Sunday, December 27, 2020


Me on Twitter earlier today:

I was imagining that he'd use the government shutdown as a constitutionally dubious excuse to claim that the vote counting shouldn't take place, even though a government shutdown, assuming one happens, shouldn't shut Congress down.

Here was one response to my tweet:

The linked article says:
The Electoral College formally selected Biden as the next U.S. President on December 14 when each state’s electors publicly cast their official votes. There is no mechanism for reversing these votes, and on Jan. 6, the House and Senate will meet to count those votes. Under the 12th Amendment, Pence is constitutionally mandated to preside over the joint session of Congress which will accomplish the task.
But Pence isn't constitutionally mandated to preside over the joint session. The 12th Amendment says,
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 vice president is the president of the Senate, except when he's absent, which is most of the time. Then the job falls to the president pro tempore, who at this time is the oldest Republican in the Senate, Chuck Grassley; when he's not presiding, he designates another senator to be president pro tempore, customarily a junior member of the GOP delegation. (These roles would fall to the Democrats if the Democrats won control of the Senate.)

So here's a refinement of my doomy tweet above. It's a scenario that can't really take away Joe Biden's win, but might take place simply because Mike Pence and many Republicans in the Senate are scared of Donald Trump's voters:

Pence might refuse to take part in the counting of the ballots. The Constitution designates the president of the Senate as the presiding officer for this count. I see no constitutional reason that Pence has to be the Senate president for the purposes of this ceremony.

McConnell and his fellow Senate Republicans could also boycott the seesion. And Grassley could break with tradition and designate a Democrat as president pro tempore -- Chuck Schumer, perhaps, or maybe new senator Mark Kelly, who, because he ran in a special leection, has to run again in a purple state in 2022. In Republicans' eyes, doing this would mean ensure that Democrats own the process of ratifying Biden's win. The Republicans can stay out of it altogether, except for the few (Mitt Romney, Pat Toomey, and so on) who intend to endorse the legitimate electoral votes, as well as any GOP senators who insist on ratifying the House Republican challenges to the swing-state electoral votes.

Inevitably, the Democratic House will vote to uphold all the real electors. The Senate Democratic caucus plus Romney, Toomey, and probably Ben Sasse, Lisa Murkowski, and Susan Collins will give the Biden electors a majority in the Senate, too. Biden's win will still be upheld.

But this way, Republicans intending to run for reelection in 2022 (or for president in 2024) can do so without having soiled themselves by participating in the ratification process. Also, Trump's team can claim the process was tainted and sue again, though I assume that suit will also fail in the courts.

Though this won't change the outcome if it happens, it will permit Republicans to sustain the myth of a stolen election -- and allow those Republicans who know the myth is nonsense to pretend they're with the Trump program. Oh, and it will damage America's faith in democracy a lttle bit more. But when have modern Republicans chosen country over party?

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