â€œIf the rules that have been in place and understood since 1887 are fairly applied and tradition followed, there is no possibility of any vote being discounted and certainly not enough to change the election,â€ said Stephen Siegel, a legal historian who has spent years studying the electoral vote count.
In writing the rules for tallying the votes, Congress intentionally minimized the vice presidentâ€™s power because of conflict-of-interest concerns. Pence cannot just call the shots or â€œdo what Trump seems to be asking,â€ said Edward B. Foley, who leads Ohio State Universityâ€™s election law program.
With Democrats in control of the House and Senate Majority Leader Mitch McConnell (R-Ky.) acknowledging Bidenâ€™s victory and discouraging debate over the electoral count, there are not enough votes in either chamber to change the outcome.
Sen. Ted Cruz (R-Tex.), who has led a coalition of 10 other senators and pushed for an audit of the results, plans to object to certification of electors from Arizona, according to a person familiar with the plans. Sen. Josh Hawley of Missouri has vowed to contest results in Pennsylvania. And Sen. Kelly Loeffler, on the ballot in Georgiaâ€™s runoff, plans to object to the outcome from her state.
Wednesdayâ€™s gambit could stretch on for hours, upending what has been a largely ceremonial process that has in recent decades lasted all of 24 minutes, according to a report from the Congressional Research Service.
Members of Congress have previously tried to raise objections, but never on such a large scale. Procedurally, objections must be submitted in writing and signed by one senator and one member of the House. The two chambers then debate separately for up to two hours before voting on the objection and reporting back to the joint session. That process would be repeated for successive objections to other statesâ€™ counts.
After the contested 2000 election, then-Vice President Al Gore presided over the declaration of his own defeat. He turned away objections to electoral votes submitted by Florida because they were signed only by a member of the House without support from a senator.
In 2005, several Democrats tried unsuccessfully to challenge Ohioâ€™s electoral votes for George W. Bush.
None of the objections being contemplated this year are â€œappropriate under the letter or spirit of the statute,â€ said Foley, an election law expert. â€œCongress doesnâ€™t go and second- guess a state when thereâ€™s a single, official submission from a state.â€
Some conservative Republicans have echoed that view in breaking with Trump and emphasizing that Congress has no authority to reject state-certified votes.
â€œThere are only two things I am permitted to do under the Constitution: ensure the electors are properly certified and count the electoral votes, even when I disagree with the outcome,â€ Sen. James M. Inhofe (R-Okla.) said in a statement Tuesday. â€œTo challenge a stateâ€™s certification, given how specific the Constitution is, would be a violation of my oath of office.â€
Penceâ€™s constitutional duty is outlined in the 12th Amendment, which says the vice president â€œshall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.â€
In practice, that means Pence will open sealed envelopes of certified electoral votes from the 50 states and the District before handing the documents to lawmakers named as â€œtellersâ€ who then tally the vote.
The Constitution makes the vice president â€œthe custodian of the ballotâ€ and after that, his role is mainly ministerial, Siegel explained.
A long-shot lawsuit from Rep. Louie Gohmert (R-Tex.), one of the presidentâ€™s most vocal allies in the House, tried to give Pence more power in the process. But last week a judge nominated by Trump quickly dismissed the case that argued Pence has the authority to invalidate Biden electors in certain states.
The Justice Department, representing Pence, urged the court to toss the lawsuit. Pence seemed to acknowledge his limited role in a statement over the weekend even as he voiced concerns about unproved voter fraud and seemed to encourage the attempt to nullify millions of Americansâ€™ votes.
â€œThe vice president welcomes the efforts of members of the House and Senate to use the authority they have under the law to raise objections and bring forward evidence before the Congress and the American people on January 6th,â€ said Penceâ€™s Chief of Staff Marc Short.
The timing of the joint session, beginning at 1 p.m., and the rules for any debate are all spelled out in statute. One of the goals of the Electoral College Act of 1887 was to prevent the vice president from having any influence on the outcome.
The law makes clear that Congress should defer to the stateâ€™s electoral process and court review, Siegel said, and serve as a backstop only when there are clear and major irregularities, not trivial mistakes and differences of opinion about legal requirements.
Seung Min Kim contributed to this report.