Last updated on January 5, 2021
Yesterday, Pence (well, the DOJ) responded, as required, to Loony Gohmert’s lawsuit by saying the Vice President doesn’t have the power to do what Gohmert wants, and anyway he picked the wrong target to sue. The court required Gohmert to respond by 9 AM today. Clearly the court didn’t think giving Gohmert any more time would let him craft a better response, because what we got was exactly what we expected: Gohmert claims the Constitution gives the Vice President the power to decide on his lonesome which electoral votes will count, and thus who gets to be the next president.
Below, we set forth a brief study of the background to the Vice-President’s weighty and prudential powers afforded under the Constitution – the foundation of American democracy — which unequivocally entrusts to him all the prerogatives and rights to determine what electoral votes to count or to disregard that are attendant to his role as President of the Senate. www.courtlistener.com/… (PDF)
As Politico’s headline describes it: Pence may choose 2020 election winner ‘as he sees fit,’ Gohmert says in court filing.
Vice President Mike Pence has the unilateral power to decide the outcome of the 2020 election, according to the latest filing in a lawsuit brought by Rep. Louie Gohmert (R-Texas) and other Republicans mounting a last-ditch bid to overturn the results of the 2020 election.
“Under the Constitution, he has the authority to conduct that proceeding as he sees fit,” Gohmert argues. “He may count elector votes certified by a state’s executive, or he can prefer a competing slate of duly qualified electors. He may ignore all electors from a certain state. That is the power bestowed upon him by the Constitution.”
Seriously. Gohmert is saying that one person, the Vice President in his role as President of the Senate (who would be Sen. Grassley if Pence doesn’t show), has the power to unilaterally and without appeal overturn the votes of the entire country, including especially situations where the VP is a candidate for President.
The House made this point in its own filing with the court:
The House filed its own, more exhaustive brief, dismantling Gohmert’s effort as an unconstitutional and thinly veiled effort to overrule the democratic result of the 2020 election. The framers would never have provided for a process that allowed a sitting vice president — often, as in this case, an actual candidate on the Electoral College ballot — to have unilateral authority to choose which electors to count, the House argued.
From the brief:
If plaintiffs obtain the relief they seek, they would drastically unsettle expectations about the Vice President’s role at the Joint Session in a manner calculated to turn a ministerial duty into one fraught with peril and controversy. Moreover, their arguments could result in the disenfranchisement of millions of voters, if (as plaintiffs intend) the Vice President went on to disregard certified slates of electors or to refuse to accept any slates at all from a particular state. . . . Plaintiffs effectively ask this Court to turn over determination of the 2020 Presidential election in its entirety to Vice President Pence, and they would have him make that determination in the absence of any governing rules.
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