Pence sued by GOP congressman over competing electors

Erik Larson
Bloomberg

A Republican congressman from Texas sued Vice President Mike Pence in the latest long-shot effort to reverse President-elect Joe Biden’s victory over Donald Trump.

In the lawsuit, Representative Louie Gohmert seeks a court order forcing the vice president to acknowledge what Gohmert claims is Pence’s power to disregard states’ chosen Democratic electors and instead select competing slates of GOP electors on Jan. 6.

Rep. Louie Gohmert, R-Texas, votes in the impeachment against President Donald Trump during a House Judiciary Committee meeting, Friday, Dec. 13, 2019, on Capitol Hill in Washington.

That’s the day the Senate and House meet jointly to open and count certificates of electoral votes from the 50 states and the District of Columbia. The vice president has the constitutional role of presiding over the Senate, which has traditionally included overseeing the formal acceptance of the Electoral College vote.

“The Constitution expressly designates defendant Pence as the individual who decides which set of electoral votes, or neither, to count,” Gohmert said in the suit, filed Sunday in federal court in Texas.

The vice president’s office didn’t immediately respond to an email seeking comment on the suit.

Vice President Mike Pence speaks during the Turning Point USA Student Action Summit, Tuesday, Dec. 22, 2020, in West Palm Beach, Fla.

The complaint is the latest in a series of grievance-fueled lawsuits attempting to undo the Nov. 3 presidential contest, in which Biden beat Trump by more than seven million votes, based on unsubstantiated claims of rampant voter fraud committed by Democrats. Almost all the suits have been dismissed due to a lack of evidence, including by judges appointed by Trump.

Gohmert argues that the vice president should be able to pick competing slates of electors chosen by Republican-led state legislatures in Arizona, Georgia, Michigan, Pennsylvania and Wisconsin “as a result of the extraordinary events and substantial evidence of election fraud and other illegal conduct before, during and after the 2020 general election in these states.”

No evidence of such fraud has been provided, and longtime Trump ally William Barr, who was U.S. attorney general during the election, has said there was no evidence of voter fraud that could have changed the outcome.

Gohmert’s interpretation of the Constitution would create a conflict of interest by allowing a vice president to essentially declare himself or herself the winner, said Edward Foley, a professor and director of an election-law program at Ohio State University who has studied disputed elections.

“I would think the court would dismiss it quickly because the idea that the vice president can control the counting of a state’s electoral votes is inconsistent with the intent of the relevant constitutional provisions,” Foley said in an interview. “That kind of self-serving power is not what was in mind” when the Constitution was drafted.

Gohmert, a lawyer, former judge and staunch Trump supporter, is joined in the lawsuit by Arizona’s slate of GOP presidential electors. They argue that rules requiring the vice president to rubber-stamp the states’ chosen electors under the Electoral Count Act, which is based on each state’s popular vote, violate the 12th Amendment of the Constitution.

According to the complaint, the amendment contains “exclusive dispute resolution mechanisms” that allow the vice president to decide “which slate of electors’ votes shall be counted” or “if none be counted.”

The case is Gohmert v. Pence, 20-cv-00660, U.S. District Court, Eastern District of Texas (Tyler).