A group of Republicans are suing Vice President Mike Pence and asking a Texas judge to grant him the authority to name which electors are able to vote in the Electoral College for President of the United States.
Texas Rep. Louie Gohmert is leading the legal challenge, submitted to U.S. District Judge Jeremy Kernodle in Texas, a Trump-appointee, arguing that the Electoral Count Act of 1887 violates the 12th Amendment of the U.S. Constitution. The plaintiffs’ attorneys in the case assert that Pence has authority under the Constitution to reject and approve electors in the case that two or more competing sets of electors submit votes for the Electoral College.
“[P]rovisions of Section 15 of the Electoral Count Act are unconstitutional insofar as they establish procedures for determining which of two or more competing slates of Presidential Electors for a given State are to be counted in the Electoral College, or how objections to a proffered slate are adjudicated, that violate the Twelfth Amendment,” the lawsuit states.
“This violation occurs because the Electoral Count Act directs the Defendant, Vice President Michael R. Pence, in his capacity as President of the Senate and Presiding Officer over the January 6, 2021 Joint Session of Congress: (1) to count the electoral votes for a State that have been appointed in violation of the Electors Clause; (2) limits or eliminates his exclusive authority and sole discretion under the Twelfth Amendment to determine which slates of electors for a State, or neither, may be counted; and (3) replaces the Twelfth Amendment’s dispute resolution procedure – under which the House of Representatives has sole authority to choose the President,” the filing continues.
The case has already met with some pushback within the ranks of the GOP. Rep. Denver Riggleman of Virginia reacted to news of the lawsuit on Twitter writing, “This is NUTS.” Meanwhile, Senate Majority Leader Mitch McConnell (R-KY) and second-ranking Republican Sen. John Thune (S.D.) have attempted to convince fellow Republicans not to support legal challenges to the election.
The legal maneuver appears to be a longshot with little chance of success, according to legal experts.
“The idea that the Vice President has sole authority to determine whether or not to count electoral votes submitted by a state, or which of competing submissions to count, is inconsistent with a proper understanding of the Constitution,” Ohio State University law professor Edward Foley said, according to The Hill.
Foley added that Kernodle may not even bother to rule in the case, instead electing to throw it out for lack of standing.
“I’m not at all sure that the court will get to the merits of this lawsuit, given questions about the plaintiffs’ standing to bring this kind of claim, as well as other procedural obstacles,” Foley said.
The vice president’s role in certifying the results of the election, scheduled to take place on Jan. 6, has historically been seen as ceremonial. Democratic presidential candidate Joe Biden secured enough electoral votes on Dec. 14 to win the 2020 presidential election.
“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,” Politico notes. However, the outlet predicts, “any challenge is likely to fail under the expected rules,” with a Democrat-led House and a number of Republicans in the Senate signaling they will not support challenges.
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