Constitution does not allow Mike Pence to reject electoral votes

When Congress meets to formally count the votes from the Electoral College Jan. 6, President Donald Trump has said Vice President Mike Pence can turn a loss into a win.

Typically, in a joint session of Congress, the vice president opens the envelopes from each state containing the results that determine which candidate got that state’s electoral votes. These results, in the form of official certificates, have been signed and sealed. The vice president opens each one, hands them to four members from the House and Senate who read the results out loud, and at the end, the vice president announces the final tally.

As many as 140 House members and over a dozen senators have said they will challenge some of the state results. Trump tweeted that Pence himself could do that.

"The Vice President has the power to reject fraudulently chosen electors," Trump tweeted Jan. 5

We asked the White House press office for the legal basis of that claim and did not hear back. Many scholars say there’s nothing in the Constitution or legislation that gives the vice president the power Trump claims.

Trump’s statement focuses on Pence’s ability to sway the outcome. This is separate from what we know to be the ability of members of Congress to challenge the results. If at least one senator and one representative object to the results from a given state, both chambers vote to sustain or reject the complaint. Only if both chambers sustain the complaint are the results thrown out.

When it comes to counting the votes, the 12th Amendment says, "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."

To Hofstra University law professor Richard Neumann — and many of his colleagues — the meaning of those words is plain.

"The Constitution gives a vice president, as president of the Senate, only one role, which is to open envelopes," Neumann said. "The vice president’s constitutional duty to open envelopes is ministerial."

Neumann said the law offers no exceptions. The vice president must open every packet of results.

The next relevant law comes from the Electoral Control Act of 1887. That’s the law that guides the process on Jan. 6. It, too, undercuts Trump’s tweet.

"Nothing in the statute gives a vice president a role in deciding disputes," Neumann said.

Under that law, resolving disputes falls to members of Congress. And while the vice president is the president of the Senate, that doesn’t make that person a senator. The Constitution defines the vice president as an officer of the executive branch.

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Law professor Ilya Somin at George Mason University said there’s a good reason the law doesn’t give Pence any say over which electoral votes are valid, and which are not.

"If he did, he would have an obvious conflict of interest anytime he is himself a candidate for president or VP — as is the case this year, actually," Somin said.

A federal judge threw out a suit that aimed to give Pence the power to reject electoral votes. The Justice Department also argued against it. That, however, was based on the standing of the plaintiffs, not the merits of the case itself. 

Some legal analysts say that states retain full control over elections, and not even Congress can interfere with the outcome.

"Neither the vice president nor Congress has the power to reject electoral votes," wrote Alan Charles Raul and Richard Bernstein in the Wall Street Journal. Raul is former associate counsel to President Ronald Reagan and Bernstein is a retired appellate attorney.

"The 12th Amendment vests no power in the vice president or Congress to judge who won a state’s electoral votes when the authorized branches of the state’s government agree, as they do here, on which electors won," they wrote Jan. 3. "The word ‘counted’ provides no basis for anyone to override anything. When a person counts the number of games his favorite team has won, that person has no power to alchemize losses into wins."

The U.S. Supreme Court has not ruled directly on the question of the vice president’s role in the Electoral College count, but in 2020 it did affirm the power of the states over presidential elections in a case involving "faithless electors" — those who wanted to vote for the candidate of their choice. 

"Their ‘faithless elector’ ruling rests on the assumption that states have near-total control over the selection of their electors," Somin said.

Trump focused on "fraudulently chosen electors." If there were evidence of massive fraud on a scale that would flip the results, there might be legal grounds for Congress to act. But in lawsuit after lawsuit, no judge has found any evidence to back up that allegation.

In explaining why he would vote to affirm the Electoral College results, Sen. Ben Sasse, R-Neb., cited a Trump-appointed judge who threw out a challenge in Pennsylvania.

"Calling an election unfair does not make it so. Charges require specific allegations and then proof. We have neither here," Sasse wrote Dec. 31.

But again, this would only grant Congress the power to do something. Not the vice president.

Trump said, "The Vice President has the power to reject fraudulently chosen electors."

His office provided no legal basis for that assertion, and multiple legal scholars have said that no law gives the vice president any role beyond reading the results from the states.

Based on the text of the Constitution, existing law and prevailing scholarship, we rate this claim False.

RELATED: Counting the votes Jan. 6: What you need to know

CORRECTION, Jan. 6, noon: In a group email exchange with Hofstra University law professors Eric Freedman and Richard Neumann, we thought Freedman was sharing his own thoughts when in fact he was passing on the thoughts of Neumann. We wrongly attributed comments to Freedman that should have been attributed to Neumann. The story has been corrected.