Benjamin Sevart, at the University of Wisconsin, has posted this Comment on SSRN. Here’s the abstract:

This Comment presents the first extensive academic analysis to argue that the writ of mandamus enables the federal courts to compel the Vice President of the United States to open Electoral ballots at the quadrennial joint session of Congress that certifies the result of the Electoral College or to convene the session. Mandamus is justified under current law because text, history, and common sense demonstrate that the Vice President’s duties are ministerial and not discretionary, and the joint session uniquely paralyzes Congress, withdrawing all of its usual tools to secure compliance with the law.

The certification of the 2020 Presidential election was nearly the worst constitutional crisis since the election of 1876, if not the Civil War. The nation narrowly avoided catastrophe, in large part because Vice President Michael Pence refused to join President Donald Trump’s massive conspiracy to subvert the Electoral College and usurp the presidency. This Comment is the first in the academic literature to identify and evaluate a specific legal mechanism for the federal courts to ensure that the lawful transfer of power need not rest on the Vice President’s integrity alone. 

While the courts may be reluctant to intervene in such a fundamental constitutional dispute, they will find no off-ramps in the scenario presented here. All of the Vice President’s justiciability objections will fail. The courts will face the question squarely on the merits, and they may face it soon. Trump could conceivably be the one seeking mandamus against Vice President Kamala Harris at the upcoming certification. 

The question is not just whether to issue mandamus against the Vice President. Nor is it whether to trigger a constitutional crisis. The question is whether to sit one out, or else to affirm that the United States of America remains a nation of laws, and not men.