And so 2020 draws to a close. Tomorrow I’ll do my annual review of the year’s electoral events, but we already know what the most significant election of the last twelve months was. And next week, two months after polling day, the United States election finally comes to an end when Congress counts the votes [link added] from the electoral college that will make Joe Biden president.
Unlike with any previous US election in modern times, however, Biden’s opponent, incumbent Donald Trump, has still not conceded defeat and maintains, contrary to well-established fact, that he was the victim of fraud and is actually the legitimate winner. As time passes and more legal challenges fail, the word from the White House is descending into something that can fairly be described as madness.
Jon Chait last week referred to “the whiff of the Führerbunker” around Trump: “In lieu of Russian tanks, the unstoppable force everybody else around the mad leader can see coming is Joe Biden’s clear Electoral College victory.”
The last even barely theoretical possibility to stop that victory is next week’s joint session of Congress. What happens then, according to the twelfth amendment, is as follows:
The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates [from the electors] 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 …
Biden unquestionably has a majority of the electors’ votes. And there’s no suggestion in the text that the president of the Senate – that is, vice-president Mike Pence – has any choice about which votes he counts. But in case that wasn’t clear, the Electoral Count Act of 1887 provides that the actual counting shall be done by tellers appointed by the two houses, and that they will give the results to the vice-president “who shall thereupon announce the state of the vote.”
The same law also provides that a state’s votes can be challenged if they have not been regularly given or the electors have not been lawfully certified, but both houses, voting separately, have to agree to a challenge before any votes can be rejected. Since Trump has little chance of getting the support of the Senate and no chance at all with the Democrat-controlled House of Representatives, that is clearly a non-starter.
So the last fling of the Trumpists is a lawsuit seeking a declaration that the Electoral Count Act is unconstitutional and that Pence has “sole discretion in determining which electoral votes to count for a given State” – with the intention that he would refuse to count Biden’s votes from a number of key states and instead count the votes of self-appointed Republican “electors”.
It’s not terribly far-fetched to say that parts of the Electoral Count Act are constitutionally shaky. But the rest of the case is absurd beyond belief: there is no constitutional warrant for the notion that the vice-president has any discretion in the matter at all, much less an absolute and unfettered one. And the Republican “electors” have not been appointed or certified by anyone; in constitutional terms, anything they send to Congress are just random pieces of paper.
Even if these claims were somehow to find favor in the courts, however, there’s a further problem from the Trump point of view: Pence appears to not be on board. There’s every indication that the vice-president is most unwilling to risk starting a civil war in order to help his mad boss steal an election that he lost by seven million votes.
The lawsuit, filed with a federal district court in Texas, discloses that the Trumpists discussed the case with Pence’s lawyers but “were not successful in reaching an agreement.” Instead they are seeking an expedited hearing next Monday, 4 January, presumably with a view to being able to appeal to the Supreme Court before Congress meets two days later.
This is the stuff of fantasy. But it is interesting in the way that it puts Pence on the spot. Having served as a loyal and mostly self-effacing deputy for four years, he finally finds himself in a position where Trump expects the impossible from him, and he will have to work out a way of explaining that he can’t deliver.
Or he could decide to be conveniently absent next week, and allow the joint session to be chaired instead by the president pro tempore, Republican senator Chuck Grassley. It’s unlikely that he would relish the task either.
UPDATE Saturday afternoon: District court judge Jeremy Kernodle very properly dismissed the Texas lawsuit for lack of standing. You can read his judgement here.