united-states constitutional-law elections congress
Impeach Pence if he deviates while counting presidential ballots
<p>If Vice President Pence deviates from simply announcing the ballots from the Electoral College on January 6, 2020, and instead attempts to unilaterally reject some ballots, can the House of Representatives impeach him, and the Senate convict him, on the spot?</p>

<blockquote>
<p>If Vice President Pence deviates from simply announcing the ballots
from the Electoral College on January 6, 2020, and instead attempts to
unilaterally reject some ballots, can the House of Representatives
impeach him, and the Senate convict him, on the spot?</p>
</blockquote>
<h3>Short Answer</h3>
<p>No. He can't be impeached immediately on the spot, but that doesn't mean that Vice President Pence has any authority to alter the Electoral Vote either legally or as a matter of practical political reality.</p>
<p>President Trump's tweet to the contrary is a classic example of <a href="https://en.wikipedia.org/wiki/Gaslighting" rel="nofollow noreferrer">gaslighting</a>, a rhetorical tactic often associated with <a href="https://en.wikipedia.org/wiki/Psychopathy" rel="nofollow noreferrer">psychopathy</a>.</p>
<h3>Long Answer</h3>
<p><strong>Impeachment Options</strong></p>
<p>Impeachment is a political question. The House can vote to impeachment a federal government official any time it wants, consistent with its own rules, by a majority vote authorized by the rules committee. The Senate has not specific time line other than the one established by its own rules, for conducting an impeachment proceeding. But there is a statutory requirement, set forth at 3 U.S.C. § 18 (quoted below) that provides that nothing other than the counting of electoral votes may be considered by Congress while the counting of electoral votes is proceeding.</p>
<p>What constitutes an impeachable offense is a political question which can't be adjudicated by the courts. But it must constitute a &quot;high crime or misdemeanor&quot; under the self-executing provisions of the U.S. Constitution that apply to all federal and state and local government officials, of the executive, legislative and judicial branch of the government in the United States.</p>
<p>Most commentators would not consider a procedural action in counting electoral votes in the context suggested to be a high crime or misdemeanor. But that doesn't mean that the Vice President may simply ignore the electoral college's vote either.</p>
<p>Impeachment is governed by Article I, Section 2 of the United States Constitution which states in the pertinent part that:</p>
<blockquote>
<p>The House of Representatives shall chuse their Speaker and other
Officers; and shall have the sole Power of Impeachment.</p>
</blockquote>
<p>and by Article I, Section 3 of the United States Constitution which states in the pertinent part:</p>
<blockquote>
<p>The Senate shall have the sole Power to try all Impeachments. When
sitting for that Purpose, they shall be on Oath or Affirmation. When
the President of the United States is tried, the Chief Justice shall
preside: And no Person shall be convicted without the Concurrence of
two thirds of the Members present.</p>
<p>Judgment in Cases of Impeachment shall not extend further than to
removal from Office, and disqualification to hold and enjoy any Office
of honor, Trust or Profit under the United States: but the Party
convicted shall nevertheless be liable and subject to Indictment,
Trial, Judgment and Punishment, according to Law.</p>
</blockquote>
<p>And Article III, Section 2 of the United States Constitution, which states in the pertinent part that:</p>
<blockquote>
<p>The Trial of all Crimes, except in Cases of Impeachment, shall be by
Jury; and such Trial shall be held in the State where the said Crimes
shall have been committed; but when not committed within any State,
the Trial shall be at such Place or Places as the Congress may by Law
have directed.</p>
</blockquote>
<p><strong>The Real Question</strong></p>
<p>The rules of Congress and relevant statutes and the U.S. Constitution do not give Vie President Pence the authority to unilaterally reject some electoral college ballots, and the proper course of action should he seek to do so, would be to declare that his unilateral action is without force and effect under the pertinent legislative rules and statutes.</p>
<p><a href="https://www.archives.gov/founding-docs/constitution-transcript" rel="nofollow noreferrer">Article I, Section 3 of the U.S. Constitution</a> provides in the pertinent part that:</p>
<blockquote>
<p>The Vice President of the United States shall be President of the
Senate, but shall have no Vote, unless they be equally divided.</p>
</blockquote>
<p>But Article I, Section 5 of the United States Constitution provides that:</p>
<blockquote>
<p>Each House shall be the Judge of the Elections, Returns and
Qualifications of its own Members, and a Majority of each shall
constitute a Quorum to do Business; but a smaller Number may adjourn
