Last Updated on January 4, 2021
In a video posted to YouTube on Monday, Turning Point USA founder and Republican activist Charlie Kirk explained the legal precedent for Vice President Mike Pence to reject state electors on Jan. 6, noting that similar powers have been invoked by Vice Presidents Thomas Jefferson and Richard Nixon.
Kirk noted that during the 1960 presidential race between John Fitzgerald Kennedy and then-Vice President Richard Nixon, the state of Hawaii declared Nixon the victor and certified the results as such, prompting a challenge for recount by Kennedy.
Though Kennedy eventually won the recount, the state of Hawaii had already selected a slate of Republican electors, who sent their results to the Congress. Despite this, Nixon opted to use his plenary power in the Senate to reject the Republican election certificate and accept the Democrat certificate, in effect handing the state to his opponent.
Kirk stated that Nixon’s decision in 1960, despite angering legal scholars, ultimately proves that “the President of the Senate can do whatever he wants” and “there’s really no check and balance against Mike Pence on January 6.”
A similar precedent was also set in the election of 1800, Kirk noted, as presidential candidate Thomas Jefferson was currently the Vice President during a heavily contested election in the state of Georgia.
“Thomas Jefferson decided to put Georgia in his category despite the controversy, and Thomas Jefferson ended up becoming our third President,” Kirk said.
“So, Pence has what is called a ‘plenary power,’ which is a fancy legal way to say ‘absolute,'” Kirk continued, adding, “there’s precedent, there’s constitutional authority, Mike Pence’s power on January 6 will be plenary and unappealable. As President of the Senate, every objection comes directly to him, and he can rule any objection as out of order, accepted, denied, [or say] you get more debate. He’s kinda King of the Senate.”
Kirk’s argument lines up with the case made by Constitutional lawyer Ivan Raiklin, who explained to National File in December that the law prevents Pence from accepting electoral votes cast by states that conducted fraudulent or disputed elections:
Raiklin told National File that Pence could essentially force states to reclaim their Constitutional power to appoint Electoral College votes.
“That forces State Legislatures’ hand,” said Raiklin. “Pence can force the legislatures to reclaim their Constitutional power, hold a session, and appoint the Electoral College votes themselves as the Supreme Court did not address this issue.”
According to Raiklin, the Constitution would allow these states to be completely stricken from the Electoral College if Pence should refuse to accept them, and the number of Electoral College votes required to win would shrink dramatically from 270. President Trump would win under a simple majority of Electoral College votes, 232-227, without any risk of triggering a contingent election.
According to the Twelfth Amendment, if no candidate reaches the 270 vote majority threshold required to win the election, then “the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice.”