Our friend Rep. Louie Gohmert (TX-1), one of the indispensable people of the conservative
movement, has filed a very important lawsuit seeking to clarify who has the power to accept or reject an Electoral College ballot when the ballots are counted before a joint session of Congress on January 6, 2021.
Rep. Gohmert, joined by our friends Arizona state GOP Chairman Kelli Ward and Arizona state representative-elect Jake Hoffman and other plaintiffs, including Students for Trump COO Tyler Bowyer, Arizona Republican Party Executive Director Greg Safsten, and Maricopa County Republicans Second Vice Chair Nancy Cottle have filed suit asking the court to declare that the elector dispute resolution provisions in Section 15 of the Electoral Count Act, 3 U.S.C. §§ 5 and 15, are unconstitutional because these provisions violate the Electors Clause and the Twelfth Amendment of the U.S. Constitution.”
The Gohmert lawsuit is premised on the fact that the election results in Arizona, Georgia, Michigan, Pennsylvania and Wisconsin are in doubt.
The election being in doubt, according to reporting by Stewart Smith of KLTV, Gohmert’s suit objects to the counting of the Arizona slate of electors voting for Biden and to the Biden slates from the remaining Contested States. It states that when Congress convenes on January 6 to count the electoral votes and declare President-Elect Biden as the winner, Gohmert will formally object to the count which, the lawsuit states, is a privilege he is entitled to “under the Twelve Amendment” (sic). Further, Gohmert is also asking Judge Jeremy Kernodle, a President Donald Trump-appointed district judge in Tyler, to find that Pence is authorized to pick pro-Trump electors on January 6.
Under current interpretation of the law and Constitution, the vice president’s role in presiding over the meeting is a largely ceremonial one governed by an 1887 federal law known as the Electoral Count Act. The 1887 law sets forth a procedure that would appear to require three individuals to act to set in motion a challenge to an Electoral College ballot: One Representative and one Senator to object and the Vice President to rule the objection in order and refer it to each house for a two-hour debate and vote. If the Gohmert lawsuit were to prevail the sole discretion to accept or reject a given slate of Electors would reside with the Vice President, in this case Mike Pence.
Liberals were quick to dismiss the lawsuit’s prospects for success, reported John Kruzell of The Hill. “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.
Jerry Lambe, a graduate of Georgetown University and New York Law School writing for lawandcrime.com, apparently agrees the vice president’s role is strictly ministerial. The Electoral Count Act, which describes the process for counting Electoral College votes, was specifically enacted to “drain away as much power as possible from the Senate President,” according to DePaul University Law School professor Stephen A. Siegel, who specializes in legal history and constitutional law.
“With the opening of the votes, the Senate President has reached the end of his constitutional role in the presidential election process,” Professor Siegel wrote.
But can an act of Congress “drain away” the constitutional power of the Vice President? That’s what the Gohmert lawsuit seeks to clarify.
Given the steady attempts to render the vice presidency a merely a ceremonial office through Senate majorities setting the Senate Rules and legislation, such as the Electoral Count Act, Rep. Gohmert’s lawsuit is an important demand that we return to the system the Framers of the Constitution set out. Rep. Gohmert’s lawsuit is anything but frivolous and should get its day in court and not be dismissed through judge-made technicalities, such as lack of standing.
Electoral College ballot
Section 15 of the Electoral Count Act
3 U.S.C. §§ 5 and 15
Judge Jeremy Kernodle