“No He Does Not!” Trends Because, No, Mike Pence Can’t Overturn the Electoral College.

Today the words “NO HE DOES NOT” trended on Twitter thanks to the latest inane, seditious, terrible tweet from soon-to-be-ex-President Donald Trump regarding soon-to-be-ex-Vice President Mike Pence. Trump’s latest attempt to overturn the valid results of an election he super duper lost was to claim that “The Vice President has the power to reject fraudulently chosen electors.” And as Twitter reminded Trump, and everyone … that is not true.

It’s extremely clear, or should be, that Pence does not have this power, but let’s just break down all the ways Donald Trump is wrong here, for funsies. When it comes to the certification of the electoral college vote, according to The New York Times: “The vice president’s role is to be the master of ceremonies rather than arbiter of the outcome, declaring the winner based on who has the most electoral votes.”

The certification of the electoral votes in Congress is a ceremony more than anything, but it will have the legal weight of affirming and finalizing Joe Biden’s win in the election. Pence’s role is to open up the two mahogany boxes containing the electoral votes, count them, and certify the results. If this all sounds old fashioned, it is, because this is a procedure still in place from a time when we had no phones or even telegrams. This is what we did when electoral votes were delivered by horse, and for some reason, we still do it.

All of this comes from the 12th amendment which states in part 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.” There’s nothing in there about fraud. The electoral college procedures were updated in the electoral college act of 1887, codified at 3 United States Code, Chapter 1. This law was passed after a contested election in 1876, when some states sent alternate electors, exactly what Trump is hoping for and won’t succeed with.

Under that Electoral College Act, yes, members of Congress can object to a particular state’s results. That halts proceeding … but only for two hours. That’s it. After those two hours, Congress votes up or down to certify the votes. Although there are members who are threatening to object to this, they thankfully don’t have the votes to overturn the democratic will of the American people. But they and Trump are sure as heck gonna try.

But there’s nothing, absolutely nothing, that will allow Mike Pence to overturn the election.

Pence is going to have a very unpleasant day tomorrow, but he has no real power to do anything. His job is to count the votes, and Donald Trump is pressuring him not to. That’s horrifying. If he refuses or fails to certify the results for some reason, he’ll be in violation of the Constitution.

But no matter what, Donald Trump’s presidency ends at noon on January 20th. If for some reason Pence and Trump manage to delay things until then, Nancy Pelosi will become acting President and will be able to certify the results for Biden as per the 20th amendment. Let’s hope it doesn’t come to that, but … in these unprecedented times, who knows.

(via: The New York Times, Image: Win McNamee/Getty Images)

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Jessica Mason

Jessica Mason (she/her) is a writer based in Portland, Oregon with a focus on fandom, queer representation, and amazing women in film and television. She's a trained lawyer and opera singer as well as a mom and author.

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