Eleven Arizona Republicans have joined Texas Congressman Louie Gohmert in asking a federal judge for an order permitting Vice President Mike Pence to disregard the U.S. Electoral College results of Dec. 14 so Pence can assign each state’s electoral votes as he sees fit when Congress convenes next month to certify the winner of the Presidential race.
The emergency complaint for injunctive relief filed Sunday names Pence as the defendant. Pence serves as President of the U.S. Senate and presides over joint sessions of Congress, including the upcoming Jan. 6 gathering at which the 306 Electoral College votes for former Vice President Joe Biden and the 232 votes for President Donald Trump are to be certified.
The Texas lawsuit alleges the 1887 Electoral Count Act intrudes upon the authority of the Electors Clause and the 12th Amendment of the U.S. Constitution on the issue of disputes over electors and electoral votes in several states, including Arizona. It contends Pence must disregard the Act, leaving him with “exclusive authority and sole discretion” to determine which states’ electoral votes are counted,.
The lawsuit, which is similar to one filed last week in a Washington, DC, federal court, asks U.S. District Judge Jeremy Kernodle of the Eastern Division of Texas to set an expeditated hearing on whether the Electoral Count Act is unconstitutional. Such an order could result in no electoral votes being counted in some states -including Arizona- where multiple Republican-initiated legal challenges have alleged Biden only won the popular vote in those states due to “widespread fraud.”
Further, if neither man ends up with at least 270 electoral votes on Jan. 6 then the lawsuit contends the U.S. Constitution requires the House of Representatives to select the President by ballot.
Nothing noted in either lawsuit suggests any plaintiffs discussed the legal actions with Pence before the cases were filed. Neither the White House nor Pence’s office released a statement on the matter before press time.
In Arizona, Secretary of State Katie Hobbs certified Biden as the victor by a 10,457 vote margin during a Nov. 30 ceremony observed by Gov. Doug Ducey and Arizona Attorney General Mark Brnovich, neither of whom raised objections. The certification led to the 11 Democratic electors casting the state’s electoral votes for Biden on Dec. 14.
However, the 11 Arizona Republicans joining Gohmert’s lawsuit took part in a separate Dec. 14 ceremony to cast a “competing” slate of the state’s 11 electoral votes in favor of Trump. The same day, 20 Arizona legislators signed a “Joint Resolution of the 54th Legislature” stating the state’s election “was marred by irregularities so significant as to render it highly doubtful whether the certified results accurately represent the will of the voters.”
The resolution, which was done while the legislature was not in session, calls for Arizona’s electoral votes to be cast for Trump “or to have all electoral votes nullified completely until a full forensic audit can be conducted.”
The Arizona Republicans named as plaintiffs are Arizona GOP chairwoman Kelli Ward, as well as Tyler Bowyer, Nancy Cottle, Rep.-elect Jake Hoffman, Rep. Anthony Kern, James R. Lamon, Sam Moorhead, Robert Montgomery, Loraine Pellegrino, Greg Safsten, and Michael Ward. In a statement Monday, Chairwoman Ward said the lawsuit is intended to define Pence’s authority and power under the 12th Amendment.
“The Electoral Count Act limits or eliminates the Vice President’s ability to determine which electors may be counted,” she said. “However, plain law cannot contradict a Constitutional Amendment, which is why we are challenging that the statute is unconstitutional and seeking to demonstrate to the American people what the Vice President’s constitutional powers are in this matter.”
In the meantime, Secretary of State Hobbs has asked Attorney General Brnovich to investigate the use of the State Seal on the document Republicans used to send their alternative slate of electors to the National Archives. State law requires authorization from Hobbs before using, displaying, or employing “any facsimile, copy, likeness, imitation or other resemblance” of the seal.
Violation of the statute can be prosecuted as a Class 3 misdemeanor punishable by a $500 fine and up to 30 days in jail.