Editorial: Mike Pence: Your loyalty should be to the Constitution, not Trump

Servility is an occupational hazard for any vice president, but Mike Pence has been especially obsequious in service to President Trump. But will Pence’s sycophancy stretch to joining in Trump’s effort to overturn the results of the election they lost to President-elect Joe Biden and Vice President-elect Kamala Harris?

Some die-hard Trump supporters think so and are hoping that Pence will somehow throw the election when — in his capacity as president of the Senate — he presides over a joint session of Congress on Wednesday at which electoral votes are counted and at which the vice president is supposed to declare the winners.

If Pence is a patriot with even a modicum of respect for our constitutional norms, he will disavow any such spoiler role — and join other Republicans, such as Senate Majority Leader Mitch McConnell, in acknowledging that Biden is the next president. Instead, Pence has continued to encourage such fantasies, even as he has disassociated himself from some of the most extreme attempts to hijack the election.

On Saturday, CNN quoted Pence’s chief of staff as saying that the vice president “shares the concerns of millions of Americans about voter fraud and irregularities in the last election” and “welcomes the efforts of members of the House and Senate to use the authority they have under the law to raise objections and bring forward evidence before the Congress and the American people on Jan. 6.”

This is nonsense.

Any “concerns” Americans may have about election fraud are the result of Trump’s self-serving attempt to sow doubt about the integrity of the election, abetted by virulent far-right media spewing conspiracies and misinformation. And Republican members of Congress have no significant evidence of fraud to bring forward, but by making a spectacle of Wednesday’s proceedings they can earn points with Trump’s base.

By indulging Trump and his followers, Pence holds out false hope that he will come to the president’s rescue. But the vice president’s role on Wednesday is essentially ceremonial; he has no authority on his own to throw out electoral votes cast for Biden.

It’s true that a hitherto obscure law, the Electoral Count Act of 1887, allows members of Congress to challenge slates of electors. If one senator and one representative file an objection to a state’s slate of electors, the two chambers must vote on the objection after up to two hours of debate.

Rep. Mo Brooks (R-Ala.) and Sen. Josh Hawley (R-Mo.) have said they will lodge objections, and on Saturday, Sen. Ted Cruz of Texas and 10 other Republican senators or senators-elect said they would vote to reject electors from “disputed states” in hopes of having a commission conduct an “audit” of returns in those states. Fortunately, an objection would be sustained only if a majority of the members of each chamber vote in favor of the challenge. That won’t happen, no matter what Pence does.

Yet the delusion that Pence can somehow save Trump’s presidency persists among Trump supporters. Rep. Louie Gohmert (R-Texas) and some would-be electors from Arizona asked a federal court to strike down provisions of the Electoral Count Act, arguing that under the 12th Amendment, Pence has the sole authority to decide which electoral votes shall be counted.

Legal commentators described the lawsuit as “frivolous” and “desperate,” and lawyers for Pence asked a federal court to reject it, arguing that it was not properly directed at him. On Friday, a federal judge dismissed the Gohmert suit, ruling that the plaintiffs lacked standing.

Neither the Constitution nor federal law allows Pence to interfere in the counting of properly certified election results in an attempt to keep himself and Trump in power.

It’s a commentary on how much Trump has poisoned American politics that this question is even being raised. In 1961, outgoing Vice President Richard Nixon, presiding at a joint session of Congress, declared that his opponent, John F. Kennedy, had been elected president. In 2001, Vice President Al Gore announced that the next president would be George W. Bush, to whom Gore had graciously conceded after the Supreme Court effectively ended a recount in Florida.

There is no reason for Pence not to follow these crucial precedents. But Saturday’s statement wasn’t the first time he has encouraged hopes — and fears — that he might act otherwise. On Dec. 10, campaigning for Republican Senate candidates in Georgia, Pence said, “God bless Texas,” with respect to a preposterous lawsuit by that state’s attorney general to overturn the results in four states carried by Biden. (The Supreme Court rejected that suit the next day.)

Biden has won a majority of the electoral vote; Trump’s claims of widespread fraud have been debunked. Both state and federal courts — including the Supreme Court, on which three Trump appointees sit — have rejected attempts to undo the results.

It’s good that Pence declined to cooperate with Gohmert’s lawsuit, but the vice president needs to stop giving aid and comfort to the election deniers. He must make it clear that he acknowledges Biden’s victory and has no intention of using his position to try to undermine it. Pence’s first loyalty is to the law and the Constitution, not to Donald Trump or his crazed followers.