In the eight weeks that have passed since Election Day 2020, Donald Trump and his partisan allies have filed an avalanche of ridiculous lawsuits, racking up an amazing number of defeats. Politico reported yesterday, however, one of the weirdest cases of them all.
Rep. Louie Gohmert (R-Texas) and President Donald Trump’s defeated electors from Arizona may force Vice President Mike Pence to publicly pick a side in Trump’s bid to overturn his 2020 election loss. Gohmert and a handful of the would-be electors sued Pence in federal court on Monday in a long-shot bid to throw out the rules that govern Congress’ counting of electoral votes next week.
Let’s take a moment to contextualize all of this, because while it may seem bonkers for a far-right congressman to sue his own party’s far-right vice president, it’s worse than it appears at first glance.
On Jan. 6, Congress will formally certify President-elect Joe Biden’s victory, accepting the results of the electoral college’s vote. Mike Pence will, by constitutional mandate, oversee the process in the Senate, though his role is largely a ceremonial formality.
In fact, the Constitution’s language on this is straightforward: “The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted.”
Some on the fringes have nevertheless come to the conclusion that Pence could use this opportunity to pull a fast one, prevent certification of Biden’s victory, and somehow keep Trump in power at the Indiana Republican’s own discretion.
In fact, Trump is reportedly “confused” as to why his vice president can’t simply manufacture the authority to reject the outcome of the electoral college vote and overturn the results the outgoing president doesn’t like. (By some accounts, Trump would also see Pence performing his constitutional duty as “the ultimate betrayal.”)
And that’s where Gohmert’s lawsuit comes into play. The Texas Republican, generally seen as a caricature of a bumbling far-right congressman, wants the judiciary to empower Pence to unilaterally reject electoral college results he disagrees with. More specifically, the lawsuit is asking a federal judge to put aside the Constitution’s unambiguous language, let the vice president ignore actual electoral votes, and accept an alternate slate of fake pro-Trump electoral votes as if they were real.
There’s no reason to think this will work, though I should probably note that Gohmert and his cohorts are arguing the matter before a Trump-appointed judge in Texas. But it’s nevertheless worth dwelling on the circumstances: in 2020, an elected member of Congress not only believes a vice president should have the unilateral power to decide the outcome of a presidential election, that same lawmaker expects the federal judiciary to make it happen. We are now watching people who call themselves conservatives argue that vice presidents should have unilateral power to decide presidential elections. As for the vice president, Politico‘s report added, “Though the lawsuit itself is unlikely to gain legal traction, it does put Pence in the position of having to either contest the suit — putting him on the opposite side of Trump and his GOP defenders — or support it and lay bare the intention to subvert the will of the voters in the 2020 election.”
Steve Benen is a producer for "The Rachel Maddow Show," the editor of MaddowBlog and an MS NOW political contributor. He's also the bestselling author of "Ministry of Truth: Democracy, Reality, and the Republicans' War on the Recent Past."
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