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Lawsuit Seeks to Throw Out Electoral Count Act, Give Pence Power to Choose Slate of Electors

Vice President Mike Pence has been sued in the United States District Court for the Eastern District of Texas by Rep. Louie Gohmert (R-TX). Gohmert seeks an injunction declaring the 1887 Electoral Count Act (ECA) at odds with the Twelfth Amendment of the Constitution, and therefore unconstitutional.

The claim renders Vice President Pence the defendant, arguing that the Vice President will violate the Twelfth Amendment of the Constitution during the Joint Session of Congress on Jan. 6, when the votes of the Electoral College and the dueling slates of electors are counted, if he follows the requirements of the ECA. 

If successful, the case will give Pence the ability to choose which of the dueling slates of electors in six key battleground states and New Mexico should be counted. 

Rep. Gohmert and Arizona’s complete slate of Republican Electors are plaintiffs in the suit, which states, “These provisions 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.” 

Keeping a long story short, Section 15 of the ECA describes the process of the Joint Session of Congress where votes are counted. If there are objections, they must be in writing and provided by both a member of the Senate and House of Representatives, and if found valid, both the Senate and House are to debate. 

The claim argues that the ECA adopts an “entirely different set of procedures for the counting of electoral votes, for addressing situations where one candidate does not receive a majority, and for resolving disputes” than the Twelfth Amendment.

The Twelfth Amendment of the Constitution very simply describes the counting process to determine the President in the “Electors Clause”: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a number of electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector,” and notes that if a majority of Electoral College votes cannot be ascertained, then the House of Representatives gains the exclusive vote, but the vote is on a per-state basis.

The emphasis of the plaintiffs’ case rests upon the “Each State shall appoint, in such Manner as the Legislature thereof may direct” portion of the Twelfth Amendment, arguing that it’s up to each State Legislature — and not the complicated process outlined by the ECA — to choose which slate of electors is counted. 

The lawsuit alleges that the ECA directs Pence to count Electoral College votes for a state that are in violation of the Electors Clause, limits his sole authority to determine which slate of electors is counted, and replaces the Twelfth Amendment’s dispute resolution procedure.. 

The aspect of the ECA that the suit takes aim at is the portion concerned with “adopting procedures for the President of the Senate to ‘call for objections’”, because the Twelfth Amendment only places a role in the hands of the House, and not the Senate. It argues that the ECA gives both the House and Senate the power to count votes, while the Twelfth Amendment only gives that power to the President of the Senate (Pence) and then the House in the event that no candidate receives a majority of Electoral College seats. 

At the root of the lawsuit rests the enduring claims and evidence of widespread election fraud in the battleground states where dueling slates of electors were cast. The suit cites Peter Navarro’s “Immaculate Deception” report and its summary of  “Six Key Dimensions of Election Irregularities” to support its case. 

Despite compelling claims of fraud and accompanying affidavits and exhibits that cascaded in almost immediately following the election two months ago, no court in the United States at any level has given the evidence a venue to be heard and decided upon. 

The 73 Electoral College votes in question from the dueling slates of electors in Arizona, Michigan, Georgia, Pennsylvania, and Wisconsin “are more than sufficient to determine the winner of the 2020 General Election,” the suit states. 

Ultimately, the lawsuit “Declares that Vice-President Pence, in his capacity as President of Senate and Presiding Officer of the January 6, 2021 Joint Session of Congress, is subject solely to the requirements of the Twelfth Amendment and may exercise the exclusive authority and sole discretion in determining which electoral votes to count for a given State.”

The case will be heard by Judge Jeremy Kernodle, a 2018 Trump appointee. The suit, which was described as a “friendly lawsuit”, by Arizona GOP elector Kelli Ward, is intended, in part, to give support to the Vice President and encourage him to work within the Constitutional powers given by the Twelfth Amendment. Irrespective of the outcome of Gohmert’s suit, the situation it emphasizes will remain in place on Jan. 6, and depending on the outcome, it may be up to Pence, alone, to decide how to apply his actions within the correct law. 

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  • Neil lives in Canada and writes about society and politics.

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