Lawsuit seeks authority for Pence to decide which electors are valid

Seeks immediate decision on whether Electoral Count Act unconstitutional

December 28, 2020

A lawsuit has been filed seeking authority for Vice President Mike Pence, when Congress counts the Electoral College votes for president on January 6, to decide which slates of electors from contested states are valid.

The case was filed in U.S. District Court in Texas by a team lead by U.S. Rep. Louie Gohmert, R-Texas.

It seeks a declaratory judgment “finding that the elector dispute resolution provisions in Section 15 of the Electoral Count Act … are unconstitutional because these provisions violate the Electors Clause and the Twelfth Amendment of the U.S. Constitution.”

The issue has come up as President Trump’s challenges to the results of a number of swing states in the 2020 election have not been fully resolved. His campaign lawyers, and others acting in concert with but not under the campaign, have alleged, with evidence, that there was enough vote fraud to overturn the results, which were awarded by state officials to Joe Biden.

It is those procedures the case alleges are unconstitutional.

“They establish procedures for determining which of two or more competing slates of Presidential Electors for a given state are to be counted in the Electoral College, or how objections to a proffered slate are adjudicated, that violate the Twelfth Amendment,” the case indicates.

The case explains that the statute orders the vice president, in his capacity as president of the Senate and presiding officer over the January 6, 2021 joint session of Congress, to “count the electoral votes for a state that have been appointed in violation of the Electors Clause” of the Constitution and “limits or eliminates his exclusive authority and sole discretion under the Twelfth Amendment to determine which slates of electors for a state, or neither, may be counted.”

The statute also displaces the 12th Amendment’s dispute resoluti…

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