The electoral college meets in mid-December to cast their votes, and all of these electoral votes are then ultimately counted by Congress on January 6th. The Vice President, as President of the Senate, presides over the joint session of Congress to count votes. The Twelfth Amendment provides this straight-forward instruction: "The president of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted; The person having the greatest number of votes for President shall be the President…" The Vice President has only a ministerial role, opening the envelopes and ensuring that the votes are counted. Likewise, the Electoral Count Act of 1887 provides no substantive role for the Vice President in counting votes, reinforcing that he or she can only act in a ministerial fashion—the Vice President may not choose, for example, to decline to count particular votes. In most cases (e.g., when one candidate has a majority of votes submitted by the States) Congress has only a ministerial role, as well. It simply counts electoral college votes provided by each State's governor. Congress is not a court and cannot overrule State and Federal court rulings in election challenges.
As January 6th approached, John Eastman and others devised a plan whereby Vice President Pence would, as the presiding officer, declare that certain electoral votes from certain States could not be counted at the joint session.[148] John Eastman knew before proposing this plan that it was not legal. Indeed, in a pre-election document discussing Congress’s counting of electoral votes, Dr. Eastman specifically disagreed with a colleague's proposed argument that the Vice President had the power to choose which envelopes to "open" and which votes to "count." Dr. Eastman wrote:
I don't agree with this. The 12th Amendment only says that the President of the Senate opens the ballots in the joint session then, in the passive voice, that the votes shall then be counted. 3 USC §12 [of the Electoral Count Act] says merely that he is the presiding officer, and then it spells out specific procedures, presumptions, and default rules for which slates will be counted. Nowhere does it suggest that the president of the Senate gets to make the determination on his own. §15 [of the Electoral Count Act] doesn't either.[149]
Despite recognizing prior to the 2020 election that the Vice President had no power to refuse to count certain electoral votes, Eastman nevertheless drafted memoranda two months later proposing that Pence could do
