Servility is an occupational hazard for any vice president, but Mike Pence has been especially obsequious in service to President Donald Trump.
But will Pence’s sycophancy stretch to joining in Trump’s effort to overturn the results of the election they lost to President-elect Joe Biden and Vice President-elect Kamala Harris?
Some die-hard Trump supporters think so and are hoping that Pence will somehow throw the election when—in his capacity as president of the Senate—he presides over a Jan. 6 joint session of Congress at which electoral votes are counted and at which the vice president is supposed to declare the winners.
If Pence is a patriot with even a modicum of respect for our constitutional norms, he will disavow any such spoiler role and join other Republicans, such as Senate Majority Leader Mitch McConnell, in acknowledging that Biden is the next president. Trump’s self-serving campaign to sow doubt about the integrity of the election has inflicted enough damage already. Participation by Pence in a last-minute effort in Congress to overturn the results, even if unsuccessful, would be even more corrosive to democracy.
The notion that Pence can be Trump’s savior is rooted in a perverse misreading of the Constitution. The vice president’s role Jan. 6 is essentially ceremonial; he has no authority on his own to throw out electoral votes cast for Biden.
It’s true that a hitherto obscure law, the Electoral Count Act of 1876, allows members of Congress to challenge slates of electors. If one senator and one representative file an objection to a state’s slate of electors, the two chambers must vote on the objection. That is likely to occur Jan. 6; Rep. Mo Brooks, R-Ala., and Sen. Josh Hawley, R-Mo., have said they will lodge objections, and there may be other objectors who will put their fealty to Trump above their respect for democracy. But an objection would be sustained only if a majority of the members of each chamber vote in favor of the challenge. That won’t happen, no matter what Pence does.
Yet the delusion that Pence can somehow save Trump’s presidency persists among Trump supporters—fueled by virulent far-right media spewing conspiracies and misinformation. On Dec. 28, Rep. Louie Gohmert, R-Texas, and some would-be electors from Arizona asked a federal court to strike down provisions of the Electoral Count Act, arguing that under the 12th Amendment, Pence has the sole authority to decide which electoral votes shall be counted.
(Lawyers for Gohmert later disclosed that they had reached out unsuccessfully to Pence’s counsel in an attempt to enlist the vice president in their effort.)
Legal commentators have described the lawsuit as “frivolous” and “desperate.” Neither the Constitution nor federal law allows Pence to interfere in the counting of properly certified election results in an attempt to keep himself and Trump in power.
It’s a commentary on how much Trump has poisoned American politics that this question is even being raised. In 1961, outgoing Vice President Richard Nixon, presiding at a joint session of Congress, declared that his opponent, John F. Kennedy, had been elected president. In 2001, Vice President Al Gore announced that the next president would be George W. Bush, to whom Gore had graciously conceded after the Supreme Court effectively ended a recount in Florida.
There is no reason for Pence not to follow these critical precedents. But the vice president has encouraged hopes—and fears—that he might act otherwise by the way he has indulged Trump’s fantasies about a rigged election. On Dec. 10, campaigning for Republican Senate candidates in Georgia, Pence said “God Bless Texas” with respect to a preposterous lawsuit by that state’s attorney general to overturn the results in four states carried by Biden. (The Supreme Court rejected that suit the very next day.)
Biden has won a majority the electoral vote; Trump’s claims of widespread fraud have been debunked. Both state and federal courts—including the Supreme Court, on which three Trump appointees sit—have rejected attempts to undo the results.
It’s good that Pence declined to cooperate with Gohmert’s lawsuit, but the vice president needs to make it clear, right now, that he acknowledges Biden’s victory and has no intention of using his position to try to undermine it. Pence’s first loyalty is to the law and the Constitution, not to Donald Trump or his crazed followers.