U.S. Rep. Louie Gohmert (R-Tyler) and the Republican slate of “electors” from Arizona have sued Vice President Mike Pence over his largely ceremonial role in the counting of electoral votes on January 6. The suit seeks to have provisions of the Electoral Count Act declared unconstitutional and have the judge determine that Pence has sole authority to decide which electors’ votes will be counted.
The case was filed in the Eastern District of Texas (PDF) and assigned to U.S. District Judge Jeremy Kernodle, an appointee of President Trump. The venue is appropriate, the plaintiffs assert, because Gohmert is a Texas congressman. All other plaintiffs are from Arizona. It is unclear why this case was not filed there since it essentially revolves around Arizona’s electoral votes.
Specifically, the suit argues that the Twelfth Amendment “contains the exclusive dispute resolution mechanisms” to settle competing slates of electors and provides that the Vice President “determines which slate of electors’ votes count” for any state.
The Twelfth Amendment provides that “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.” That is all it says about the Vice President’s role. The suit argues that the Twelfth Amendment gives Pence “exclusive authority and sole discretion to open and permit the counting of electoral votes for a given state” and any provisions of the Electoral Count Act conflicting with that exclusive authority are unconstitutional. The Electoral Count Act (3 U.S.C. §15) essentially requires Pence to open the envelopes, hand them off to be counted by “two tellers” each from the House and Senate, and then announce the results.
The practical result sought by the plaintiffs is this. Pence declines to open the certificates from several states Trump lost, denying Vice President-elect Joe Biden a majority of electoral votes. Assuming he does not count the competing slate of “electors” from those states, the election would be thrown to the U.S. House of Representatives, where each state’s delegation gets one vote. Republicans have a majority in 27 state delegations, presumably enough to secure Trump’ second term. Further, the plaintiffs assert, the Twelfth Amendment does not provide any “mechanism for judicial review of the Presiding Officer’s determinations.”
Obviously, if the sitting Vice President has sole authority to determine which electoral votes count for a state, then one political party could hold near-perpetual power over the presidency, and thus the vice presidency, regardless of the actual results of an election in any state. In other words, the will of the voters could be subverted by the will of the Vice President, and that decision could not be appealed, and that was the framers’ intent all along.
The desire to have a court recognize this unilateral power of Vice President to decide a presidential election is itself moored to continued, unsubstantiated claims of massive voter fraud that somehow caused Trump to lose these states, and their electoral votes, to Biden. Conveniently, the plaintiffs argue they need not prove these claims – only that the outcome in each state is contested and the Twelfth Amendment provides the sole mechanism for deciding the contests. With Pence as the defendant, the parties can agree on factual, legal and procedural issues that have derailed every other effort to overturn the lawful election results of several states. “The facts are not in dispute,” claims the lawsuit. “It is appropriate for this Court to grant this relief in a summary proceeding without an evidentiary hearing or discovery.”
Except the facts are in dispute, predominantly by the losing side. No credible evidence of “massive multi-state electoral fraud committed on Biden’s behalf that changed electoral results in Arizona and other states” has been presented, let alone proven. Dozens of lawsuits filed to overturn the election results in those states have been dismissed, most with prejudice, even by judges appointed by Trump. At least one such judge held an evidentiary hearing to give Wisconsin plaintiffs the opportunity to demonstrate how that state’s election administration deviated so far from Wisconsin law as to trigger claims that the wrong slate of electors was certified. Trump’s attorneys have “not shown a significant departure from the Wisconsin legislature’s chosen election scheme,” wrote U.S. District Judge Brett Ludwig (PDF), a Trump appointee. “In his reply brief, plaintiff ‘asks that the Rule of Law be followed.’ It has been.”
Turning back to Gohmert’s lawsuit, the facts surrounding one of two exhibits filed to support the lawsuit should be disputed. The plaintiffs claim that the Arizona Legislature passed a joint resolution invoking its authority to appoint its own slate of electors, namely the plaintiffs. The truth is, the Arizona Legislature adjourned sine die on May 26, has not met since the election and will not convene again until January. Thus, it could not have passed this or any other resolution. Instead, a group of Republican lawmakers, well short of a majority of either house, signed onto a document being presented as a joint resolution passed by the Legislature. This document has no effect.
Fundamentally, this suit, like dozens before it, seeks to overturn the lawful, certified election results of multiple states over unproven claims of fraud in order to keep the incumbent president in office. Like most if not all suits before it, this one asserts the presence of massive, election-altering fraud but casts it as an agreed upon fact, begging the judge to focus just on “only issues of law.” It seeks a legal resolution to the scope of the Vice President’s powers over the counting of electoral votes with the intention that the incumbent Vice President would use these unilateral powers to overturn a presidential election on the basis of unproven allegations of fraud.
Washington, D.C.-based attorney Lawrence Joseph is a signatory to the suit. He was the outside attorney hired by Atty. Gen. Ken Paxton to assist his effort to get the U.S. Supreme Court to overturn other states’ elections on the basis that their interpretations of their own laws disenfranchised Texas voters, the remedy for which must be the disenfranchisement of their voters. Dallas attorney William Sessions is also among the five attorneys serving as counsel to the plaintiffs. According to the State Bar of Texas, his practice areas include business, commercial, oil and gas, construction and securities law and arbitration.
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