Vice President Mike Pence has asked a federal judge to throw out a lawsuit seeking to empower him to decide which electoral votes count.
The lawsuit was brought by Texas Rep. Louie Gohmert and 11 Arizonans who would have been electors for President Donald Trump and aims at throwing out the rules of a Jan. 6 session of Congress to certify presumptive President-elect Joe Biden, Politico reported.
Pence responded to the lawsuit in a 14-page filing brought by Justice Department attorneys and said that the suit shouldn’t be against him because he is the one 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,” the brief said.
“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.”
U.S. District Court Judge Jeremy Kernolde in Tyler, Texas, has not yet scheduled a hearing in the case.
Gohmert is expected to file a reply to Pence’s brief on Friday.
The lawsuit filed on Sunday claims that the Electoral Count Act of 1887 is unconstitutional because of the structure it implemented in certifying the election results.
“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,” Gohmert said in a statement.
The Electoral Count Act implements a system where the vice president, presiding over the electoral voting count, opens each state’s set of electors alphabetically and lawmakers can challenge sets of electors.
The lawsuit calls for the courts to throw out those rules under the language of the Twelfth Amendment, giving Pence the power to decide which electoral votes are introduced to Congress.
Pence’s brief added that the suit is improper because the Constitution grants broad legal immunity to lawmakers, extending to Pence’s official capacity as president of the Senate.
Gohmert is among many House Republicans who intend to object to Biden’s election.
“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,” Gohmert said.
House General Counsel Doug Letter also filed a 26-page brief asking the court to reject Gohmert’s lawsuit.
“At bottom, this litigation seeks to enlist federal courts in a belated and meritless assault on longstanding constitutional processes for confirming the results of a national election for President,” Letter wrote.
House Speaker Nancy Pelosi added in a statement that the effort to override American voters would fail, according to Politico.
“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.”
Despite numerous claims of voting irregularities, including affidavits alleging fraud sworn to by reported eyewitnesses, no court has yet ruled that widespread fraud materially affected the results of the presidential election.
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