Last Updated on January 5, 2021
In an Opinion of Counsel posted to Twitter, constitutional lawyer Brian Remy outlines Vice President Mike Pence’s legal obligation to disregard electors from states with credible accusations of widespread voter fraud, and where state executives unconstitutionally rewrote election law without the involvement of state legislatures.
Remy explains that, “Due to the massive and expanding evidence of fraud, illegal conduct, and extremely serious violations of law that occurred during the election process in, but not limited to, Arizona, Georgia, Michigan, Nevada, Pennsylvania, and Wisconsin, during the 2020 General Election,” Pence has the “authority and legal obligation” to both exclude fraudulent delegates and include those as directed by state legislatures.
Remy explains Pence must “exclude and discard the Certificates of Ascertainment and Certificates of Electoral Votes in the States where the fraud occurred that were signed by the State Executives (Governors) and Electors (for Biden & Harris) before or during the Joint Session”.
According to the U.S. Constitution, elections must be conducted in a manner specified by state legislatures. In virtually all contested states, Secretaries of State and Governors – part of the executive branch – made wide ranging changes to the election process, ostensibly due to COVID-19. These states did not consult with their legislatures, likely making the election processes unconstitutional.
Remy continues to explain that Pence is then legally obligated “to accept (in lieu or otherwise) the Electors and any Certificates of Electoral Votes and other related papers as directed by the State Legislatures, before or during the Joint Session regardless of any objections made” by Congress.
Speaking to National File, sources with close understanding of the memo explain that this would almost certainly leave Biden with less than the requisite 270 electoral votes to be declared the winner of the 2020 presidential election.
If Pence follows the Constitution, he can end the January 6 joint session of Congress at midnight, and immediately trigger a contingent election.
This echoes previous legal analysis from another constitutional lawyer, Ivan Raiklin, who has largely outlined the plan to trigger a contingent election that seems to have received support from President Donald Trump and the White House in recent weeks.
As Raiklin has repeatedly explained, if neither candidate receives 270 votes, the a contingent election for the President would be held in the House of Representatives.
However, each state would only receive one vote, with representatives from each state forced to reach a quorum to determine which candidate will receive their vote. As National File has previously reported, “there are currently 27 states that have sent Republican representatives to the House, and 20 states that have sent Democratic representatives to the House. Three states have an even split.”
This would likely result in President Trump retaining the White House.
The U.S. Senate, similarly, is uniquely charged with electing the next Vice President in a contingent election. If the Democratic Party manages to take the Senate after tonight’s Georgia election, they could ostensibly elect Kamala Harris to the Vice Presidency while President Trump retains his position.