A Texas hardliner is once again leading a post-election rebellion against the future Joe Biden presidency.
Led by Lone Star State Rep. Louie Gohmert, a coalition of outgoing President Donald Trump’s right-wing loyalists asked a federal judge on Sunday to gut a post-Reconstruction era law in order give Vice President Mike Pence the power to determine the winner of the 2020 presidential election on Jan. 6, 2021.
Gohmert’s cohorts include ex-“Kraken” plaintiff Tyler Bowyer and the Arizona Republican Party’s chairwoman Kelli Ward, whose call for Trump to #CrossTheRubicon was widely interpreted as pining for the president to establish dictatorship just like Julius Caesar did.
Through a creative reading of the 12th Amendment, Gohmert’s brigade contends the Constitution empowers Pence to ignore a statute making his work ministerial and select “competing slates of Presidential Electors.” The lawsuit, which was filed against Pence in his official capacity as vice president, is based on outright falsehoods—there are no “competing electors”—and an absurd misreading of federal law that would let the VP unilaterally decide the outcome of his own election.
Trump and his acolytes have called for Pence to block Biden’s victory by rejecting the certificates of votes in states Trump lost. Gohmert and his cohorts take this theory a giant step further, asserting that the Electoral Count Act of 1887 (ECA) violates the Twelfth Amendment by not allowing the VP to count uncertified votes cast by Trump’s slate of “shadow electors.”
According to the lawsuit, the Vice President “may 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.”
It further contends that the Electoral Count Act “limits or eliminates [the Vice President’s] exclusive authority and sole discretion under the Twelfth Amendment to determine which slates of electors for a State, or neither, may be counted.”
These assertions are simply false. The election results in every U.S. state have already been certified and the Electoral College votes for Biden have already been cast. There is absolutely no constitutional provision allowing for states to have “competing” or “alternate” slates of electors. The “votes” those groups sent to Congress do not have any legal authority.
As Law&Crime explained in a previous post, the Twelfth Amendment only dictates that the VP, as president of the Senate, “open all the certificates” and nothing more.
In fact, the Electoral Count Act, which describes the process for counting Electoral College votes, was specifically enacted to “drain away as much power as possible from the Senate President,” according to DePaul University Law School professor Stephen A. Siegel, who specializes in legal history and constitutional law.
“With the opening of the votes, the Senate President has reached the end of his constitutional role in the presidential election process,” he wrote.
The complaint further seeks an injunction prohibiting enforcement of any ECA provision limiting Pence’s “exclusive authority and his sole discretion to determine which of two or more competing slates of electors’ votes are to be counted for President.”
U.S. District Judge Jeremy Kernodle, an appointee of President Donald Trump will preside over the case in the Eastern District of Texas.
UC Irvine law professor Rick Hasen said Gohmert’s legal challenge “won’t work,” while national security attorney Bradley P. Moss called the lawsuit “garbage.”
Read the full complaint below:
[image via PBS News Hour screengrab]
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