President Donald Trump on Tuesday escalated his efforts to force Vice President Mike Pence to overturn President-elect Joe Biden’s victory, falsely asserting that Pence had the power to unilaterally throw out electoral votes Wednesday when Congress meets to certify the election results.
But there is nothing in the Constitution or the law that explicitly gives a vice president that power, and aides close to Pence, who concede that he is facing a politically perilous moment, are convinced he will follow the normal procedures and confirm Biden’s election.
Still, most agree that Wednesday promises to be a long and confusing day on Capitol Hill — and a potentially agonizing one for Pence — as Trump’s Republican allies move to challenge Biden’s victory and force at least one vote on the matter that is expected to fail.
The proceeding will test what had long been considered little more than a paperwork exercise in American democracy: the certification of the election by Congress. The vice president’s role is to be the master of ceremonies rather than arbiter of the outcome, declaring the winner based on who has the most electoral votes.
But despite Trump’s clear loss to Biden, the president and a group of loyalist House and Senate Republicans are plotting to upend the process by objecting to the certification of several states. Lacking the votes to prevail, Trump is now pressuring Pence to take matters into his own hands to delay the vote tabulation or alter it in Trump’s favor.
“The Vice President has the power to reject fraudulently chosen electors,” the president tweeted Tuesday.
That’s not how it works.
Pence has a basic, if unappealing, job: Count the votes.
Three weeks ago, the Electoral College formally cast its votes for president, affirming Biden’s victory. But under the Constitution, there is one more step before the result is final: the certification by Congress of the electoral votes, to be conducted by the president of the Senate. That’s the vice president.
“The president of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted,” according to the 12th Amendment.
Envelopes with the certified votes from the Electoral College are brought in two mahogany boxes to the Capitol, and the vice president presides over a joint session in which the certificates are examined to determine they are authentic, with clear instructions for declaring a winner.
“The person having the greatest number of votes shall be the president,” the amendment goes on, unless there is a tie or nobody has secured a majority, in which case the House decides.
The job has occasionally been unpleasant for previous vice presidents. In 1961, the state of Hawaii sent two slates of electors and the vice president, Richard M. Nixon, who had just lost the election to John F. Kennedy, had to decide which ones to count. Nixon chose the Democratic electors, expanding his own margin of defeat. Forty years later, Al Gore was in a similar spot, burdened with overruling objections from his fellow Democrats and certifying the victory of George W. Bush — and his own defeat — after a drawn-out Florida recount that was ended by the Supreme Court. And Biden, then the vice president, in 2017 had to reject a Democratic challenge to Trump’s victory.
But no matter how distasteful it is, J. Michael Luttig, a former U.S. Court of Appeals judge and leading conservative legal scholar, said that Pence had no choice but to simply count the votes.
“No president and no vice president would — or should — consider either event as a test of political loyalty,” Luttig said. “And if either did, he would have to understand that political loyalty must yield to constitutional obligation.”
Members of Congress can object, though their bid this time is expected to fail.
Under the Electoral Count Act of 1887, which was passed after the contested election of 1876 in which several states sent rival sets of electors, it is up to Congress to settle any disputes about state certifications.
If at least one member of the House and Senate raise an objection about a state’s results, it must be considered, immediately halting the joint session so members can return to their respective chambers and debate the challenge for up to two hours. Then a vote — decided by a simple majority — is held to determine whether to throw out that state’s results. That has not occurred since the Reconstruction Era, and with Democrats controlling the House and many Senate Republicans opposed, it will almost certainly fail.
Still, Republicans plan to force such a vote, perhaps many. Rep. Mo Brooks of Alabama has said he will move to contest the results from as many as six states, and Sen. Josh Hawley of Missouri plans to back at least one of those. Dozens of House members and 11 senators have said they plan to vote against certifying Biden’s victory. Given that Trump and his supporters have contested the results in several states that Biden won — including Arizona, Georgia, Michigan, Nevada, Pennsylvania and Wisconsin — there could be as much as 12 hours of debate Wednesday, and a half-dozen votes.
Pence would have to announce the failure of each one.
Trump wants Pence to unilaterally disqualify votes for Biden.
House Republicans, with support from Trump, have argued in court that Pence has the right to take matters into his own hands and eliminate electoral votes from any state that he chooses. But a federal judge appointed by Trump on Friday threw out a lawsuit the Republicans brought to force the vice president to do so.
“The only responsibility and power of the vice president under the Constitution is to faithfully count the Electoral College votes as they have been cast,” Luttig said. “The Constitution does not empower the vice president to alter in any way the votes that have been cast, either by rejecting certain votes or otherwise.”
Despite no evidence of widespread voter fraud, Trump and his Republican allies in Congress have claimed that the results from battleground states that voted for Biden must be invalidated.
“I hope Mike Pence comes through for us, I have to tell you,” Trump said at a rally in Georgia on Monday night for two Republican senators who face runoff elections Tuesday that will determine which party controls the Senate. “Of course, if he doesn’t come through, I won’t like him as much.”
If Pence were to throw out enough votes for Biden, then neither candidate would reach the threshold of 270 votes needed to secure an Electoral College victory.
At that point, under the Constitution, each state’s delegation in the House would receive one vote. This could favor Trump, as 26 states have majority-Republican delegations.
However Wednesday unfolds, Alan Raul, a longtime Washington lawyer who wrote an op-ed in The Wall Street Journal that Pence had no choice but to simply count the votes, said in an interview Tuesday that the country finds itself in a perilous position.
“The prospect of the vice president and members of Congress trying to overturn the will of the people rather than duly counting governor-certified votes would be unconstitutional and calamitous,” Raul said, adding that it would set an “exceptionally dangerous precedent.”
“If the sedition caucus in the House and Senate goes forward with their utterly unprecedented attack on the 2020 election, abetted by the vice president, it would torque our democracy for years to come.”