Trump lawyer suggests Pence could defer certifying election, send requests to state legislatures

[mystery-ak]

Trump lawyer suggests Pence could defer certifying election, send requests to state legislatures

Jenna Ellis suggests the vice president could seek clarity from legislators in states where election results are being disputed.


By John Solomon

Updated: January 4, 2021 - 7:15pm

One of President Trump's campaign attorneys suggested Monday that Vice President Mike Pence delay certifying the elections results for Joe Biden when Congress convenes Wednesday and instead ask legislatures in the six states where results have been contested to clarify which candidate's slate of electors should be approved.

Jenna Ellis, senior legal adviser to the Trump campaign, floated the idea Monday afternoon during an appearance on the Just the News television show The Water Cooler with David Brody.

"What Mike Pence could do, and what he should do, in fact, is to direct a question back to the state legislatures when there are two competing slates of delegates from these six states, he can ask that question to the states and say, 'well, state legislators, you know, I have an oath to the Constitution to uphold the Constitution as written in Article II Section 1.2 which says the state legislatures direct the manner in which electoral delegates are selected. So you tell me which of these two slates was selected in the manner that your state general assembly has designated,'" Ellis said.

"And that's a fair question. That's not exercising discretion. That's not setting up any sort of bad precedent. That's actually returning the authority to the constitutionally vested entity and just simply directing that question I think would then require a response from these very timid, to put it lightly, state legislators that haven't been willing to act, and it would in fact then give a very clean outcome to this election," she added.

The six states she cited are Wisconsin, Michigan, Pennsylvania, Georgia, Arizona and Nevada. In all six states, the governments have declared Biden the winner and sent electors to Congress supporting the Democrat. But Trump supporters and some legislators in each of those states have said they don't trust the results because of irregularities and changes to election processes that weren't approved by the Legislatures. Courts have steadfastly refused to intervene despite numerous lawsuits challenging the results.

more
https://justthenews.com/politics-policy/elections/trump-lawyer-suggests-pence-could-defer-certifying-election-send-requests

[IsailedawayfromFR]

I consider this the most likely scenario.

And the state legislatures should have done this two months ago.

[bilo]

I would love to see this. The Gov.'s of these States can't refuse to allow them to convene then as has been the case so far.

I don't know if Pence has the strength to do this though. You can bet the media would melt down.

[libertybele]

I would love to see this. The Gov.'s of these States can't refuse to allow them to convene then as has been the case so far.

I don't know if Pence has the strength to do this though. You can bet the media would melt down.

What am I missing here?? Constitutionally, I don't think Pence can defer and the Governors of the States still have to (or should) adhere to what is set forth in the Constitution.

Pence can't decide the election period.

Biden is going to be sworn in.  This is only the beginning to the very long road ahead of us.  I pray that God Bless this Republic and keep evil from destroying it.

[christian]

It's been posted on the net that Pence will not be present or only partly present for tomorrows election proceedings and Chuck Grassley will take over in Pences absence.  Expect the worst and the excuses why nobodys to blame for why it turned out that way.  Oh golly gee whiz, it just happened, blame nobody !  Like demorats voting for bad legislation and just happened to pass by voice vote so none of them have to take any heat for what they did.  Secrecy and coincidence, YOU DON'T HAVE THE RIGHT TO KNOW or hold anybody accountable.  Yeah, thats how you know you're screwed.

[libertybele]

It's been posted on the net that Pence will not be present or only partly present for tomorrows election proceedings and Chuck Grassley will take over in Pences absence.  Expect the worst and the excuses why nobodys to blame for why it turned out that way.  Oh golly gee whiz, it just happened, blame nobody !  Like demorats voting for bad legislation and just happened to pass by voice vote so none of them have to take any heat for what they did.  Secrecy and coincidence, YOU DON'T HAVE THE RIGHT TO KNOW or hold anybody accountable.  Yeah, thats how you know you're screwed.

Do you have any links?  Pence has no authority to decide an election period.  The only blame would be from people thinking that he has that authority and isn't doing any thing.  To overturn the elections that have been certified, it is my understanding that 2/3 majority of the House would have to vote along with 2/3 of the majority of the Senate.  The House is not going to vote in Trump's favor and at this point in time, I don't think that the Senate would vote in his favor either.

[Mesaclone]

It's been posted on the net that Pence will not be present or only partly present for tomorrows election proceedings and Chuck Grassley will take over in Pences absence.  Expect the worst and the excuses why nobodys to blame for why it turned out that way.  Oh golly gee whiz, it just happened, blame nobody !  Like demorats voting for bad legislation and just happened to pass by voice vote so none of them have to take any heat for what they did.  Secrecy and coincidence, YOU DON'T HAVE THE RIGHT TO KNOW or hold anybody accountable.  Yeah, thats how you know you're screwed.

This is not the case...Grassley made a comment that IF Pence were not present he was prepared to step up Senate Pro-Tem...he later clarified that he had no reason whatsoever to expect Pence not to be there.

