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But Pence, in a 14-page filing brought by Justice Department attorneys, said the suit shouldn’t be aimed at him, since he is who Gohmert is trying to empower.
“A suit to establish that the Vice President has discretion over the count, filed against the Vice President, is a walking legal contradiction,” Pence’s brief said.
U.S. District Court Judge Jeremy Kernolde, a Trump appointee who sits in Tyler, Texas, has not scheduled a hearing in the case. Gohmert is due to file a reply to Pence’s brief on Friday morning.
Gohmert’s suit, filed Sunday, contends that the Electoral Count Act of 1887 — a law prompted by the disputed presidential election of 1876 — is unconstitutional because of the structure it imposes on the process of receiving electoral votes from each state.
Under the Electoral Count Act procedures, the vice president — presiding over the chamber — opens each state’s set of electors alphabetically. The law also sets out a process by which lawmakers can challenge sets of electors, triggering debates and votes by the House and Senate.
In the case of the 2020 election, Gohmert is among dozens of House GOP lawmakers who intend to object to Biden’s victory, alleging baseless claims of fraud. But those challenges appear doomed in a House controlled by Democrats and the closely divided Senate, where a slew of Republicans say there’s no evidence to reverse Biden’s win.
Gohmert is calling for the courts to throw out the rules altogether, which would leave the vague language of the Twelfth Amendment as the only guide to the process. Under that language, Pence would be the ultimate decider of which electoral votes to introduce to Congress.
In a 26-page brief calling on the court to reject Gohmert’s suit, House General Counsel Doug Letter described the effort as baseless and argued that both Gohmert and the Arizona electors lacked standing to bring it.
“At bottom, this litigation seeks to enlist the federal courts in a belated and meritless assault on longstanding constitutional processes for confirming the results of a national election for President,” Letter said.
Letter also says that Gohmert’s argument lacks substantive logic: It would make no sense for the framers to empower the sitting vice president to unilaterally control who becomes the next president, particularly when that sitting vice president is a candidate on the ticket. He also notes it would upend the accepted process for counting electoral votes that has been in practice for more than 130 years.
“Granting plaintiffs this extraordinary relief just days before the Joint Session would not only reward their inexcusably delayed filing,” Letter says, “it would also risk upending the orderly rules that have governed Congressional counting of electoral votes for more than a century and undermining the public’s confidence in the constitutionally prescribed processes for confirming—not overturning—the results of the election.”
Speaker Nancy Pelosi issued a statement Thursday calling Gohmert’s lawsuit an attempt to “unconstitutionally” empower Pence to override the will of the American voters — an effort she said would fail next week.
“There is no doubt,” she said, “that despite this desperate unpatriotic charade, on January 6, Joe Biden will be confirmed by the acceptance of the vote of the Electoral College as the 46th President of the United States.”
In his brief, Pence points to the House’s objections to Gohmert’s lawsuit as a reason for the court to reject it.
“It would be the Senate and the House of Representatives that are best positioned to defend the Act. Indeed, as a matter of logic, it is those bodies against whom plaintiffs’ requested relief must run,” the Pence filing says.
The Justice Department submission also argues that the suit against Pence is improper for another reason: the Constitution grants broad legal immunity to lawmakers. DOJ lawyers say that sweeping protection extends to Pence’s acts undertaken in an official capacity as president of the Senate.
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