President Donald Trump claimed Tuesday that Vice President Mike Pence could single-handedly reject certain electors during Congress' Electoral College certification process, turning up the pressure on him to help overturn the results of the 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 Wednesday, as detailed by the 12th Amendment. But he can't intervene in the process.
The law governing the certification process, the Electoral Count Act of 1887, specifically limits the power of the president of the Senate precisely because a president of the Senate had intervened in the count previously. In 1857, after James Buchanan's win, the Senate president overruled an objection against Wisconsin electors who had been delayed in their certification process by a snowstorm 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," said former Federal Election Commission Chairman Trevor Potter, president of the Campaign Legal Center.
The Electoral Count Act, Potter said, offers a detailed playbook for how Congress' counting is supposed to go, and it specifically limits the vice president to ceremonial duties.
"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, a Republican, was general counsel for both of Sen. John McCain's presidential campaigns.
Trump and his supporters have spent months trying to cast doubt on and overturn the results of the election. Biden, who won the Electoral College vote by 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 plaintiffs' theory "lies somewhere between a willful misreading of the Constitution and fantasy," a judge ruled Monday, denying the motion.
Trump has also rallied Republican members to object to the certification in Congress even though the effort is certainly doomed to fail — both chambers must agree to toss out a state's slate of electors, and Democrats control the House.
Potter said that if Pence did try to 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," Potter said. "No one ever intended the vice president to be the kingmaker."
