Debunking American Election Myths, Part 4: The Vice-President’s Powers and Dueling Electors

“Facts are stubborn things”

Former US President John Adams

“Facts don’t care about your feelings”

Ben Shapiro

The previous parts:

Since my previous posts more insanity and misinformation about the capitol siege and the inauguration has come out – the most notable and nuttiest being that Joe Biden is only pretending to be president (!), which shouldn’t even need to be debunked, but that’s how far along the stupidity has come – but I’ll deal with those another time.

Instead, I’ll focus on two issues that came to the front as Republicans desperately tried to overturn the 2020 United States presidential election results: claims that the Vice-President decides the winner, and that there were dueling/alternate electors in the swing states that Democratic winner Biden won.

Just a bit of backstory for anyone who doesn’t know how America’s unusual presidential election system works: voters don’t directly elect the President and Vice-President; rather they elect electors to the Electoral College in early November, who in turn elect the POTUS and VP in mid December. Congress formally counts the Electoral votes on January 6th – a formality, generally – and then the winning President and Vice-President take office on 20 January at 12:00 PM, taking the oath of office around that time. Each state gets the same number of electors as they do federal congressional representatives: one for each electorate for the House of Representatives, plus 2 for their Senators.

Shortly after the November election, before a winner was announced (it was a close vote), incumbent Republican President Donald Trump declared victory and alleged fraud – his sole evidence being “I had an early lead”, which anyone who watches elections (such as myself) know means nothing. Him and his supporters doubled down on the fraud rhetoric when it was announced that Democratic nominees Joe Biden, former Vice-President, and Kamala Harris, federal Senator from California, had won the election, defeating Trump and Vice-President Mike Pence, with the final electoral result being an exact reversal of 2016: whereas that year Trump and Pence received 306 pledged electoral votes to Democratic opponents Hillary Clinton and Tim Kaine’s pledged 232, this time Biden and Harris won 306 to Trump and Pence’s 232.

Republicans who believed the election was rigged initially pinned their hopes on the courts. When the number of Republican election lawsuits entered the dozens and almost all were rejected due to lack of evidence and strained legal arguments (and dumb “witnesses” – Melissa Carone, for example), they turned to Republican-majority state legislatures in the swing states that Biden won wanting them to intervene, disenfranchise their voters, and select Republican electors instead of the Democrats their citizens voted for. And when THAT didn’t happen (despite lies to the contrary – which I’ll cover below), they turned to Pence, who as President of the Senate (which position the Vice-President automatically holds), oversees the joint session of Congress that counts the electoral votes, hoping that he would reject, dispute, or send back the Democratic electoral votes from the swing states, after Trump and several right-wingers such as Mike Adams claimed he had the power to do so.

Image result for mike pence january 6
Now-former Vice-President Pence, the subject of a lot of false claims and pressure about his powers, announces the result of the presidential election in January 2021

Except that he doesn’t. The procedure for the casting of electoral votes by the members of the Electoral College and the counting of the electoral votes in Congress, is laid out in the Twelfth Amendment of the Constitution (the President of the Senate is the Vice-President):

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 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;

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; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice.

The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.

https://constitutioncenter.org/interactive-constitution/amendment/amendment-xii

Image result for biden counts electoral votes 2017
Biden, then the outgoing Vice-President, confirms Trump’s victory in January 2017

Notice something? The lack of any mention that the VP can overturn the election. In fact, it requires him to open ALL the votes. It vests more power in Congress than the VP. That said, at the same time, the amendment is vague on the details of the counting itself. As a result of the disputed 1876 election and the close 1880 and 1884 elections, the Electoral Count Act was passed in 1887 and has governed all presidential elections since then. This is the law of the land – and explicitly denies the VP (or the acting Senate President, if the VP is not present) the authority to reject electoral votes, and sets out the rules for objecting to and rejecting electoral votes. The VP doesn’t even count them! Don’t believe me, because Trump told you otherwise? Here’s the act itself:

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 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.

https://www.law.cornell.edu/uscode/text/3/15

The Vice-President can only open the certificates – and MUST open ALL of them, he CAN NOT reject or object to ANY of them (again, NOT my opinion, NOT the media’s opinion, but the actual letter of the Law). It also clearly states that the votes can ONLY be rejected if both a Senator and a Representative sign an objection, and both the House and Senate separately vote to sustain the objection.

IN SHORT, IT’S AN ABSOLUTE FACT OF REALITY THAT THE VP DOES NOT HAVE THE POWER TO REJECT, DISPUTE, OR “SEND BACK” ELECTORAL VOTES!

No ifs, no buts, no maybes, no “we’ll see”, no “but I was told…”, no “but fraud”. Period. Case closed.

(Some, when pointed to what the Constitution and the Law actually says, have a “LA LA LA LA I can’t hear you!” reaction. They seem to think Trump’s opinion overrules the Constitution and law itself. I have obvious news for you that shouldn’t even need to be said: IT DOESN’T. Ironic that this reaction – and the above-refuted misinformation – often comes from the people who yell “Constitution!!!” and “Rule of Law!!!” – they clearly aren’t familiar with either. Not as familiar as they’d like to think, at least.)

Image result for la la la i can't hear you gif

But what if a state government submits more than one slate of electoral votes? Well, the VP doesn’t get a say in that either. If only one of these slates was submitted by the safe harbour date, that slate is counted. If more than one, or none, of the slates were submitted by the safe harbour date, then… CONGRESS votes on which – if any – to count.

