Justice Department attorneys representing Vice President Mike Pence requested the dismissal of a lawsuit filed by GOP backers of President Donald Trump—including Rep. Louie Gohmert, R-Texas—because it was suing the wrong person.
“A suit to establish that the Vice President has discretion over the count, filed against the Vice President, is a walking legal contradiction,” said the response to US District Judge Jeremy Kernodle.
Pence is the only defendant named in the suit, even though it seeks to empower him to recognize rival electors when Congress meets next week to formally count the votes of the Electoral College.
His filing said that Gohmert’s suit should have been against Congress instead.
“The vice president … is ironically the very person whose power they seek to promote,” it said. “The Senate and the House, not the vice president, have legal interests that are sufficiently adverse to plaintiffs.”
The lawsuit argued that Pence, as president of the Senate, had the sole authority under the 12th Amendment to recognize electors.
Several of the GOP legislatures in battleground states where vote fraud is believed to have undermined the results of the election plan to send rival Trump-backing electors on Jan. 6, despite official results certifying the outcome for Democrat Joe Biden.
Congress has customarily followed the Electoral Count Act, an 1887 law, established in the aftermath of another vote fraud scandal, which sought to grant states more influence in negotiating elector disputes.
But the plaintiffs argue that the law itself is unconstitutional since it contradicts the process outlined by the 12th Amendment.
They filed suit against Pence after he declined to back the challenge in order to compel him to do so.
Gohmert also is among more than two dozen members of Congress who plan to object, forcing debate on the House and Senate floors and a likely vote over the issue.
Trump’s legal team has signaled that it would like to present specific evidence of vote fraud before Congress, as it has done several times before state legislatures, including a recent hearing before the Georgia Senate.