Why Pence can't block certification of Biden's victory on January 6

Unfortunately for Trump, legal experts say Pence has absolutely no authority, constitutional or otherwise, to prevent ratification of the electoral college votes. The Constitution states that Pence “shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.” The “shall” in the provision is an imperative command, unambiguously requiring the act be completed, making Pence’s role merely ceremonial.

“The 12th Amendment merely designates the President of the Senate (the VP) to ‘open all the certificates.’ But then uses the passive voice: ‘the votes shall then be counted.’ Implicitly, Congress does the counting,” Fordham law professor and legal historian Jed Shugerman clarified on Twitter.

Similarly, the Electoral Count Act of 1887—which describes the process for counting Electoral College votes—stipulates that Pence open “all the certificates and papers purporting to be certificates of the electoral votes, which certificates and papers shall be opened, presented, and acted upon in the alphabetical order of the States.”

“Note that the president of the Senate (the VP) has no special role in resolving any dispute,” Shugerman wrote, also noting that slates of electors can only be overridden if “BOTH Houses ‘concurrently reject’ that slate.”