Through a creative reading of the 12th Amendment, Gohmert’s brigade contends the Constitution empowers Pence to ignore a statute making his work ministerial and select “competing slates of Presidential Electors.” The lawsuit, which was filed against Pence in his official capacity as vice president, is based on outright falsehoods—
there are no “competing electors”—and an absurd misreading of federal law that would let the VP unilaterally decide the outcome of his own election.
Trump and his acolytes have called for Pence to block Biden’s victory by rejecting the certificates of votes in states Trump lost. Gohmert and his cohorts take
this theory a giant step further, asserting that the
Electoral Count Act of 1887 (ECA) violates the Twelfth Amendment by not allowing the VP to count uncertified votes cast by Trump’s slate of “
shadow electors.”
According to the lawsuit, the Vice President “may exercise the exclusive authority and sole discretion in determining which electoral votes to count for a given state, and must ignore and may not rely on any provisions of the Electoral Count Act that would limit his exclusive authority and his sole discretion to determine the count, which could include votes from the slates of Republican electors from the Contested States.”
It further contends that the Electoral Count Act “limits or eliminates [the Vice President’s] exclusive authority and sole discretion under the Twelfth Amendment to determine which slates of electors for a State, or neither, may be counted.”