Gohmert's Pence lawsuit seeks to declare Electoral Counting Act unconstitutional in bid to overturn Biden win

Rep. Louie Gohmert, R-Texas, is making a last-ditch effort to change the result of the 2020 presidential election by suing Vice President Mike Pence with the aim of having him declare President Trump the victor when he announces the winner of the electoral college vote on Jan. 6.

As the president of the Senate, the vice president has the role of announcing the results after the electoral votes are counted at a joint session of Congress. Gohmert and the slate of Republican electors from Arizona claim that the 12th Amendment gives Pence the right to choose which slate of electors to count from their state – and other states – that had Republicans electors submit votes despite Democratic electors having their votes certified in light of November's general election.

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"The 2020 presidential election was one we'd expect to see in a banana republic, not the United States of America," Gohmert said in a Monday statement, alluding to allegations of fraud that have been put forth by the Trump campaign. "In fact, the rampant fraud and unconstitutional actions that took place were so egregious that seven contested states--Arizona, Georgia, Michigan, New Mexico, Nevada, Pennsylvania, and Wisconsin all sent dueling slates of electors to Congress. This puts Vice President Mike Pence in a position where some argue he has to choose between morality and the law. That is not the case."

The lawsuit claims that the Electoral Counting Act, which governs disputes over electoral votes in Congress, violates the 12th Amendment, which also outlines the electoral voting process. The Electoral Counting Act details a process of handling objections to votes that involves both the House and Senate. Gohmert's complaint, filed Sunday in Texas federal court, claims that constitutionally it should only be the House to do this.

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"The Electoral Count Act limits or eliminates the Vice President's ability to determine which electors may be counted," Arizona GOP chairwoman Kelli Ward, one of the plaintiffs, said in a statement. "However, plain law cannot contradict a Constitutional Amendment, which is why we are challenging that the statute is unconstitutional and seeking to demonstrate to the American people what the Vice President's constitutional powers are in this matter."

The 12th Amendment and the Electoral Counting Act, however, address different circumstances that could arise during the counting process. While the Act, in 3 U.S.C. § 15, describes a process of dealing with objections to announced votes, the only controversy that the 12th Amendment addresses is what happens if there is no majority winner after all votes have been counted. In such a case, the House would choose the president with each state having one vote. The amendment does not address what should happen if electors from both parties in a state submit votes.

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Gohmert's lawsuit interprets the 12th Amendment as giving the vice president the power to decide which slate of electors to choose from a state, regardless of which slate's votes were certified by their state. As such, it claims that the Electoral Counting Act illegally strips power from him by giving Congress the power to settle any disputes.

The complaint asks the court to declare the Electoral Counting Act unconstitutional, and requests an injunction blocking Pence from acting according to its procedures.