from day to day, and may be authorized to compel the Attendance of
absent Members, in such Manner, and under such Penalties as each House
may provide.</p>
<p>Each House may determine the Rules of its Proceedings, punish its
Members for disorderly Behaviour, and, with the Concurrence of two
thirds, expel a Member.</p>
<p>Each House shall keep a Journal of its Proceedings, and from time to
time publish the same, excepting such Parts as may in their Judgment
require Secrecy; and the Yeas and Nays of the Members of either House
on any question shall, at the Desire of one fifth of those Present, be
entered on the Journal.</p>
<p>Neither House, during the Session of Congress, shall, without the
Consent of the other, adjourn for more than three days, nor to any
other Place than that in which the two Houses shall be sitting.</p>
</blockquote>
<p>The situation of counting of electoral votes is set forth in the first instance by Article II, Section 2 of the U.S. Constitution as amended by the 12th and 20th Amendments to the constitution. But the 12th Amendment has the provisions most relevant to the issue and states:</p>
<blockquote>
<p>The Electors shall meet in their respective states and vote by ballot
for President and Vice-President, one of whom, at least, shall not be
an inhabitant of the same state with themselves; they shall name in
their ballots the person voted for as President, and in distinct
ballots the person voted for as Vice-President, and they shall make
distinct lists of all persons voted for as President, and of all
persons voted for as Vice-President, and of the number of votes for
each, which lists they shall sign and certify, and transmit sealed to
the seat of the government of the United States, directed to the
President of the Senate; -- <strong>the President of the Senate shall, in the
presence of the Senate and House of Representatives, open all the
certificates and the votes shall then be counted; -- The person having
the greatest number of votes for President, shall be the President, if
such number be a majority of the whole number of Electors appointed;</strong> . . .</p>
</blockquote>
<p>The relevant statutes are <a href="https://www.law.cornell.edu/uscode/text/3/chapter-1" rel="nofollow noreferrer">Title 3, Sections 1-21</a> of the United States Code which set forth the process on the day when electoral votes are counted.</p>
<p>The Counting of Votes is governed by Section 15:</p>
<blockquote>
<p>Congress shall be in session on the sixth day of January succeeding
every meeting of the electors. The Senate and House of Representatives
shall meet in the Hall of the House of Representatives at the hour of
1 o’clock in the afternoon on that day, and the President of the
Senate shall be their presiding officer. Two tellers shall be
previously appointed on the part of the Senate and two on the part of
the House of Representatives, to whom shall be handed, as they are
opened by the President of the Senate, all the certificates and papers
purporting to be certificates of the electoral votes, which
certificates and papers shall be opened, presented, and acted upon in
the alphabetical order of the States, beginning with the letter A; and
said tellers, having then read the same in the presence and hearing of
the two Houses, shall make a list of the votes as they shall appear
from the said certificates; and the votes having been ascertained and
counted according to the rules in this subchapter provided, the result
of the same shall be delivered to the President of the Senate, who
shall thereupon announce the state of the vote, which announcement
shall be deemed a sufficient declaration of the persons, if any,
elected President and Vice President of the United States, and,
together with a list of the votes, be entered on the Journals of the
two Houses. Upon such reading of any such certificate or paper, the
President of the Senate shall call for objections, if any. Every
objection shall be made in writing, and shall state clearly and
concisely, and without argument, the ground thereof, and shall be
signed by at least one Senator and one Member of the House of
Representatives before the same shall be received. When all objections
so made to any vote or paper from a State shall have been received and
read, the Senate shall thereupon withdraw, and such objections shall
be submitted to the Senate for its decision; and the Speaker of the
House of Representatives shall, in like manner, submit such objections
to the House of Representatives for its decision; and <strong>no electoral
vote or votes from any State which shall have been regularly given by
electors whose appointment has been lawfully certified to according to
section 6 of this title from which but one return has been received
shall be rejected, but the two Houses concurrently may reject the vote
or votes when they agree that such vote or votes have not been so
regularly given by electors whose appointment has been so certified.
