Fact Check: No, the Vice President Cannot Overturn an Election

Donald Trump repeats a claim that has already been debunked.

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In a January 30 statement, Donald Trump claimed that the recent bipartisan effort to amend the Electoral Count Act of 1887 is evidence that former Vice President Mike Pence had the power to overturn the results of the 2020 presidential election. 

This is a false claim. 

In Trump’s words: “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? 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!”

First, some context on the Electoral Count Act of 1887, which we noted in a previous fact check details the process of counting electoral votes in Congress and does not grant the vice president the power to overturn the results of an election. 

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  1. Avatar photo
    Ben Connelly

    This would have a good opportunity to refer to a recent AO episode where David and Sarah explore this question.

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  2. Avatar photo
    Bill Nelson

    “… a law wherein they can override the popular election results if they don't like them…”
    Not what is being done. And no, it would not be constitutional. Recall Huey Long.

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    Mike B

    It should be obvious on its face that the VP can't just decide to toss out votes. But apparently any reform of the ECA is going to have to explicitly declare that "no provision of this act shall be construed to give the Vice President the authority to, on his or her own initiative, rule which votes to count and which votes not to count."

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    1. Mack

      And I think I can tell you what will happen. A group of senators and congressmen will try to object to the votes and then say that the Vice President is not now “acting on his or her own initiative,” but rather making a parliamentary ruling in response to the objection. They will defend this move by saying that the law doesn’t say they can’t do it.

      You can never write a law so perfectly that some person cannot deliberately misinterpret all or part of it. Hence John Adams’ comment that our Constitution is only suited to a moral and religious people.

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  4. Jack Le Moine

    This fact check missed the point. If the VP has the power to open envelopes and there are two competing envelopes for a particular state, then does it not logically follow that the VP can choose which envelope to open?

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  5. James Angelichio

    Steve and David interviewed Rob Portman and let him assert that Pence may have had the right to overturn the election. Are you going to fact check them? Don’t you guys talk over there?

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    Phil H

    This was always nuts. The 12th Amendment itself does not delegate to the Vice President the authority to count the votes. The Electoral Count Act (one of the few details it is clear on) designate the tellers -- 2 from the House and 2 from the Senate. Nothing in the ECA gives the Vice-President authority to do anything but preside over the joint session where the votes are counted.

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    Victor Clairmont

    It’s one of the major reasons why it’s so asinine that people believe we were close to losing our democracy from a legal perspective.

    The certification happened in December, Jan 6th was a formality and believing that any Vice a president could overturn two centuries of law just like that is cool aid for idiots.

    Just like Trump is an idiot for pushing this and he is being a troll, as well as a reckless fool.

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      Phil H

      We were close to chaos. Had Mike Pence "ruled" any electoral votes as invalid and declared Trump the winner, it would have caused an uproar in the joint session. Since Pence himself was the presiding officer, it is impossible to say whether the joint session would have been orderly adjourned, whether expelling Pence or a rump session without Pence would have been attempted -- or some other possibility I haven't thought of. But the legal, Constitutional outcome would have been left in doubt.

      Maybe -- maybe -- the Supreme Court would have been called in to settle the matter. or maybe the chaos would last until at least January 20. Maybe -- the Secret Service -- or the military -- would have ousted Trump from the White House. Maybe Trumpist members of either or both would try to retain Tump.

      We don't know what would have happened. Thank God, we never got to that point.

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        Show Jay Janney the 🚪!

        Whether you like Pence or not, I felt he did the right thing here, and made life easier for the USA.

        I do support clarifying the act, to lessen the likelihood of something happening in the future. What if the next time it happens the Veep was the one running for POTUS, and thus had an incentive to misbehave?

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          Phil H

          Several VPs have presided over their own lost elections. Al Gore (he of the heavily contested razor thin loss in Florida) was the most recent one. I almost think a sitting VP on a Presidential ticket should recuse himself in favor of the pro tempore. But either way, the ECA needs reform.

          As for Pence, it concerns me that he had to call Dan Quayle to stiffen his resolve, that he even considered doing what Trump asked.

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            Show Jay Janney the 🚪!

            I actually didn't have a problem with his asking Quayle for advice. without knowing what they said (I'm guessing "okay, I'll let the foursome play through, what's up in DC?"), I'd bet Pence opposed it, and asked Quayle his take on it (Quayle also had to preside over his own defeat).

            Clarifying it is probably best, although look for Schumer to try to toss $1 trillion in to build back better election reforms.

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    James King

    Good god, what happened to my GOP. Today's censure vote did it for me. The party is lost. I'm with Jonah, WE NEED A NEW PARTY!!

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    1. Avatar photo
      Bill Nelson

      In case you have not followed the consensus from Dispatch staff, the parties are empty vessels and serve no function.

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    2. John G. Blanchard

      What is the power this moron has over so many people? This is so frickin idiotic.

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        Greenknight

        He gives his followers a license to hate people.

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          Ted Gale

          You know, I think you've hit on it . . . exactly . . . hate is an enticing drug, and, human nature being what it is, there are many who are willing to indulge . . .

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    BrettH

    Thanks Khaya, it's a head-shaker that this is still being discussed at all.

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      Bill Nelson

      Agreed. It was a non-crisis. The only telling detail is that Trump believed it.

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  10. Avatar photo
    DougAz

    Arizona Republican House speaker effectively dooms GOP bill to allow state legislature to reject election results

    https://www.cnn.com/2022/02/03/politics/arizona-bill-reject-election-results-effectively-blocked/index.html

    A decent Arizona Republican thwarts the Grand Old Putin Party Communists in Phoenix

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