Vice President Mike Pence has been ordered by a federal judge in Texas to respond by Thursday evening to a lawsuit about his authority during the upcoming Jan. 6 joint session of Congress during which the U.S. Electoral College votes are supposed to be certified.
Texas Congressman Louie Gohmert and 11 Arizona Republicans filed an emergency motion for injunctive relief on Dec. 27, seeking a court order requiring Pence to disregard the 1887 Electoral Count Act as an unconstitutional burden to the 12th Amendment of the U.S. Constitution ratified in 1805.
The lawsuit named Pence as defendant based on his authority as Senate President and the presiding official when both houses of Congress meet together. The plaintiffs wanted Pence’s response to be filed by 5 p.m. Wednesday, followed by their own reply on Thursday morning. The lawsuit also requested an opportunity for an in-person hearing on Thursday afternoon with U.S. District Judge Jeremy Kernodle.
Instead, Kernodle gave Pence until 5 p.m. Thursday to respond, with a reply deadline for the plaintiffs of 9 a.m. Friday. That gives Gohmert, the Arizonans, and their attorneys only 19 hours -over New Year’s Eve and New Year’s Day morning- to get their final pleading filed.
In addition, the judge denied the requested hearing. He also ordered the plaintiffs’ attorneys to provide a copy of the order to Pence’s legal counsel, as well as the U.S. Department of Justice and the U.S. Attorney for the Eastern District of Texas.
It was also disclosed in court records that Pence’s office was aware of Gohmert’s intent to file the constitutional challenge before the legal action was initiated. Various attorneys engaged in conversations about the matter, but no agreement was reached, according William Lewis Sessions, one of the attorneys representing the plaintiffs.
As of press time there has been no formal statement from Pence or President Donald Trump about the case.
According to Gohmert, he undertook the lawsuit in hopes of finding a judge who “understands that the fraud that stole this election will mean the end of our republic, and this suit would insure that the vice president will only accept electors legitimately and legally elected.”
If granted the emergency injunction, it could allow Pence to disregard the U.S. Electoral College results of Dec. 14 which resulted in 306 Electoral College votes for former Vice President Joe Biden and 232 votes for President Donald Trump.
The idea, according to the plaintiffs’ legal filings, is the Vice President could then assign each state’s electoral votes as he sees fit, regardless of what happened on Dec. 14. In Arizona, that could mean the state’s 11 electoral votes could go to Trump instead of Biden, or not be assigned to either candidate.
Under that scenario, it is possible neither candidate received the minimum 270 electoral votes when Congress meets Jan. 6. Then it would be up to the House of Representatives to select the President under a special balloting process.
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. That resulted in a slate of Democratic Electors casting the state’s 11 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” vote awarding the state’s electoral votes to Trump. Both sets of votes have been sent to the National Archives, which holds each state’s Electoral College ballot until Jan. 6.