Vice President Mike Pence has the unilateral power to decide the outcome of the 2020 election, according to the latest filing in a lawsuit brought by Rep. Louie Gohmert (R-Texas) and other Republicans mounting a last-ditch bid to overturn the results of the 2020 election.
“Under the Constitution, he has the authority to conduct that proceeding as he sees fit,” Gohmert argues. “He may count elector votes certified by a state’s executive, or he can prefer a competing slate of duly qualified electors. He may ignore all electors from a certain state. That is the power bestowed upon him by the Constitution.”
Gohmert’s new brief contends that the Constitution effectively makes Pence the sole arbiter of which electoral votes to count when he presides over a Jan. 6 session of Congress meant to count electoral votes and certify the 2020 election. The Constitution’s Twelfth Amendment, he says, “unequivocally entrusts to him all the prerogatives and rights to determine what electoral votes to count.”
It’s the latest, and likely last, piece of a desperate effort by President Donald Trump and his allies to cling to power in the face of President-elect Joe Biden’s victory. In his suit, Gohmert indicates he expects more than 140 members of the House to join in challenging Biden’s victory on Jan. 6. He also noted that House GOP leader Kevin McCarthy and GOP Whip Steve Scalise dissented from the House’s legal arguments against Gohmert’s lawsuit.
While Gohmert’s longshot effort would throw out the democratic election results, his lawyers contend that voiding the 130-year-old law that governs how Congress counts electoral votes — and putting all the power in Pence’s hands — is the best way to heal a deeply divided nation.
“By reaffirming the Constitutional prerequisites and processes for deciding the Presidential election and granting the relief requested, this Court can set the stage for a calm and permanent resolution of any and all objections and help smooth the path toward a reliable and peaceful conclusion to the presidential election process,” Gohmert’s attorneys wrote.
Gohmert’s latest submission argues that Pence, through his lawyers, is minimizing and even trivializing his role — relegating himself to a position as a “glorified envelope-opener in chief.”
Although the Twelfth Amendment to the Constitution requires Pence, as vice president, to preside over the Jan. 6 session, his authority is detailed in the Electoral Count Act of 1887. It requires Pence to introduce electors alphabetically by state, and it sets out a process for House members and senators to challenge disputed electors.
Under the Electoral Count Act, that challenge would be resolved by separate votes of the House and Senate — and in the case of the 2020 election, those challenges would effectively be doomed. The Democratic House majority would certainly oppose them and the closely divided Senate includes a slew of Republicans who have acknowledged that Biden is the unequivocal winner of the contest.
If Pence refused to accept enough electoral votes to put either candidate over the 270-vote threshold, Gohmert posits in his lawsuit, the election would be thrown to the House under a process also laid out in the Twelfth Amendment, which gives state delegations a single vote. That formulation would favor Republicans, who are in the House minority but control more state delegations than Democrats.
Pence on Thursday urged the court to reject Gohmert’s suit against him, arguing that his fight is with the House and Senate, not the vice president, who would be empowered if Gohmert wins. Pence has not indicated his own view of his power as the presiding officer on Jan. 6, and he hasn’t indicated whether he intends to introduce the unofficial elector slates that Trump allies claim to have cast in order to compete with the certified slates submitted in states like Arizona, Michigan, Wisconsin and Georgia.
The House filed its own, more exhaustive brief, dismantling Gohmert’s effort as an unconstitutional and thinly veiled effort to overrule the democratic result of the 2020 election. The framers would never have provided for a process that allowed a sitting vice president — often, as in this case, an actual candidate on the Electoral College ballot — to have unilateral authority to choose which electors to count, the House argued.
Gohmert’s new brief contends Pence is the proper defendant in the case, but also says the congressman could add the United States or House or Senate parliamentarians as defendants if that would clarify Gohmert’s right to relief.
Justice Department attorneys representing Pence contend that Pence is not a proper or logical defendant for Gohmert’s suit and that whatever grievance the congressman has is with the House, the Senate or both.
Gohmert’s effort got additional backup Friday from the Republicans who would have cast electoral votes for Trump had he won Michigan. The group filed a 44-page brief arguing that the current rules for counting electoral votes in Congress should be scrapped so that Pence alone decides the outcome.
U.S. District Court Judge Jeremy Kernodle, a Trump appointee who sits in Tyler, Texas, has not set a hearing on Gohmert’s suit or indicated when the court may rule. But the judge did set a quick timetable for filings in the case, including the unusual New Year’s Day deadline for the congressman’s latest brief.
Gohmert has contended he needs Kernodle to deliver a ruling by Jan. 4 in order to resolve any potential appeals ahead of the Jan. 6 session.
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