Opinion by Matthew A. Seligman on Oct 1. 2024.

WHY HE REPRESENTS A GRAVE RISK TO THE RULE OF LAW IN AMERICAN DEMOCRACY.

On Tuesday night, JD Vance will face Tim Walz in what is likely to be the only vice-presidential debate of the 2024 election. As American voters assess Mr. Vance, they should scrutinize whether he has demonstrated the fundamental fidelity to the Constitution that the office requires.

Before and after his selection as Donald Trump’s running mate, Mr. Vance said repeatedly that if he had been vice president on Jan. 6, 2021, he would have intervened in the electoral count in favor of President Trump.

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Unlike Mike Pence, Mr. Vance has made clear that he is willing to cater to Mr. Trump’s obsession with the myth that his victory in the 2020 presidential election was stolen, and that on Jan. 6 Vice President Pence refused to exercise his constitutional powers to prevent that theft.

Unwavering commitment to those two lies served as critical qualifications for Mr. Vance to be selected as Mr. Trump’s running mate. In the 2024 election, that dedication must also disqualify Mr. Vance from ever holding the office he now seeks.

By saying he would have prevented Congress from counting the electoral votes that confirmed President Biden’s victory, Mr. Vance has admitted that he would have asserted an extra-constitutional power to abet Mr. Trump’s plot to remain in power. And he would have done so based on long-disproven conspiracy theories of fraud and illegality in the election that Mr. Trump legitimately and lawfully lost.

Even more chilling, Mr. Vance’s pledge about what he would have done in Mr. Pence’s place on Jan. 6, 2021, is a promise about what Mr. Vance will do on Jan. 6, 2029, should he preside over the electoral count as vice president. He is telling us more than four years in advance that if he is a candidate to be president himself, he would be willing to defy the courts and Congress to seize power regardless of the lawful outcome of the 2028 election.

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The law is clear: The vice president, who presides over the electoral count as president of the Senate, has no constitutional power to reject electoral votes, to delay the electoral count, to send the issue back to the states or to do anything else that Mr. Vance is claiming he would have done — and that he is threatening to do if he one day sits in the vice president’s chair.

Last year I testified as an expert witness in an attorney disciplinary proceeding against John Eastman, the lawyer who pressed the baseless legal theory about the vice president’s powers in the electoral count to Mr. Trump and Mr. Pence.

The 12th Amendment provides that “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 historical record conclusively demonstrates that Congress counts the electoral votes. The role of the vice president, as the president of the Senate, is strictly limited to the ministerial task of opening the electoral certificates.

The original meaning of the Constitution, which conservatives claim to revere, could not be clearer. Our electoral history, beginning with the first electoral count in 1789, through the 1805 electoral count that followed the ratification of the 12th Amendment (which requires separate electoral votes for president and vice president) and to today, shows a consistent practice in which the House and Senate, not the vice president, count the electoral votes.

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Every time there has been a dispute about the electoral count, Congress alone has resolved it. Congress reached ad hoc resolutions of disputes about electoral votes in 1817, 1821, 1837 and 1857. Starting in 1865, it adopted a joint rule to govern the electoral count and to resolve objections. It resolved the now-famous disputed election of 1876 between Rutherford B. Hayes and Samuel Tilden by creating an electoral commission of which the president of the Senate was not a member. And in 1887 it enacted the Electoral Count Act, which remained the law governing the procedure for counting electoral votes until Congress amended it in 2022 with the Electoral Count Reform Act.

Mr. Pence, to his credit and to Mr. Trump’s disdain, refused to shatter the unbroken history of vice presidents respecting their proper constitutional role. As Mr. Pence explained on Jan. 6, 2021, the founders never “intended to invest the vice president with unilateral authority to decide which electoral votes should be counted during the joint session of Congress, and no vice president in American history has ever asserted such authority.”

Mr. Vance, a highly credentialed, Yale-educated lawyer, knows all this. That he is willing to defy the Constitution anyway proves that he represents a grave risk to the rule of law in American democracy.

For that, the American people must ensure he never gains the power that he has promised to abuse.

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This article originally appeared in The New York Times.
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