Trump falsely claims Pence had right to overturn election

The claim: Proposed changes prove Mike Pence had the power to overturn the 2020 election results

Following Donald Trump’s rally in Texas in which he defended the Jan. 6 Capitol rioters, the former president issued a statement repeating the claim that his vice president, Mike Pence, had the authority to overturn the 2020 election results.

Trump – who has for more than a year falsely claimed that the presidential election was rigged against him – asserts that current bipartisan efforts by lawmakers to change the Electoral Count Act of 1887 prove Pence had the constitutional authority to determine which votes counted.

“If the Vice President 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?” reads a Jan. 30 statement that was shared to Twitter by Trump’s spokesperson, Liz Harrington.

A screenshot of his statement went viral on Facebook, where it was shared by the page American Conservativism in a Jan. 31 post that accumulated more than 800 likes in less than a day with the caption, “That’s right!! Mike Pence failed us.”

“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,” Trump added in his statement. “Unfortunately, he didn’t exercise that power, he could have overturned the election!”

But constitutional law experts say the vice president has no legal authority to overturn the official election results. And the fact that some lawmakers want to amend the language of the Electoral Count Act doesn’t prove otherwise.

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USA TODAY reached out to Harrington and the Facebook page for additional comment.

Vice presidents can’t overturn elections

The 12th Amendment of the Constitution says the vice president, as president of the Senate, is to open envelopes containing Electoral College votes from each state, count the votes and announce the winner. Nothing in the Constitution allows the vice president to change or reject votes, as claimed.

“Any claim that the vice president can unilaterally overturn the results of a presidential election is patently absurd,” Matthew Hall, a professor of constitutional studies and political science at the University of Notre Dame said via email. “If the vice president had total discretion to overturn election results, the party that controls the White House could simply refuse to surrender power when they lose an election. Such an arrangement would completely undermine the integrity of our democratic system.”

The Electoral Count Act of 1887 similarly doesn’t grant the vice president authority to overturn elections. The law lays out the role of Congress in certifying presidential election results and specifies what steps should be taken in the case that there are objections to the results.

Hall said the Electoral Count Act was passed in the wake of the 1876 presidential election to minimize the vice president’s role and ensure the vice president would have “minimal discretion” in determining the validity of Electoral College votes. He added that the Act instead ensures the “primary responsibility for certifying the electoral votes rests with Congress.”

Fact check: How we know the 2020 election results were legitimate, not ‘rigged’ as Donald Trump claims

In a Jan. 6, 2021, letter to Congress, Pence himself rejected Trump’s efforts to overturn the election, writing that the Constitution “constrains me from claiming unilateral authority to determine which electoral votes should be counted and which should not.”

Possible changes to Electoral Count Act

Constitutional law experts note that while the language of the Electoral Count Act is vague, current efforts to amend it don’t prove that Pence had the right to change the presidential election results.

A House panel report prepared by the committee’s Democratic majority on changes to the Electoral Count Act proposes Congress narrows the vice president’s role to a “constitutional minimum” and says the act should clarify that the presiding officer should not have “substantive discretion over counting votes.”

Laurence Tribe, professor of constitutional law emeritus at Harvard Law School, said via email that efforts to re-emphasize the limited role of the vice president “in no way demonstrate that the vice president has more than a largely ceremonial role to play in that capacity.”

In an interview with ABC News, Sen. Susan Collins, R-Maine, who is leading the effort to change the Act, said the law “governs the counting and the certification of the presidential vote,” pointing to Jan. 6 and the need to prevent it from happening again.

“I’m 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 and that we’ll raise the threshold from one House member, one senator, for triggering a challenge to a vote count submitted by the states,” Collins said.

Senate Minority Leader Mitch McConnell and Sen. Mitt Romney, R-Utah, have also said they are open to changes to the Electoral Count Act. In an op-ed published in the Washington Post, election law scholars across the political spectrum called on Congress to rewrite “the outmoded 1887 law that governs the certification of the presidential vote.”

The changes in the act’s language currently being considered would “simply clarify” the widely shared understanding by legal scholars that the vice president’s role in counting electoral votes is “exclusively ministerial,” said John Forren, political science professor and chair of the Department of Justice and Community Studies at Miami University.

Electoral Count Act: What is it, how did it play a role in the 2020 election and Jan. 6, and why are there calls to change it?

“The former president’s assertion … of that power, pointing to a 120-year-old, badly worded statute, just reinforces the need for clarifying revisions to that statute,” Forren said.

Our rating: False

Based on our research, we rate FALSE the claim that proposed changes prove Pence had the power to overturn the 2020 election results. Legal experts say nothing in the 12th Amendment of the Constitution or the Electoral Count Act grant the vice president authority to change or reject votes – a conclusion Pence also came to. The Electoral Count Act was designed to minimize the vice president’s role, and current discussions by lawmakers on potential changes to the act are to prevent confusion and further clarify that the vice president does not have the authority to overturn the results of an election, experts say.

Trump falsely claims Pence had right to overturn election

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