President Donald Trump claimed on Tuesday that Vice President Mike Pence could singlehandedly reject certain electors during Congress’ certification process, turning up the pressure on him to help overturn the results of the 2020 election.
“The Vice President has the power to reject fraudulently chosen electors,” Trump tweeted.
This is false.
Pence, in his role as president of the Senate, is scheduled to preside over Congress’ certification of the results of the 2020 presidential election on Wednesday, as detailed by the 12th Amendment. But he cannot intervene in the process.
The law governing the certification process, the Electoral Count Act of 1887, specifically limits the power of the vice president precisely because a vice president had intervened in the count previously. In 1857, following James Buchanan’s win, a Senate president had overruled an objection against Wisconsin electors who had been delayed in their certification process by a snow storm in 1856.
“One of the points of the Electoral Count Act is to constrain the vice president given this earlier episode and make it clear that he’s a presider not a decider,” explained Trevor Potter, president of the Campaign Legal Center and a former chairman of the Federal Election Commission.
The Electoral Count Act, Potter explained, offers a detailed playbook for how Congress’ counting is supposed to go and it specifically limits the vice president’s work to a ceremonial job,
“It says the vice president shall preside and he shall ensure that the certifications and votes from the states are opened and read out,” Potter said.
Potter is a Republican and served as general counsel for both Sen. John McCain’s presidential campaigns.
The president and his supporters have spent months trying to cast doubt on and overturn the results of the 2020 election. Biden, who won the Electoral College vote 306-232, will be sworn in as the 46th president on Jan. 20.
Trump’s campaign and supporters have filed dozens of suits, only to be swatted down for lack of evidence or standing.
A federal District Court in Washington recently ruled against a last-ditch effort suit by Trump supporters against Pence, Congress, and the Electoral College, that sought to stop the certification of Biden’s win.
The plaintiff’s theory “lies somewhere between a willful misreading of the Constitution and fantasy,” a judge ruled on Monday, denying the motion.
Trump has also rallied Republican members to object to the certification in Congress despite the fact the effort is certainly doomed to fail — both chambers need to agree to toss a state’s slate of electors and Democrats control the House of Representatives.
Potter mused that if Pence did try and disregard the law and intervene, he’d have to argue that the Electoral College Act was unconstitutional in some way.
“Which any historian would tell you is nuts,” he told NBC News. “No one ever intended the vice president to be the kingmaker.”