If more than one return or paper purporting to be a return from a
State shall have been received by the President of the Senate, those
votes, and those only, shall be counted which shall have been
regularly given by the electors who are shown by the determination
mentioned in section 5 of this title to have been appointed, if the
determination in said section provided for shall have been made,</strong> or by
such successors or substitutes, in case of a vacancy in the board of
electors so ascertained, as have been appointed to fill such vacancy
in the mode provided by the laws of the State; <em>but in case there shall
arise the question which of two or more of such State authorities
determining what electors have been appointed, as mentioned in section
5 of this title, is the lawful tribunal of such State, the votes
regularly given of those electors, and those only, of such State shall
be counted whose title as electors the two Houses, acting separately,
shall concurrently decide is supported by the decision of such State
so authorized by its law; and in such case of more than one return or
paper purporting to be a return from a State, if there shall have been
no such determination of the question in the State aforesaid, then
those votes, and those only, shall be counted which the two Houses
shall concurrently decide were cast by lawful electors appointed in
accordance with the laws of the State, unless the two Houses, acting
separately, shall concurrently decide such votes not to be the lawful
votes of the legally appointed electors of such State. But if the two
Houses shall disagree in respect of the counting of such votes, then,
and in that case, the votes of the electors whose appointment shall
have been certified by the executive of the State, under the seal
thereof, shall be counted. When the two Houses have voted, they shall
immediately again meet, and the presiding officer shall then announce
the decision of the questions submitted.</em> No votes or papers from any
other State shall be acted upon until the objections previously made
to the votes or papers from any State shall have been finally disposed
of.</p>
</blockquote>
<p>In regard to the highlighted language, Title 3, Section 5 of the United States Code is relevant, since all U.S. states and the District of Columbia (which is defined to be a state in Section 21 of Title 3) have vested this determination in its courts.</p>
<blockquote>
<p><strong>If any State shall have provided, by laws enacted prior to the day
fixed for the appointment of the electors, for its final determination
of any controversy or contest concerning the appointment of all or any
of the electors of such State, by judicial or other methods or
procedures</strong>, and such determination shall have been made at least six
days before the time fixed for the meeting of the electors, <strong>such
determination made pursuant to such law so existing on said day, and
made at least six days prior to said time of meeting of the electors,
shall be conclusive, and shall govern in the counting of the electoral
votes as provided in the Constitution, and as hereinafter regulated,
so far as the ascertainment of the electors appointed by such State is
concerned.</strong></p>
</blockquote>
<p>The process of counting votes set forth by statute continues into Section 16:</p>
<blockquote>
<p>At such joint meeting of the two Houses seats shall be provided as
follows: For the President of the Senate, the Speaker’s chair; for the
Speaker, immediately upon his left; the Senators, in the body of the
Hall upon the right of the presiding officer; for the Representatives,
in the body of the Hall not provided for the Senators; for the
tellers, Secretary of the Senate, and Clerk of the House of
Representatives, at the Clerk’s desk; for the other officers of the
two Houses, in front of the Clerk’s desk and upon each side of the
Speaker’s platform. Such joint meeting shall not be dissolved until
the count of electoral votes shall be completed and the result
declared; and no recess shall be taken unless a question shall have
arisen in regard to counting any such votes, or otherwise under this
subchapter, in which case it shall be competent for either House,
acting separately, in the manner hereinbefore provided, to direct a
recess of such House not beyond the next calendar day, Sunday
excepted, at the hour of 10 o’clock in the forenoon. But if the
counting of the electoral votes and the declaration of the result
shall not have been completed before the fifth calendar day next after
such first meeting of the two Houses, no further or other recess shall
be taken by either House.</p>
</blockquote>
<p>And into Section 17:</p>
<blockquote>
<p>When the two Houses separate to decide upon an objection that may have
been made to the counting of any electoral vote or votes from any
State, or other question arising in the matter, each Senator and
Representative may speak to such objection or question five minutes,
and not more than once; but after such debate shall have lasted two
hours it shall be the duty of the presiding officer of each House to
put the main question without further debate.</p>
</blockquote>
<p>And into Section 18:</p>
<blockquote>
<p>While the two Houses shall be in meeting as provided in this chapter,
the President of the Senate shall have power to preserve order; and no
debate shall be allowed and no question shall be put by the presiding
officer except to either House on a motion to withdraw.</p>
</blockquote>
<p>The upshot of all of that is that the House and Senate and joint session rules could be applied to override a unilateral and arbitrary decision of the Vice President of the United States to ignore a state's electoral votes and count them, and this would prevail absent a majority of both the House and the Senate to the contrary, because the decision is vested in Congress and not in the Vice President unilaterally.</p>
