JD Vance Can’t Be Trusted to Protect the Constitution
Remember: He was picked because he said he would have supported Trump’s coup attempt.
BEFORE TONIGHT’S VICE PRESIDENTIAL DEBATE, we should recall why JD Vance will be on the stage. Donald Trump didn’t pick Vance as his running mate because the junior senator from Ohio had any significant experience in government. Nor did Trump choose him because of any noteworthy accomplishments in the private sector. No, Trump chose Vance because he has proven to be far more servile than his predecessor—former Vice President Mike Pence.
Pence has repeatedly explained to the American people that Trump forced him to choose on January 6, 2021: He could either remain loyal to the U.S. Constitution or he could serve Trump. He could not do both. Pence chose the Constitution. Vance, by his own admission, would have chosen Trump.
Some context is in order. Trump and what Pence describes as a “gaggle of crackpot lawyers” devised two ways for Pence to overturn the 2020 election. Trump demanded that Pence either a) reject Joe Biden’s certified electoral votes from several swing states, or b) “send” the electors’ votes “back to the states to recertify.” The first course was intended to force a presidential vote in the House of Representatives, where Republicans controlled a majority of state delegations. Congressional Republicans then could have overturned the result of the election and installed Trump as president. Pence refused.
So Trump and his advisers focused on the second course—demanding that Pence refuse to oversee the counting of Biden’s lawful electoral votes from several swing states but instead send those votes back to those states. If Pence had gone along with this scheme, Trump and his associates would have pressured Republican-controlled state legislatures to overturn the results of their state’s popular vote, decertify Biden’s electors, and instead certify Trump’s electors—thereby handing Trump the presidency. Pence again refused. Vance has repeatedly said he would have complied with a version of this second demand.
Vance explained his reasoning, such as it is, during a lengthy interview with New York Times columnist Ross Douthat shortly before Trump picked him as his running mate. Vance suggested that if he had been in Pence’s shoes after the 2020 election, he would not have merely overseen the formal counting of Biden’s legitimate electoral votes during the joint session of Congress on January 6, 2021 but instead would have tried “to marshal alternative slates of electors” from the states. “The entire post-2020 thing would have gone a lot better if there had actually been an effort to provide alternative slates of electors,” Vance claimed. (Of course, Trump and his advisers did coordinate an effort to produce alternate slates of electors: Trump supporters in several states cast phony electoral votes on December 14, 2020, which were transmitted to Washington, D.C. in support of the scheme to overturn the election.)
Had Trump followed this course, Vance claimed, Trump would have been “using the constitutional procedures” and merely “trying to take a constitutional process to its natural conclusion.”
That is simply false. Trump’s gambit would have subverted the Constitution, just as former Vice President Pence has explained.
As vice president, Pence had no constitutional or statutory power to refuse to count the states’ legitimate, certified electors and “marshal alternative slates of electors” in their place. As explained in Chapter 5 of the House January 6th Committee’s final report, Pence and his legal counsel, Greg Jacob, explored this issue at length. Pence and Jacob correctly concluded that the vice president, in his role as the president of the Senate, had no such authority under either the Twelfth Amendment or the Electoral Count Act of 1887, the law that governed the certification proceeding. (The Electoral Count Act was updated in 2022, making it crystal clear that a scheme like Trump’s was never constitutional.)
The Twelfth Amendment contains a single relevant line: “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.” Trump and his legal advisers argued, implausibly, that this brief passage effectively gave the person presiding over the joint session—Pence or, if he had not shown up, presumably the president pro tempore of the Senate, Senator Chuck Grassley—the power to overturn the result of the 2020 presidential election.
Such a reading is absurd on its face. The sentence says nothing about rejecting state electors, “marshaling” alternative slates of electors, or anything about resolving supposed disputes. It simply explains (albeit in a passive voice) that the electoral votes shall be opened and counted. That’s it.
Pence has repeatedly—and correctly—rejected the idea that the Constitution granted him such powers. In his open letter on January 6th explaining his decision, Pence wrote:
As a student of history who loves the Constitution and reveres its Framers, I do not believe that the Founders of our country 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.
Vance would have been the first vice president in history to assert such unilateral authority.
IN HIS INTERVIEW WITH DOUTHAT, Vance attempts to justify Trump’s anti-constitutional power grab by arguing that all he wanted was a “real political debate about the 2020 election” on January 6th. But the Electoral Count Act explicitly allowed for congressmen and senators to object to any state’s certified electoral votes. In fact, Republican lawmakers had objected to Arizona’s electoral votes just before Trump’s mob overran the U.S. Capitol building.
Trump and his lawyers knew that those objections were ultimately futile—that the Republicans could not overturn the election’s results following the procedures set forth in the Electoral Count Act. So Trump and his advisers pressured Pence to violate the law, which had governed the certification proceeding for 130 years.
Again, Pence refused. As he wrote in his January 6th letter,
Vice Presidents presiding over Joint Sessions have uniformly followed the Electoral Count Act, conducting the proceedings in an orderly manner even where the count resulted in the defeat of their party or their own candidacy.
Vance, again, would have been the first vice president in history who chose not to follow the Electoral Count Act.
THE PRESIDENT AND VICE PRESIDENT also do not have the power to tell states which slates of electors should be certified. Article II, section 1, clause 2 of the Constitution grants state legislatures the power to “direct” the “Manner” in which each state’s electors are “appoint[ed].” The Constitution does not grant state legislatures power to alter or undo this process after all the votes are cast and counted, let alone after the results have been certified by the state’s election officials. All fifty states and Washington, D.C. long ago decided that electors shall be appointed based on the popular vote. That is, the presidential candidate who wins the most votes in each state also wins the state’s electoral votes.1 A state legislature could theoretically decide, before an election, that the popular vote will no longer determine the winner of their state’s electoral votes. Voters would, in all likelihood, reject such a move. But no state legislature—contrary to the wild theories espoused by Trump’s lawyers—has the power to invalidate a legally conducted popular vote and pick the electors itself after an election has already been held.
In late 2020, Republican-controlled state legislatures, governors, and secretaries of state across the battleground states refused Trump’s demand that they overturn the results of the popular vote. This is why Trump turned his autocratic gaze to Pence. Having failed to get Republican state officials to do his bidding, Trump wanted his own vice president to invalidate millions of votes across several states. In the broadest sense, Trump’s demand would have disenfranchised the more than 81 million voters who cast their ballots for Joe Biden.
Vance concedes that Biden “probably” would have still been president if Vance had been vice president and, unlike Pence, bent the knee to Trump. But Vance assures us that even if Trump’s “alternative-electors thing” had worked, the “idea” that Trump would have become the “dictator of America is completely preposterous.” Vance claims Trump “would have served four years and retired and enjoyed his life and played golf.”
That is, Vance would have us believe that Trump, after successfully overturning an election with Vance’s assistance, would have meekly given up his grip on power.
No American who remains loyal to the U.S. Constitution could be so indifferent to Trump’s autocratic aspirations. Nor should we give Trump—and Vance—a second chance to end our constitutional form of government.
Thomas Joscelyn served as a senior professional staff member for the House January 6th Committee and is a principal author of the committee’s final report.
In most states, all the electoral votes go to the candidate who won the popular vote. In Maine and Nebraska it is possible to split electoral votes, but even there, the allocation of electoral votes, split or whole, is still determined by the popular vote.
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