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Pence asks judge to reject GOP congressman’s elector lawsuit

U.S. Vice President Mike Pence pauses while speaking during an Operation Warp Speed vaccine summit at the White House in Washington, D.C., U.S., on Tuesday, Dec. 8, 2020.Al Drago/Bloomberg

(Bloomberg) -- Vice President Mike Pence asked a federal judge in Texas to deny a Republican congressman’s emergency request for a court order that would essentially allow the vice president to reverse Donald Trump’s election loss during a joint session of Congress Wednesday.

Representative Louie Gohmert of Texas should have sued the U.S. Senate or the House of Representatives if he disagrees with the established way that Electoral College votes are counted, Justice Department attorneys representing Pence said in a filing Thursday.

“The vice president -- the only defendant in this case -- is ironically the very person whose power they seek to promote,” the government said. “The Senate and the House, not the vice president, have legal interests that are sufficiently adverse to plaintiffs.”


Gohmert argues Pence can hand Trump a second term by simply rejecting swing states’ slates of Democratic electors and instead choosing competing GOP electors when the Senate and House meet jointly to open and count certificates of electoral votes. Election experts have said such a finding would create a major conflict of interest.

The House asked for the judge’s permission to file its own brief, in which it argues Gohmert is trying seeks to “upend” Congress’s longstanding role in counting the votes of the Electoral College and invalidate the Electoral Count Act, which has governed the process since 1887.

“The House also has a compelling interest in ensuring that the public’s confidence in the processes for confirming the results of the 2020 presidential election is not undermined by this last-minute suit, which would authorize the vice president to ignore the will of the nation’s voters,” House attorneys said in the request.

In another filing Thursday, Colorado elector Alan Kennedy argued Gohmert’s lawsuit is based on flawed legal arguments and debunked claims of election fraud.

“Plaintiffs conclude their Electoral College fantasy by proposing unlimited discretion for defendant Pence to usurp the electoral process as plaintiffs desire,” Kennedy, a lawyer, said in a motion to intervene in the case. “On behalf of the American People, please stop this madness.”


Kennedy argues that competing slates of electors cannot be chosen because, among other things, they don’t exist. States can only choose one slate -- and the swing states at issue already did so -- for President-elect Joe Biden and Vice President-elect Kamala Harris, he said.

Read More: GOP’s Hawley Joins Trump-Fueled Push to Object to Electors

“If an incumbent vice president could keep his or her job that way, then votes of millions of people and votes of duly elected and certified electors would be meaningless, and our nation’s most cherished principle -- ‘here, We the People rule’ -- would be eviscerated,” Kennedy said.

The vice president has the constitutional role of presiding over the Senate, which has traditionally included overseeing the formal acceptance of the Electoral College vote.

“I can tell you that the argument is something we expected and are not worried about,” Gohmert’s attorney Howard Kleinhendler said in an email, adding that a more-detailed response will be filed Friday.

The Dec. 27 lawsuit by Gohmert echoes Trump’s debunked claim that Biden won the election only through rampant voter fraud perpetrated by thousands of corrupt Democratic officials and election workers. Some members of Congress have signaled they will object during the joint session, though not enough to block Biden’s win.


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