“The person having the greatest number of votes shall be the president,” the amendment goes on, unless there is a tie or nobody has secured a majority, in which case the House decides.
The job has occasionally been unpleasant for vice presidents. In 1961, the state of Hawaii sent two slates of electors and the vice president, Richard M. Nixon, who had just lost the election to John F. Kennedy, moved to count the Democratic electors, which expanded his own margin of defeat. Forty years later, Al Gore was in a similar spot, burdened with overruling objections from his fellow Democrats and declaring the victory of George W. Bush — and his own defeat — after a drawn-out Florida recount that was ended by the Supreme Court. And in 2017, Mr. Biden, then the vice president, had to reject a Democratic challenge to Mr. Trump’s victory.
But no matter how distasteful it is, J. Michael Luttig, a former judge for the United States Court of Appeals and leading conservative legal scholar, said that Mr. Pence had no choice but to simply count the votes.
“No president and no vice president would — or should — consider either event as a test of political loyalty,” Mr. Luttig said. “And if either did, he would have to understand that political loyalty must yield to constitutional obligation.”
Members of Congress can object, though their bids this time are expected to fail.
Under the Electoral Count Act of 1887, which was passed after the contested election of 1876 in which several states sent rival sets of electors, it is up to Congress to settle any disputes about state certifications.
If at least one member of the House and Senate raises an objection about a state’s results, it must be considered, immediately halting the joint session so members can return to their respective chambers and debate the challenge for up to two hours. Then a vote — decided by a simple majority — is held to determine whether to throw out that state’s results. That has not occurred since the Reconstruction Era, and with Democrats controlling the House and many Senate Republicans opposed, it will almost certainly fail.
Still, Republicans plan to force at least three such votes, perhaps more. Representative Mo Brooks of Alabama has said he will move to contest the results from as many as six states; three Republican senators — Josh Hawley of Missouri, Ted Cruz of Texas and Kelly Loeffler of Georgia — plan to back at least one of those. Dozens of House members and 11 senators have said they plan to vote against certifying Mr. Biden’s victory. Given that Mr. Trump and his supporters have contested the results in several states that Mr. Biden won — including Arizona, Georgia, Michigan, Nevada, Pennsylvania and Wisconsin — there could be as much as 12 hours of debate on Wednesday, and a half-dozen votes.