Texas Republican Sues to Give Pence Sole Discretion in Deciding Election

Rep. Louie Gohmert, R-Texas, studies notes during a House Judiciary Committee hearing in July. (Matt McClain/The Washington Post via AP, Pool)

(CN) — Just over a week before Congress meets to formalize Democrat Joe Biden’s victory in the November presidential election, a Republican lawmaker from Texas is asking a federal judge to give Vice President Mike Pence the exclusive power to throw out Electoral College votes.

The lawsuit filed in Tyler, Texas, federal court on Sunday by Congressman Louie Gohmert marks the latest in a series of long-shot legal bids from Republicans seeking to overturn Biden’s win, cases that have been routinely rejected by the courts.

In the Texas case, Gohmert and a group of Arizona Republicans ask the judge to throw out various provisions of federal law governing the Electoral College count and to grant Pence the “exclusive authority and sole discretion in determining which electoral votes to count for a given state.”

Legal experts, as they have with many other Republican-led election challenges, quickly dismissed the lawsuit’s chances.

“No, this won’t work,” University of California election law scholar Rick Hasen wrote on his popular Election Law Blog.

Under the law, Congress meets Jan. 6 to finalize the Electoral College vote, with the vice president presiding over the typically ceremonial event. The Constitution gives the House the power to break a tie – a rarity that hasn’t happened since the 1800’s, according to the Associated Press – but Gohmert’s lawsuit asks the judge to declare that Pence “must ignore and may not rely on any provisions of the Electoral Count Act that would limit his exclusive authority and his sole discretion to determine the count.”

The White House did not immediately respond to a request for comment on the lawsuit, but President Trump on Sunday referenced the date of the Electoral College count in a cryptic Twitter post.

“See you in Washington, DC, on January 6th. Don’t miss it. Information to follow!” he wrote.

The brazen push to enable Pence to overturn Biden’s win comes after a holiday weekend marked by a lame-duck president still refusing to acknowledge the reality of his loss and continuing to spread baseless conspiracy theories about a stolen election.

The Texas case is far from the only election dispute still swirling in the courts. Similar long-shot efforts remain pending in Arizona, the District of Columbia, Pennsylvania and other states, according to a tracker from Ohio State University’s Moritz College of Law.

Gohmert is also not the only Republican in Congress still dreaming of a Trump victory. Politico reported last week that a group of congressional Republicans held an hours-long meeting with Trump at the White House seeking ways to overturn the election.

Edward Foley, a constitutional law scholar at Ohio State, said in an email that the Texas case likely faces “procedural obstacles” to even being heard.

“For example, whether the plaintiffs have standing to bring this claim,” he said. “But if a court were to reach the merits, it should be quickly rejected as based on a misunderstanding of the Constitution, which was never intended to give a vice president the kind of unilateral authority over the counting of electoral votes that this suit asserts.”

Part of the new Texas lawsuit centers on a false claim that so-called “shadow electors” could be used to override the Electoral College votes of states’ legitimately appointed electors. The lawsuit’s plaintiffs include some of the Arizona Republicans and Trump supporters who have latched onto the inaccurate claim of an “alternate” slate of electors from the state.

Arizona’s actual electors certified their votes for Biden in late November.

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