A Joe Biden elector wants to intervene in a lawsuit that a congressional Republican and fake electors filed against Vice President Mike Pence. That lawsuit, which asserted that Pence has the power to ignore electoral votes and unilaterally hand President Donald Trump a second term, is just another “frivolous” and “undemocratic” episode of “madness” that should be dismissed forthwith, one of Colorado’s nine Biden electors argued in a motion on Thursday.
Alan Kennedy, an attorney and University of Colorado lecturer, called the lawsuit “yet another frivolous lawsuit filed by supporters of President Trump and Vice President Pence without merit or any evidence of the alleged ‘wide-spread election fraud.'”
“This last-ditch lawsuit, like dozens of others before it, seeks to overturn the election of President-elect Biden and Vice President- elect Harris, and sew [sic] unfounded doubts about legitimacy both before and after President-elect Biden and Vice President-elect Harris are inaugurated on January 20, 2020. What is different about this suit is that it specifically seeks to overturn the votes of certified presidential electors,” he wrote. “By any measure, this lawsuit is fundamentally undemocratic and without basis in fact or law.”
As Law&Crime reported earlier in the week, Rep. Louie Gohmert (R-Texas) and a cast of purported competing GOP electors in Arizona—a state Trump lost to Biden—sued VP Pence in the U.S. District Court for the Eastern District of Texas, arguing that Pence has the power to select “competing slates of Presidential Electors.” Though there are no “competing electors,” Gohmert and plaintiffs claimed the Electoral Count Act of 1887 (ECA) violates the Twelfth Amendment by not allowing the VP to count uncertified votes cast by Trump’s so-called slate of “shadow electors.”
The lawsuit asserted that Pence “may exercise the exclusive authority and sole discretion in determining which electoral votes to count for a given state, and must ignore and may not rely on any provisions of the Electoral Count Act that would limit his exclusive authority and his sole discretion to determine the count, which could include votes from the slates of Republican electors from the Contested States.”
In other words, Gohmert and the purported electors argued that an incumbent vice president who lost reelection, like Pence, rather than ministerially counting certified electoral votes may unilaterally decide not to count certain ones in order to secure his own reelection. The election results in every U.S. state have already been certified and the Electoral College votes for Biden have already been cast. What’s more, the Twelfth Amendment only dictates that the VP, as president of the Senate, “open all the certificates” and nothing more.
Alan Kennedy was one of the individuals who cast an Electoral College vote in Colorado. He noted that the Twelfth Amendment is straightforward and that there are no “competing slates of electors.”
“With the apparent exception of Rep. Gohmert, Plaintiffs are all Arizona Republicans unwilling to accept the results of the presidential election, who were not elected as electors by Arizona voters, and who were thus not certified as electors,” the motion said. “The fact that a few members of Congress plan to oppose electoral votes cast for President-elect Biden and Vice President-elect Harris, for purely partisan reasons, adds no support for Plaintiffs’ false claims of ‘competing slates of electors’ and ‘substantial voter fraud’ in this election. I am a presidential elector; Plaintiffs’ false claims that they are electors does not make them electors.”
“As a former acting solicitor general [Neal Katyal] recently noted, Art. II, § 1, and Twelfth Amendment require the ‘President of the Senate’ to ‘open’ the electoral vote certificates, and the 1887 Electoral Count Act adds procedural details regarding the timeline and tabulation, culminating on January 6, and delineates the ministerial powers of the ‘President of the Senate,'” the motion continued.
Kennedy said that Pence’s clearly “ministerial” role shows that Gohmert and his cohorts have put forth a meritless and “undemocratic” argument that should be dismissed.
“Defendant Pence’s constitutional and statutory role is limited to the ministerial task of opening electoral vote certificates, calling for any objections by members of Congress, announcing results of votes on such objections, and announcing final electoral votes results. Thus, Plaintiffs’ legal claims are wholly without merit, undemocratic, and should be dismissed,” he said.
In closing, Kennedy called the plaintiffs’s lawsuit an “Electoral College fantasy” and “madness” which must be stopped.
“Finally, Plaintiffs conclude their Electoral College fantasy by proposing unlimited discretion for Defendant Pence to usurp the electoral process as Plaintiffs desire, while enjoining Pence from doing his job on Jan. 6. On behalf of the American People, please stop this madness,” the motion concluded.
Law&Crime reached out to Kennedy for comment.
“As a constitutional scholar, I am deeply disturbed by this brazen attempt to force Vice President Pence to replace properly certified Electoral College votes for President-elect Biden and Vice President-elect Harris with those of unelected Republicans,” Kennedy said. “President Trump and his supporters need to stop their last-ditch efforts to steal the election and accept Biden and Harris as the nation’s next President and Vice President.”
The Department of Justice responded to the Gohmert suit on Pence’s behalf on Thursday, asking the court to deny the relief sought by plaintiffs.
Read the motion to intervene and the complaint below:
Jerry Lambe contributed to this report.
[image via Chip Somodevilla/Getty Images]
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