.

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