Rep. Gohmert’s SuitUnbeknown to me at the time, as I was writing that commentary, another suit was being filed. This one, brought by Republican Texas Congressman Louie Gohmert and the entire slate of Trump-pledged electors for Arizona, was filed in a Texas federal court (pdf), and assigned to Judge Jeremy Kernodle, a Trump appointee.
State Lawmakers Choose Electors; the Vice President Determines If There’s a Dispute; the House Resolves the Dispute by a Contingent ElectionThat is, while the Amistad suit claims that various federal and state statutes unconstitutionally grant power to the governors, over choosing electors who cast their votes at the Electoral College (which took place this year on Dec. 14)—even though that power is granted exclusively, and on a non-delegable basis, to the state legislatures by Article II—the Gohmert suit concerns the electoral process at a later juncture, namely the Jan. 6 joint session of Congress, at which the electoral votes are “opened” and “counted.”
Thus, while the Amistad suit seeks to invalidate federal and state statutes concerning the choosing of electors, the Gohmert suit seeks to invalidate a federal law concerning how later disputes over the counting of the electoral votes are decided.
In the first suit, the state governors are at odds with the state lawmakers; in the second, federal senators and representatives are at odds with the vice president.
Under the 12th Amendment, the vice president, in his constitutionally prescribed role as president of the Senate, is granted the sole power to “open” the electoral vote certificates and “count” them at the joint session of Congress, this year scheduled for Jan. 6.
A Contingent Election in the HouseThe 12th Amendment sets forth a procedure for resolving a disputed election where neither candidate achieves a majority of electoral votes. In that case, a “contingent election” is held by the House: “the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote …”
Electoral Count Act Sets Forth a Procedure Entirely Different from that Prescribed by the 12th AmendmentThat said, the Electoral Count Act (ECA) provides an entirely different procedure. Instead of a contingent election in the House, the ECA calls for “objections” to be sponsored in both chambers, and if, and only if, the objections carry in both houses are the objected-to electors not counted (in which case a contingent election would take place in the House).
However, if the objection doesn't carry in either or both houses of Congress, then the ECA further provides that the slate certified by the governor controls, in which case the dispute is thus resolved, and a contingent election never takes place.
The ECA varies the 12th Amendment procedure for resolving disputed electoral votes in three crucial respects:
First, while the 12th Amendment grants no role whatsoever to the Senate, the ECA grants the Senate equal control over objections, as they must pass the Senate and the House.
Second, the ECA provides that in the absence of objections passing in both houses, the slate certified by the governor of the state controls. This is nowhere provided in the 12th Amendment.
Third, by providing for governor-certified slates to be counted even if there are dueling slates of electors—absent objections passing in both houses of Congress—the ECA eliminates and replaces the contingent election procedure set forth in the 12th Amendment, because by virtue of counting the governor-certified slates, the dispute is resolved (though not in the manner set forth in the Constitution, i.e., the 12th Amendment), and never reaches the House (for a contingent election).
Pence v. Trump?For these reasons, Gohmert in his suit, proceeds against Vice President Pence, asking for a declaratory judgment and order that directs Pence to proceed in accordance with the Constitution, as reflected in the 12th Amendment, and not pursuant to the contrary, unconstitutional, procedures set forth in the ECA.
The Gohmert suit presents an odd situation. Powerful allies of the president—Rep. Gohmert and the Arizona Trump-pledged electors—are suing the vice president, the president’s running mate. Nor is the suit only directed against Pence as a theoretical or legal matter to add a necessary party.
This leaves the public with an unclear picture on the vice president’s position. Possibly, the vice president intends to follow the ECA, in which case, because the objections will never pass both houses, the “governor-certified” slates will be counted and Biden will win despite the allegations of horrific election fraud. And even though doing so plainly violates the 12th Amendment, which means the vice president, in following the ECA, will be violating his oath of office.
However, it's possible the lawyers could simply not reach a precise agreement, or that the vice president did not want to be bound to a particular course of action, in advance, and preferred to have a court rule before Jan. 6—taking the vice president off the proverbial hot seat, so to speak.
Hopefully, the vice president adheres to his oath of office and refuses to “count” either slate of disputed electors, thus sending the matter to the House for a “contingent election” as the 12th Amendment requires.
I realize the vice president may have further political ambitions, but it would be a tragic mistake to place those personal ambitions above the Constitution, his solemn oath, and the future of the Republic.
Personally, I think the vice president fulfilling his oath and honoring the Constitution and his future political ambitions are perfectly aligned.