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Republicans sue Pence in a last-ditch effort to overturn the results of the 2020 presidential election

A number of Republicans have banded together to sue Vice President Mike Pence. They are asking a Texas judge to grant him the authority to name which electors are able to vote in the Electoral College for President of the United States in a last-ditch effort to overturn the results of the 2020 presidential election.

Texas Rep. Louie Gohmert (R), a former judge, along with Arizona GOP Chairwoman Kelli Ward and GOP officials, are at the forefront of this legal challenge. He has submitted the case to U.S. District Judge Jeremy Kernodle in Texas, who is a Trump-appointee, arguing that the Electoral Count Act of 1887 violates the 12th Amendment of the U.S. Constitution. The plaintiffs’ attorneys in the case assert that Pence has authority under the Constitution to reject and approve electors in the event that two or more competing sets of electors submit votes for the Electoral College.

“[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 claims.

“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,” the filing states.

The Electoral Count Act of 1887 establishes procedures for the counting of electoral votes in Congress. The 1887 law Gohmert and others seek to challenge requires the vice president to open “all the certificates and papers purporting to be certificates,” a provision which is intended to prevent any vice president, who at times may be a presidential candidate and usually has a vested partisan interest in the outcome of an election, from refusing to present to Congress Electoral College votes he or she objects to. The plaintiffs argue that these provisions unconstitutionally limit 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.”

By challenging this law, the plaintiffs seek to effectively give Pence the power to reject Electoral College votes from key battleground states where there are allegations of voter fraud and accept an “alternative” slate of electors from those states.

Gohmert stated that GOP-selected electors in several key states being contested by Trump have cast votes for Trump and Pence. The Republican parties in the states said they did so to preserve lawsuit options for the president. Electors that were certified by the key states’ executive branches cast votes during the Dec. 14 Electoral College vote.

Some Republicans are pushing back against the lawsuit. Rep. Denver Riggleman of Virginia was less than pleased and wrote, “This is NUTS.” Meanwhile, Senate Majority Leader Mitch McConnell (R-KY) and second-ranking Republican Sen. John Thune (S.D.) have attempted to convince fellow Republicans not to support legal challenges to the election.

Legal experts are saying that the effort has little chance of success.

“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,” Ohio State University law professor Edward Foley said.

He also stated that the judge may not even bother to rule in the case, instead electing to throw it out for lack of standing.

“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,” Foley added.

Historically, the vice president certifies the results of the election and it is mostly a ceremonial procedure. That certification is set to take place on Jan. 6.

Democratic presidential candidate Joe Biden secured enough electoral votes on Dec. 14 to win the 2020 presidential election. Biden won 306 to outgoing President Donald Trump’s 232.

“Under the rules, Gohmert is challenging, all it takes is a single member of each branch to challenge electors from multiple states to force a vote on the matter,” Politico notes. Any challenge is likely to fail under the expected rules, with a Democrat-led House and a number of Republicans in the Senate signaling they will not support challenges.

If the lawsuit is unsuccessful, some members of Congress may still object to the certification of certain states’ Electoral College votes. If that happens, the certification of Biden’s victory may be delayed as Congress will be forced to engage in up to 12 hours of debate before holding a vote on whether to accept the election results. Gohmert said in the suit that he’s joining a GOP-led effort to challenge the Electoral College vote-count efforts on Jan. 6. The bid, which is being led by Rep. Mo Brooks (R-AL), has dozens of supporters in the House.

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