As for following the Constitution...all it really says is that the Vice President shall count the votes. It gets a bit hazy as to what steps can/must be taken if there are disputed sets of electors...and in the 6 states in question, this is why the GOP electors formally cast their votes for Trump. The VP has some options...he could request each state legislature vote on which set of electors they want...or he could not count ANY electors from states in dispute (and yes...that could trigger a referral to the SCJ).

There are some steps laid out in the 1887 Electoral vote act...but many scholars believe this act to be unconstitutional if and when it limits or directs the Constitutional prerogatives of the President of the Senate  (Pence).

[Mesaclone]

Do you have any links?  Pence has no authority to decide an election period.  The only blame would be from people thinking that he has that authority and isn't doing any thing.  To overturn the elections that have been certified, it is my understanding that 2/3 majority of the House would have to vote along with 2/3 of the majority of the Senate.  The House is not going to vote in Trump's favor and at this point in time, I don't think that the Senate would vote in his favor either.

You are referring, in part, to some requirements laid out in the ECA of 1887...but the ECA is just a law, and cannot override or limit prerogatives set out in the Constitution itself. Or at least, its an open Constitutional question if it can do so.

That said, there IS no 2/3 voting requirements. Objections are dealt with by majority votes of the House and Senate...the ECA says they must both vote NOT to accept a slate of electors IF that slate was certified by a state. However...as I said...it is an open question as to the Constitutionality of the ECA.

Here's where it can get hinky. What if the VP simply will not count Electors from a disputed state...counts the votes and determines no candidate has reached the 270 level and thus the election itself is directed to the House? There is no real constitutional mechanism to force him to do so...and the whole thing will get really ugly.

[libertybele]

@Mesaclone It will be interesting, but I'm finding information again which states that Both Houses still have to vote to accept or reject the objection. Agreed that the objection would be subject to interpretation and would that not then ultimately fall into the laps of those in the SCOTUS?  They've already refused to take hear the case of fraud ... they could also look the other way on this as well; Roberts isn't going to side with Trump.

The Electoral Count Act of 1887 and several federal statutes address questions about contested electors that land in Congress. The Congressional Research Service’s current interpretation of the Electoral Count Act explains its understanding of the process when it comes to objections to electoral votes.

“Objections to individual state returns must be made in writing by at least one Member each of the Senate and House of Representatives. If an objection meets these requirements, the joint session recesses and the two houses separate and debate the question in their respective chambers for a maximum of two hours,” the CRS said. “The two houses then vote separately to accept or reject the objection. They then reassemble in joint session, and announce the results of their respective votes. An objection to a state’s electoral vote must be approved by both houses in order for any contested votes to be excluded.”

https://constitutioncenter.org/blog/explaining-how-congress-settles-electoral-college-disputes

[Polly Ticks]

So the proposed "send it back to the state legislatures" step comes before (or maybe in place of) the "object to the electors" effort?  Is that what they're suggesting?

It's definitely an interesting idea, and while I imagine the chances of it happening and/or changing anything are slim to none, it would theoretically seem to be a more tenable option for the VP.

[libertybele]

So the proposed "send it back to the state legislatures" step comes before (or maybe in place of) the "object to the electors" effort?  Is that what they're suggesting?

It's definitely an interesting idea, and while I imagine the chances of it happening and/or changing anything are slim to none, it would theoretically seem to be a more tenable option for the VP.

We'll see what happens, I don't think anything is going to come of all of this tomorrow...and as much as I had hoped that somehow the election would be overturned, I am not optimistic. IF left to Pence (which I still don't think will be considered Constitutional) he will fold.

[Mesaclone]

@Mesaclone It will be interesting, but I'm finding information again which states that Both Houses still have to vote to accept or reject the objection. Agreed that the objection would be subject to interpretation and would that not then ultimately fall into the laps of those in the SCOTUS?  They've already refused to take hear the case of fraud ... they could also look the other way on this as well; Roberts isn't going to side with Trump.

The Electoral Count Act of 1887 and several federal statutes address questions about contested electors that land in Congress. The Congressional Research Service’s current interpretation of the Electoral Count Act explains its understanding of the process when it comes to objections to electoral votes.

“Objections to individual state returns must be made in writing by at least one Member each of the Senate and House of Representatives. If an objection meets these requirements, the joint session recesses and the two houses separate and debate the question in their respective chambers for a maximum of two hours,” the CRS said. “The two houses then vote separately to accept or reject the objection. They then reassemble in joint session, and announce the results of their respective votes. An objection to a state’s electoral vote must be approved by both houses in order for any contested votes to be excluded.”

https://constitutioncenter.org/blog/explaining-how-congress-settles-electoral-college-disputes

The question is whether the ECA oversteps by limiting and/or directing HOW the congress...via the President of the Senate...determines which Electoral votes are to be counted.

[Right_in_Virginia]

It's been posted on the net that Pence will not be present or only partly present for tomorrows election proceedings and Chuck Grassley will take over in Pences absence. .... 

