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Nothing in the 12th Amendment, or any other provision of the Constitution, gives Congress the right to decide whether any of the ballots submitted are fraudulent or otherwise invalid.

The only role assigned to Congress under the 12th Amendment is to be “present” when the votes are counted and for the House of Representatives to have a vote of its members to choose the President if no candidate receives “a majority of the whole number of electors appointed.”

Congress unconstitutionally assumed the power to resolve disputes over the validity of the ballots submitted by Presidential electors when it enacted the Electoral Count Act (the “ECA”).The ECA is unconstitutional.

A sitting member of the House at the time (Louie Gohmert) filed a lawsuit making this exact argument after the 2020 election. The federal district court threw out the case on the grounds that a House member does not have standing to raise this claim, NOT on the grounds that the claim is meritless. The 5th circuit court of appeals affirmed the ruling that Gohmert did not have standing, but specifically said it expressed no view on the merits of the lawsuit.

If a sitting member of the House doesn’t have standing to raise this issue, who does? You know who would have almost certainly had standing? VP Pence! Pence should have filed the exact lawsuit Gohmert did if he was truly uncertain about his authority. Pence could have taken his case all the way to the Supreme Court. Had the court ruled against Pence, he could have defended his decision on the basis of the court’s ruling. Instead of doing that, Pence wimped out.

The recent amendments to the ECA are not any less unconstitutional than the original ECA was. Again, nothing in the Constitution grants Congress the authority to resolve disputes about the validity of the Presidential electors’ ballots.