WASHINGTON — The House of Representatives asked a federal judge in Texas on Thursday to dismiss a Republican congressman’s lawsuit seeking to give Vice President Mike Pence the power to decide which electoral votes to count when Congress meets on Jan. 6 to finalize November’s presidential election.
The House made the request after Mr. Pence himself weighed in against the plaintiffs — Rep. Louie Gohmert of Texas and several Arizona Republicans who unsuccessfully ran to be presidential electors — in a Justice Department brief calling the suit a “walking legal contradiction.” Mr. Gohmert named Mr. Pence as the sole defendant, which the Justice Department noted is “ironically the very person whose power they seek to promote.”
According to a court filing, Mr. Gohmert’s lawyers attempted to reach an agreement with Mr. Pence regarding the lawsuit, but those discussions were unsuccessful.
Mr. Gohmert’s lawsuit challenges the procedures that will govern Congress’s counting of electoral votes next week, which will cement President-elect Joe Biden’s victory. Further, the lawsuit argues that the Electoral Count Act of 1887, which assigns the vice president a ceremonial role in announcing the election results, circumscribes his power under the 12th Amendment.
The 12th Amendment states “the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.”
“Under the 12th Amendment, Defendant Pence alone has the exclusive authority and sole discretion to open and permit the counting of the electoral votes for a given state, and where there are competing slates of electors, or where there is objection to any single slate of electors, to determine which electors’ votes, or whether none, shall be counted,” Mr. Gohmert’s brief says.
“The Amendment’s use of the active voice and mention of the Vice President in the first clause—‘The President of the Senate shall…open all the certificates’—in contrast with its use of the passive voice and omission of the Vice President from the second clause—‘the votes shall then be counted’—demonstrates that the Amendment assigns the Vice President the task of opening the certificates and leaves the counting of the votes to others,” House General Counsel Douglas Letter wrote in his response.
The Justice Department, while avoiding an opinion on the 12th Amendment, suggested that Mr. Gohmert might instead sue Congress itself, since the 1887 act vests the legislature with powers that they are seeking to transfer to Mr. Pence.