Note to K—-, on the morning of January 6


You write that perhaps Pence can simply not open some of the envelopes. I am not so sure about that one.

I have not heard the argument that Pence can decline to open an envelope. And I don’t see that idea lurking in the penumbra of the passage you cited.

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 language, especiallly “shall”, appears to me to direct the VP to open the envelopes. And I think the Electoral Count Act, which may or may not be constitional, directs him to open “all”.

As I understand it the ambiguity turns on the discretion he has after the votes are on view, including the votes from states where there are two slates sent in.

Giuiliani says one argument for wide discretion comes from the election of 1800, where VP Jefferson, as President of the Senate, decided the dispute in his own favor and beat Burr. That was a total mess, and the constitutional framework at the time was quite different. So I am not sure you can easily draw from that the conclusion that Pence can open the envelopes and decide on his own to reject some, or choose one over the other.

I haven’t studied it because it seems to get murky pretty quickly in terms of history and precedent but I am still failing to grasp the source of the assertion, put bluntly by Trump yesterday, that “the Vice President has the power to reject fraudulently chosen electors.” Is the argument here that Pence can on his own determine electors were chosen in a fraudulent way?

There is massive evidence of fraud and I believe the election was stolen. But as with any legal process you need to put the facts into the meat grinder and see what comes out. The states have had ample opportunity to weigh the arguments for fraud and have gone ahead and certified. That is pathetic but if the Constitutional process has been followed who is Pence to make the call? You can also make the argument that the judicial branch should step in and override the state processes on other grounds found in the Constitution and related to the evidence that the election was fraudulent.

The Court appears to favor the view that the resolution ought to be in the sphere of messy politics and seems reluctant to jump in and short circuit the political working through by invoking due process or some other constitutional concept. That’s pretty pathetic too.

So the system seems to have embedded in it a moral hazard that invites stealing big. A huge and obvious theft creates the grounds for its own success: the more massive the corruption the more both legislatures and the courts are invited to blind themselves to the obvious. Theft on a massive scale is then a way to hack the system.

You might think the framers would have thought it all through with their rock-paper-scissors logic and said “gee, in that case we need to have the buck stop with the President of the Senate. She can stop an out of control hack that slid through our best laid plans for a legitimate election.” But did the framers do that? If not maybe we have to accept that that the system has been hacked.

There’s the overlay of the Electoral Count Act of 1877, which may or may not be constitutional. At that my eyes glaze over. But whether the processes in that Act are constitutional or not I am still not seeing the source of the VP’s discretion in the moment to not open envelopes or do deem the election fraudulent on the basis of the the “regularly given” language or anything else.

It may be that there are limits to using an ordered lens at this point. There may be just too much chaos in the system, and it will have to be worked through chaotically. That’s one meaning of the word “crisis”. The illusions we create for ourselves that all is not flux work most of the time but then sometimes fail, and we look into the abyss. State legislatures, governors, Congress and Supreme Court justices seem willing to fall in. What about the executive branch?

About Fenster

Gainfully employed for thirty years, including as one of those high paid college administrators faculty complain about. Earned Ph.D. late in life and converted to the faculty side. Those damn administrators are ruining everything.
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9 Responses to Note to K—-, on the morning of January 6

  1. bluecat57 says:

    The envelopes can be discarded because the state elections are fraudulent.


    • fenster says:

      I still don’t get it. Where in the constitution does it say the VP has discretion here? The fraudulence had a chance to be addressed at the state level under the Constitution and at the SC since you can always bring a case. The notion that the Constitution has explitly fashioned the President of the Senate role as a last minute judge and jury does not seem right.

      And I mean “right” in a narrow constitional sense. But also “right” in terms of justice and wisdom. If the VP, often on the ticket, can on his own derail the whole process on his say-so alone we may regret the precedent. That’s not to say he shouldn’t just do it. If we are in a corrupt cul-de-sac we may not be able to argue our way out of it in a nice and ordered way. So I see a case for going nuclear even if the law is not clear or doesn’t back the action up. That’s how history often works and we do seem to be at one of those moments where audactity rather than constitutional reasoning is called for. But if you want to have good manners about it I don’t see what the basis would be.

      Liked by 1 person

      • bluecat57 says:

        I’m still looking. Unless I’m missing something, you are correct on the 12th Amendment.

        The Constitution was written with the assumption that those in public service had some level of honor and that only a minority of people were dishonorable.

        Times have changed.

        I’m trying to figure out what I’ve heard that gives the VP the power to reject ballots. I thought it was an Article in the Constitution. I’ve heard 14th Amendment, but that is an equal protection argument.

        There was some Act in, I think, 1887, that expanded on the process.

