Session 3: From Joint Session of Congress (Jan 6) to Inauguration Day (Jan 20)
Hypothetical Scenario 3.3: Can Mike Pence preside over the Joint Session of Congress in an Electoral College dispute?
Assuming that Mike Pence is a candidate for reelection as Vice-President, is he permitted to preside over the joint session of Congress in the event of a dispute over outcome-determinative electoral votes from a state, or is he obligated to recuse? If he is not obligated to recuse, suppose both houses of Congress declare that the Democratic ticket for President and Vice-President have prevailed—for example, suppose that both the Senate and House, with respect to Scenario 3.2, declare that the consequence of nullifying Florida’s electoral votes results in a majority of electoral votes for the Democratic candidate—and Pence as presiding officer of the joint session refuses to accept this bicameral determination. Imagine, instead, Pence declares that the correct interpretation of the Constitution means that, upon the nullification of Florida’s electoral votes, no candidate has a majority and the presidential election must fall to the House (and the vice-presidential election to the Senate). Does Pence’s ruling, contrary to the resolution of both congressional chambers, prevail? May a court order Pence, as presiding officer of the joint session, to declare the Democratic candidate the winner of an Electoral College majority if the court agrees with the bicameral resolution of this constitutional question (or if the court determines that under the Constitution it is the prerogative of the two congressional chambers, rather than the Senate president, to make the authoritative ruling on this constitutional question)? Finally, and related, if a court orders Pence as Senate president to declare that the Democratic candidate is the winner of the election entitled to be inaugurated as President at noon on January 20, but Pence and Trump refuse to honor this judicial decree and purport to proceed with their re-inauguration at noon on January 20, should the military obey the judicial order and recognize the Democratic candidate as the new Commander-in-Chief at noon on January 20, or instead continue to take orders from Trump as Commander-in-Chief after noon on January 20?