Vice President Mike Pence is fighting back at Texas Rep. Louie Gohmert’s lawsuit against him that is designed to overturn President-elect Joe Biden’s victory.
Justice Department lawyers representing Pence asked a judge in the U.S. District Court for the Eastern District of Texas on Thursday to throw out the lawsuit that asserts parts of the Electoral Count Act, which establishes the procedures for Congress counting the Electoral College votes, are unconstitutional and claims there was election fraud. Gohmert is joined by a group of Arizona Republicans who would have been electors for President Trump.
The 14-page response, signed by Deputy Assistant Attorney General John Coghlan, argues that if Gohmert was to sue anybody, it should be Congress.
“To the extent any of these particular plaintiffs have a judicially cognizable claim, it would be against the Senate and the House of Representatives,” the filing reads. “After all, it is the role prescribed for the Senate and the House of Representatives in the Electoral Count Act to which plaintiffs object, not any actions that Vice President Pence has taken.”
“Specifically, plaintiffs object to the Senate and the House of Representatives asserting a role for themselves in determining which electoral votes may be counted — a role that these plaintiffs assert is constitutionally vested in the Vice President,” the filing adds.
House General Counsel Doug Letter filed an amicus brief in court on Thursday that asks the judge to dismiss the case, dubbing it a “radical departure from our constitutional procedures and consistent legislative practices.” Alan Kennedy, a Colorado elector for Biden, also moved to intervene in the case that he called an “Electoral College fantasy” that must be thrown out.
Gohmert’s lawsuit, filed on Sunday, aims to provide Pence with “exclusive authority” to determine which Electoral College votes are certifiable, arguing that the vice president has the “sole discretion” to determine the legitimacy of votes via the 12th Amendment.
“Indeed, if plaintiffs’ suit were to succeed, the result would be to remove any constraint the Electoral Count Act places on the Vice President. To the extent any of these particular plaintiffs have a judicially cognizable claim, it would be against the Senate and the House of Representatives,” the DOJ filing says, adding later, “a suit to establish that the Vice President has discretion over the count, filed against the Vice President, is a walking legal contradiction.”
The litigation is one vestige of a long-shot effort to stop Congress from certifying Biden’s Electoral College victory on Wednesday. A group of House Republicans, joined by Sen. Josh Hawley, plan to object to the results from some states where they claim there was fraud and failure to follow state election laws.
Federal and state officials have defended the integrity of the election and stress there is no evidence of widespread fraud. Still, Trump refuses to concede the contest nearly two months after Election Day. The inauguration is set for Jan. 20.
Trump flew back to the White House from his Mar-a-Lago resort in Florida on Thursday, earlier than expected, with his focus set on challenging and overturning the election certification process in Congress on Wednesday.
