News and Commentary

Judge Tosses Lawsuit That Argued Mike Pence Could Name Valid Electoral College Votes

   DailyWire.com
Representative Louie Gohmert, a Republican from Texas, speaks during a news conference with members of the Freedom Caucus outside the U.S. Capitol in Washington, D.C., U.S., on Thursday, Dec. 3, 2020.
Stefani Reynolds/Bloomberg via Getty Images

A federal judge on Friday tossed out a lawsuit filed by several Republicans alleging Vice President Mike Pence had the “sole discretion” to name valid electoral college votes.

Rep. Louie Gohmert (R-TX) led the lawsuit along with several Arizona Republicans as part of a last-ditch effort to keep President Donald Trump in the White House. U.S. District Judge Jeremy Kernodle — who was appointed by Trump — said in his ruling that Gohmert and the others who filed the lawsuit lacked standing. Gohmert and his fellow plaintiffs have already appealed the decision to the Fifth Circuit Court of Appeals.

As The Daily Wire’s Tim Pearce previously reported, Gohmert argued “that the Electoral Count Act of 1887 violates the 12th Amendment of the U.S. Constitution.” The lawsuit argued 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,” The Daily Wire reported.

“[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 stated.

“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,” it continued.

Prominent Republicans such as Senate Majority Leader Mitch McConnell (R-KY) and second-ranking Republican John Thune of South Dakota each suggested other members of the GOP stop supporting legal challenges to the 2020 election.

Gohmert’s lawsuit always faced major obstacles. Ohio State University law professor Edward Foley told The Hill after it was filed that it would probably be thrown out for lack of standing and that Judge Kernodle wouldn’t even address the merits of the case.

“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,” Foley said at the time.

“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,” he added.

As Pearce noted, 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.”

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