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A Republican lawmaker in the House of Representatives is suing the vice president of the United States in a last-ditch effort to overturn the results of the 2020 presidential election — a move that is highly improbable to succeed.
Rep. Louie Gohmert (R-Texas) filed a lawsuit along with Arizona GOP Chairwoman Kelli Ward and GOP officials against Vice President Mike Pence, seeking to have a federal law governing the role the office of the vice president plays in accepting the Electoral College results declared unconstitutional.
The lawsuit is the latest in a series of unsuccessful efforts to have courts overturn the election, which was declared for former Vice President Joe Biden while President Donald Trump and his supporters claimed massive voter fraud and other election irregularities tainted the results.
The Electoral Count Act of 1887 establishes procedures for the counting of electoral votes in Congress. On Jan. 6, Congress will meet to certify the results of the Electoral College, which President-elect Biden won 306 to outgoing President Donald Trump’s 232. The vice president’s role, as president of the Senate, is to “open all the certificates” — that is the papers containing the Electoral College results from each state — in the presence of both houses of 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.
Election law experts who spoke to the Hill said this new lawsuit is not likely to fair better than any of the other failed legal challenges.
“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,” said Edward Foley, a law professor at the Ohio State University.
He predicted that U.S. District Judge Jeremy Kernodle, a Trump-appointed judge who will hear the case, will find that Gohmert, Ward, and the other Republicans part to the lawsuit lack standing to sue.
“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 said.
The Daily Caller’s Henry Rodgers uploaded a copy of the lawsuit to view.
If the lawsuit is unsuccessful, it is still possible that some members of Congress will 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.