In Last Minute Challenge, Some Republicans Argue Pence Can Ignore States' Electors

Rep. Louie Gohmert, R-Texas (right) speaks during a Dec. 3 news conference on Capitol Hill. Gohmert and other Republicans have filed suit to give Vice President Pence authority to count the votes of alternate electors.

By Matthew S. Schwartz

January 01, 2021

Updated January 02, 2021

With just days until Congress is scheduled to formalize the results of the 2020 presidential election, legal challenges to former Vice President Joe Biden's win are still coming in.

The January certification of states' electoral votes, overseen by the vice president, is usually seen as a formality. But a lawsuit filed last week by Rep. Louie Gohmert, R-Texas, seeks to upend the process.

In some key battleground states, groups of Republicans have baselessly declared themselves to be "alternate electors," claiming to represent the true wishes of the voters. Gohmert and the other plaintiffs — including a group of self-proclaimed electors from Arizona — argue that when confronted with competing slates of electors, the Constitution gives Vice President Mike Pence the power to choose which electors to certify.

The legal challenge reflects the longstanding refusal of certain Republicans to acknowledge Biden's victory, is widely seen as a long shot.

In their suit, which names the vice president as the defendant, the Republican plaintiffs argue that a 19th century law spelling out how Congress should handle the count is unconstitutional, because it directs Pence to tally the electoral votes as they've been reported by the states.

These Republicans argue that the 12th Amendment gives Pence, not the states, sole discretion to determine which among competing slates of electors may be counted.

But in response, Pence told the court that he was the wrong person to sue. The Republicans' beef isn't with the vice president, he said, but with Congress.

"Plaintiffs object to the Senate and the House of Representatives asserting a role for themselves in determining which electoral votes may be counted — a role that these plaintiffs assert is constitutionally vested in the Vice President," Pence's attorneys wrote Thursday. "Indeed, as a matter of logic, it is those bodies against whom plaintiffs' requested relief must run."

House lawyers have also asked for the suit to be dismissed, calling it a "radical departure from our constitutional procedures," and saying the proposed remedy would "authorize the Vice President to ignore the will of the Nation's voters."

Gohmert's crew pushed back Friday, criticizing the vice president for hiding behind procedural arguments, instead of dealing with the meat of the issue. Pence can conduct the Jan. 6 proceeding as he pleases, they argue, ignoring electors if he sees fit; he's not simply a "glorified envelope-opener in chief," they wrote.

Election law experts reject this position. "The Gohmert reply is breathtaking & preposterous," Ned Foley, director of the election law program at the Ohio State University, said on Twitter. "The Constitution never intended this monarchical power to disenfranchise Electoral College votes based on personal whim."

Gohmert wrote that because of "convincing evidence of voter fraud," he and 140 Republicans in the House plan to object to the counting of electors that states certified for President-elect Biden. Sen. Josh Hawley, R-Mo., has also said he will object.

But the objections are virtually guaranteed to fail, since they require a majority in both chambers.

Every court to examine the issue has found there was no compelling evidence of fraud in the presidential election.