But Pence doesn’t have the power to change the will of the voters, no matter what his boss said.
Pence is supposed to serve as the presiding officer when Congress meets Wednesday to confirm the electoral college’s results. Pence will almost certainly have to declare Biden the winner as his boss refuses to concede. Here are the limited options the vice president will have.
First, what happens Wednesday
Under federal election law, states send their electoral college vote totals to Congress to be counted and confirmed. It will be the final confirmation that Biden won — after this, all that’s left is to inaugurate him. The process is largely a formality, as 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 and 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, a director 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.
Pence’s options to challenge the votes
Pence does have some authority, said Meredith McGehee, an expert in ethics in politics and the director of the group Issue One. “A presiding officer has one main power,” she said, “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 would be 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 a Trump ally went to court last week trying to get rid of said law). And it would prompt an immediate challenge from Democrats in Congress, who would probably have support from Republican leaders in the Senate. (Sen. John Thune of South Dakota‚ 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 probably 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 political pressure from Trump and others could factor in
It puts Pence in a difficult, perhaps lose-lose political situation: upset his boss and any voters he might need if he wants to run for president in 2024, or do something illegal.
Trump and some of his congressional allies continue to claim that Pence can do something to change the results.
Here’s Trump in a tweet Tuesday, inaccurately claiming Pence has the authority to choose or not choose electors. (That’s Congress’s job, as we explained above.)
Last week, Rep. Louis Gohmert (R-Tex.) sued in federal court to get rid of the Electoral Count Act and make Pence legally able to choose whatever sets of electors he wants. A federal judge in Texas, a Trump appointee, threw it out immediately.
On Wednesday, Pence will almost certainly be relegated to an administrative role. Any attempt by him to assert more authority than simply reading vote tallies aloud would probably land him in court. But Trump is increasingly signaling that Pence playing by the rules will land him in hot water with the president.
This has been updated with the latest news.