RALEIGH – According to the New York Times, President Donald Trump consulted former North Carolina Chief Justice Mark Martin on the constitutional question of whether or not the vice president had the power to “overturn” the election.
“[…] Heading into Wednesday, some advisers privately said Mr. Trump appeared to believe that Mr. Pence could legally hand him the election in his role presiding over the vote count.
At one point, Mr. Trump told the vice president that he had spoken with Mark Martin, the former chief justice of the North Carolina Supreme Court, who he said had told him that Mr. Pence had that power. Mr. Pence had assured Mr. Trump that he did not. Mr. Trump made the vice president defend his rationale in a meeting with lawyers whom Rudolph W. Giuliani had helped line up. […]”
Martin left the N.C. Supreme Court to become dean of a Regent University School of Law. The vacancy, you might remember, was used as a political opportunity by Governor Roy Cooper, breaking longstanding tradition to skip over Republican Paul Newby and appointing Democrat Cherie Beasley as chief justice.
The Gray Lady emphasizes the ‘overturn’ language, but the reality of the legal calculus involved is much more nuanced than that. In rejecting electors from certain states in question, Vice President Mike Pence would have been sending the slates back to those states’ legislatures for further investigation in light of the fraud allegations.
The nuance lies in whether that would ultimately overturn the election result, or merely revealed that the official results were tainted and fraudulent in the first place. All of it is now a futile thought exercise, of course, with Pence electing not to challenge or reject any slates on a day that will go down in the history books.
Pence and his team of advisors concluded, obviously, that he could not (or would not) reject the electors. The reference to Martin and his perspective on the issue does make one wonder about the former jurist’s complete take on the issue and what the reasoning was in giving advice to the president.