1) Congress is incentivized to see Pence's role as passive.

But Constitutional scholars differ and/or acknowledge that varying interpretations exist.

Note: I am NOT predicting what Pence will do. I will just be highlighting some ambiguities.

(Apologies - will be long thread)

2) Edward Foley is head of Election Law Dept at Ohio U.

He is Left & originator of Blue Shift theory

What follows are quotes from his "war-game" paper published in the Loyola University Chicago Law Journal - Preparing for a Disputed Presidential Election
https://t.co/XtrBK9qBFs
3) "As part of an effort to prepare for the risk of a disputed presidential election in 2020, it is imperative to consider how the embarrassingly deficient procedures might operate if they were actually called into play."
4) "The Constitution itself says remarkably little relevant to this topic, and what it does say is shockingly ambiguous."

Here is the applicable text of the Twelfth Amendment:
5) "The first thing to observe about this constitutional language is that the critical sentence is written in the passive voice: “the votes shall then be counted.” Here, thus, is the first frustrating ambiguity."
6) "It could be the “President of the Senate” who does the counting; or, after the President of the Senate has finished the role of “open[ing] the certificates” then the whole Congress, in this special joint session, collectively counts the electoral votes."
7) "Either way, this language contains no provision for what to do in the event of a dispute, whether with respect to the “certificates” to be “open[ed]” or with respect to the “votes” contained therein.”
8) "It certainly says nothing about what to do if the President of the Senate has received two conflicting certificates of electoral votes from the same state, each certificate purporting to come from the state’s authoritatively appointed electors."
9) "As the distinguished jurist Joseph Story observed early in the nineteenth century, this crucial constitutional language in the Twelfth Amendment appears to have been written without imaging that it might ever be possible for this sort of dispute to arise."
10) Despite its ambiguity, or perhaps because of it, the peculiar passive-voice phrasing of this crucial sentence opens up the possibility of interpreting it to provide that the “President of the Senate” has the exclusive constitutional authority…”
11) "...to determine which “certificates” to “open” and thus which electoral votes “to be counted.” This interpretation can derive support from the observation that the President of the Senate is the only officer, or instrumentality, of government given an active role..."
12) "...in the process of opening the certificates and counting the electoral votes from the states. The Senate and House of Representatives, on this view, have an observational role only."
13) "The opening and counting are conducted in their “presence”—for the sake of transparency—but these two legislative bodies do not actually take any actions of their own in this opening and counting process."
14) "How could they? Under the Constitution, the Senate and the House of Representatives only act separately, as entirely distinct legislative chambers. They have no constitutional way to act together as one amalgamated corpus."
15) "Thus, they can only watch as the President of the Senate opens the certificates of electoral votes from the states and announces the count of the electoral votes contained therein."
16) "This interpretation of the 12th Amendment is bolstered by the further observation that responsibility to definitively decide which electoral votes from each state are entitled to be counted must be lodged ultimately in some singular authority of the federal government."
17) "Given the language of the Twelfth Amendment, whatever its ambiguity and potential policy objections, there is no other possible single authority to identify for this purpose besides the President of the Senate."
18) "according to this argument, the inevitable implication of the Twelfth Amendment’s text is that it vests this ultimate singular authority, for better or worse, in the President of the Senate."
19) "Subject only to the joint observational role of the Senate and House of Representatives, the President of the Senate decides authoritatively what “certificates” from the states to “open” and thus what electoral votes are “to be counted.”"
20) Foley doesn't like this interpretation but he acknowledges it as valid.

To circumvent it, Foley suggests use of Electoral Count Act (federal - not Constitutional - law).

Problem is, ECA is unconstitutional as it violates 12th & Article II

This is why Gohmert brought suit.
21) Foley touches on legality/standing of competing electors:

“What matters is whether or not Congress receives a submission of electoral votes from a state, not whether that submission is legally valid according to some standard that Congress might not recognize as binding.”
22) Use of ECA likely leads to either Biden win or - much less likely (given GOP cowardice) but also possible - an impasse between houses.

Pence could cite violation of Article II and count no votes from disputed states.

