Rep Gohmert defends constitutionality of lawsuit against VP Pence: Not a choice between ‘morality and the law’

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Arizona’s GOP electors have signed on to a lawsuit filed by Rep. Louie Gohmert that seeks to declare an 1887 law unconstitutional and further define a vice president’s role in selecting electors.

At issue, says the Texas Republican, is the Electoral Count Act, which establishes procedures for counting electoral votes in Congress after presidential elections.

The law was passed a decade after the widely disputed election of 1876, during which a number of states submitted competing sets of electors to a divided Congress. Eventually, a panel of lawmakers and Supreme Court justices awarded Rutherford B. Hayes a one-vote electoral ballot majority and, hence, the presidency, after months of deadlock.

Gohmert’s lawsuit claims that the act violates the 12th Amendment, which also instructs the president of the Senate — the current sitting VP, in this case, Mike Pence — to count electoral ballots before a joint session of Congress.

However, the amendment does not prescribe the manner in which ballots must be counted. In tossing out the federal law, Gohmert’s suit seeks to empower vice presidents under the 12th Amendment to count ballots as he or she sees fit when there are competing sets of electoral votes, as there are again this year.

Just as in 1876, Republicans in several states — Arizona, Georgia, Michigan, New Mexico, Nevada, Pennsylvania, and Wisconsin — have sent competing slates of electors to Congress, even though Democrat Joe Biden has been certified as the winner in each of them.

But Biden’s victories in each of those states, Republicans allege, were tainted by vote fraud and voting irregularities, prompting GOP-controlled state legislatures to send competing electors.

“The 2020 presidential election was one we’d expect to see in a banana republic, not the United States of America,” Gohmert said in a statement. “This puts Vice President Mike Pence in a position where some argue he has to choose between morality and the law. That is not the case.

“It is also critical to note that as many formerly in the mainstream media, now the Alt-Left media, continue to say that every court has said there is no evidence of fraud.  That is disingenuous, deceitful, and flat out dishonest. The truth is that no court so far has had the morality and courage to allow evidence of fraud to be introduced in front of it,” he added.

“We continue to hold out hope that there is a federal judge who understands that the fraud that stole this election will mean the end of our republic, and this suit would insure that the Vice-President will only accept electors legitimately and legally elected. There must be an opportunity for a day in court when fraud was this prevalent,” the Texas Republican continued.

Gohmert and the Arizona GOP electors contend that the Constitution grants vice presidents the sole authority and discretion to decide which electoral votes should be counted.

Constitutional law experts disagree on the validity of Gohmert’s suit.

Harvard Law School Prof. Laurence Tribe called it “jaw-droppingly stupid” and “the dumbest lawsuit of all.”

Ohio State University law professor Edward Foley agreed, telling 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.”

And election law experts who spoke to the outlet say that Texas-based U.S. District Judge Jeremy Kernodle, a Trump appointee, is likely to decide that Gohmert and the Arizona electors don’t have standing to file.

But Gohmert said there is a clear issue of constitutionality at play.

“As outlined in the filing, the Electoral Count Act is unconstitutional because it directs Vice President Pence to legitimize electoral votes in violation of the Electors Clause and limits or eliminates his Twelfth Amendment authority to determine which slates of electors should be counted and which, if any, may not be counted,” said Gohmert. “This is fundamental because no statute can constitutionally supply rules to the extent that such statute violates the U.S. Constitution.”

“Thanks to spineless politicians, corrupt state officials and a coordinated effort to undermine the will of the American people in favor of business as usual in the D.C. swamp, we now find ourselves in a place where a stolen election becomes just another one of the miscarriages of justice this town refuses to remedy,” he noted further.

“For the sake of the future of our Republic, come January 6th, Vice President Pence must be authorized to uphold the legal votes of millions of Americans and preserve our nation’s great experiment in self-governance.”

Jon Dougherty

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