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But Pence, in a 14-page brief filed by Justice Department attorneys, said the lawsuit shouldn’t be directed against him because he’s the one Gohmert is trying to hold accountable for.
“A lawsuit to establish that the vice president has discretion over the tally, brought against the vice president, is a walking legal contradiction,” Pence’s brief said.
U.S. District Court Judge Jeremy Kernodle, appointed by Trump, has not scheduled a hearing in the case.
Gohmert’s lawsuit, filed Sunday, argues that the 1887 Electoral Tally Act – a law triggered by the contested presidential election of 1876 – is unconstitutional because of the structure it imposes on the process of receiving electoral votes from each state.
Under the procedures of the Election Count Act, the Vice President – who presides over the chamber – opens the voters list for each state in alphabetical order. The law also establishes a process by which lawmakers can challenge groups of voters, triggering debate and votes by the House and Senate.
In the case of the 2020 election, Gohmert is among dozens of House GOP lawmakers who intend to oppose Biden’s victory, alleging baseless fraud allegations. But those challenges appear doomed to fail in a Democrat-controlled House and tightly divided Senate, where large numbers of Republicans say there is no evidence to reverse Biden’s victory.
Gohmert calls on the courts to reject the rules altogether, leaving the vague language of the Twelfth Amendment as the sole guide to the process. In this language, Pence would be the ultimate decider of electoral votes to be presented to Congress.
House attorney general Doug Letter filed an official appearance in the case on Thursday afternoon and Pence’s brief says the House should file “many” written arguments to defend the law.
In his brief, Pence points to the House’s intention to file its own objections to Gohmert’s trial as a reason for the court to reject it.
“It is the Senate and the House of Representatives that are best placed to defend the Law. Indeed, logically, it is these organizations against which the adjustments requested by the applicants must run, ”indicates the Pence file.
The Justice Department’s submission also argues that the lawsuit against Pence is inappropriate for another reason: the Constitution grants broad legal immunity to lawmakers. DOJ lawyers say sweeping protection extends to actions by Pence in his official capacity as Senate Speaker.
U.S. District Court Judge Jeremy Kernolde, appointed by Trump and sitting in Tyler, Texas, has not scheduled a hearing in the case.
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