Will Pence choose partisanship over statesmanship in counting ballots?

After midnight in the East on Election Day 1876, an urgent telegram raced along the wires to top Republican officials in Florida, Louisiana, South Carolina and Oregon: “With your state sure for [Republican nominee Rutherford B.] Hayes, he is elected. Hold your state.” 

The telegrams had been sent by “Devil Dan” Sickles, who not only had persuaded New York customs collector and party operative Chester Arthur to authorize his optimistic electoral analysis, but also had convinced the party’s chief clerk to send these directives out under Republican National Committee Chairman Zachariah Chandler’s signature. 

Sickles received back-up from the era’s partisan press. The leading Republican newspaper, the New York Times, rejected the consensus reports that showed Democrat Samuel Tilden the winner, and in their first morning edition, offered the headline, “A Doubtful Election.” 

So it began. Ardent partisans and “fake news” on election night set in motion the post-vote maneuvering that led to the most controversially decided presidential election in history. 

Could the 2020 presidential election be heading down a similarly scandal-plagued path, and might the outcome turn on whether Vice President Pence opts for a partisanship or statesmanship?

The Transition Integrity Project’s report found that there is “a high degree of likelihood that November’s elections will be marked by a chaotic legal and political landscape.”

This startling conclusion was drawn from the group having engaged experts to participate in a series of “war games” in which they simulated four election scenarios, while considering the ways in which President Trump may “contest the result by both legal and extra-legal means, in an attempt to hold onto power” if he loses the election.

Although Atlantic staff writer and “war games” participant David Frum mostly dismissed as a “high-risk tactic” the prospect that “local Republican officeholders [would sow] enough confusion to justify sending two slates of electors to Washington to be adjudicated,” this precise tactic was the source of the 1876 dispute, as was described in another Atlantic article from 1893. 

Rather eerily, given the tenor of today’s partisan politics, the more than 100-year-old article noted: “The 8 millions of voters who had taken part in the election had been about equally divided. Those of each party were convinced that they had gained an honest victory, and were indignant with those of the other party for denying or even doubting it. The feeling of mutual hostility had been greatly intensified by party leaders, orators, and presses. In some of our cities it took all the terrors of a police court to keep Democrats and Republicans from breaking the peace.”

Further, the Transition Integrity Project’s report cautions that it remained an open question as to “whether a candidate is able to convince the state legislature to send a package of electoral votes inconsistent with the certified popular vote. Even if a court disapproved of this action, Congress might nonetheless consider those votes on Jan. 6.”

Jan. 6, 2021, is the day that Pence, in his role as the president of the Senate, will preside over a Joint Session of Congress and will count the electoral ballots. 

This situation could present a recipe for mischief. Legal scholar at Yale, Bruce Ackerman has argued that the framers of the Constitution not only seriously erred in placing vice presidents in a position where they might be “tempted to elect themselves [or their party’s nominee] to the presidency by manipulating the vote count,” but also in failing “to provide clear rules for how to proceed in this situation — a high-stakes moment when passions might flare.”

As Ackerman explained, were the Supreme Court to remain “on the sidelines,” the president of the Senate “must obey the instructions of the House and the Senate, as long as those chambers can agree.”

But what if the two legislative chambers were held by opposing parties and they disagreed? In 1876, it was partisan disagreement that resulted in Congress establishing the Electoral Commission to resolve the issue.

And what if partisans from both chambers were to agree that a contested state’s electoral ballots should be declared invalid because of the underlying popular vote of the state?

In 2001, then-presidential candidate and vice president Al Gore memorably gaveled down the objections pertaining to Florida’s electoral ballots that had been raised by Democratic House members because they were not supported by a Democratic senator.

Did everyone involved with the Transition Integrity Project’s “war games” genuinely believe that Trump would have difficulty finding a Republican House member and a Republican senator to jointly register a protest, or that Pence would deny their objections?  

Didn’t anyone notice what happened during Trump’s House impeachment and Senate trial? Republican House members and senators used every opportunity to advance their partisan interests, rather than the nation’s interest. They denied facts, intimidated witnesses, and even voted against their institutional interests — evidently to serve Trump.

Isn’t it possible that Pence, rather than being the Trump team’s “weak link,” as some may perceive him, could come to view himself as his party’s “savior” who, through an act of tossing out valid Democratic electoral ballots or counting in questionable Republican ones would reelect Trump and ensure the Supreme Court’s ideologically conservative composition for decades?

There’s only one way out of this dark debacle that doesn’t involve hoping for Pence to demonstrate a statesman’s spine: an electoral landslide to drown out Trump’s protests of the result.

Democrats, it looks like it is your turn to have a “Flight 93 Election.”

Lara M. Brown is associate professor and director of the Graduate School of Political Management at George Washington University and the author of the forthcoming book, “Amateur Hour: Presidential Character and the Question of Leadership.”