“All Pence Can Do Is Count”
One of the more innovative constitutional theories currently advanced by those trying to find a way that President Trump may remain in office is that Vice President Mike Pence has the authority to reject slates of presidential electors from individual states. This theory is advanced in litigation filed by several members of the House against the Vice President and has been circulating on social media. It is wrong.
Texas Rep. Louie Gohmert has argued that the Electoral Count Act of 1887 is unconstitutional. Therefore, he claims, Vice President Mike Pence is empowered by the 12th Amendment to reject 73 Biden-Harris electoral votes from five states when Congress meets to certify the 2020 election results on Jan. 6. A dozen Republican senators and many more House members also argue that Congress has this power. They are all wrong.
Neither the vice president nor Congress has the power to reject electoral votes. This
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