Mike Pence Cannot Block the Certification of Joe Biden’s Victory When the Senate Formally Counts Electoral College Votes on Jan. 6th

President Donald Trump’s quest to overturn the results of the 2020 election have been rejected at every turn, resulting in an unprecedented string of court losses that have left the former “Apprentice” host and his supporters to pursue increasingly impractical efforts to remain in power. Chief among the latest exercises in futility is Trump imploring Vice President Mike Pence to prevent ratification of Joe Biden’s victory when the Senate counts the Electoral College votes next month.

The Electoral College formally selected Biden as the next U.S. President on December 14 when each state’s electors publicly cast their official votes. There is no mechanism for reversing these votes, and on Jan. 6, the House and Senate will meet to count those votes. Under the 12th Amendment, Pence is constitutionally mandated to preside over the joint session of Congress which will accomplish the task.

Trump on Wednesday retweeted a theory from one of his supporters calling for Pence to reject the certificates of votes from Arizona, Georgia, Michigan, Nevada, Pennsylvania, and Wisconsin, falsely claiming those states did not “receive a constitutionally permissible slate of electors.”

Unfortunately for Trump, legal experts say Pence has absolutely no authority, constitutional or otherwise, to prevent ratification of the electoral college votes. The Constitution states that Pence “shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.” The “shall” in the provision is an imperative command, unambiguously requiring the act be completed, making Pence’s role merely ceremonial.

“The 12th Amendment merely designates the President of the Senate (the VP) to ‘open all the certificates.’ But then uses the passive voice: ‘the votes shall then be counted.’ Implicitly, Congress does the counting,” Fordham law professor and legal historian Jed Shugerman clarified on Twitter.

2/ The 12th Amendment merely designates the President of the Senate (the VP) to "open all the certificates." But then uses the passive voice: "the votes shall then be counted."

The Electoral Count Act is more detailed on the count process. — Jed Shugerman (@jedshug) December 25, 2020

Similarly, the Electoral Count Act of 1887—which describes the process for counting Electoral College votes—stipulates that Pence open “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.”

“Note that the president of the Senate (the VP) has no special role in resolving any dispute,” Shugerman wrote, also noting that slates of electors can only be overridden if “BOTH Houses ‘concurrently reject’ that slate.”

“Bottom line: There is no secret legal maneuver left to stop a Biden presidency. Pence & [Mitch] McConnell understand these rules & are in an awkward political position of their own sad making. Any drama before or on Jan 6 will be merely a pathetic show of Trump loyalty/cowardice,” Shugerman concluded.

There is no secret legal maneuver left to stop a Biden presidency.

Pence & McConnell understand these rules & are in an awkward political position of their own sad making.

Any drama before or on Jan 6 will be merely a pathetic show of Trump loyalty/cowardice. — Jed Shugerman (@jedshug) December 25, 2020

Likewise, former Senate historian Donald Ritchie recently told the New York Times that there was simply “not much” Pence could do to help Trump’s efforts.

“His job is really just to read [the votes] out loud,” Ritchie said.

Have a tip we should know? [email protected]