By Devlin Barrett,
Lawyers for Rep. Louie Gohmert (R-Tex.) filed new court papers Friday as part of their long-shot legal bid to overturn the presidential election, arguing that Vice President Pence has far more power than the government claims to alter the outcome.
In response to a Justice Department request to reject the suit, the Friday filing accused the government of trying to “hide behind procedural arguments.” Gohmert’s lawyers contended that arguments made by the Justice Department and Congress — that the suit upends long-established procedures and that Pence is an inappropriate target for the suit — are unfounded.
“They say that the Vice President, the glorified envelope-opener in chief, has no authority to preside over anything else or to decide anything of substance or to even count the votes in those weighty envelopes. He is only the envelope-opener,” Gohmert’s filing states.
Gohmert is arguing that the vice president has the power to effectively pick the next president during the formal recording of electoral college votes by Congress on Wednesday. Pence oversees that ceremony and, as president of the Senate, has the power to declare Biden electors in a handful of key states invalid and instead recognize electors supporting President Trump, the filing contends.
Pence “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,” the filing states.
Gohmert and a number of Republicans in Arizona filed the suit in Texas, arguing that an 1887 law governing how Congress certifies presidential elections is unconstitutional. They argue that the Constitution gives the vice president discretion to determine which states’ electors are valid for choosing the president of the United States.
While experts agree that 19th century law is vague and confusing, it has never before been challenged; it has been accepted by officials in both parties for more than 130 years as establishing a process in which voters choose electors who choose the president. This past year, 81 million voters supported Biden, earning him 306 electoral college votes to Trump’s 232.
In a Thursday night filing, a Justice Department lawyer wrote on Pence’s behalf that the case is “a walking legal contradiction,” because Gohmert has sued Pence seeking to give Pence more power. If Gohmert and his allies want to make such a claim, the Justice Department argued, they should sue Congress, not Pence.
Lawyers for the House of Representatives also asked the judge to reject the Gohmert suit, arguing that it called for “a radical departure from our constitutional procedures and consistent legislative practices” and would “authorize the Vice President to ignore the will of the Nation’s voters.”
The judge overseeing the case, U.S. District Judge Jeremy D. Kernodle, is a 2018 Trump appointee to the federal court. With less than a week until the ceremony, Kernodle has not signaled whether he intends to hold a hearing on the matter.