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If Vice President Pence deviates from simply announcing the ballots from the Electoral College on January 6, 2020, and instead attempts to unilaterally reject some ballots, can the House of Representatives impeach him, and the Senate convict him, on the spot?

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If Vice President Pence deviates from simply announcing the ballots from the Electoral College on January 6, 2020, and instead attempts to unilaterally reject some ballots, can the House of Representatives impeach him, and the Senate convict him, on the spot?

Short Answer

No. He can't be impeached immediately on the spot, but that doesn't mean that Vice President Pence has any authority to alter the Electoral Vote either legally or as a matter of practical political reality.

President Trump's tweet to the contrary is a classic example of gaslighting, a rhetorical tactic often associated with psychopathy.

Long Answer

Impeachment Options

Impeachment is a political question. The House can vote to impeachment a federal government official any time it wants, consistent with its own rules, by a majority vote authorized by the rules committee. The Senate has not specific time line other than the one established by its own rules, for conducting an impeachment proceeding. But there is a statutory requirement, set forth at 3 U.S.C. § 18 (quoted below) that provides that nothing other than the counting of electoral votes may be considered by Congress while the counting of electoral votes is proceeding.

What constitutes an impeachable offense is a political question which can't be adjudicated by the courts. But it must constitute a "high crime or misdemeanor" under the self-executing provisions of the U.S. Constitution that apply to all federal and state and local government officials, of the executive, legislative and judicial branch of the government in the United States.

Most commentators would not consider a procedural action in counting electoral votes in the context suggested to be a high crime or misdemeanor. But that doesn't mean that the Vice President may simply ignore the electoral college's vote either.

Impeachment is governed by Article I, Section 2 of the United States Constitution which states in the pertinent part that:

The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.

and by Article I, Section 3 of the United States Constitution which states in the pertinent part:

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

And Article III, Section 2 of the United States Constitution, which states in the pertinent part that:

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

The Real Question

The rules of Congress and relevant statutes and the U.S. Constitution do not give Vie President Pence the authority to unilaterally reject some electoral college ballots, and the proper course of action should he seek to do so, would be to declare that his unilateral action is without force and effect under the pertinent legislative rules and statutes.

Article I, Section 3 of the U.S. Constitution provides in the pertinent part that:

The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.

But Article I, Section 5 of the United States Constitution provides that:

Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.

Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.

The situation of counting of electoral votes is set forth in the first instance by Article II, Section 2 of the U.S. Constitution as amended by the 12th and 20th Amendments to the constitution. But the 12th Amendment has the provisions most relevant to the issue and states:

The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate; -- the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates 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; . . .

The relevant statutes are Title 3, Sections 1-21 of the United States Code which set forth the process on the day when electoral votes are counted.

The Counting of Votes is governed by Section 15:

Congress shall be in session on the sixth day of January succeeding every meeting of the electors. The Senate and House of Representatives shall meet in the Hall of the House of Representatives at the hour of 1 o’clock in the afternoon on that day, and the President of the Senate shall be their presiding officer. Two tellers shall be previously appointed on the part of the Senate and two on the part of the House of Representatives, to whom shall be handed, as they are opened by the President of the Senate, all the certificates and papers purporting to be certificates of the electoral votes, which certificates and papers shall be opened, presented, and acted upon in the alphabetical order of the States, beginning with the letter A; and said tellers, having then read the same in the presence and hearing of the two Houses, shall make a list of the votes as they shall appear from the said certificates; and the votes having been ascertained and counted according to the rules in this subchapter provided, the result of the same shall be delivered to the President of the Senate, who shall thereupon announce the state of the vote, which announcement shall be deemed a sufficient declaration of the persons, if any, elected President and Vice President of the United States, and, together with a list of the votes, be entered on the Journals of the two Houses. Upon such reading of any such certificate or paper, the President of the Senate shall call for objections, if any. Every objection shall be made in writing, and shall state clearly and concisely, and without argument, the ground thereof, and shall be signed by at least one Senator and one Member of the House of Representatives before the same shall be received. When all objections so made to any vote or paper from a State shall have been received and read, the Senate shall thereupon withdraw, and such objections shall be submitted to the Senate for its decision; and the Speaker of the House of Representatives shall, in like manner, submit such objections to the House of Representatives for its decision; and no electoral vote or votes from any State which shall have been regularly given by electors whose appointment has been lawfully certified to according to section 6 of this title from which but one return has been received shall be rejected, but the two Houses concurrently may reject the vote or votes when they agree that such vote or votes have not been so regularly given by electors whose appointment has been so certified. If more than one return or paper purporting to be a return from a State shall have been received by the President of the Senate, those votes, and those only, shall be counted which shall have been regularly given by the electors who are shown by the determination mentioned in section 5 of this title to have been appointed, if the determination in said section provided for shall have been made, or by such successors or substitutes, in case of a vacancy in the board of electors so ascertained, as have been appointed to fill such vacancy in the mode provided by the laws of the State; but in case there shall arise the question which of two or more of such State authorities determining what electors have been appointed, as mentioned in section 5 of this title, is the lawful tribunal of such State, the votes regularly given of those electors, and those only, of such State shall be counted whose title as electors the two Houses, acting separately, shall concurrently decide is supported by the decision of such State so authorized by its law; and in such case of more than one return or paper purporting to be a return from a State, if there shall have been no such determination of the question in the State aforesaid, then those votes, and those only, shall be counted which the two Houses shall concurrently decide were cast by lawful electors appointed in accordance with the laws of the State, unless the two Houses, acting separately, shall concurrently decide such votes not to be the lawful votes of the legally appointed electors of such State. But if the two Houses shall disagree in respect of the counting of such votes, then, and in that case, the votes of the electors whose appointment shall have been certified by the executive of the State, under the seal thereof, shall be counted. When the two Houses have voted, they shall immediately again meet, and the presiding officer shall then announce the decision of the questions submitted. No votes or papers from any other State shall be acted upon until the objections previously made to the votes or papers from any State shall have been finally disposed of.

