If President Trump Was Wrong, Why is Congress Amending the Electoral College Act?

Alexandros Michailidis / shutterstock.com
Alexandros Michailidis / shutterstock.com

One of the things that led up to the January 6 kerfuffle in 2021 was a legal debate over the role of the vice president in counting the electoral votes. Was the VP’s role strictly ceremonial? If so, anyone could theoretically count the electoral votes.

It would be like hosting the Oscars or the Grammy Awards. Nicki Minaj gets a turn and then four years later, Ben Affleck takes a crack at it. O

r does the vice president have plenary authority to reject the votes from states with outcomes that are in dispute, as the law was first written in 1887? All the really smart people in the media and the Democratic Party assured us it was ceremonial.

To prove their point, Democrats are now amending the Electoral Count Act of 1887, so that the counting of the electoral votes will be strictly ceremonial. This is good news for Nicki Minaj and Ben Affleck, but maybe not for the rest of America.

The presidential election of 1876 was a hot mess. Rampant cheating on both sides made it impossible to declare a winner between Rutherford B. Hayes and Samuel Tilden. It took weeks to sort it all out, with a special committee comprised of five House members, five Senators and five Supreme Court Justices examining all the fraud claims (which Congress failed to do in 2020).

After several weeks of investigation – long after the arbitrary swearing-in and transfer of power – Hayes was finally declared the winner. Democracy somehow survived that minor delay in the process, which Congress couldn’t be bothered with in 2020.

The Electoral Count Act of 1887 was a response to that hot mess. It would have saved a lot of trouble if the Vice President could have sent the disputed votes of those four states back and told them to sort it out or hold do-over elections.
President Trump’s legal team announced that Mike Pence could do this at the electoral vote count that was to take place on January 6, 2021. Mike Pence had the opportunity to save the Republic. History came calling… and Mike Pence cowered under his desk.

Rather than accepting the prevailing legal opinion of Trump’s team, which involved simply READING THE LAW AS WRITTEN, Pence set out to find a countervailing legal opinion. Pence instructed his attorneys to find a second opinion, so he could wimp out on sparing America from having Joe Biden in the White House.

Pence’s attorneys finally found a retired judge in blue-state Colorado who was willing to issue a public legal opinion stating that the VP’s role is strictly ceremonial. Since there was no time to get this published in a legal journal, the judge’s son had to set up a Twitter account for him. The retired Democrat judge then sent out his countervailing legal opinion, 280 characters at a time. (This actually happened.)

On January 5, 2021, Mike Pence had an op-ed published in Jeff Bezos’s blog (the Washington Post) in which he quoted the tweets from the retired judge, who still had zero followers on his Twitter account at that time.

Phew! Crisis averted! Mike Pence would not have to display a spine and prevent the Democrats from stealing the 2020 election!

Pence’s shoddy legal opinion, stated by a retired judge on a brand-new Twitter account, gave the media and the Democrats all the cover they needed. They declared the legal opinion of Trump’s lawyers a conspiracy theory and a threat to democracy. The vice president had no authority to reject disputed slates of electors because his job is totally ceremonial!

And here we are two years later. The Democrats have slipped an amendment into the Omnibus bill which is almost certain to pass. That amendment will take the power of all future vice presidents away – which they howled was already the case – so that the VP’s role will be strictly ceremonial. Because that’s how legal precedent works in America these days.