Gohmert’s suit, which was joined by 11 Arizona Republicans who would have been electors for President Donald Trump, argued that Pence has the power under the 12th Amendment to unilaterally overturn the results of the democratic election and choose Trump to head the nation by selectively adding different electoral votes.
Judge Jeremy Kernodle of the Eastern Texas district ruled that Gohmert hadn’t suffered a concrete, specific injury caused by any Pence action, and consequently had no legal standing to sue. He didn’t address any of Gohmert’s other arguments, including his baseless claim that the presidential election was fraudulent.
The “speculative nature” of Gohmert’s “alleged injury” makes it “far too uncertain to support standing,” Kernodle ruled.
“Bottom line is, the court is saying, ‘We’re not going to touch this, you have no remedy,’” Gohmert said. “Basically, in effect, the ruling would be that you got to go to the streets and be as violent as antifa and BLM [Black Lives Matter].”
Gohmert said he is appealing to the Fifth Circuit Court of Appeals, Politico reported.
The Justice Department had argued on Pence’s behalf to dismiss the suit, saying Gohmert should have sued the House or Senate if he had issues with how electoral votes are handled.
But House lawyers also asked that suit be dismissed, calling it a “radical departure from our constitutional procedures,” and saying the proposed remedy would “authorize the Vice President to ignore the will of the Nation’s voters.”
Gohmert had argued that Pence has the power to grant Trump a second term by simply rejecting swing states’ Democratic electors and replacing them with GOP electors when the Senate and House meet on Jan. 6 to certify electoral votes. Such a situation would be a tremendous conflict of interest for the party in power.
Election law experts blasted Gohmert’s position that the vice president can in effect unilaterally choose whomever he wants to be president.
Ned Foley, director of the election law program at Ohio State University, called the argument “breathtaking and preposterous” in a tweet. “The Constitution never intended this monarchical power to disenfranchise Electoral College votes based on personal whim,” he said.
The certification of states’ electoral votes, overseen by the vice president, is usually considered a formality.
Under the Constitution and election law, Pence is supposed to open the envelopes submitted by each state and announce how many electoral votes go to each candidate.