And this has been corrected on the net @christian  Grassley misunderstood something or just had a plain ole senior moment.

Nicholas Fandos
@npfandos

A Grassley spokesman clarifies that the senator does not "have any indication Pence won't be present." Grassley, he said, was just trying to explain that at president pro tempore of the Senate, he would fill the chair if Pence does not show or steps out at points for a break


10:19 AM · Jan 5, 2021·TweetDeck

https://twitter.com/npfandos/status/1346476468705009666

[Mesaclone]

We'll see what happens, I don't think anything is going to come of all of this tomorrow...and as much as I had hoped that somehow the election would be overturned, I am not optimistic. IF left to Pence (which I still don't think will be considered Constitutional) he will fold.

The ECA is a huge mess...here's a citation from the Rutger's Law Journal on its unenforceability and why it is questionable:

Largely unique among the United States Code and other
congressional procedures,9 the Act purports to restrict the
authority of both the House of Representatives and Senate to
control their internal discretion and procedures during the quadrennial count. The Supreme Court, however, has historically held that Article I, Section 5’s constitutional grant that “[e]ach House may determine the Rules of its Proceedings ...”10 represents the plenary power of each House to govern its
internal parliamentary activities—including adjournment, amendment, and debate.11 As a result, an irreducible conflict centered on non-delegation, entrenchment, and the separation of powers lies in wait between the Electoral Count Act and the Houses’ independent Article I procedural authority.

[Right_in_Virginia]

So the proposed "send it back to the state legislatures" step comes before (or maybe in place of) the "object to the electors" effort?  Is that what they're suggesting?

It's definitely an interesting idea, and while I imagine the chances of it happening and/or changing anything are slim to none, it would theoretically seem to be a more tenable option for the VP.

At least some states are asking for the delay @Polly Ticks  I think it's more than two ... but I can't find the info right at this moment.  I'll post it when I do.   

Robert Barnes Retweeted
Bowen Xiao

@BowenXiao_

 NEW from me:

 Republican state senators in Georgia have signed a letter to VP Mike Pence asking him to delay the Jan. 6 count by 10 to 12 days.

“There’s about 16 or 18 of us now that signed this letter," Sen. Brandon Beach told me on the phone today

Senator Doug Mastriano
@SenMastriano

Today, members of the PA House and Senate request that Sen Mitch McConnell and Rep Kevin McCarthy dispute the PA election results until an investigation is conducted into the numerous claims of fraud. Until this is completed, the hastily certified results can’t be trusted (pt 1)

(7 page letter):

https://twitter.com/SenMastriano/status/1344659659865677825

10:00 AM · Dec 31, 2020·Twitter for iPhone

[libertybele]

The ECA is a huge mess...here's a citation from the Rutger's Law Journal on its unenforceability and why it is questionable:

Largely unique among the United States Code and other
congressional procedures,9 the Act purports to restrict the
authority of both the House of Representatives and Senate to
control their internal discretion and procedures during the quadrennial count. The Supreme Court, however, has historically held that Article I, Section 5’s constitutional grant that “[e]ach House may determine the Rules of its Proceedings ...”10 represents the plenary power of each House to govern its
internal parliamentary activities—including adjournment, amendment, and debate.11 As a result, an irreducible conflict centered on non-delegation, entrenchment, and the separation of powers lies in wait between the Electoral Count Act and the Houses’ independent Article I procedural authority.

Perhaps this is why Pelosi revised 'procedures' and rules the other day; just my hunch.

[Polly Ticks]

At least some states are asking for the delay @Polly Ticks  I think it's more than two ... but I can't find the info right at this moment.  I'll post it when I do.   

Thanks for the info, @Right_in_Virginia

[kevindavis007]

Pence doesn't have that power.. I checked the Constitution.

[Mesaclone]

Pence doesn't have that power.. I checked the Constitution.

You may have read it,but you clearly were unable to understand what it says. Which, to be fair, is not unusual for liberals.

[XenaLee]

Perhaps this is why Pelosi revised 'procedures' and rules the other day; just my hunch.

Yeah, lefties love to "revise procedures" at the last minute (mid-game).... in their favor.  Just like several states did re: election rules against their own state's constitution.   Only, in Pelosi's case... she had help from Mitch, da Bitch.   

[jafo2010]

It appears Pence is NOT going to take a stand against the fraud perpetrated on this republic.

Pence is done as a politician.  He runs for POTUS in 2024, he will be a 1% candidate.

And in fact, unless they purge the Dominion software, and maybe even return to paper ballots, fair elections are a thing of the past. 

The republic is dead!

[Mesaclone]

It appears Pence is NOT going to take a stand against the fraud perpetrated on this republic.

Pence is done as a politician.  He runs for POTUS in 2024, he will be a 1% candidate.

And in fact, unless they purge the Dominion software, and maybe even return to paper ballots, fair elections are a thing of the past. 

The republic is dead!

100% correct.