In regard to the highlighted language, Title 3, Section 5 of the United States Code is relevant, since all U.S. states and the District of Columbia (which is defined to be a state in Section 21 of Title 3) have vested this determination in its courts.

If any State shall have provided, by laws enacted prior to the day fixed for the appointment of the electors, for its final determination of any controversy or contest concerning the appointment of all or any of the electors of such State, by judicial or other methods or procedures, and such determination shall have been made at least six days before the time fixed for the meeting of the electors, such determination made pursuant to such law so existing on said day, and made at least six days prior to said time of meeting of the electors, shall be conclusive, and shall govern in the counting of the electoral votes as provided in the Constitution, and as hereinafter regulated, so far as the ascertainment of the electors appointed by such State is concerned.

The process of counting votes set forth by statute continues into Section 16:

At such joint meeting of the two Houses seats shall be provided as follows: For the President of the Senate, the Speaker’s chair; for the Speaker, immediately upon his left; the Senators, in the body of the Hall upon the right of the presiding officer; for the Representatives, in the body of the Hall not provided for the Senators; for the tellers, Secretary of the Senate, and Clerk of the House of Representatives, at the Clerk’s desk; for the other officers of the two Houses, in front of the Clerk’s desk and upon each side of the Speaker’s platform. Such joint meeting shall not be dissolved until the count of electoral votes shall be completed and the result declared; and no recess shall be taken unless a question shall have arisen in regard to counting any such votes, or otherwise under this subchapter, in which case it shall be competent for either House, acting separately, in the manner hereinbefore provided, to direct a recess of such House not beyond the next calendar day, Sunday excepted, at the hour of 10 o’clock in the forenoon. But if the counting of the electoral votes and the declaration of the result shall not have been completed before the fifth calendar day next after such first meeting of the two Houses, no further or other recess shall be taken by either House.

And into Section 17:

When the two Houses separate to decide upon an objection that may have been made to the counting of any electoral vote or votes from any State, or other question arising in the matter, each Senator and Representative may speak to such objection or question five minutes, and not more than once; but after such debate shall have lasted two hours it shall be the duty of the presiding officer of each House to put the main question without further debate.

And into Section 18:

While the two Houses shall be in meeting as provided in this chapter, the President of the Senate shall have power to preserve order; and no debate shall be allowed and no question shall be put by the presiding officer except to either House on a motion to withdraw.

The upshot of all of that is that the House and Senate and joint session rules could be applied to override a unilateral and arbitrary decision of the Vice President of the United States to ignore a state's electoral votes and count them, and this would prevail absent a majority of both the House and the Senate to the contrary, because the decision is vested in Congress and not in the Vice President unilaterally.

A member of the House or Senate could raise a "point of order" if the Vice President did so, and that would be resolved by Congress as a whole and not merely by the Vice President acting unilaterally.

This analysis is recapped by Amber Philips writing for the Washington Post:

Pence doesn’t have the power to change the will of the voters, no matter what his boss said.

