Judge dismisses lawsuit against Pence, removing VP from controversy over disputed Electoral College count

In a long-shot federal lawsuit filed against Vice President Mike Pence, Rep. Louie Gohmert (R-TX) and an “alternate” slate of Republican Electors from Arizona sought the court’s intervention in the proceedings set for Jan. 6 when a joint session of Congress, overseen by Pence, will ratify the vote count of the Electoral College for president and vice president.

But Pence countered the lawsuit, arguing that Gohmert and the Arizona Electors had sued the wrong defendant. A judge agreed with the vice president and dismissed the suit for lack of standing by the plaintiffs, The Hill reported.

The 12th Amendment

The lawsuit from Gohmert and the Arizona Republican Electors argued that there was a fundamental and unconstitutional difference between the 12th Amendment of the Constitution and the Electoral Counting Act of 1887, both of which deal with the congressional process of receiving and ratifying the Electoral College results and resolving any disputes.

The plaintiffs suggested that Pence, in his role as both vice president and president of the Senate, should have the authority to decide whether to choose the state-certified slate of electors, an alternate slate of electors, or no electors from the disputed states at all, according to Fox News.

The plaintiffs asked the court to rule that the Electoral Count Act was unconstitutional and to issue an injunction preventing Pence from acting in accordance with the provisions of the 1887 law.

“Legal contradiction”

Pence filed a motion in response to the lawsuit that sought to remove himself from being the middleman in the disputed election results, the Washington Examiner reported.

The response stated that “these plaintiffs’ suit is not a proper vehicle for addressing those issues because plaintiffs have sued the wrong defendant. The Vice President — the only defendant in this case — is ironically the very person whose power they seek to promote.”

If there were any injury for which the plaintiffs could seek redress, the response argued, the proper defendants would be the House of Representatives and the Senate, given their respective roles in the ratification of the Electoral College vote, a procedure that is merely overseen by the vice president.

“A suit to establish that the Vice President has discretion over the count, filed against the Vice President, is a walking legal contradiction,” Pence’s response argued.

Case dismissed

U.S. District Judge Jeremy Kernodle, appointed by President Donald Trump, appeared to agree with the response from Pence and on Friday ruled to dismiss the suit from Gohmert and the Republican Electors for a lack of proper standing, The Hill reported.

In Kernodle’s order, he determined that, if any injury that required redress did occur, then Gohmert’s problem would be with the House and Senate, not Pence. Likewise, the Republican Electors from Arizona would need to seek redress from the Arizona governor and secretary of state — not Pence.

“Because neither Congressman Gohmert nor the Nominee-Electors have standing here, the Court is without subject matter jurisdiction to address Plaintiffs’ Emergency Motion or the merits of their claim,” the judge concluded as he dismissed the case without prejudice — meaning the same claims could be argued in court again if filed against the proper defendants.

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