Vice President Pence on Thursday asked a federal judge to reject a bid by Rep. Louie Gohmert (R-Texas) and other Republicans to broaden Pence’s powers in a manner that would effectively allow him to overturn President-elect Joe Biden’s electoral win.
The lawsuit, filed earlier this week, seeks to expand Pence’s role in an upcoming Jan. 6 meeting of Congress to count states’ electoral votes and finalize Biden’s victory over President Trump.
But in a Thursday brief to Texas-based U.S. District Judge Jeremy Kernodle, a Trump appointee, Pence said he was not a proper defendant to the suit.
“A suit to establish that the Vice President has discretion over the count, filed against the Vice President, is a walking legal contradiction,” a Department of Justice attorney representing Pence wrote in the filing.
Typically, the vice president’s role in presiding over the Jan. 6 meeting is a largely ceremonial one governed by an 1887 federal law known as the Electoral Count Act.
But the Republican lawsuit seeks to invalidate the law as an unconstitutional constraint on the vice president's authority to choose among competing claims of victory when state-level election results are disputed.
Republicans in several key battleground states have disputed Biden's win and offered alternate "slates" of pro-Trump electors to be counted on Jan. 6, but experts say these efforts carry no legal weight.
The lawsuit targeting the vice president comes as Pence finds himself under increasing pressure from supporters of the president, and even the president himself, to use his statutory role to challenge normal election protocols.
Among the plaintiffs in the lawsuit were Kelli Ward, who chairs the Arizona Republican Party and formerly served as an Arizona state senator. Ward has repeated unsupported claims similar to Trump and his allies that the 2020 election was tainted by widespread fraud.
Ward was also involved in an earlier unsuccessful lawsuit to overturn Biden’s win in Arizona.
Election law expert Edward Foley, a law professor at the Ohio State University, said Pence’s position amounted to “a straightforward lawyerly response" to the lawsuit.
“It’s main argument is to say that the plaintiffs should have sued the Senate and House of Representatives, not the Vice President, but it also suggests reasons — like no standing on the part of the plaintiffs — that a suit against the two chambers of Congress would fail as well procedurally,” Foley said.
In separate developments in the case Thursday, an attorney for the Democratic-led House indicated that Democratic lawmakers would file an amicus brief in the suit.