Note: Again, I am NOT saying this is what he will do.
23) Pence could also defer which might allow the states to have official legislative sessions to determine if they felt it necessary to decertify the results that were originally for Biden.
24) It's also "possible" that Pence could refuse to open the votes, declaring that he believes them to be the result of fraud, with a request for Supreme Court intervention.
25) I am not saying or predicting what Pence will do - only he knows. It's entirely possible even he is unsure right now.

The easy option for Pence is to go w/tradition and punt to Congress.

But it seems incorrect to accept that this is his only "legal" option.

More from Jeff Carlson

This issue was repeatedly highlighted bu Judge Totenberg:

Dominion’s system “does not produce a voter-verifiable paper ballot or a paper ballot marked with the voter’s choices in a format readable by the voter because the votes are tabulated solely from the unreadable QR code.”


Judge also found that Dominion's QR codes are NOT encrypted:

“Evidence plainly contradicts any contention that the QR codes or digital signatures are encrypted,”

This was “ultimately conceded by Mr. Cobb and expressly acknowledged later by Dr. Coomer during his testimony.”

Judge Totenberg said there was “demonstrable evidence” that the implementation of Dominion’s systems by Georgia placed voters at an “imminent risk of deprivation of their fundamental right to cast an effective vote,” which she defined as a “vote that is accurately counted.”

Judge Totenberg found that Dominion Systems inherently could not be audited.

She noted that auditors are severely limited and “can only determine whether the BMD printout was tabulated accurately, not whether the election outcome is correct.“

Totenberg stated in her ruling that a BMD printout “is not trustworthy” and the application of an Risk-Limiting audit (RLA) to an election that used BMD printouts “does not yield a true risk-limiting audit.”

Georgia used RLAs to claim no fraud...
1) Lots of politicians talking about the "Sanctity" & "Strength" of our "Institutions".

While failing to acknowledge that for a huge swath of Americans, that faith in those same Institutions has been impaired or destroyed.


2) President Trump didn't create this lack of faith. Nor the anger and distrust.

It has long been there, brewing and gathering strength. Precisely because of actions from those same Institutions.

The reactions from the Media & DC to Trump's term solidified those beliefs.

3) We just learned that the IC downplayed the role of China in the election for political purposes.

"Some of our career people, even CIA management, were politicizing China

4) The intentional distractions from China through a laughable focus on false claims of Russian-Collusion did irreparable harm to our country.

To date there has been one conviction for an institutional attempt to impair - even bring down - President Trump's administration.

5) Justice delayed is justice foregone.

Why is it that Justice seems to so lean heavily in one direction?

And why do people pervasively believe the Institutions protect their own?
A lot of people dismissively mocking this tweet but it's worth pausing to recognize its Marxist roots.

This "thinking" traces back to Critical Theory, The Frankfurt School, Theodor Adorno & ultimately Antonio Gramsci.


The Frankfurt School employed a technique called Critical Theory – a social theory oriented toward critiquing and changing society as a whole.

The point of the theory is to criticize every traditional social institution – and to specifically avoid offering any alternatives – as a means to breaking down Western Culture.

Theodor Adorno wrote the influential book The Authoritarian Personality which argued that anyone who defended traditional culture was a Fascist.

Sound familiar?

Antonio Gramsci was a Marxist theorist and a founding member of the Communist Party of Italy who created the Theory of Cultural Hegemony. And Counter Hegemony.

Gramsci felt that in order to change society, the entire value systems of Societal Institutions must be overturned.

More from Politics

My piece in the NY Times today: "the Trump administration is denying applications submitted to the United States Citizenship and Immigration Services at a rate 37 percent higher than the Obama administration did in 2016."

Based on this analysis: "Denials for immigration benefits—travel documents, work permits, green cards, worker petitions, etc.—increased 37 percent since FY 2016. On an absolute basis, FY 2018 will see more than about 155,000 more denials than FY 2016."
https://t.co/Bl0naOO0sh


"This increase in denials cannot be credited to an overall rise in applications. In fact, the total number of applications so far this year is 2 percent lower than in 2016. It could be that the higher denial rate is also discouraging some people from applying at all.."

Thanks to @gsiskind for his insightful comments. The increase in denials, he said, is “significant enough to make one think that Congress must have passed legislation changing the requirements. But we know they have not.”

My conclusion:

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