<p>A member of the House or Senate could raise a &quot;point of order&quot; if the Vice President did so, and that would be resolved by Congress as a whole and not merely by the Vice President acting unilaterally.</p>
<p>This analysis is <a href="https://www.washingtonpost.com/politics/2020/12/29/pences-very-limited-options-challenge-bidens-win/" rel="nofollow noreferrer">recapped</a> by Amber Philips writing for the <em>Washington Post</em>:</p>
<blockquote>
<p>Pence doesn’t have the power to change the will of the voters, no
matter what his boss said.</p>
<p>Pence is supposed to serve as the presiding officer when Congress
meets Wednesday to confirm the electoral college’s results. Pence will
almost certainly have to declare Biden the winner as his boss refuses
to concede. Here are the limited options the vice president will have.</p>
<p>First, what happens Wednesday</p>
<p>Under federal election law, states send their electoral college vote
totals to Congress to be counted and confirmed. It will be the final
confirmation that Biden won — after this, all that’s left is to
inaugurate him. The process is largely a formality, as election law
says Congress has to treat results from states approved by Dec. 8 as
“conclusive.” This year, as in most years, all states approved their
results by then.</p>
<p>But there is a mechanism that allows lawmakers to challenge those
results. The Electoral Count Act was written to help guide Congress if
there is a dispute in a state about which candidate won.</p>
<p>Except there are no disputes about who won in 2020. The electoral
college certified all states’ results a few weeks ago.</p>
<p>Still, more than a dozen House Republicans will try to challenge
results in several states that Trump lost. If they get a senator to
join them, all they will accomplish is to delay the inevitable. After
votes in the Democratic-controlled House and Republican-controlled
Senate, those challenges will ultimately fail. But it could be a long
day and night Jan. 6.</p>
<p>Here’s how things will work Jan. 6, step by step.</p>
<p>Pence’s role</p>
<p>It’s administrative. As the president of the Senate, he is supposed to
preside over the joint session of Congress when this all happens.</p>
<p>The authors of this process were very aware that the vice president
would have intense personal interest in who won. So his role is more
symbolic than active. He is supposed to open the envelopes submitted
by each state and say out loud how many electors go to each candidate.
He’s not even doing the counting — clerks are doing all that for him,
said Adav Noti, a director with the Campaign Legal Center and an
expert on this normally overlooked role. “They tell him what the
numbers are [for each state], and he reports that back.”</p>
<p>At the very end, it will be Pence announcing the final totals — 306
electoral votes for Biden, 232 for Trump.</p>
<p>Pence’s options to challenge the votes</p>
<p>Pence does have some authority, said Meredith McGehee, an expert in
ethics in politics and the director of the group Issue One. “A
presiding officer has one main power,” she said, “and that is the
power to recognize.”</p>
<p>Pence can recognize or not recognize lawmakers and electoral votes. To
not recognize official votes would be illegal and would be knocked
down almost immediately by majorities in Congress.</p>
<p>Still, let’s go there for a moment. As the electoral college was
meeting this month, some Republicans in states Trump lost held mock
votes that falsely claimed Trump won electors in their state.</p>
<p>Pence could refuse to recognize the clerks handing him the actual
electoral counts. He could pull out those false Republican electoral
votes and say he thought they were legitimate.</p>
<p>Such a scenario would be in blatant violation of the law (which is why
a Trump ally went to court last week trying to get rid of said law).
And it would prompt an immediate challenge from Democrats in Congress,
who would probably have support from Republican leaders in the Senate.
(Sen. John Thune of South Dakota‚ the No. 2 Senate Republican, said
that any challenges to official electoral votes are “going down like a
shot dog.”) <strong>Congress — not Pence — decides to formalize these votes.</strong></p>
<p>So, in addition to being illegal, it would probably end pretty
quickly.</p>
<p>But, McGehee pointed out, if Pence really wanted to do this, he “could
potentially put the Democrats in a defensive posture to prove the
election as opposed to Republicans.”</p>
<p>Could Trump declare martial law to try to steal the election?</p>
<p>How political pressure from Trump and others could factor in It puts
Pence in a difficult, perhaps lose-lose political situation: upset his
boss and any voters he might need if he wants to run for president in
2024, or do something illegal.</p>
<p>Trump and some of his congressional allies continue to claim that
Pence can do something to change the results.</p>
<p>Here’s Trump in a tweet Tuesday, inaccurately claiming Pence has the
authority to choose or not choose electors. (That’s Congress’s job, as
we explained above.)</p>
<p><em>Donald J. Trump @realDonaldTrump · 7h</em></p>
<p><em>The Vice President has the power to reject fraudulently chosen
electors.</em></p>
<p>Last week, Rep. Louis Gohmert (R-Tex.) sued in federal court to get
rid of the Electoral Count Act and make Pence legally able to choose
whatever sets of electors he wants. A federal judge in Texas, a Trump
appointee, threw it out immediately.</p>
</blockquote>
