Vice President 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 Trump allies hoping they can find a way around the law to get Pence to actually award the election to President Trump.
Rep. Louis Gohmert (R-Tex.) 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 facing the vice president on Jan. 6.
First, what happens on Jan 6 and what Pence’s role is
When Congress meets to confirm Joe Biden won the election, Vice President Pence has an administrative role. (AP Photo/Lynne Sladky)
Under federal election law, states send their electoral college vote totals to Congress to be counted and confirmed. It’s the 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, 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/night Jan. 6.
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 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.
What Pence’s options are to challenge the votes
Congress meets in a joint session. (Nikki Kahn/The Washington Post)
Pence does has some authority, said Meredith McGehee, an expert in ethics in politics and the director of Issue One: “A presiding officer has one main power, 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 it would get 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 receive an immediate challenge from Democrats in Congress, who would likely have support from Republican leaders in the Senate. (Sen. John Thune (R-S.D.) ‚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 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.
The lawsuit 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.
How the Trump administration responds for Pence will broadcast publicly whether he’s 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?
No matter what he thinks, unless the courts actually throw out a 150-year-old law, Pence will be relegated to an administrative role. Even if the law is overthrown, some experts think lawmakers would have to change the Constitution to give Pence more power in this process.
Basically, any attempt by Pence on Jan. 6 to assert more authority than simply reading out loud vote tallies would be illegal and almost certainly land him in court. And the law would not be on his side.
By Amber Phillips
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