How do defenders of our democracy deal with “irregularities” in presidential elections that have already been conducted? One solution was provided by Alexander Macris on Dec. 7 at Substack in “Who Counts the Votes of the Presidential Electors?” This is from the article’s ending (emphasis added):
Come January 2021, Vice President Mike Pence will be presented with the sealed certificates containing the ballots of the presidential electors. At that moment, the Presidency will be in his hands.
And there is nothing stopping Pence, under the authority vested in him as President of the Senate, from declining to open and count the certificates from the six disputed states. If they are (as more than 70% of Republicans believe) certificates from non-electors appointed via voter fraud, why should he open and count them? As Harrison noted, “the certificates that the President of the Senate is to open… are those of the electors, not those of non-electors.”
The President’s position going into January 2021 is thus considerably stronger than the mainstream media would like to admit. There is Constitutional language and historical precedent that gives his Vice President the unilateral power to decide the outcome of our contested election.
If you’d like to read the rest of the article, it’s unfortunately been taken down at Substack. I don’t know whether that’s due to “cancel culture,” self-censorship, or something else, but I just happened to have made a PDF copy of it which I posted HERE. Most of the article is scholarly block quotes, but the heart of what Macris was suggesting is that the Vice President not open the disputed states’ certificates.
In a New Year’s Eve article at Legal Insurrection headlined “January 6 — No Mike Pence Can’t Just Reject Electoral Certifications,” Cornell Law professor William A. Jacobson subjects Macris’s article to a “textualist” analysis. So let’s subject Jacobson to some of the same. There are exactly two iterations of “reject” and three iterations of “discretion” in Jacobson’s piece (emphasis added):
A claim has circulated widely in the past few days that Vice President Mike Pence, as President of the Senate, has the power and discretion to reject certifications. If Pence had such power and chose to exercise it, it would be over, but he doesn’t.
[Professor Jacobson then quotes from the 12th Amendment:]
Note the words. “Shall … open all the Certificates” and “the Votes shall then be counted.” Shall is mandatory, there is no discretion. The certificates must be opened by Pence, and the votes must be counted (it’s unclear who does the counting, but the votes must be counted regardless). No Vice President (whether Mike Pence, Al Gore or future VP Kamala Harris) performing the function of opening the votes has discretion to reject votes.
Perhaps, but Macris didn’t use the word “reject,” nor did he use “discretion” (except for this quote of Sen. Morton: “The President of the Senate’s discretion in opening certificates shows the necessity of an amendment of the Constitution.”) Macris also didn’t assert that the Constitution “empowers” the Vice President to reject certificates. Rather, Macris suggested that he does so anyway, by simply “declining to open” the disputed states’ certificates.
The V.P., contra Professor Jacobson, does have “the power and discretion to reject certifications” — it just doesn’t come from the Constitution. Indeed, we all have discretion, even when the government tries to take it away from us.
What Macris, a magna cum laude 2000 graduate of Harvard Law, was urging the Vice President to do is nothing less than to disobey the Constitution by refusing to do what the 12th Amendment clearly commands him to do with its use of “shall.” Macris was urging that the V.P. “go rogue” in order to deal with “rogue” states, like Pennsylvania and Georgia.
The question is whether Pence should have exercised his “agency,” his inherent discretion, to refuse to open the tainted certificates; would he have been justified in doing so? One possible justification comes from Jacobson’s comments section.
In the 235 comments to Jacobson’s article there are a total of eight iterations of “reject” but only one of them is germane to the business at hand. That comment is by one PugHenry, who seems a rather serious person. PugHenry chimes in for a total of seven comments, but the initial comment is the one where we find the use of “reject,” (emphasis added):
Up until the Congress, headed by the President of the Senate, meets, to confirm the certification, it is the states[’] fiduciary responsibility to ensure that the elections they recently conducted were done in such a manner so as to ‘guarantee’ their republican form of government ….
But if there is evidence that the states in some way have been negligent in doing so ….then it is at this point that the Executive Branch MUST step in, according to its duties under the Guarantee Clause, to act to reject the ‘certified’ votes where there is evidence that the elections they are meant to certify were not conducted in a free and fair manner.
It seems PugHenry thinks the Vice President’s responsibilities on January 6 in opening the states’ certificates can only be correctly understood within the context of the Constitution’s Guarantee Clause of Article IV, Section 4: “The United States shall guarantee to every state in this union a republican form of government …” (Here’s an explanation of the Guarantee Clause co-written by Erin M. Hawley, law professor, and wife of U.S. Senator Josh Hawley.)
But the reason the V.P. should have disobeyed the 12th Amendment’s command was not “voter fraud,” as Macris wrote. (That’s not to say that there wasn’t election fraud, and on a massive scale. This writer believes fraud was decisive and the election was stolen, but there’s no feasible way to demonstrate what the correct legitimate vote counts were with the election systems that were used.)
Rather, the V.P. should have flouted the law because the election laws in the disputed battleground states were flouted. An election, you see, is an official legal procedure governed by state and federal laws and constitutions. Those laws and constitutions were illegally overridden in the disputed states. Because of that, the disputed states didn’t conduct lawful elections. It might even be argued that they didn’t conduct elections at all.
The reason that some say the Vice President has plenary and un-appealable power to reject tainted certificates cannot be because the Constitution directly confers such awesome power upon him, it doesn’t, and Macris didn’t assert that it does. Rather, the reason the V.P. has this power is because the Constitution stipulates that the V.P., and no one else, “shall” open the states’ certificates. And unless the election is kicked into the House of Representatives, it is the counting of the votes on those certificates that determines who will be president.
NOTE: It occurred to me that I might have better luck finding Macris’s missing articles if I used another search engine. A Bing search produced a reprint of another missing Substack article that might interest some. If Alexander Macris interests you, then check out this TEDx Talk.