Appeals Court Rejects Gohmert Suit Against Pence Over Electoral Votes

A federal appeals court on Saturday dismissed a lawsuit by Rep. Louie Gohmert that argued the vice president has the authority to unilaterally reverse Donald Trump's election loss during a joint session of Congress Wednesday.

A three-judge panel of the U.S. Court of Appeals for the Fifth Circuit affirmed federal court judge from Texas' decision that the plaintiffs lacked a legal right to sue, The Hill reported.

The judges were two Reagan appointees and one Trump appointee.

U.S. District Judge Jeremy Kernodle on Friday dismissed the suit by Representative Louie Gohmert, ruling the Texas congressman hadn’t suffered a specific injury caused by any action of Pence and therefore didn’t have legal standing to sue. The judge didn’t rule on the merits of Gohmert’s argument, which would have radically reshaped a vice president’s role.

“Congressman Gohmert’s alleged injury requires a series of hypothetical -- but by no means certain -- events,” said Kernodle, a Trump appointee. “Plaintiffs presuppose what the Vice President will do on January 6” and “which electoral votes the Vice President will count or reject from contested states.”

Gohmert argues Pence has the power to hand Trump a second term by simply rejecting swing states’ slates of Democratic electors and instead choosing competing GOP electors when the Senate and House meet jointly to open and count certificates of electoral votes. Election experts have said such a finding would create a major conflict of interest.

Formal acceptance

The vice president has the constitutional role of presiding over the Senate, which has traditionally included overseeing the formal acceptance of the Electoral College vote, which President-elect Joe Biden won.

Pence urged the judge to reject Gohmert’s lawsuit, saying in a Thursday filing that the congressman should have sued the U.S. Senate or the House of Representatives if he disagreed with the established way that Electoral College votes were counted. Pence’s filing was made by the Justice Department.

The Dec. 27 lawsuit by Gohmert echoes Trump’s debunked claim that Biden won the election only through rampant voter fraud perpetrated by thousands of corrupt Democratic officials and election workers. Some members of Congress have signaled they will object during the joint session, though not enough to block Biden’s win.

Gohmert’s attorney Howard Kleinhendler didn’t immediately respond to a message seeking comment.

Bloomberg News contributed.