U.S. Rep. Louie Gohmert, R-Texas, sued Vice President Mike Pence in an attempt to challenge the results of some states’ Electoral College votes.
Another attempt is being made by U.S. Rep. Mo Brooks, R-Alabama, who says he and “dozens” of House members plan to challenge some of the Electoral College votes on Jan. 6 when the Joint Session of Congress meets to certify the votes and ratify the president-elect.
Gohmert’s lawsuit filed in U.S. District Court for the Eastern District of Texas, Tyler Division, asks a federal judge to give Pence “exclusive authority” to decide which Electoral College votes should be counted. Eleven others joined the lawsuit, including Republican electors from Arizona.
The lawsuit argues that Section 15 of the 1887 Electoral Count Act, which established 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, violates the Electors Clause and the Twelfth Amendment of the U.S. Constitution.
Section 15 designates the vice president, acting as the president of the Senate and presiding officer of the Joint Session of Congress, to “count the electoral votes for a state that have been appointed in violation of the Electors Clause.”
It also “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 replaces the Twelfth Amendment’s dispute resolution procedure – under which the House of Representatives has sole authority to choose the President,” the complaint states.
“Section 15 of the Electoral Count Act unconstitutionally violates the Electors Clause by usurping the exclusive and plenary authority of State Legislatures to determine the manner of appointing Presidential Electors, and instead gives that authority to the State’s Executive. Similarly, 3 USC § 5 makes clear that the Presidential electors of a state and their appointment by the State Executive shall be conclusive,” the complaint states.
Gohmert is asking the judge to determine if Pence is subject solely to the requirements of the Twelfth Amendment, in his capacity as president of the Senate and presiding officer of the Joint Session of Congress, to on Jan. 6 “exercise the exclusive authority and 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 and his sole discretion to determine the count, which could include votes from the slates of Republican electors from the Contested States,” the complaint states.
Steven Vladeck, professor of law at the University of Texas at Austin School of Law, debunked Gohmert’s lawsuit. One day later, he tweeted, “If the Twelfth Amendment somehow gave the Vice President the power to unilaterally throw out electoral votes for the other guy in favor of their own party (and even themselves), one might think that one of them would’ve noticed by now.”
Neither the White House nor the Vice President’s Office has issued a statement on the lawsuit.
GOP-selected electors cast votes in several states for Trump in which lawsuits alleging election fraud are ongoing. Electoral College votes certified by state governors or other state officials finalized Dec. 14 gave former Vice President Joe Biden 306 votes, and Trump, 232.
Gohmert says he’s joining Rep. Brooks’ challenge. Brooks told Fox News, “There are dozens in the House of Representatives who have reached that conclusion, as I have; we’re going to sponsor and co-sponsor objections to the Electoral College vote returns.”
The objection requires at least one member of the House and one member of the Senate to object in writing on Jan. 6. Next, a two-hour debate would occur, followed by each chamber voting.
Sen.-elect Tommy Tuberville, R-Alabama, indicated he would be open to objecting, Forbes reported. Sen. Ted Cruz, R-Texas, also left the door open, saying he would let the legal process play out. According to Politico, Sen. Rand Paul, R-Kentucky, has also left the door open to challenge the votes.
Senate Majority Whip John Thune, R-South Dakota, says the challenge effort is doomed to fail regardless of who objects. In order to throw out any Electoral College votes, the U.S. Constitution requires a majority vote cast in both the House and the Senate for each of the states’ votes in question. Neither chamber has a majority of votes.
Rep. Adam Kinzinger, R-Illinois, said Brooks’ effort is “a scam.”