- The Washington Times - Monday, December 28, 2020

A group of Republicans led by Rep. Louie Gohmert on Monday sued Vice President Mike Pence in an unusual gambit aimed at overturning President-elect Joseph R. Biden’s election victory next week.

The lawsuit says Mr. Pence has the “exclusive authority” to decide which electors should be counted when Congress meets Jan. 6 to finalize the results of last month’s presidential election.

The certification is a largely procedural issue overseen by the sitting vice president under an arcane law from 1887 known as the Electoral Count Act.

That will put Mr. Pence in the uncomfortable role of announcing a Biden victory.
Mr. Gohmert, Texas Republican, argued in the lawsuit that Mr. Pence’s role in overseeing the election certification gives him the authority to decide which electors are chosen. He says Mr. Pence can select the Republican electors, who support President Trump in five states where the election results were contested.

Those five states have 73 electoral votes, more than enough to hand a victory to Mr. Trump.

“Under the Twelfth Amendment, defendant Pence alone has the exclusive authority and sole discretion to open and permit the counting of electoral votes or a given state and when 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 should be counted,” the lawsuit says.

A representative for Mr. Pence declined to comment.

The lawsuit maintains that the election results are undecided in Arizona, Georgia, Michigan, Pennsylvania and Wisconsin. However, Mr. Biden’s decisive wins in those states have already been certified.

Nonetheless, Mr. Gohmert argues that Mr. Pence has the authority to select a competing set of electors sent by those states’ Republican legislatures.

The lawsuit asks U.S. District Judge Jeremy Kernodle, a Trump appointee in Texas, to grant Mr. Pence the “sole discretion” to decide which electors to choose.

Joining Mr. Gohmert in the lawsuit are Arizona Republican Party Chairwoman Kelli Ward, Arizona Republican Party Director Greg Safsten and Students for Trump.

A slew of law professors criticized the lawsuit on Twitter.

“The idea that the vice president has the sole authority to determine whether or not to count electoral votes submitted by a state or which competing submissions to count, is inconsistent with a proper understanding of the Constitution,” wrote Edward Foley, a professor at Ohio State University.

Mr. Foley predicted that the court would never decide the case on the merits because the plaintiffs don’t have the legal standing to bring the lawsuit.

• Jeff Mordock can be reached at jmordock@washingtontimes.com.

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