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Attorneys representing Rep. Louie Gohmert, R-Texas, and the slate of Republican electors from Arizona indicated in a court filing that Vice President Mike Pence did not agree with their position that Pence could choose between counting the electoral votes of Democrats or Republicans from states where both parties had submitted votes, which would effectively allow him to decide who wins the election, Fox News reported.
A Tuesday court filing said lawyers for Gohmert discussed the issues with the counsel to the vice president to see if the two sides could avoid litigation by being on the same page.
Pence’s team apparently did not view the situation the same way as Gohmert’s side.
“In the teleconference, Plaintiffs’ counsel made a meaningful attempt to resolve the underlying legal issues by agreement, including advising the Vice President’s counsel that Plaintiffs intended to seek immediate injunctive relief in the event the parties did not agree,” the filing said. “Those discussions were not successful in reaching an agreement and this lawsuit was filed.”
From the filing, it is unclear if Pence was specifically asked to count the Republican votes instead of the Democratic ones or if the two sides simply discussed the legal issues surrounding whether he had the authority to do so.
Gohmert cited a local rule that “requires a conference on the merits,” but declined to provide any details.
The lawsuit claims that if more than one party has cast electoral votes, the Constitution allows Pence to decide which party’s votes to count when Congress meets to formally announce the winner of the election Jan. 6, 2021.
In Arizona and other battleground states that President-elect Joe Biden won in November’s election, the slate of Republican electors — whose votes would have been certified had President Trump won — met on Dec. 14 and cast votes in case legal challenges of the Democrats’ victory were successful.
While the Electoral Counting Act details a process of handling objections to votes that involves both the House and Senate, Gohmert’s lawsuit claims that this law runs contrary to the 12th Amendment, which outlines the process of counting electoral votes.
While the 12th Amendment does not specifically address what happens in the event of disputed votes, it does say that if no candidate has a majority, it is up to the House of Representatives to choose the president.
Gohmert claims that because the 12th Amendment does not include the Senate in the process, the Electoral Counting Act is unconstitutional for including the Senate in the dispute resolution process.
The lawsuit asks the court to declare the Electoral Counting Act unconstitutional and requests an injunction blocking Pence from acting according to its procedures.