Rather than take the extreme route of bypassing the Electoral Count Act altogether, constitutional scholars say lawmakers could use the opportunity to clarify and add onto existing processes in order to stave off uncertainty stoked by Trump’s hardline allies. That could include restricting Pence’s power to make sweeping procedural rulings or setting criteria that prevent him from introducing alternate slates of presidential electors in states won by Biden, a gambit some Trump allies have urged him to attempt.
‘What counts as a purported slate of electors from a state? Under what circumstances is a vice president allowed to present a potential slate of electors to the joint session? What types of objections are and aren’t in order?” said Michael Morley, a Florida State University election and constitutional law expert. These questions, he said, could all be clarified by Congress if they choose to supplement the Electoral Count Act rules with procedures that respond to the clear efforts of the president’s allies.
The alternate slates of Trump electors carry no legal force. But the language of the Electoral Count Act indicates that Congress must consider any documents “purporting to be certificates of the electoral votes.” Multiple constitutional experts said in interviews that Congress could help define the boundaries of what are considered legitimate electoral votes — such as those endorsed by a governor, state legislature or other state authority — and prevent the Trump votes from being read into the joint session.