Pence asks judge to reject lawsuit
Vice President Mike Pence asked a judge late yesterday to reject a lawsuit that aims to expand his power to use a congressional ceremony to overturn the presidential election, arguing that he is not the right person to sue over the issue.
The filing will come as a disappointment to supporters of President Donald Trump, who hoped that Pence would attempt to reject some of President-elect Joe Biden’s electoral college votes and recognise votes for Trump instead when Congress meets next week to certify the November election.
The filing came in response to a lawsuit from Rep. Louie Gohmert, R-Texas, and a number of Republicans in Arizona, who argued that an 1887 law that governs how Congress certifies presidential elections is unconstitutional. The suit argues that the Constitution gives the vice president, in his role as president of Senate, sole discretion to determine whether electors put forward by the states are valid.
It asks a federal judge to take the extraordinary step of telling Pence that he has the right, on his own, to decide that the electoral college votes cast earlier in December for Biden are invalid and to instead recognise selfappointed Trump electors who gathered in several state capitals to challenge the results.
While experts agree that the 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 the voters, ultimately, choose the president. This year, 81 million voters supported Biden, earning him 306 electoral college votes to Trump’s 232.
To win a lawsuit, a plaintiff must convince a judge that the interests of the person they are suing are opposed to their own – there must be some controversy or conflict between them that could be resolved through the litigation.
In this case, a Justice Department lawyer, writing on Pence’s behalf, wrote that the interests of Gohmert and the other plaintiffs were not sufficiently opposed to Pence’s own – since they were seeking to expand his power – to justify a suit.
‘‘The Vice President is not the proper defendant to this lawsuit,’’ wrote Deputy Assistant Attorney General John V. Coghlan. ‘‘The Vice President – the only defendant in this case – is ironically the very person whose power they seek to promote,’’ he added. ‘‘A suit to establish that the Vice President has discretion over the count, filed against the Vice President, is a walking legal contradiction.’’
Instead, Coghlan wrote that Congress was the proper defendant for such a suit.
Coghlan wrote that the lawsuit has other problems, too, and that, as a result, the judge should reject the suit, particularly given the limited timeline before next week’s vote, without trying to weigh difficult and never-before-tested constitutional issues.
While the filing dealt with a narrow legal issue, it still offered the first indication that Pence may not plan to reinterpret his role in next week’s ceremony in an attempt to change the election results. Since the election, Pence has echoed some of Trump’s unfounded complaints about the election, but he has been silent on Trump’s attempts to badger Republicans into overturning the results.
Lawyers for the House of Representatives also asked the judge to reject the suit, arguing that it called for ‘‘a radical departure from our constitutional procedures and consistent legislative practices’’ and would ‘‘authorise the Vice President to ignore the will of the Nation’s voters.’’ In a statement, House Speaker Nancy Pelosi, D-Calif., said the suit had ‘‘zero legal merit’’ and was ‘‘yet another sabotage of our democracy’’.
Filed in Texas, the case was randomly assigned to be heard by Federal District Judge Jeremy D. Kernodle, a Trump appointee who took the bench in 2018. Kernodle has ordered the plaintiffs to respond to Pence’s filing by this morning but has otherwise not indicated how he will handle the case, including whether he will hold a hearing on the matter. – Washington Post