When the next electoral vote is certified on 6 January next year, Vice-President Kamala Harris will play a critical role – whether or not she’s the winner of the presidential contest. It’s a role that vice-presidents have routinely played throughout history: certifying the results of the election for a seamless transfer of power.
The same might not be true for the election after that. In the most consequential line of the vice-presidential debate last week, the Republican nominee, JD Vance, refused to say that Donald Trump lost the 2020 election and then pressed by moderators, declined to answer whether he would refuse to certify the vote this year if he had that power. (His opponent, Tim Walz, said in a clip that’s now been spliced for campaign ads: “That is a damning non-answer.”)
The troubling nature of the answer was compounded less than 24 hours after the debate when the US district judge Tanya Chutkan unsealed a redacted version of the special counsel Jack Smith’s brief against Trump in the federal election interference case laying out new evidence of how the former president attempted to steal the election.
In striking detail, the brief laid out how Trump made Vice-President Mike Pence a target of his angry supporters on January 6, how the Secret Service was forced to whisk him away to a secure location, and how Pence went on to certify the election after the violence had subsided.
Under the US constitution, the vice-president has few specific powers. Walz and Vance debated last week about foreign policy, reproductive rights, immigration and other policies that the next administration will influence, though their role in any of it will be limited. But the constitution does spell out that the vice-president is the president of the Senate and is in charge of certifying the election results, and Vance, unlike Pence, has said multiple times that he would not have certified the vote in 2020.
“I would have asked the states to submit alternative slates of electors and let the country have the debate about what actually matters and what kind of an election that we had,” Vance said on a venture capitalist’s podcast in September. He made similar comments before he was tapped by Trump to be on the ticket, saying during an ABC News interview that he would have liked to see the certification of the 2020 election handled differently.
The contrast between Vance leaving the door open to question election results, and the depiction of Pence’s role on January 6 laid out in the Smith indictment, is stark.
According to Smith, Pence stood strong despite Trump’s pressure and threats. He told Trump he had seen no evidence of election-determining fraud and repeatedly tried to convince Trump to accept the valid results. Trump’s pressure campaign did not let up – he and his co-conspirators used “deceit”, lying to Pence that there was evidence of significant fraud and lying to the public that Pence had the ability to reject electoral votes and send them back to the state legislatures.
Even after Trump tweeted: “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution,” supporters started chanting “Hang Mike Pence!” and the Secret Service had to evacuate the vice-president to a secure location, Pence maintained that the Electoral Count Act didn’t allow him to legally reject the valid electoral votes.
Although the riots on January 6 delayed certification for approximately six hours, the House and Senate resumed their joint session at 11.35pm, according to the brief, and at 3.41am, Pence announced the certified results of the election in favor of Joe Biden.
It’s not exaggeration to say that US democracy survived past January 2021 because of Pence. Had he refused to certify the vote, the peaceful transfer of power would not have occurred, and the chaos and violence probably would have continued.
But Vance has already proved himself more eager to capitulate to Trump’s demands – despite previously condemning the former president, he’s transformed into a Maga acolyte who is in some ways “more Trump than Trump”, according to one retired Republican party operative. And he has explicitly said that he would have acted differently from Pence on the day Congress meets to certify the election.
Trump is not currently president, so Vance won’t be able to refuse to certify and wreak havoc in January. But if Trump wins a second term, Vance will be in charge of certifying the vote after the 2028 election. Trump has now said multiple times that Americans “won’t have to vote any more” if he wins this year. It’s not far-fetched to think about what might happen if Trump and Vance refused to cede control of the White House in 2028.