        The impression I had from the mash-up of stuff I’ve heard and read is that the assumption is that the VP would be a person with honor and would rule justly if they chose to not count a state’s electors.

        Those that wrote the Constitution were brilliant. There are far more checks and balances in it that just the three branches of government.

        The basic flaw is that a MAJORITY of those in government are now dishonorable and in it for themselves or somehow compromised.

        No, no one has been convicted of anything, but I now believe the worst of anyone in government until proved otherwise.

        For me, Trump’s character has been proved otherwise.


      • bluecat57 says:

        OK, I think I found what I’ve heard talked about.

        It is the “3” I was remembering. It is legislation, not Constitution.

        Jerome Corsi has the following and other analysis on his website corsination .com.

        I can’t make time this morning to read through all of this.

        I do believe the states should make sure their elections follow Federal Law and Rules, then follow their own laws, and finally that they prosecute any violation of any election protocols.

        Unfortunately, when the corrupt run the process there is no justice.

        And for a very long time, the corrupt have been running the elections in America.

        PS – I hear the word “plenary” tossed about quite a bit. “A plenary power or plenary authority is a complete and absolute power to take action on a particular issue, with no limitations. ” The question is: Is the person exercising it honorable?

        PPS – I’m sure you know that you have NO Constitutional right to vote for President or Vice President. Any ability to vote for those offices is given to you by your state. Learned that from Neal Boortz.


      • Fenster says:

        Yeah that’s the statue that calls for each house to meet to vote on any state slates to which an objection has been raised. but this does not specifically give any power, plenary or otherwise, to the VP as I see it. I don’t know if the law continues elsewhere or if this is it. But it does seem to end in an odd place. It calls for each house to vote and then report back in joint session as to the results of the vote. but it does not say that the vote resolves the matter, nor what to do if the two houses disagree. it may be that the argument is that since the act is silent on what happens after the houses return the only reasonable final adjudicator is the VP. The two houses in joint session do not have the power to vote I don’t think. They are only there to witness the results of the vote, which is why they have to return their separate chambers to actually vote. So when they return and hand over the results–what then? Is the plenary power of the VP assumed in that silence? I am sure all this has been analyzed to death out there and I just don’t see it as an amateur. But that at least is one way of considering the matter: the act calls for the vote in excruciating detail but then appears at least in this passage to be silent on what happens next.


      • bluecat57 says:

        The law is to keep honest people honest. The evil will always do that which is right in their own eyes. To paraphrase the Bible book of Judges.


      • bluecat57 says:

        Have you heard anything about the down ballot races?
        Assuming the top of the ticket was a complete fraud, wouldn’t all the down ballot races be in question as well?
        And that Georgia run-off has to be a complete fraud as well. The Dems are going to say, “You were watching closely.” but that is complete BS.
        Been nice living in a free country. Time to bone up on how to live in a tyranny.


  2. fenster says:

    there’s an electoral count act of 1887 and that’s up in the air as to constitutionality since the parts of it that are disputed have never been tested, so i don’t think there a stare decisis thing going on. giuliani’s latest common sense raises the constitutionality issue, pointing out that since the act passes the hot potato back to the governor it improperly gets around the clear language about the state legislatures being in charge. but that’s just an argument. he cites some law review articles but that is hardly the end of it. and even if it is correct that it is wrong to give the issue back to the governors i still don’t see how you tease out from that the notion that pence can make his own mind up on his own.

    and i don’t see how and when that would happen. the law (not the constitution) lays out a procedure if an objection is raised. the two houses retreat and debate and come back in joint session with the votes. it seems virtually certain that the trump side would lose those votes. if both houses return with a slate that gets biden over 270 what can pence do? trump has an excellent chance of winning if the thing is thrown to the house but as far as i can tell it only get thrown there if there is a gridlock or problem of some type that causes neither candidate to get to 270. how does it get to the house if house and senate both come back after discussions of objections on the side of the biden electors?

    that’s what i keep missing. the biden side is great at eliding past things–it has been that way for the past four years. for the most part all the trump side had to do was not elide. but that hasn’t worked spectacularly well, as evidence by the current predicament, with trump on the way to losing. so my suspicion is that the trump side is playing things a bit fast and loose on this one. “the vp can reject any fraudulent ballots!” our side cheers. but i don’t think it is so. not to say they won’t assert it and then see where the chips fall. i wrote more on that speculation on my side blog.


  3. flulrich says:

    So if we follow the correct constitutional pathway, but every step of that pathway, institutions have been asleep at the wheel and allowed fraud to continue, is the normal pathway still valid? If you build a car according to the official instruction with entirely defective parts, do you still get a working vehicle?


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