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The Trump administration seemed to be of the view that if they could show that a state had suffered electoral fraud, the Vice President or the Attorney General could simply demand that those states submit alternate slates of electoral college voters - and ones sympathetic to the incumbent president.

This would seem to me to be of unlikely validity as a constitutional procedure.

So in circumstances where there really was clear evidence of fraud having taken place on a scale that had affected the result, what would have been the correct procedure for the Vice President to have followed, before confirming the result?

In 2000, I recall the Supreme Court ordered the counting of the Florida votes to cease - thereby awarding the White House to Bush. So had Trump had a genuine case for saying the result e.g of the Geogia ballots were fraudulent, should the matter have gone to the Supreme Court?

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The Vice President opens the votes that have been submitted, reads the contents and then asks for any objections which must be in writing from at least one Senator and one Representative. If there is a valid objection Congress retires to its own chambers to seperately consider the objection, if both chambers agree to uphold the objection then the votes are not included in the count.

Note the VP has very little power himself and if the objections are upheld there is no procedure for an alternative slate to be counted. (There is a slightly different process if two slates have been submitted.)

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  • Umm, interesting. I'm wondering if @Quantum Walnut has seen this and what they think about it.
    – WS2
    Commented Jul 2, 2022 at 13:29
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If my understanding is correct, the Vice President's expected behavior is to do nothing. His or her role is merely ceremonial and not interventionist.

If there is indeed irregularity, the legal dispute would have to be resolved in court as in 2000. Presumably, the paintiff would be citizens while the defendent would be the election authority.

Assuming that the election rule is clearly written before the election. The court would have to determine whether the rule is accurately followed. If rule was not followed, then the remedy would have to be established by law prior the election as well.

In the case of the 2020 election, the Trump allies did try to contest it in court to little success, each subsequent argument was quickly turned down by lower-court judges due to lack of evidence. Only then did Trump allies turn to pretty outlandish strategies of appointing alternate electors or expecting Vice President to overturn the election. They've lost when they couldn't get past the court, the rest is just noise.

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  • The jurisdiction for resolving contested votes is held by Congress, see my answer. The VPs role is certainly limited but definitely not ceremonial.
    – deep64blue
    Commented Jul 2, 2022 at 13:43
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    @deep64blue That's like saying the power of appointing the UK Prime Minsiter is with the Queen of UK - it's technically true on paper, but it's just a formality. Congress gets to resolve contested vote on paper, but it's just a formality in 2022. Even if there is genuine voting irregularity, it would still be a profund breach of democratic norm for Congress to intervene, the outcome is unlikely to be accepted by the public. That's why during 2000 all focus was on the Supreme Court and not on Congress.
    – QuantumWalnut
    Commented Jul 2, 2022 at 13:57
  • @deep64blue To clarify. The democratic norm of United States - as in unwritten, small-c "constitution" - has evolved such that disputes over presidnetial election is to be resolved in court. If Congress intervenes, it is doubtful that the resulting President would carry legitimacy in the public eye, which would be a pyric victory.
    – QuantumWalnut
    Commented Jul 2, 2022 at 14:06
  • I think this answer could be improved by clarifying "election" - states electing Electoral College members is different than the College electing the President and Vice President. The distinction seems to be causing confusion.
    – Joel Harmon
    Commented Jul 2, 2022 at 17:34
  • @QuantumWalnut you are entitled to your opinion obviously but I profoundly disagree with your interpretation, you should reread the Bush v Gore judgement as it doesn't support your perspective at all.
    – deep64blue
    Commented Jul 5, 2022 at 10:52

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