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Vice president doesn’t have power to ‘change the outcome’ of elections

February 1, 2022 GMT

CLAIM: Vice President Mike Pence “did have the right to change the outcome” of the 2020 election but chose not to use it.

AP’S ASSESSMENT: False. The vice president has no power to unilaterally “change” or overturn the presidential election results of a state under the Constitution or any law, experts say.

THE FACTS: While former President Donald Trump is no longer directly posting on Twitter or Facebook, a statement he issued on Sunday soon swirled on social media — falsely claiming that his former vice president “did have the right to change the outcome” of the 2020 election.

Trump pointed to a current effort in Congress to amend the Electoral Count Act, a law enacted in 1887 and amended in 1948, as purported proof for his assertion.

“If the Vice President (Mike Pence) had ‘absolutely no right’ to change the Presidential Election results in the Senate, despite fraud and many other irregularities, how come the Democrats and RINO Republicans, like Wacky Susan Collins, are desperately trying to pass legislation that will not allow the Vice President to change the results of the election?” Trump said in his statement. “Actually, what they are saying, is that Mike Pence did have the right to change the outcome, and they now want to take that right away. Unfortunately, he didn’t exercise that power, he could have overturned the Election!”

Some social media users shared the statement with affirmative comments. “That’s right!!” one Facebook post declared. “Mike Pence failed us.”

Trump has long made baseless claims about widespread fraud in the 2020 presidential election that he lost to President Joe Biden. He falsely claimed last year that Pence could simply send the results “back to the States.”

In fact, the role of the vice president in the counting of Electoral College votes is largely ceremonial, The Associated Press has explained.

The Constitution directs the president of the Senate to open the certificates of the election results from the states in the presence of the Senate and House and instructs that the votes “shall then be counted,” said Garrett Epps, a professor of constitutional law at the University of Oregon. He noted that the vice president is not explicitly referenced. However, the vice president serves as president of the Senate; if absent, the senior most senator from the majority party serves in that role.

That language indicates Congress — not just the president of the Senate — is to count the votes, Epps said, and doesn’t afford the vice president any special power to overturn them.

The Electoral Count Act does allow for an objection to a state’s vote in writing if it is signed by a member of the House and a member of the Senate. If there is such a request, then the House and Senate meet in separate sessions to consider it. The objection is only sustained if both chambers agree to it by a simple majority vote. Otherwise, the original electoral votes are counted.

Legislators are indeed in talks to update that law.

Republican Sen. Susan Collins said in an interview on Sunday that she was “hopeful that we can come up with a bipartisan bill that will make very clear that the vice president’s role is simply ministerial, that he has no ability to halt the count.”

Michael McConell, a law professor and director of the Constitutional Law Center at Stanford Law School, said there are some ambiguities within the Electoral Count Act that could be shored up. For example, there is some ambiguity in the language referring to how Congress handles competing slates of electors from a state when the law says only those that are “regularly given” shall be counted, he said.

But none of the ambiguities could be reasonably interpreted as giving the vice president the power to unilaterally overturn an election’s results, said McConell, a former federal appellate judge. He said there was no serious basis for that claim.

In addition to providing more clarity relating to the vice president’s duties, lawmakers are proposing changes to the Electoral Count Act regarding the threshold required for members of Congress to raise objections to a state’s electoral votes, and the grounds for raising such objections.

“To be sure, the efforts now being made to revise the ECA suggest that there is murkiness in the language (especially the use of a passive voice), but it’s not enough ambiguity to support a claim that the VP actually has such a power,” Alex Keyssar, a professor of history and social policy at Harvard University and author of a book on the Electoral College, wrote in an email.

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This is part of AP’s effort to address widely shared misinformation, including work with outside companies and organizations to add factual context to misleading content that is circulating online. Learn more about fact-checking at AP.