Vice President Mike Pence has asked a federal judge to throw out a lawsuit brought against him by Republicans seeking to empower him to overturn the results of the 2020 presidential election.
The suit, brought by Rep. Louie Gohmert (R-Texas) and 11 Arizonans who would have been electors for President Donald Trump, was aimed at throwing out the rules of a Jan. 6 session of Congress — with Pence presiding — intended to certify President-elect Joe Biden’s victory.
Gohmert’s suit contends that the rules Congress has followed for more than a century are unconstitutional because they override the vice president’s power to unilaterally decide which electoral votes to count. Trump allies have urged Pence to assert control and refuse to introduce Biden’s electors in key states that handed him the presidency.
But Pence, in a 14-page filing brought by Justice Department attorneys, said the suit shouldn’t be aimed at him, since he is who Gohmert is trying to empower.
“A suit to establish that the Vice President has discretion over the count, filed against the Vice President, is a walking legal contradiction,” Pence’s brief said.
U.S. District Court Judge Jeremy Kernodle, a Trump appointee, has not scheduled a hearing in the case.
Gohmert’s suit, filed Sunday, contends that the Electoral Count Act of 1887 — a law prompted by the disputed presidential election of 1876 — is unconstitutional because of the structure it imposes on the process of receiving electoral votes from each state.
Under the Electoral Count Act procedures, the vice president — presiding over the chamber — opens each state’s set of electors alphabetically. The law also sets out a process by which lawmakers can challenge sets of electors, triggering debates and votes by the House and Senate.
In the case of the 2020 election, Gohmert is among dozens of House GOP lawmakers who intend to object to Biden’s victory, alleging baseless claims of fraud. But those challenges appear doomed in a House controlled by Democrats and the closely divided Senate, where a slew of Republicans say there’s no evidence to reverse Biden’s win.
Gohmert is calling for the courts to throw out the rules altogether, which would leave the vague language of the Twelfth Amendment as the only guide to the process. Under that language, Pence would be the ultimate decider of which electoral votes to introduce to Congress.
House General Counsel Doug Letter filed a formal appearance in the case Thursday afternoon and the Pence brief says the House is expected to file “numerous” written arguments defending the statute.
In his brief, Pence points to the House’s intention to file its own objections to Gohmert’s lawsuit as a reason for the court to reject it.
“It would be the Senate and the House of Representatives that are best positioned to defend the Act. Indeed, as a matter of logic, it is those bodies against whom plaintiffs’ requested relief must run,” the Pence filing says.
The Justice Department submission also argues that the suit against Pence is improper for another reason: the Constitution grants broad legal immunity to lawmakers. DOJ lawyers say that sweeping protection extends to Pence’s acts undertaken in an official capacity as president of the Senate.
U.S. District Court Judge Jeremy Kernolde, a Trump appointee who sits in Tyler, Texas, has not scheduled a hearing in the case.