Vice President Mike Pence is about to be in an awkward position: Next week he’ll be presiding over the final confirmation that Joe Biden won the 2020 presidential election.
Pence is supposed to serve as the presiding officer when Congress meets Jan. 6 to confirm the Electoral College’s results. That’s got some allies of President Donald Trump hoping they can find a way around the law to get Pence to actually award the election to him.
Rep. Louie Gohmert, R-Texas, has filed a lawsuit in federal court trying to throw out an 1880s election law that governs Pence’s role in the process. He is not shy about why: He wants Pence to have total control over counting the votes from states and then award the election to Trump.
It’s extremely unlikely courts will take his legal challenge seriously. Pence will almost certainly have to declare Biden the winner as his boss refuses to concede. Here are the limited options the vice president will have on Jan. 6.
— First, what happens on Jan. 6?
Under federal election law, states send their Electoral-College vote totals to Congress to be counted and confirmed. It will be final confirmation that Biden won — after this, all that’s left is to inaugurate him. The process is largely a formality, since election law says Congress has to treat results from states approved by Dec. 8 as “conclusive.” This year, as in most years, all states approved their results by then.
But there is a mechanism that allows lawmakers to challenge those results. The Electoral Count Act was written to help guide Congress if there is a dispute in a state about which candidate won.
Except there are no disputes about who won in 2020. The Electoral College certified all states’ results a few weeks ago.
Still, more than a dozen House Republicans will try to challenge results in several states that Trump lost. If they get a senator to join them — and Sen. Josh Hawley, R-Mo., announced Wednesday that he plans to contest the Electoral College results — all they will accomplish is to delay the inevitable. After votes in the Democratic-controlled House and Republican-controlled Senate, those challenges will ultimately fail. But it could be a long day and night on Jan. 6.
Here’s how things will work on Jan. 6, step by step.
— Pence’s role
It’s administrative. As the president of the Senate, he is supposed to preside over the joint session of Congress when this all happens.
The authors of this process were very aware that the vice president would have intense personal interest in who won. So his role is more symbolic than active. He is supposed to open the envelopes submitted by each state and say out loud how many electors go to each candidate. He’s not even doing the counting — clerks are doing all that for him, said Adav Noti, a director with the Campaign Legal Center and an expert on this normally overlooked role. “They tell him what the numbers are (for each state), and he reports that back.”
At the very end, it will be Pence announcing the final totals — 306 electoral votes for Biden, 232 for Trump.
— Pence’s options to challenge the votes
Pence does has some authority, said Meredith McGehee, an expert in ethics in politics and the director of the group Issue One. “A presiding officer has one main power,” she said, “and that is the power to recognize.”
Pence can recognize or not recognize lawmakers and electoral votes. To not recognize official votes would be illegal and knocked down almost immediately by majorities in Congress.
Still, let’s go there for a moment. As the Electoral College was meeting this month, some Republicans in states Trump lost held mock votes that falsely claimed Trump won electors in their state.
Pence could refuse to recognize the clerks handing him the actual electoral counts. He could pull out those false Republican electoral votes and say he thought they were legitimate.
Such a scenario would be in blatant violation of the law (which is why Republicans are in court trying to get rid of said law). And it would prompt an immediate challenge from Democrats in Congress, who would probably have support from Republican leaders in the Senate. (Sen. John Thune of South Dakota‚ the No. 2 Senate Republican, said that any challenges to official electoral votes are “going down like a shot dog.”) Congress — not Pence — decides to formalize these votes.
So in addition to being illegal, it would probably end pretty quickly.
But, McGehee pointed out, if Pence really wanted to do this, he “could potentially put the Democrats in a defensive posture to prove the election as opposed to Republicans.”
— How this lawsuit factors in
It’s almost certainly not going anywhere. Courts across the country have been dismissive of less outlandish challenges to election law. That includes Trump appointees, all the way up to the Supreme Court.
Gohmert is literally suing Pence to get rid of the Electoral Count Act. That means the vice president — or more likely a Justice Department official — needs to respond.
Pence has been publicly tight-lipped about what, if any, plans he has for presiding over Jan. 6. We know he’s met with lawmakers trying to help Trump overturn the election. The Washington Post’s Colby Itkowitz and Josh Dawsey reported recently that aides say Pence plans to stick to his perfunctory role. Politico reported that before filing the lawsuit, Gohmert tried to get Pence to essentially agree to overthrow the Electoral Count Act, and Pence didn’t. We also know he has plans for a diplomatic trip immediately afterward, suggesting he might want to get out of town after being the person to officially announce from the floor of Congress that Biden won.
The federal judge, a Trump appointee, has asked Pence to respond by 5 p.m. Thursday. How the Trump administration responds to the suit against the vice president might signal whether Pence is planning to try to hold up Congress’s confirmation of Biden as the next president. Does he defend the law that restrains his power? Or does he agree it should be overthrown?
But unless the courts actually throw out a 150-year-old law, Pence will be relegated to an administrative role. (And then even if they did overthrow it, Pence still has no constitutional authority to do anything to change the results, Noti said. Gohmert would next have to get the Constitution altered to let the vice president choose who is going to be the next president, a concept Noti said was “absurd.”)
Basically, any attempt by Pence on Jan. 6 to assert more authority than simply reading vote tallies aloud would be illegal and almost certainly land him in court. And the law would not be on his side.