Kamala Harris Shouldn’t Have to Save the 2024 Election


Will this vp have the ability to play the restricted function Pence finally stuffed within the January 6, 2021 proceedings?
Photograph: Kent Nishimura/Los Angeles Instances through Getty Photographs

The now-notorious Eastman Memo — the script Donald Trump gave to Mike Pence for overturning the election outcomes on January 6, 2021 — was probably extra harmful to our nation than the rioters he incited to storm the building. The doc supplied a spurious, however handy, constitutional rationale for Pence to abuse the authority granted to him within the twelfth Modification to tabulate electoral votes as half of a professional forma course of for confirming Joe Biden’s election. In line with Eastman, a lawyer on the president’s authorized staff, Pence had the lordly energy to ignore state-certified electors, ignore the procedures spelled out within the “unconstitutional” Electoral Depend Act, and both hand an unearned victory to his personal ticket or kick the election into the Home. Happily Pence determined to not go there, although he appears to have strongly considered it.

Like many different observers, I’ve feared that the tried 2020 electoral coup might have been a costume rehearsal for Trump. However it doesn’t matter what occurs within the 2022 and 2024 elections, there can be one necessary change within the surroundings when a joint session of Congress convenes to rely electoral votes in January of 2025: As a substitute of Republican Pence, Democrat Kamala Harris will preside. As Russell Berman notes in The Atlantic, there’s a quiet debate underway as to what function she would possibly play if Trump is the Republican nominee and tries once more to steal the election:

Ought to Trump or his acolytes attempt to subvert the 2024 election, the final Democrat with any energy to cease the steal—or no less than attempt to—could be Harris. “She’s actually going to have fairly a job on her palms on January 6, 2025,” Laurence Tribe, a Harvard legislation professor and liberal constitutional scholar, informed me. 9 months in the past, Tribe and different Democrats praised Pence for deciphering his authority narrowly, however the subsequent time round, they may ask Harris to wield the identical gavel extra forcefully.

This doesn’t imply there may be important help in liberal authorized circles for some type of reverse-Eastman Memo, with Kamala Harris refusing to acknowledge electors Trump gained, counting on some outlandish constitutional argument. As Matthew Seligman of the Marketing campaign Authorized Middle informed me, election legal professionals are unwavering on this level.

“It’s vital to be clear that the Structure doesn’t vest the vice-president (as president of the Senate) with any unilateral authority in any respect to reject electoral votes or to resolve disputes about competing slates of electors,” he stated. “That concept was the idea of the Eastman memo, and it’s completely incorrect — whether or not it’s Vice-President Pence, Vice-President Harris, or another politician of any political get together.”

However the Electoral Depend Act (which Eastman needed Pence to ignore) does give some powers to the vp, whereas leaving sure potential points maddeningly unclear, with nearly no courtroom precedents to manipulate the type of eventualities that might conceivably emerge in future elections. Distinguished Harvard emeritus professor Laurence Tribe informed Berman it was clear the ECA gave the vp the ability to reject “ungrounded challenges to state certifications.”

So if, hypothetically, a Republican-controlled Congress was tempted to supplant electors licensed by the suitable officers below a given state’s legal guidelines with some self-appointed various slate (just like the faux Trump electors Eastman needed Pence to acknowledge), Harris would possibly have the ability to gavel such a transfer out of order. However as Seligman informed me, the ECA doesn’t give the veep “freewheeling authority to choose and select find out how to rely electoral votes, for good causes or for dangerous causes, and it will be harmful if it did so.”

If a 2024 Group Trump (or anybody else) will get its act collectively sufficient to prepare extra frequently constituted electoral vote larceny — both by a completely authorized certifying authority that chooses to disregard or distort the favored vote, or by muddying the waters with a conflicting certification by a reputable state physique such because the legislature — there could also be nothing Harris can do about it wanting asserting powers she doesn’t have, and which a Republican Congress may formally deny her by difficult her choices. However right here’s the factor: The operations of the ECA in such uncharted territory are murky at finest, as one would possibly anticipate from a 1887 statute developed below the shadow of the very different disputed presidential election of 1876.

However prospects for fixing the ECA within the close to time period have been stalled by the shortage of curiosity of congressional Republicans decided to “transfer on” from the embarrassing occasions of January 6. Maybe the conclusion that Kamala Harris can be within the chair in 2025 will sink in sufficient to make them rethink that hands-off stance in the direction of inserting clear limits on her energy — energy she can be strongly inspired to train to the utmost extent if she’s defending not simply one other Democratic victory however democracy itself. For that matter, lawmakers in each events want to know the ECA goes to be an issue in future elections after which now we have no manner of figuring out who can be sitting within the vp’s chair when the deal goes down, or which get together will management Congress.

It’s true congressional Republicans might concern the wrath of Trump ought to he determine an in any other case non-controversial ECA repair may tidy up the muddy observe he prefers to be able to hold his authorized and extra-legal choices open for a post-Election-Day reversal of fortune. But when they worth the Structure and the rule of legislation, they might be compelled to solid a really troublesome vote to cease a Trump coup in 2025. Precluding no less than a few of this danger by clarifying the ECA at this early juncture may be a neater vote, and so they can all the time inform their MAGA constituents they’re simply reining in Kamala Harris.

https://nymag.com/intelligencer/article/kamala-harris-electoral-count-act.html | Kamala Harris Shouldn’t Should Save the 2024 Election


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