Donald Trump seems to believe that Mike Pence can overturn the votes of the Electoral College tomorrow when Congress certifies the results.
Here is Trump last night in Georgia:
And earlier today:
CNN is reporting that Trump and Pence had an unscheduled lunch today.
Is Trump right?
Let’s start with the U.S. Constitution, Article II, Section 1:
The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. 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. The Person having the greatest Number of Votes shall be the President…
The Constitution says that the sitting Vice President does have a role in the certification process. His role is to open the results (presumably in envelopes) sent to him by the states. It is purely ceremonial.
Now let’s move on to the pertinent parts of the 12th Amendment.
The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;-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;-The person having the greatest Number of votes for President, shall be the President…
The 12th amendment requires electors to cast one electoral vote for president and one electoral vote for vice president. This was necessary after Thomas Jefferson and his VP running mate Aaron Burr both received the same number of electoral votes in the president election of 1800. Learn more about what happened here. Notice that the language related to the Vice President’s role in opening the certified votes does not change with the 12th Amendment. His job is to open envelopes. It is a role that is purely ceremonial.
The final document of note is the Electoral Count Act of 1887. This act was passed ten years after the controversial presidential election of 1876. It clarifies the role of the vice-president in the certification of the Electoral College votes. Here is the pertinent part of the act as codified in 3 U.S. Code 15:
Congress shall be in session on the sixth day of January succeeding every meeting of the electors. The Senate and House of Representatives shall meet in the Hall of the House of Representatives at the hour of 1 o’clock in the afternoon on that day, and the President of the Senate shall be their presiding officer. Two tellers shall be previously appointed on the part of the Senate and two on the part of the House of Representatives, to whom shall be handed, as they are opened by the President of the Senate, all the certificates and papers purporting to be certificates of the electoral votes, which certificates and papers shall be opened, presented, and acted upon in the alphabetical order of the States, beginning with the letter A; and said tellers, having then read the same in the presence and hearing of the two Houses, shall make a list of the votes as they shall appear from the said certificates; and the votes having been ascertained and counted according to the rules in this subchapter provided, the result of the same shall be delivered to the President of the Senate, who shall thereupon announce the state of the vote, which announcement shall be deemed a sufficient declaration of the persons, if any, elected President and Vice President of the United States, and, together with a list of the votes, be entered on the Journals of the two Houses.
Here is Joe Biden doing his ceremonial duty on January 6, 2017:
Here is Al Gore certifying the election of George W. Bush. Very awkward, but necessary:
The rest of the Electoral Count Act explains the entire process of dealing with objections. The Vice President’s only role in dealing with objections (which several members of the House and Senate, including Josh Hawley and Ted Cruz will bring) is to “call” for written objections.
In the end, there is nothing Pence can do to change the election results at tomorrow’s certification ceremony. It may take some time because of the objections, but Congress will certify the election of Joe Biden and Kamala Harris and Biden will be inaugurated on January 20.
ADDENDUM (8:37pm): Apparently Pence is going to do the right thing.