Far From Raising a White Flag, Pence’s Response to Gohmert’s Suit Was Strategic and Preserved His Options

Pence claims he’s not the right defendant, without opposing Gohmert’s constitutional claims

Vice President Mike Pence finishes a swearing-in ceremony for senators in the Old Senate Chamber at the Capitol in Washington on Jan. 3, 2021. J. Scott Applewhite/Pool/AFP via Getty Images

Commentary

Although the Department of Justice (DOJ) did file a short responsive brief on behalf of Vice President Mike Pence, who is the sole defendant named in the lawsuit recently filed by Texas Rep. Louis Gohmert and the Arizona Trump-pledged electors in a Texas federal court, the brief, in the main, argues that Pence isn’t the proper defendant, but doesn’t oppose, on the merits, the constitutional arguments advanced in the suit.

The Electoral Count Act Violates the 12th Amendment

As I wrote on these pages on Dec. 31, the Gohmert suit challenges the Electoral Count Act of 1887 (ECA) because it unconstitutionally varies the dispute resolution procedure set forth in the 12th Amendment, which applies when Congress is faced, as it now is, with dueling presidential electors.