Judge Dismisses Effort to Derail Count of Electors’ Votes

Insight Online News

By Jess Bravin

WASHINGTON—A federal judge on Friday dismissed a Republican congressman’s longshot bid to give Vice President Mike Pence the power to overturn President-elect Joe Biden’s victory in the Electoral College.

U.S. District Judge Jeremy Kernodle, in Tyler, Texas, ruled that the plaintiffs— Rep. Louie Gohmert and several Arizona Republicans who unsuccessfully ran to be presidential electors—didn’t have standing to file the case.

The New Year’s Day order was the latest of dozens of state and federal court decisions rejecting efforts by President Trump and his allies to overturn the Nov. 3 presidential election, which Mr. Biden won with 306 electoral votes over Mr. Trump’s 232. Mr. Biden also defeated Mr. Trump in the nationwide popular vote, 81 million to 74 million.

Congress is to meet on Jan. 6 in a ceremonial session where electoral votes will be counted and the presidential election formally concluded.

Mr. Gohmert, who is from Texas, and the Arizona Republicans sued Mr. Pence in an effort to strike down the Electoral Count Act, an 1887 law that prescribes congressional procedures for finalizing presidential elections. Rather than perform the ceremonial role of opening electoral certificates from the 50 states and the District of Columbia, as the law directs, the vice president, as president of the Senate, held the sole power to decide which votes to count, the lawsuit argued.

The House of Representatives, controlled by Democrats, asked Judge Kernodle to dismiss the case. Its brief called Mr. Gohmert’s gambit “a belated and meritless assault on longstanding constitutional processes for confirming the results of a national election for President.”

The Justice Department, acting on behalf of Mr. Pence, also weighed in against the suit, which it called a “walking legal contradiction” because the defendant, Mr. Pence, would benefit, by gaining vast new authority, should he lose the case. The department suggested Mr. Gohmert might sue Congress itself, since it was the body whose powers he sought to diminish.

An attorney for the plaintiffs, Lewis Sessions, said they would appeal.

The vice president’s office declined to comment. Spokespeople for the Justice Department and the House couldn’t immediately be reached.

The 12th Amendment states that “the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.” The plaintiffs contended that such language reserved to the vice president the power to decide which electoral votes to count.

The lawsuit, filed last Sunday, falsely asserted that “the State of Arizona (and several others) have appointed two competing slates of electors.” Arizona filed a single slate of 11 presidential electors with the National Archives. They cast their votes for Mr. Biden and Vice President-elect Kamala Harris, who won the state.

The unsuccessful Republican electors from Arizona, along with those from other states Mr. Biden won—Georgia, Michigan, Pennsylvania and Wisconsin—held mock Electoral College meetings on Dec. 14 where they cast pretend votes for President Trump.

In his Friday opinion, Judge Kernodle said there was no need to reach the merits of Mr. Gohmert’s argument because he had no legal standing to make it.

Standing requires “a personal injury that is fairly traceable to the defendant’s allegedly unlawful conduct and is likely to be redressed by the requested relief,” Judge Kernodle wrote.

Mr. Gohmert argued that the Electoral Count Act’s provisions would likely ratify Mr. Biden’s victory, thereby denying him an opportunity to vote for Mr. Trump under 12th Amendment procedures that come into play if no candidate receives a majority of electoral votes. In those circumstances, the House would select the winner, with each state’s delegation getting a single vote. While Democrats have a majority of representatives, Republicans control more state delegations.

Judge Kernodle, a 2018 Trump appointee, said that fact wasn’t a concrete injury to Mr. Gohmert himself, as it “alleges at most an institutional injury to the House of Representatives.”

The unsuccessful electors alleged they were harmed when Arizona’s governor certified the Biden slate. The judge said that injury wasn’t caused by Mr. Pence, and that striking down the Electoral Count Act wouldn’t undo harm allegedly inflicted by Arizona officials who certified the election.

“Even Trump-appointed judges know that Trump’s Electoral College fantasy is undemocratic and unconstitutional,” said Alan Kennedy, a Colorado presidential elector who filed a brief in the case. Mr. Kennedy and Colorado’s eight other electors cast their votes for Mr. Biden, who won the state.


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