A federal judge’s decision in the lawsuit filed against Vice President Mike Pence by a fellow Republican could substantially alter how the events unfold when Congress convenes for a joint session on Jan. 6 to count the Electoral College votes, according to Constitutional expert Rick Green.
While the main thrust of the lawsuit filed by Rep. Louie Gohmert (R-Texas) is to clarify how much authority Pence will have over the counting of the electoral votes, the case also seeks a court determination on how Congress should vote when Republicans object to slates of electors from six states where President Donald Trump has challenged the state-certified election results.
The lawsuit specifically challenges the constitutionality of a provision in the Electoral Count Act which directs how Congress should vote on objections to slates of electors. The lawsuit argues that the Act overrides the Constitution’s Twelfth Amendment, which directs the House to vote by state delegations rather than via individual members.
“Louie Gohmert raises the issue in this lawsuit to say, if that’s the only direction given by the Constitution on how the House would vote in any of these scenarios, then they have to vote that way on the question of rejecting or accepting electors as well. And that’s a big game-changer.”
Republicans hold the majority of state delegations in the House, which would mean they would have the majority in the House and Senate required to decide which slates of electors should be counted.
“Most people say, well, you know, the Democrat House is not going to reject the Pennsylvania Democrat electors. But if the House has to vote by state, absolutely, yes, they would reject those electors,” Green added.
“So even if the court only decides that one technical issue in the Gohmert suit and they ignore all of the other issues, that could absolutely change the outcome of what happens on January 6.”
Republican electors in seven states cast procedural Electoral College votes for Trump on Dec. 14. While only the Democrat electors’ votes in those states have been certified by state authorities, both slates will end up before Congress when the joint session starts at 1 p.m. on Jan. 6.
Trump and a handful of third parties are litigating election challenges in each state, including several that are pending before the Supreme Court.
Twenty-four representatives and representatives-elect, who will enter office several days before the session, plan on filing objections. Sen. Josh Hawley (R-Mo.) is the only member or member-elect of the upper chamber to commit to an objection.
“You’ve got 74 million Americans who feel disenfranchised, who feel like their vote doesn’t matter. And this is the one opportunity that I have as a United States senator, this process right here, my one opportunity to stand up and say something, and that’s exactly what I’m going to do,” Hawley said on Wednesday.
Objections are filed in writing and must have support from at least one member of each chamber. If they do, they trigger a two-hour debate and a vote by the House of Representatives and the Senate. How that vote is to be conducted could be decided by the judge in the Gohmert case.
