Wednesday in Washington: Whatever Happens Won’t Be Unprecedented

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  • 03/02/2023

A group of Republican senators has promised to challenge electoral votes from several states with evidence of election tampering, calling for an "emergency 10-day audit." The group, led by Sen. Ted Cruz of Texas, has promised to "reject the electors from disputed states as not ‘regularly given' and ‘lawfully certified' (the statutory requisite), unless and until that emergency 10-day audit is completed."

In their statement of intent, the senators cited what they called the most "direct precedent" related to the situation, in 1877 during the Hayes-Tilden presidential race, when elections in three states were "alleged to have been conducted illegally."

"In 1877, Congress did not ignore those allegations, nor did the media simply dismiss those raising them as radicals trying to undermine democracy. Instead, Congress appointed an Electoral Commission-consisting of five Senators, five House Members, and five Supreme Court Justices-to consider and resolve the disputed returns," noted the group.

"We should follow that precedent. To wit, Congress should immediately appoint an Electoral Commission, with full investigatory and fact-finding authority, to conduct an emergency 10-day audit of the election returns in the disputed states. Once completed, individual states would evaluate the Commission's findings and could convene a special legislative session to certify a change in their vote, if needed.

This challenge turns the spotlight on Vice President Mike Pence, who as Issue One director Meredith McGehee points out, has "one main power" in the situation," and that is the power to recognize."

While some argue that not recognizing electoral votes would be illegal on Pence's part per the Electoral Count Act of 1887, others, such as Rep. Louis Gohmert argue that the act itself is unconstitutional. Gohmert's theory would grant Pence the authority to do as he pleases in his role as President of the Senate with regard to the electoral votes, per the 12th amendment.

Detractors say that the amendment simply grants Pence the role of presiding, counting, and reading aloud votes.

But precedent tells a different story. Others have pointed out that Pence would certainly not be the first Vice President to wield such power with regard to contested elections, with examples not only in historical elections but modern ones as well.

As Charlie Kirk rightly pointed out in a recent radio show, during the 1960 election between Richard Nixon and John F. Kennedy, Nixon was the current Vice President. Kennedy challenged the election results in the new state of Hawaii, which then went to a recount. The recount swung the election in favor of Kennedy, but only by 141 votes.

Although this happened after the results had been certified in Hawaii, Nixon shirked the law, ordering that JFK's certificate get counted. Although Nixon here was "playing nice," as Kirk put it, this incident also serves as an example of the authority a Vice President has in such a situation.

Kirk also recalled Thomas Jefferson's actions during the election of 1800. Jefferson -- who was Vice President at the time -- gave himself the state of Georgia, despite the widespread controversy surrounding the results in that state.

According to Pence's chief of staff, the Vice President "welcomes" lawmakers' efforts to "raise objections" on Wednesday. Although scholars and pundits may bicker surrounding the legal extent of his role, precedent certainly exists for a situation in which he might buck the status quo and grant credence to these complaints.

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