Vice President Mike Pence and House Speaker Nancy Pelosi, speaking on behalf of the House of Representatives, have both asked U.S. District Judge Jeremy D. Kernodle, appointed by President Donald Trump in 2018, to toss the case brought by Rep. Louie Gohmert (R-TX) and several Trump electors.
The lawsuit, filed by Gohmert and Trump electors from Arizona, seeks to define the vice president’s Constitutional role during the January 6 joint session of Congress, in which the electoral votes will be counted, and at least 140 Republican members of the House and Sen. Josh Hawley intend to object.
Some claim that Pence’s role is merely ceremonial, as he is set to read the electoral votes from each state, and note any objections. However, legal analysis from Constitutional scholars suggests that Pence, acting as the presiding officer of the meeting and the President of the Senate, has the ability to cast tie breaking votes or disqualify electors from states with credible accusations of widespread voter fraud.
Pence is being represented by the Department of Justice, as he is being sued in his official capacity as vice president. Accordingly, the Wall Street Journal reported that the “The Justice Department, while avoiding an opinion on the 12th Amendment, suggested that Mr. Gohmert might instead sue Congress itself, since the 1887 act vests the legislature with powers that they are seeking to transfer to Mr. Pence.”
Apparently coming to Pence’s defense, the House of Representatives also asked Judge Kernodle to drop the case, with the House’s legal counsel claiming the text of the 12th Amendment must be construed in such a way that Pence’s role is purely ceremonial.
According to a statement released by Speaker Pelosi, the lawsuit “has zero legal merit and is yet another sabotage of our democracy.”
If the lawsuit, which seeks to define Pence’s Constitutional role on January 6, is dropped by Judge Kernodle, then there will be no precedent for Pence’s behavior on January 6.
Without a court ruling, Pence could disregard electoral votes from entire states plagued by credible accusations of widespread voter fraud. Or Pence could join Senate Majority Leader Mitch McConnell in ignoring or disregarding claims of voter fraud, and simply certify Joe Biden’s allegedly fraudulent victory.
If Gohmert and his allies win the lawsuit, however, Pence may be Constitutionally bound to take part in the January 6 challenge, or at least may be powerless to prevent it.
Until this week, Pence had planned to travel to Israel and other countries following the January 6 joint session of Congress. The U.S. Embassy in Jerusalem confirmed that Pence cancelled this trip.
Update: The case has been dismissed, and Gohmert announced his intention to appeal to the 5th Circuit Court.