The 2020 Battleground States
How do defenders of our democracy deal with “irregularities” in presidential elections that have already been conducted? One solution was provided by Alexander Macris on Dec. 7 at Substack in “Who Counts the Votes of the Presidential Electors?” This is from the article’s ending (emphasis added):
Come January 2021, Vice President Mike Pence will be presented with the sealed certificates containing the ballots of the presidential electors. At that moment, the Presidency will be in his hands.
And there is nothing stopping Pence, under the authority vested in him as President of the Senate, from declining to open and count the certificates from the six disputed states. If they are (as more than 70% of Republicans believe) certificates from non-electors appointed via voter fraud, why should he open and count them? As Harrison noted, “the certificates that the President of the Senate is to open… are those of the electors, not those of non-electors.”
The President’s position going into January 2021 is thus considerably stronger than the mainstream media would like to admit. There is Constitutional language and historical precedent that gives his Vice President the unilateral power to decide the outcome of our contested election.
If you’d like to read the rest of the article, it’s unfortunately been taken down at Substack. I don’t know whether that’s due to “cancel culture,” self-censorship, or something else, but I just happened to have made a PDF copy of it which I posted HERE. Most of the article is scholarly block quotes, but the heart of what Macris was suggesting is that the Vice President not open the disputed states’ certificates.
In a New Year’s Eve article at Legal Insurrection headlined “January 6 — No Mike Pence Can’t Just Reject Electoral Certifications,” Cornell Law professor William A. Jacobson subjects Macris’s article to a “textualist” analysis. So let’s subject Jacobson to some of the same. There are exactly two iterations of “reject” and three iterations of “discretion” in Jacobson’s piece (emphasis added):
A claim has circulated widely in the past few days that Vice President Mike Pence, as President of the Senate, has the power and discretion to reject certifications. If Pence had such power and chose to exercise it, it would be over, but he doesn’t.
[Professor Jacobson then quotes from the 1
Article from LewRockwell