Rep. Louie Gohmert (R-Texas) and President Donald Trump’s defeated electors from Arizona may force Vice President Mike Pence to publicly pick a side in Trump’s bid to overturn his 2020 election loss.
Gohmert and a handful of the would-be electors sued Pence in federal court on Monday in a long-shot bid to throw out the rules that govern Congress’ counting of electoral votes next week. It’s an effort they hope will permit Pence — who is tasked with leading the Jan. 6 session of the House and Senate — to simply ignore President-elect Joe Biden’s electors and count Trump’s losing slates instead.
The lawsuit asserts that the 1887 law known as the Electoral Count Act, the vague statute that has long governed the electoral vote counting process with minimal drama, unconstitutionally binds Pence from exercising total authority to choose which votes to count.
“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 contends.
The lawsuit comes before Judge Jeremy Kernodle, a Trump appointee to the U.S. District Court for the Eastern District of Texas. It’s unclear if he’ll grant the request for an expedited judgment.
Though the lawsuit itself is unlikely to gain legal traction, it does put Pence in the position of having to either contest the suit — putting him on the opposite side of Trump and his GOP defenders — or support it and lay bare the intention to subvert the will over the voters in the 2020 election.
Pence has engaged with GOP lawmakers seeking to reverse the election results but has avoided publicly taking a side in the matter, and he has given no indication how he intends to handle his role presiding over the Jan. 6 session of Congress set to certify Biden’s victory.
Though Biden was the certified winner in states like Arizona, Pennsylvania, Michigan and others, the Republicans who would have been Trump’s electors met anyway and purported to cast their votes for Trump’s reelection. They’re counting on Pence and congressional Republicans to treat those informal votes as equal to the slates certified in those states where Trump was defeated.
Pence, the suit contends, may only be guided by constitutional provisions and may exercise “sole discretion in determining which electoral votes to count for a given State, and must ignore and may not rely on any provisions of the Electoral Count Act that would limit his exclusive authority.”
Gohmert indicates in the suit that he will be one of the House Republicans who intend to challenge Biden’s electors from key states. Dozens of other House Republicans intend to follow suit, and at least one incoming GOP senator — Tommy Tuberville of Alabama — has signaled he’s likely to join them. It’s unclear if other GOP senators will as well.
Senate Majority Leader Mitch McConnell has worked to dissuade his caucus from participating in the challenges, and the second-ranking GOP leader, Sen. John Thune (R-S.D.), drew a fierce attack from Trump after he told reporters that any challenges to the results were doomed to fail.
Under the rules Gohmert is challenging, all it takes is a single member of each branch to challenge electors from multiple states to force a vote on the matter. But any challenge is likely to fail under the expected rules. The Democrat-led House will vote to uphold Biden’s win, and numerous GOP senators have indicated they do not intend to support Trump’s efforts.
Throwing out those rules, per Gohmert, would allow Pence to decide which electors to consider in the first place, raising the specter that he could simply choose to count Trump’s slate.
Trump allies have repeatedly pointed to Pence’s role at the center of the Electoral College certification process as a reason to take hope that the election results could still be reversed. Trump even amplified one such theory last week, retweeting a suggestion that Pence could intervene in the transmission of electoral votes to the National Archives.
At least earlier this month, Pence was planning to oversee Biden’s victory and then try to escape Trump’s ire by heading abroad for what might be his final diplomatic trip in office. If Pence ultimately opts out of participating in the session, Sen. Chuck Grassley (R-Iowa), the Senate president pro tem, would likely preside.