Pence is supposed to serve as the presiding officer when Congress meets Wednesday to confirm the electoral college’s results. Pence will almost certainly have to declare Biden the winner as his boss refuses to concede. Here are the limited options the vice president will have.

First, what happens Wednesday

Under federal election law, states send their electoral college vote totals to Congress to be counted and confirmed. It will be the final confirmation that Biden won — after this, all that’s left is to inaugurate him. The process is largely a formality, as election law says Congress has to treat results from states approved by Dec. 8 as “conclusive.” This year, as in most years, all states approved their results by then.

But there is a mechanism that allows lawmakers to challenge those results. The Electoral Count Act was written to help guide Congress if there is a dispute in a state about which candidate won.

Except there are no disputes about who won in 2020. The electoral college certified all states’ results a few weeks ago.

Still, more than a dozen House Republicans will try to challenge results in several states that Trump lost. If they get a senator to join them, all they will accomplish is to delay the inevitable. After votes in the Democratic-controlled House and Republican-controlled Senate, those challenges will ultimately fail. But it could be a long day and night Jan. 6.

Here’s how things will work Jan. 6, step by step.

Pence’s role

It’s administrative. As the president of the Senate, he is supposed to preside over the joint session of Congress when this all happens.

The authors of this process were very aware that the vice president would have intense personal interest in who won. So his role is more symbolic than active. He is supposed to open the envelopes submitted by each state and say out loud how many electors go to each candidate. He’s not even doing the counting — clerks are doing all that for him, said Adav Noti, a director with the Campaign Legal Center and an expert on this normally overlooked role. “They tell him what the numbers are [for each state], and he reports that back.”

At the very end, it will be Pence announcing the final totals — 306 electoral votes for Biden, 232 for Trump.

Pence’s options to challenge the votes

Pence does have some authority, said Meredith McGehee, an expert in ethics in politics and the director of the group Issue One. “A presiding officer has one main power,” she said, “and that is the power to recognize.”

Pence can recognize or not recognize lawmakers and electoral votes. To not recognize official votes would be illegal and would be knocked down almost immediately by majorities in Congress.

Still, let’s go there for a moment. As the electoral college was meeting this month, some Republicans in states Trump lost held mock votes that falsely claimed Trump won electors in their state.

Pence could refuse to recognize the clerks handing him the actual electoral counts. He could pull out those false Republican electoral votes and say he thought they were legitimate.

Such a scenario would be in blatant violation of the law (which is why a Trump ally went to court last week trying to get rid of said law). And it would prompt an immediate challenge from Democrats in Congress, who would probably have support from Republican leaders in the Senate. (Sen. John Thune of South Dakota‚ the No. 2 Senate Republican, said that any challenges to official electoral votes are “going down like a shot dog.”) Congress — not Pence — decides to formalize these votes.

So, in addition to being illegal, it would probably end pretty quickly.

But, McGehee pointed out, if Pence really wanted to do this, he “could potentially put the Democrats in a defensive posture to prove the election as opposed to Republicans.”

Could Trump declare martial law to try to steal the election?

How political pressure from Trump and others could factor in It puts Pence in a difficult, perhaps lose-lose political situation: upset his boss and any voters he might need if he wants to run for president in 2024, or do something illegal.

Trump and some of his congressional allies continue to claim that Pence can do something to change the results.

Here’s Trump in a tweet Tuesday, inaccurately claiming Pence has the authority to choose or not choose electors. (That’s Congress’s job, as we explained above.)

Donald J. Trump @realDonaldTrump · 7h

The Vice President has the power to reject fraudulently chosen electors.

Last week, Rep. Louis Gohmert (R-Tex.) sued in federal court to get rid of the Electoral Count Act and make Pence legally able to choose whatever sets of electors he wants. A federal judge in Texas, a Trump appointee, threw it out immediately.

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  • Under 3 USC 18 ("no question shall be put by the presiding officer except to either House on a motion to withdraw") couldn't a motion to withdraw be put to the president of the senate, and, if that motion were to pass, couldn't the house of representatives withdraw and vote to impeach the vice president?
    – phoog
    Jan 6 '21 at 0:06
  • 1
    A "Motion To Withdraw" is a motion to strike insulting language from the Congressional record made by the person who was indecorous. "This typically takes place during debate when one Member believes another Member has violated the rules of decorum in the House. . . . If the Speaker determines that the words are out of order, the violator is customarily given a chance to withdraw or amend them. . . . A Member whose words have been ruled out of order may not speak again on the same day without the House’s permission, but the Member can vote." fas.org/sgp/crs/misc/RL32207.pdf
    – ohwilleke
    Jan 6 '21 at 0:15

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