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, 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; 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. 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.

https://www.law.cornell.edu/uscode/text/3/15
Image result for dick cheney certifies obama win
Outgoing Vice-President Dick Cheney confirming Barack Obama’s victory in January 2009

In short, not only did Pence fulfill his constitutional duty admirably and honorably in overseeing the affirmation of Biden’s win, he literally did the ONLY thing he COULD do. I hope that gives everyone who turned on him and called him a traitor, coward, sellout, mole, pedophile, etc, some soul searching to do.

Image result for al gore certifies bush win
Outgoing Vice-President and unsuccessful presidential candidate Al Gore confirming his own defeat and his opponent George W Bush’s victory in January 2001

Some will respond, “But after the 1800 election, when there were dueling electors, Vice-President Thomas Jefferson unilaterally counted all the votes for him!”

First off, THERE WERE NO DUELING ELECTORS THIS TIME. There haven’t been since 1961.

Second off, the entire claim is a blatant lie. In the election of 1800, there was indeed a dispute as to the electoral votes from Georgia. There was only one slate of electors who legitimately cast their votes for Jefferson and his running mate Aaron Burr (NO DUELING OR ALTERNATE ELECTORS). However, the certificate did not take the constitutionally mandated form of a “List of all the Persons voted for, and of the Number of Votes for each”. However, no Representative or Senator raised an objection to them, and Jefferson therefore counted them with the others.

Official Presidential portrait of Thomas Jefferson (by Rembrandt Peale, 1800)(cropped).jpg
Despite claims, President Thomas Jefferson didn’t abuse his position as Vice-President and President of the Senate to gain election

Additionally, the 1800 election and aftermath was 4 years before the ratification of the Twelfth Amendment (which was a direct response to that election), and 87 years before Electoral Count Act. In short, it was under a different law and different constitution.

Some claim that when the 1800 election ultimately went to Congress (electors back then cast two votes for President, rather than one for President and one for Vice-President, and Jefferson and Burr tied), Jefferson ended the deadlock by casting the deciding vote on the 36th ballot. While it’s true that it took Congress 36 votes before settling on Jefferson, the vote was in the HOUSE OF REPRESENTATIVES, whereas Jefferson’s power of the tie breaker was in the SENATE. I think we can dismiss this one out of hand. It was Alexander Hamilton who won the House vote for Jefferson.

What about alternate/dueling electors? As you will know by tracking the certification of results and slates of electors, and by watching the video footage of the votes being counted by Congress, each state – and the District of Columbia – only submitted one slate of electoral votes. That is the absolute fact of reality – again, no ifs, no buts, no maybes, no “we’ll see”, no “but The Epoch Times said”, no “I disagree”.

There were no dueling electors.

There were no alternate electors.

So, where did conspiracy theorists gets such an obvious fiction? Well, in some of the swing states Biden won, the Republican Party decided to “appoint” pretend “electors” who cast pretend “electoral votes” for Trump. These pretend “electors” are no more electors than you, but many Trump supporters lie that they were appointed by the legislature, and/or that they are somehow equal to the actual (Democratic) electors.

These are often the same people who think the VP can reject electoral votes, and they show even more that they do not know and have not read the Constitution when they not only lie that the pretend electors are legitimate, but try to insist that they are the Constitutional electors and that the duly appointed AND ELECTED electors are unconstitutional because “the Constitution gives the legislatures, NOT the Governors or Secretaries of State [the state officials who usually sign off on the state’s slate of electors], the exclusive power to select electors”.

WRONG.

As any report – even the deceptively worded Republican ones, if you look carefully – will tell you, NO STATE LEGISLATURE APPROVED, DISCUSSED, DEBATED OR CONSIDERED AN ALTERNATE SLATE OF ELECTORS, OR REPLACING THE ELECTORS THE PEOPLE OF THEIR STATES ELECTED WITH THEIR OWN PREFERRED ONES.

Additionally, the Constitution gives the state legislatures the authority to choose THE METHOD of selecting the state’s electors. Many states originally chose election by the legislature. Now they all have legislated that the popular vote in the state determines the electors. The officials who sign off on the electors do so quite legally according to their states’ laws. The relevant text, from Article 2 Clause 2:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

Try to point out this simple fact of reality – THERE ARE NO DUELING ELECTORS! – and I’ve gotten told “You need to brush up on the Constitution”. I have. You haven’t. Take your own advice.

North Carolina Electoral College representatives
North Carolina electors vote in a previous election

I probably come across as harsh and abrupt to some. After how I grew up – accepting complete misinformation as fact because my parents (usually Dad) did, and once I realised the innumberable falsehoods I got into frequent and heated arguments with Dad because he’s a shitty researcher (no offense, Dad) and views his beliefs as gospel – I ABHOR lies, falsehoods, and misinformation, whether it comes from my own “side” or the other “side”. Additionally, partly thanks to have traditionally been in right-wing and conspiracy theory circles for years, I’ve been swimming in misinformation – often easily debunkable – ever since the election 3 1/2 months ago, and as a result my tolerance for political misinformation at the moment is extremely low.

And if you’re going to put up an “I disagree” comment about the VP’s powers or the pretend electors, I strongly advise you to actually prove I’m wrong in the process.

And if you can’t, seriously reconsider your position.

Because when your belief/position relies on lies, you really need to question your belief/position.

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