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Trump lawyer suggests Pence could defer certifying election, send requests to state legislatures

Jenna Ellis suggests the vice president could seek clarity from legislators in states where election results are being disputed.

Updated: January 4, 2021 - 7:15pm

One of President Trump's campaign attorneys suggested Monday that Vice President Mike Pence delay certifying the elections results for Joe Biden when Congress convenes Wednesday and instead ask legislatures in the six states where results have been contested to clarify which candidate's slate of electors should be approved.

Jenna Ellis, senior legal adviser to the Trump campaign, floated the idea Monday afternoon during an appearance on the Just the News television show The Water Cooler with David Brody.

"What Mike Pence could do, and what he should do, in fact, is to direct a question back to the state legislatures when there are two competing slates of delegates from these six states, he can ask that question to the states and say, 'well, state legislators, you know, I have an oath to the Constitution to uphold the Constitution as written in Article II Section 1.2 which says the state legislatures direct the manner in which electoral delegates are selected. So you tell me which of these two slates was selected in the manner that your state general assembly has designated,'" Ellis said.

"And that's a fair question. That's not exercising discretion. That's not setting up any sort of bad precedent. That's actually returning the authority to the constitutionally vested entity and just simply directing that question I think would then require a response from these very timid, to put it lightly, state legislators that haven't been willing to act, and it would in fact then give a very clean outcome to this election," she added.

The six states she cited are Wisconsin, Michigan, Pennsylvania, Georgia, Arizona and Nevada. In all six states, the governments have declared Biden the winner and sent electors to Congress supporting the Democrat. But Trump supporters and some legislators in each of those states have said they don't trust the results because of irregularities and changes to election processes that weren't approved by the Legislatures. Courts have steadfastly refused to intervene despite numerous lawsuits challenging the results.

While as many as 100 GOP lawmakers in the U.S. House and a dozen GOP senators are expected to contest the results, congressional leaders say they have the votes to approve Biden's electors. 

Ellis suggested that Pence could take the action at the beginning of Congress' electoral review proceedings Wednesday, "before even opening any of the certificates that are sent," based on publicly stated objections raised by several legislators in each of the states. 

It is unclear whether Pence would support doing so, or if the vice president, a strict constitutionalist throughout his career, believes the Constitution to empowers him to take such action.

Pence over the weekend issued a statement through his chief of staff Marc Short saying he supported the efforts of GOP House members and senators to contest the results.

In a follow up email to Just the News, Ellis described the steps she believed could be taken lawfully:

  • Pence should not open any of the votes from the six states, and instead direct a question to the legislatures asking them to confirm which of the two slates of electors have in fact been chosen in the manner the legislature has provided for under Article II, Section 1.2 of the U.S. Constitution.
  • The Vice President should open all other votes from states where electors have been certified and not contested, and count accordingly.
  • The question would then require a response from the legislatures, which would then need to meet in an emergency electoral session.
  • Pence should require a timely response from each state legislature and set a deadline of Jan. 17. If any state legislature fails to provide a timely response, no electoral votes can be opened and counted from that state. The Constitution provides that if no candidate for President receives a majority of electoral votes, the Congress shall vote by state delegation. This would provide two and one-half days for Congress to meet and vote by delegation prior to January 20 at noon for inauguration.
  • Pence would not be exercising discretion nor establishing new precedent, simply asking for clarification from the constitutionally appointed authority in each of the six states.

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