By L Quin Hillyer
Even apart from the frequent demagoguery from Republican vice presidential nominee Sen. J.D. Vance (R-OH), a deeper dive into his repeatedly expressed beliefs should worry everybody who cares about this nation’s constitutional system.
Two particular Vance interviews put flesh on the bones of a plethora of other comments along the same lines but without the depth these interviews showed. In other words, this isn’t taking out of context some random, off-the-cuff misstatements but instead is an accurate portrayal of what Vance says even when he is being careful and, well, what passes for philosophical.
The first key interview came in June with somewhat conservative columnist Ross Douthat of the New York Times. Douthat has known Vance since even before Vance published Hillbilly Elegy and is someone the vice presidential nominee clearly has a comfort level with. While there was plenty of material in the interview with which Reaganite conservatives can disagree, most of them were mere policy differences. The truly worrisome part involved Vance’s discussion of the 2020 election. To this observer, it sounds to be not just of dubious constitutionality but flat-out anti-constitutional.
Vance argued that “the basic democratic will of America was obstructed” in the 2020 elections because some rules were changed midstream due to the pandemic and because of “various forms of censorship.” He explicitly rejected, though, the by-now absurd accusation that traditional voter fraud or rigged voting machines put then-candidate Joe Biden over the top. And he acknowledges that the elections were conducted in November 2020 according to the laws and rules then in effect.
Even so, he still argued that Vice President Mike Pence should have rejected duly submitted slates of electors rather than count them on Jan. 6, 2021. Yes, he literally says there was no direct fraud but that the election still should be treated as invalid.
The twisted justifications he offers are what send up red flags because what he advocates is expressly extralegal. To do it, he conjures up a mythical version of “democracy” unmoored from the actual Constitution and statutes. “I think that challenging elections and questioning the legitimacy of elections is actually part of the democratic process,” he said. But what he means by “challenging” involves not the democratically enacted rule of law but rather a form of anarchy.
“You would’ve actually tried to go to the states that had problems,” he said. “You would try to marshal alternative slates of electors, like they did in the election of 1876. And then you have to actually prosecute that case; you have to make an argument to the American people.”
First, legally, there were no “problems” in the states, other than some dubiously changed rules in Pennsylvania that netted 10,000 late-counted votes, nowhere near enough to overcome Biden’s 80,000-vote victory in that state. All the other alleged problems were litigated extensively in more than 60 lawsuits, and, aside from one tiny case, the Trump team’s wild allegations were dismissed every time. In other words, former President Donald Trump already took advantage of the chance to do what Vance said and “challeng[e] elections and question[ed] the legitimacy of elections” within the process established through the means of representative democracy.
Nonetheless, Vance still said somehow the challenge to the election should be taken “to the American people” as if the people themselves hadn’t already spoken in the election. That’s cynically and dangerously outlandish. In effect, he is calling for a redo. But the whole point of holding an election under constitutionally enacted laws is to take the choice of government to the people through a constitutionally approved process — and that’s what already had been done in November. Once the votes are duly counted and certified and all legal challenges have been handled by the courts, there is no such thing as a legitimate redo.
Vance argued that Congress should have recognized “alternative slates of electors.” Again, this is lawless to the maximum. Not a single state official acting according to the Constitution and laws had submitted a single alternative slate. The only “alternative” slates were ones that were self-anointed, without any basis in law.
Then came the dangerous kicker. Regarding the election, Vance said, “Now every time we bring it up, it’s like, ‘Well, yeah, they litigated all these things.’ No, you can’t litigate these things judicially; you have to litigate them politically. And we never had a real political debate about the 2020 election.”
This is a call to mob rule. Of course you shouldn’t litigate, or rather relitigate, something politically that already has been decided politically. The only constitutional way to litigate is judicially. That’s why we have independent courts: to apply the laws as written.
How, pray tell, would Vance “litigate” the election again politically? By what mechanism? By what law? Under what authority, constitutional or otherwise? And, from a practical standpoint, how could it possibly have been done in the two weeks between the Jan. 6 congressional ceremony and the Jan. 20 inauguration? What would he do: Demand competing street demonstrations and then revotes by state legislatures after the fact?
Vance is a Yale-trained lawyer, with a wife who clerked for both Chief Justice John Roberts and now-Justice Brett Kavanaugh. He knows there is no basis in the Constitution for what he proposes. None. A few sentences later in the interview, though, Vance gave vent to his real outlook: “I really don’t believe this is about some deep principle; this is about power.”
Somebody who believes there is no “deep principle” involved in conducting elections and election challenges according to the Constitution but instead that it’s just about power should be nowhere in public office, much less a step from the Oval Office.
Again, Vance’s preference for power ahead of the actual procedures of constitutional democracy was not a random utterance. Three years ago, Vance said in a podcast (to which I listened carefully, to be sure not to misrepresent the context) that Trump, notwithstanding actual civil service laws, should “fire every single midlevel bureaucrat, every civil servant in the administrative state, replace them with our people. … And when the courts stop you, stand before the country and say, ‘The chief justice has made his ruling. Now let him enforce it.’”
The line about defying the Supreme Court was a quote from long-ago President Andrew Jackson, sickeningly justifying what became known as the Trail of Tears that forcibly moved and brutalized 60,000 Native Americans. But completely apart from that terrible context, the defiance itself is unconstitutional lawlessness, undiluted.
“We are in a late republican period. … If we’re going to push back against it, we’re going to have to get pretty wild and pretty far out there and go in directions that a lot of conservatives right now are uncomfortable with.”
Several times in that interview, Vance pronounced himself “radicalized” by his experience with pandemic restrictions. But radicals of any sort should never be near presidential power. Especially radicals who think the United States is so far gone that only extraconstitutional, anti-constitutional tactics can save it. In other words, especially J.D. Vance.
Washington Examiner
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