President Donald Trump has sent strong signals that he expects Vice President Mike Pence to hand him re-election when Congress meets Jan. 6 to count Electoral College votes.
The vice president will preside over that joint session, and Trump and some of his Republican congressional allies are leaning heavily on Pence to change the outcome of the Nov. 3 election won by Democrat Joe Biden, but legal experts Neal Katyal and John Monsky wrote a New York Times column explaining that his authority in that process is fairly limited.
"Nothing in either the text of the Constitution or the Electoral Count Act gives the vice president any substantive powers," the pair wrote. "His powers are ministerial, and that circumscribed role makes general sense: The whole point of an election is to let the people decide who will rule them. If an incumbent could simply maneuver to keep himself in office — after all, a maneuver to protect Mr. Trump also protects Mr. Pence — the most foundational precept of our government would be gravely undermined. In America, 'we the people,' not 'we, the vice president,' control our destiny."
Article II of the Constitution and the 12th Amendment both say Electoral College votes are to be opened by the president of the Senate, meaning the vice president, and Congress intentionally limited the presiding officer's authority with the Electoral Count Act in 1887 to prevent another chaotic count like the one that followed the 1876 election.
Both Article II of the Constitution and the 12th Amendment say that the votes of the Electoral College are to be opened by the "president of the Senate," meaning the vice president. The Electoral Count Act, passed in 1887 to avoid chaotic counts like the one that followed the 1876 election, adds important details. It provides a detailed timeline to tabulate electoral votes, culminating with the final count to take place on Jan. 6, and it delineates the powers of the vice president.
"They guarded against any pretense he might have to throw out a particular state's votes, saying that the vice president must open 'all certificates and papers purporting to be' electoral votes," Katyal and Monsky wrote. "They further said, in the event of a dispute, both chambers of Congress would have to disagree with a particular state's slate of electoral votes to reject them. And they made it difficult for Congress to disagree, adding measures such as a 'safe harbor' provision and deference to certification by state officials."
All of the president's legal challenges have lost, and the results have been certified by the states and electors have duly cast their ballots, so there's nothing Trump or Pence can do to stop their re-election loss under the rules spelled out in the Constitution and the Electoral Count Act.
"[Pence] now stands on the edge of history as he begins his most consequential act of leadership," Katyal and Monsky wrote. "The question for Vice President Pence, as well as other members of Congress, is which side of history he wants to come down on. Can he show the integrity demonstrated by every previous presidential administration? The American people accept a graceful loser, but a sore loser never goes down well in the history books."
"Like all those that have come before him, [Pence] should count the votes as they have been certified and do everything he can to oppose those who would do otherwise," they added. "This is no time for anyone to be a bystander — our Republic is on the line."