Undeterred by a string of election-related court losses, Rep. Louie Gohmert and “Kraken” attorney Sidney Powell are asking the U.S. Supreme Court to declare that Vice President Mike Pence has the authority to disregard the democratic process and choose himself and President Donald Trump as the winners of the 2020 election.
Joined by a coalition of right-wing Trump acolytes, Gohmert asked the justices to declare unconstitutional a post-Reconstruction era law in an effort to let Pence unilaterally reject certified electoral votes from swing states where the president lost the popular vote.
“On January 6th, a joint session of Congress will convene to formally elect the President. The respondent, Vice-President Pence, will preside. Under the Constitution, he has the authority to conduct that proceeding as he sees fit,” the emergency application for an administrative stay stated. “He may count elector votes certified by a state’s executive, or he can prefer a competing slate of duly qualified electors. He may ignore all electors from a certain state. That is the power bestowed upon him by the Constitution.”
According to the filing, such “weighty and prudential powers” are “afforded under the Constitution – the foundation of American democracy — which unequivocally entrusts to him all the prerogatives and rights to determine what electoral votes to count or to disregard that are attendant to his role as President of the Senate.”
This wildly imaginative interpretation of the Twelfth Amendment has been spurned by hordes of legal and constitutional expert as nonsensical, and the case has already been dismissed by a federal district court and federal appellate court since it was filed on Dec. 28.
Even attorneys from the Department of Justice, who represented Pence in the lower courts, emphasized that Gohmert’s claims amounted to “a walking legal contradiction.”
As previously reported by Law&Crime, the legal assertions underpinning the filing are simply false. The election results in every U.S. state have already been certified and the Electoral College votes for Biden have already been cast. There is absolutely no constitutional provision allowing for states to have “competing” or “alternate” slates of electors. The “votes” sent to Congress by a slew of “shadow electors” do not have any legal authority. Additionally, the Twelfth Amendment only dictates that the VP, as president of the Senate, “open all the certificates” and nothing more.
The application also seeks to have the court declare that the Electoral Count Act of 1887 (ECA) violates the Electors Clause and the Twelfth Amendment of the U.S. Constitution and direct Pence to “refrain from invoking” the ECA’s dispute-resolution provisions during Wednesday’s count.
Like many GOP-backed filings challenging the election results, the application was rife with false claims, conspiracy theories, and misstatements of law, blaming the procession of previous legal losses on cowardly judges instead of a lack of evidence and legal standing.
In fact, the ECA, which describes the process for counting Electoral College votes, was specifically enacted to “drain away as much power as possible from the Senate President,” according to DePaul University Law School professor Stephen A. Siegel, who specializes in legal history and constitutional law.
For his part, Pence on Wednesday said he would not attempt to block Congress’s counting of the votes.
“It is my considered judgment that my oath to support and defend the Constitution contains me from claiming unilateral authority to determine which electoral votes should be counted and which should not,” he wrote is a letter to his colleagues. After that, Trump supporters stormed the U.S. Capitol, scaling the walls, filling the halls, derailing the joint session of Congress, and delaying the congressional certification of Joe Biden’s election win.
As this was happening, President Trump attacked Pence on Twitter. Pence and lawmakers had to evacuate.
Powell and Gohmert’s legal team also filed the application about two hours before the proceedings in which they were asking the justices to intervene, making it virtually impossible for the court to comply with the request.
Read the full filing below:
[image via YouTube screengrab]
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