Mike Pence & The Electoral History Of The United States

A few comments I received from concerned readers regarding the post entitled Ten Trump-Record Deficiencies For GOP Primary Voters To Consider brought up points not contained in the original post & therefore deserve a response from me & anyone else who would like to weigh in.

One such comment pertained to Mike Pence's role in the January 6, 2021 counting of electoral college votes that wondered "why Congress passed The Electoral Count Reform & Presidential Transition Improvement Act of 2022 that restricted the VP from denying electoral votes if he did not have that authority in the first place."

The commenter went on to say "Pence did have the right to deny states' votes & if he had the right to do that he had the right to not accept.  Now there is a new law (identified above) restricting the Vice President of that privilege.  If he did not have the right to reject, why did they make a new law?  That is something to ponder."

Before we spend too much time pondering this comment we had better get the facts straight because the comment is full of mistakes.  The commenter obviously hasn't read the twelfth amendment or @ least has not read it recently - so what facts, if any, was the comment based on?  The Constitution gives the VP no such powers or authority & neither has any statute.  We have to be careful that we don't just believe what we want to believe but rather search for the facts & follow them which in this case I have researched & present below.

Trump's erroneous legal theories about Pence being able to return, reject, overrule, or otherwise not accept electoral college votes from any or all states was based on the hotly contested election of 1876 & the Electoral Count Act of 1887 that was enacted to help clarify how to resolve disputed electoral college votes.  Note that there was a gap of over ten years between the disputed election of November 8, 1876 & the enactment of the Electoral Count Act on February 3, 1887.

Following the Civil War & Lincoln's reelection Congress rightly sensed that bitter politicians from both parties would contest future close elections & asserted through the adoption of the Twenty-second Joint Rule of 1865 that Congress had "total power over the electoral vote."  The joint rule never assigned such power to the Vice President in his role as President of the Senate.

This joint rule arrangement was put to the test @ the conclusion of Grant's two terms in office with the contentious election of 1876 when three southern states (South Carolina, Florida, & Louisiana) lost control of their electoral processes & could not agree on who won their respective states.  There was also one disputed electoral vote in Oregon because of process reasons.

The election of 1876 was actually decided under a compromise reached on January 29, 1877 - over two months after election day & a little over one month before the new president took office in March.  Under the terms of the Electoral Commision Act of 1877 a commision was established composed of five senators (three Republicans & two Democrats), five representatives (three Democrats & two Republicans) & five Supreme Court justices who awarded all the disputed electoral votes to Benjamin Harrison, who was announced the winner of the presidential election of 1876.  At no time during this matter did Thomas W. Ferry, President pro tempore of the Senate & acting VP as it was known in those days following the death of Vice President Henry Wilson on November 22, 1875, participate in deciding what votes to accept or reject.

After two more close presidential elections in 1880 & 1884 Congress passed the Electoral Count Act of 1887 that more formally established the counting procedure for the electoral votes sent by each state to the Vice President as President of the Senate.  The Electoral Count Act of 1887 minimized congressional involvement in election disputes & placed the primary responsibility upon the states themselves for determining who won their respective elections.  The 1887 act gave no power to the Vice President to reject or return votes to states.  In fact the problem with the election of 1876, that was decided as described above, was that three states were not able to determine their own winning set of electors & sent two sets to the Vice President so that someone in Washington would decide who were the winning electors in these three states.  In other words, rejecting sets of electors & sending them back to the states would have been a futile effort because the above listed states were unable to decide themselves who won.  But in no event was the Vice President, acting as the President of the Senate, authorized to resolve disputed electoral votes as described above.

In the case of the 2020 election no state had asked for their electoral ballots to be returned so they could recertify them showing Trump the winner. That being the case the entire Pence electoral vote count controversy was created by Trump, who actually was the one trying to steal the election.  In the infamous telephone call with Georgia Secretary of State Brad Raffensperger on January 2, 2021 Trump was told "What we're seeing is not @ all what you are describing."  Without any real dispute from a state, Pence had no reason to do anything but see that the votes were counted & announce the winner.

The improvements in communication technology since the 1870s makes it easier for the states to determine the winner of their elections.  Per the Constitution each state, usually under the administration of the State Secretary of State, runs their own election & typically the Secretary supervises the counting of votes & announces the winner.  The problems with the election of 1876 laid dormant for over 100 years until Trump & his lawyers distorted the facts to bring a world of hurt to the country that still exists today every time Trump brings up his false claims about Biden not winning the 2020 election.

The Electoral Count Reform & Presidential Transition Improvement Act of 2022 was written, as an example, to prevent Vice President Kamala Harris, acting as the President of the Senate following the 2024 election, from pulling the shameful trick that Trump wanted Pence to perpetrate in throwing out electoral votes & awarding the presidency to the incumbent - in Harris's case Joe Biden.  The Act was not written to change the Vice President's responsibilities but to restate the constitutional text that the Vice President's function is purely ministerial so that claims like Trump made would not be made again.  The 2022 act was also not written to undo a procedure that had never been done or authorized by the Constitution or statute - i.e., no Vice President has ever sent electoral votes back to a state. 

In summary, the text of the Constitution is clear that the Vice President has no power or authority to return or reject electoral votes & the pertinent events of the country's electoral history, as described above, confirm that every applicable statute written into law & implemented followed the constitutional text in this regard.  Neither the Electoral Commision Act of 1877, that directly decided the election of 1876, nor the Electoral Count Act of 1887 gave the Vice President any authority to return certified ballot lists from electors of any state.  As per the Constitution the Vice President's function, as President of the Senate, is ministerial in presiding over the joint session of Congress for the purpose of counting electoral votes.  This is in accordance with the Constitution where Pence's only function on January 6, 2021 was to open certified state election results & have the electoral votes counted in the presence of Congress, with the candidate receiving the majority of electoral votes for President winning the presidency.  As such, it is appalling what Trump asked Pence to do on January 6, 2021.

On seven occasions since 1960 the Vice President presided over the congressional ceremony that finalized his party's defeat.  On two of these occasions - Nixon in 1960 & Gore in 2000 - they announced they had personally lost their bid for the presidency.  In none of these cases did the Vice President send electoral votes back to a state & declare himself or his party the winner.