Fact Check: Does Mike Pence Have Power to Decide Which Electors' Votes Count?

Representative Louie Gohmert (R-Texas) and a number of electors from Arizona sued Vice President Mike Pence in an effort to undermine the official counting of the 306 electoral votes that President-elect Joe Biden won in the 2020 election.

President Donald Trump and those loyal to him have tried to find multiple routes in the legal system to undermine the election results including filing lawsuits in various states such as Arizona, Pennsylvania, Michigan and Georgia. All of those attempts have failed, leaving Gohmert's lawsuit as Trump's last chance.

We continue to hold out hope that there is a federal judge who understands that the fraud that stole this election will mean the end of our republic. This lawsuit would ensure that the VP can only accept electors legitimately and legally elected. https://t.co/1wenhJrRFY

— Louie Gohmert (@replouiegohmert) December 29, 2020

The Claim

Gohmert's lawsuit is the latest attempt to overturn the results of the 2020 presidential election in which former Biden was deemed the victor.

According to Politico, the lawsuit claims that the Electoral Count Act, which laid out how the electoral vote counting process has worked since 1887, is unconstitutional and that the 12th Amendment gives Pence "exclusive authority and sole discretion to open and permit the counting of the electoral votes for a given state, and where there are competing slates of electors, or where there is objection to any single slate of electors, to determine which electors' votes, or whether none, shall be counted."

If this language is accurate, Pence would be able to decide which electoral votes count and which do not, including the key swing states that led to Biden's victory.

The lawsuit has received support from other Republican lawmakers. Senator Josh Hawley (R-Mo.) declared on December 30 that he will not vote to certify the Electoral College votes when Congress is slated to formally count them on January 6.

Millions of voters concerned about election integrity deserve to be heard. I will object on January 6 on their behalf pic.twitter.com/kTaaPPJGHE

— Josh Hawley (@HawleyMO) December 30, 2020

Representative Mo Brooks (R-Ala.) is supporting Hawley's declaration, claiming that more than 30 congressmen will object to the counting of the electoral votes.

SENATOR JOSH HAWLEY (R-MO) JOINS 30+ CONGRESSMEN IN OBJECTING to electoral college vote submissions from states with such flawed election systems as to render their election results untrustworthy.

BAM! The fight for America’s Republic IS ON!

WATCH JANUARY 6, STARTING 1PM ET. pic.twitter.com/vjcUW9ec6U

— Mo Brooks (@RepMoBrooks) December 30, 2020

Representative Adam Kinzinger (R-Ill.), on the other hand, has criticized Brooks and Hawley for their attempts to overturn the election results.

Brother you’re a friend, but the only thing I’m surrendering to is the Constitution and the will of the people. I’m a fighter, and the Republic needs fighters to defend against descent into chaos. #RestoreOurGOP https://t.co/NWLFOMzSgp

— Adam Kinzinger (@RepKinzinger) December 28, 2020

Internal monologue: “I want to be President so I decided to try to get POTUS tweet saying I’m great even though I know this isn’t going anywhere, but hey... I’ll blame someone else when it fails.” https://t.co/2YuSFZ1RSk

— Adam Kinzinger (@RepKinzinger) December 30, 2020

The Facts

According to The New York Times, electors for the Electoral College are usually legislators, party leaders or donors that are chosen every four years in each state (and Washington, D.C.) by the state's political parties. The electors meet in their individual states on the first Monday after the second Wednesday of December to vote for president and vice president.

Whichever presidential candidate receives 270 of the 538 electoral votes first wins. The amount of electoral votes each state has depends on that state's population but every state gets at least three electoral votes so that smaller states are represented. Biden received 306 electoral votes to Trump's 232.

On January 6, Congress will meet in a joint session to formerly count the votes that the states submitted for the Electoral College. According to NPR, Pence will perform his duty as the president of the Senate and open the certificates, which will be read by appointed tellers from the House and Senate.

The 12th Amendment states that, "The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted; the person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President."

In other words, the Constitution declares that all the vice president does is open the certificates so that the electoral votes can be formally counted.

Wow. This may be the dumbest law suit of all: @replouiegohmert suing @VP Pence to make him declare @realDonaldTrump the 46th POTUS on January 6. Jaw-droppingly stupid. https://t.co/rN8GUKBgGh

— Laurence Tribe (@tribelaw) December 28, 2020

Laurence Tribe, a constitutional law professor at Harvard Law School, spoke with Newsweek by phone about the role of the vice president in the electoral vote certification process.

"The vice president has no power whatsoever in deciding which votes count," Tribe said. "From the beginning of the republic, the Constitution's history has made clear that the vice president's role in this special quadrennial joint session is purely ceremonial. He doesn't have to even truly count the votes. He simply announces the vote count and in announcing it, he has no discretion whatsoever."

"This lawsuit, by Gohmert and others, is ludicrous. It's a completely frivolous suit. It asks for relief that no court could possibly grant without completely crashing the Constitution, so it is a lawsuit that is dead on arrival."

Tribe went on to address the issue of the 12th Amendment mentioned in the lawsuit.

"The 12th Amendment made some changes to Article 2, but none of them changes the role of the vice president," he said. "He presides and opens the certificates, but he is not given any role."

George Washington University J.B. and Maurice C. Shapiro Professor of Public Interest Law Jonathan Turley addressed the issue of the constitutionality of the Electoral Count Act as well as the merit of the lawsuit against Pence.

"The Act is poorly written and contains glaring undefined terms. However, courts generally defer to Congress in the creation of rules governing its deliberations and decisions," Turley said in an email. "The role of the Vice President is hardly 'ceremonial' as has been claimed but it is also not as substantial as this lawsuit claims. The 12th Amendment simply states in pertinent part: 'The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted...'"

"The lawsuit seems designed for more of a cathartic than constitutional purpose. Even if elements of the Act were found unconstitutional [which is unlikely], the court would be expected to sever the offending provisions rather than strike down the entire law. Little would change in terms of the outcome even under that unlikely scenario. The Republicans will challenge the electoral votes [just as Democrats have done in prior elections].

NPR reported that if an objection to the electoral vote count occurs, as multiple Republicans have promised will happen, a member from both the House and Senate must submit that objection in writing for it to be considered. Then, members of the House and Senate go back to their separate chambers for no more than two hours and those members are allotted five minutes to argue for or against the objection. After that, each chamber will vote. Upholding the objection requires a majority vote with both the House and Senate agreeing on the objection.

On December 30, Politico reported that Pence declined to go along with the plan to interfere with the formal counting of electoral votes that was presented by Gohmert and the Arizona would-be electors that sued him. Pence's response to the lawsuit was revealed in a motion to expedite proceedings, but he has not made any public statements regarding the lawsuit or the notion that he could choose which electoral votes to count on January 6.

The Ruling


The Constitution does not give the vice president the power to pick and choose which electoral votes get counted. Pence is authorized only to preside over the proceedings on January 6 and open the certificates to be officially counted. If there are any objections, there is a procedure that will be followed.

Louie Gohmert hydroxychloroquine coronavirus COVID-19
Representative Louie Gohmert (R-Texas) delivers his opening statement during a House Judiciary Committee markup hearing on the articles of impeachment against U.S. President Donald Trump in the Longworth House Office Building on Capitol Hill on December 11, 2019, in Washington, D.C. Gohmert and a number of electors from Arizona have sued Vice President Mike Pence in an effort to undermine the official counting of the 306 electoral votes that President-elect Joe Biden won in the 2020 election. Drew Angerer/Getty