On Sunday, Rep. Louie Gohmert (R-Texas) led a group of Republicans in suing Vice President Mike Pence in order to empower Pence to overturn the Electoral College vote in favor of Joe Biden and give President Donald Trump a second term. Gohmert’s lawsuit asks the court to strike down the 1887 Electoral Count Act as unconstitutional, enabling Pence to select which slate of electors he will count from each state. Some Republicans in contested swing states have formed their own slates of electors and claimed to cast Electoral College votes for Trump.
On January 6, 2021, Pence will meet before Congress to count the Electoral College votes and finalize Joe Biden’s victory in the 2020 presidential election. While there are serious concerns about fraud and irregularities in the presidential election, team Trump’s lawsuits have failed to overturn the results and it seems unlikely further efforts will conclusively prove that Trump won more legitimate votes than Biden in key swing states.
The lawsuit seeks to empower Pence to effectively overturn the election results by selecting alternate slates of electors and counting their votes instead of the votes cast by the state’s official electors based on the states’ certified election results.
In order to enable off this switch, the lawsuit claims that the 1887 Electoral Count Act — which made the vice president’s role largely ceremonial — violates the Twelfth Amendment to the Constitution (ratified in 1804). The amendment merely states that “The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.”
“Under the Twelfth Amendment, Defendant Pence alone has the exclusive authority and sole discretion to open and permit the counting of the electoral votes for a given state, and where 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, shall be counted,” the lawsuit argues.
The Electoral Count Act lays out the process by which Congress shall handle Electoral College disputes, should at least one member of both the House and the Senate contest the results. Gohmert’s lawsuit claims that this dispute resolution process violates the vice president’s authority to choose which set of electors to count.
The lawsuit claims that Pence will violate the Constitution if he follows the Electoral Count Act and therefore the court must explicitly judge the 1887 law unconstitutional, ruling that Pence “may exercise the exclusive authority and sole discretion in determining which electoral votes to count for a given State.” The lawsuit seeks an injunction preventing Pence from following the Electoral Count Act.
The lawsuit also asks for a declaration that “with respect to competing slates of electors from the State of Arizona or other Contested States, or with respect to objection to any single slate of electors, the Twelfth Amendment contains the exclusive dispute resolution mechanisms, namely, that (i) Vice President Pence determines which slate of electors’ votes shall be counted, or if none be counted, for that State and (ii) if no person has a majority, then the House of Representatives (and only the House of Representatives) shall choose the President where ‘the votes [in the House of Representatives] shall be taken by states, the representation from each state having one vote.’”
Gohmert filed the lawsuit on December 27, about a week and a half before the vote count on January 6, in the Eastern District Court of Texas. This lawsuit appears rather desperate, considering the time constraints.
While there are indeed serious concerns about the presidential election and some alternate slates of electors have declared themselves such, those alternate electors have considerably less credibility. If Pence were to choose them, or to choose not to open the electoral votes from certain disputed states, that decision would cause a constitutional crisis.
Republicans should demand election reform and states should investigate irregularities and claims of fraud, but this kind of desperate attempt to declare Trump the true winner of the 2020 election would arguably do more harm than good. While I firmly supported Trump in the 2020 election and while I fear that a Biden presidency will undermine America’s interests in important ways, I fear that a late reversal of the 2020 election in this way would exacerbate political tensions, encourage antifa street violence, and undermine Americans’ faith in elections.
Tyler O’Neil is the author of Making Hate Pay: The Corruption of the Southern Poverty Law Center. Follow him on Twitter at @Tyler2ONeil.