Fact Check: Can Pence Send Votes Back to States for 'Correction' as Trump Says?

Congress will convene on January 6 to officially count the electoral votes for the 2020 presidential election, certifying that President-elect Joe Biden won 306 electoral votes to President Donald Trump's 232.

Vice President Mike Pence is expected to preside over the joint session as president of the Senate to open the certificates so they can be counted.

There has been extensive debate about the scope of Pence's role during the joint session. Even though it has been reported by Newsweek that Pence does not have the ability to decide which electoral votes count, there still is the question of whether he can send electoral votes back to the states for "correction."

The Claim

Trump has made several remarks implying that Pence can use his constitutional position as president of the Senate to overturn the results of the election that Biden won.

"I hope that our great vice president comes through for us. He's a great guy," Trump said at a rally in Dalton, Georgia, on Monday according to C-SPAN. "Of course, if he doesn't come through, I won't like him quite as much."

On Tuesday, January 5, Trump tweeted that "The Vice President has the power to reject fraudulently chosen electors."

The Vice President has the power to reject fraudulently chosen electors.

— Donald J. Trump (@realDonaldTrump) January 5, 2021

On Wednesday, January 6, Trump echoed those hopes on Twitter.

States want to correct their votes, which they now know were based on irregularities and fraud, plus corrupt process never received legislative approval. All Mike Pence has to do is send them back to the States, AND WE WIN. Do it Mike, this is a time for extreme courage!

— Donald J. Trump (@realDonaldTrump) January 6, 2021

A lawsuit brought by Representative Louie Gohmert (R-Texas) and a number of would-be electors from Arizona against Pence also claimed that the vice president had the ability to choose which electoral votes count. According to USA Today, that lawsuit was dismissed by a federal judge.

The Facts

The New York Times reported on January 5 that Pence told Trump he did not believe that he had the ability to block the certification of Biden's electoral votes.

In response to the Times' story, Trump released a statement on his campaign website the same day.

"The New York Times report regarding comments Vice President Pence supposedly made to me today is fake news. He never said that. The Vice President and I are in total agreement that the Vice President has the power to act," the statement said in part.

"Our Vice President has several options under the U.S. Constitution. He can decertify the results or send them back to the states for change and certification. He can also decertify the illegal and corrupt results and send them to the House of Representatives for the one vote for one state tabulation."

Laurence Tribe, a constitutional law professor at Harvard Law School, explained the scope of Pence's role presiding over the joint session in an email to Newsweek.

"Vice President Pence has no power whatsoever to send electoral slates back for recounting or 'correction' or to accept alternative slates or to do anything other than preside ceremonially over the joint session of Congress," Tribe said. "Any notion that he can change the result is sheer fantasy and has no basis in law or history."

George Washington University J.B. and Maurice C. Shapiro Professor of Public Interest Law Jonathan Turley agreed.

"Vice President Pence does not have the authority under the Constitution to unilaterally 'send back' electoral votes for corrective action. Moreover, such unilateral authority is directly rebutted under the Electoral Count Act," Turley said in an email to Newsweek.

Vice President Pence does not have the authority under the Constitution to unilaterally 'send back' electoral votes for corrective action.
Jonathan Turley, George Washington University J.B. and Maurice C. Shapiro Professor of Public Interest Law

"For roughly 150 years, Congress has proceeded with the understanding that it can challenge electoral votes. The claim of unilateral authority of the Vice President would run counter to both constitutional and statutory language. It would allow a Vice President to effectively negate election. It would be an invitation to tyranny to bestow such unchecked authority in a single person."

Though Pence does not have the unilateral power to block the certification of Biden's electoral votes, he has promised to hear any objections that come up during the joint session.

"I know we all—we all got our doubts about the last election. And I want to assure you, I share the concerns of millions of Americans about voting irregularities," Pence said at a rally in Georgia on Monday. "And I promise you, come this Wednesday, we'll have our day in Congress. We'll hear the objections. We'll hear the evidence."

According to Reuters, dozens of Republicans in the House and Senate plan to object to the certification of electoral votes.

As I read the Constitution, there is no constitutionally viable means for the Congress to overturn an election wherein the states have certified and sent their Electors.
Tim Scott, Senator from South Carolina

NPR reported that objections can be considered only if a member from both the House and Senate submit the objection in writing. Then, members of the House and Senate return to their chambers for up to two hours, following a vote. Upholding the objection requires a majority vote with the House and Senate agreeing to the objection.

Other Republican lawmakers have publicly separated themselves from continuous efforts to overturn the results of the election.

Senator Tim Scott (R-S.C.) issued a statement on Tuesday that said, in part, "The President's legal team exercised its right to access the courts by initiating suits in state and federal courts in numerous states. Some of these lawsuits have even been presided over and adjudicated by conservative judges nominated by President Trump. Thus far, no justice, judge or fact finder has found evidence indicating the election results in those states should be overturned."

"As I read the Constitution, there is no constitutionally viable means for the Congress to overturn an election wherein the states have certified and sent their Electors. Some of my colleagues believe they have found a path, and while our opinions differ, I do not doubt their good intentions to take steps towards stamping out voter fraud. Importantly, I disagree with their method both in principle and in practice. For their theory to work, Nancy Pelosi and House Democrats would have to elect Donald Trump president rather than Joe Biden. That is not going to happen, not today or any other day."

Representative Adam Kinzinger (R-Ill.) has openly acknowledged the constitutionality of Biden's victory in the 2020 presidential election.

Politicians can tell you what you want to hear, or the truth. This is the truth. 1) Biden will be President, 2) no state sent any other electors or asked us to NOT certify, etc. The Constitution must hold now, or it won’t hold at all. https://t.co/2MSH2Aftwe

— Adam Kinzinger (@RepKinzinger) January 6, 2021

The Ruling

False.

Pence does not have the ability to send votes back for "correction." He will preside over the joint session and open the certificates to be counted. Any objections made to the certification of the results of the Electoral College will follow standard procedure.

pence and trump at the white house
President Donald Trump gestures to Vice President Mike Pence on election night in the East Room of the White House on November 4, 2020. Trump has urged Pence to push against the Electoral College votes as he continues to reject the election outcome. Chip Somodevilla/Getty Images