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?