President Donald Trump tweeted out today, “The Vice President has the power to reject fraudulently chosen electors.”
Vice President Mike Pence does not have the power to reject electoral votes. This is an argument that must be based on a penumbra because it can be found nowhere in the text of the Constitution.
The 12th Amendment reads, “The President of the Senate (the Vice President) shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.”
Notice the word “shall” mentioned twice, that’s important.
Just as the role of Congress is largely ministerial when certifying the Electoral College vote (unless no candidate has a majority), so is the role of the Vice President.
Can you imagine if then Vice President Al Gore rejected Florida’s electoral college votes in 2000 claiming the vote count in that state was fraudulent? Could you imagine the backlash if then Vice President Joe Biden rejected electoral college votes in an attempt to deny Trump his victory in 2016?
The same people pushing this argument now would be screaming bloody murder and rightfully so.
Vice President Pence does not appear to believe he has this power. He sought the rejection of a lawsuit by U.S. Rep. Louie Gohmert, R-Texas, that attempted to expand Pence’s power to overturn the election.
Fortunately, that lawsuit was rejected by an appellate court based on Gohmert’s lack of standing to sue.
Some look at what then Vice President Richard Nixon did in the aftermath of losing the 1960 presidential election to then U.S. Senator John F. Kennedy of Massachusetts. Unlike the popular vote margin, the Electoral College margin wasn’t close. Kennedy had a 100 vote lead. Initially, Nixon was thought to have won Hawaii, but after a recount, it was determined that Kennedy won. The state sent two slates of electors – Republican and Democrat.
Roll Call reports that Nixon resolved the conflict against himself, according to State University of New York professor James A. Gardner said in a webinar organized by the New York State Bar Association.
“He asked for unanimous consent that the votes of the Democratic electors would count,” Gardner said.
Not exactly the model that President Trump wants to be followed. Also, there is the question of whether alternate electoral votes are legally certified in the state something that is required by the Electoral Count Act. Unless there was a full vote by a state’s legislature to accept those alternates, likely not.