Rep. Louie Gohmert, R-Texas, filed a lawsuit against Vice President Mike Pence in an effort to allow Pence to choose Trump-friendly electors when Congress meets next week to certify the winner of the presidential election.
As the president of the Senate, Pence must open the Electoral College’s votes and announce the results during Congress’s joint session.
Gohmert, however, argued there is no constitutional statute preventing Pence from choosing a different slate of electors than the one certified by the states.
“Under the Twelfth Amendment, Defendant Pence alone has the exclusive authority and sole discretion to open and permit the counting of the electoral votes for a given state, and where there are competing slates of electors, or where there is objection to any single slate of electors, to determine which electors’ votes, or whether none, shall be counted,” the suit states.
The GOP legislatures in some battleground states where vote fraud clouded the outcome nominated their own surrogate electors who will submit their votes before Congress on the same day that the Electoral College sends its decision to Congress.
The Constitution does not specifically say what Congress must do if there are two slates of electors, but the Electoral Counting Act allows the House and Senate to settle all electoral disputes. Gohmert’s suit argues that right only belongs to Pence.
House Speaker Nancy Pelosi was on record stating before the election that Democrat Joe Biden would win regardless of whom voters selected.
“I feel very confident that Joe Biden will be elected president on Tuesday, whatever the end count is,” she said at a press conference in October.
Senate Majority Leader Mitch McConnell congratulated Biden on his victory following the Electoral College’s December meeting and warned GOP senators not to contest the outcome because of potential political fallout from inserting themselves into the dispute.
Nonetheless, several senators have indicated that they would support putting the contested results to a floor vote.
The lawsuit contends that existing legislation passed in the wake of the country’s last major election dispute, in 1877, was invalid since it contradicted the constitutional statutes outlined in the 12th Amendment.
“The Electoral Count Act limits or eliminates the Vice President’s ability to determine which electors may be counted,” Arizona GOP chairwoman Kelli Ward, one of the plaintiffs, said in a statement.
“However, plain law cannot contradict a Constitutional Amendment,” she continued, “which is why we are challenging that the statute is unconstitutional and seeking to demonstrate to the American people what the Vice President’s constitutional powers are in this matter.”
Gohmert argued the lawsuit was necessary because of the “rampant fraud and unconstitutional actions that took place” during the presidential election.
“The 2020 presidential election was one we’d expect to see in a banana republic, not the United States of America,” he said in a statement. “This puts Vice President Mike Pence in a position where some argue he has to choose between morality and the law. That is not the case.”