An analysis by two prominent law professors published before the election concluded that if Electoral College votes remain in dispute after they are counted in Congress, the vice president, as presiding officer of the joint session, could choose not to allow certain disputed votes.
The scenario isn’t entirely remote, with lawsuits challenging the results in six states and the possibility the U.S. Supreme Court could weigh in.
John Yoo of California-Berkeley and Robert J. Delahunty of St. Thomas University wrote in an analysis published Oct. 19 by the Claremont Institute that Vice President Mike Pence can refuse to count some of the votes if they remain disputed.
The professors concluded that the “constitutional structure” favors President Trump if Election Day “fails to result in a clear winner.”
They cited the “unprecedented” circumstance of the COVID-19 pandemic on the election and envisioned a scenario in which “Trump appears to be the winner on the morning after Election Day, but a ‘blue wave’ begins in the days and weeks after, and Biden claims a belated, overtime victory.”
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