Under the 12th Amendment, Electoral College votes are sent to the vice president, who "shall, in the presence of the Senate and the House of Representatives, open all the certificates." The amendment adds that "the votes shall then be counted."
According to a federal lawsuit that Rep. Louis Gohmert (R–Texas) filed this week, that means the vice president has the sole authority to decide which electoral votes count. The implication, Gohmert says, is that Vice President Mike Pence has the power to overturn Joe Biden's victory and declare Donald Trump the winner of the presidential election by recognizing "competing slates of electors' votes" when Congress convenes to officially tally the results on January 6.
Gohmert's lawsuit, which names Pence as the defendant, aims to overturn the procedures laid out in the Electoral Count Act of 1887, which he argues is unconstitutional because it conflicts with the 12th Amendment. Under that law, which has never been used to actually reject any electoral votes, objections backed by at least one member of both the House and the Senate can succeed only if they are approved by majority votes of both chambers. So far no senator has come forward to support the use of that desperate tactic by Gohmert and other diehard Trump allies in the House. Even if one did, it is not hard to predict the result, since Democrats control the House and at least a third of Republican senators have conceded Biden's victory.
But never mind all that, Gohmert says, because the 12th Amendment gives Pence "the exclusive authority and sole discretion to open and permit the counting of the electoral votes for a given state, and where there are competing slates of electors, or where there is objection to any single slate of electors, to determine which electors' votes, or whether none, shall be counted." He adds that any such decision by Pence is not subject to judicial review.
But Gohmert's claims are, and legal scholars are not liking his chances. "No, this won't work," said Rick Hasen, an expert on election law at the University of California, Irvine. "This is insane," commented Georgia State law professor Anthony Michael Kreis.
Fordham University law professor Jed Shugerman questioned Gohmert's claim that the 12th Amendment charges the vice president with "count[ing]" electoral votes, which is not actually what the 12th Amendment says. "The 12th Amendment merely designates the President of the Senate (the VP) to 'open all the certificates,'" Shugerman noted. "But then [it] uses the passive voice: 'the votes shall then be counted.' Implicitly, Congress does the counting."
Georgetown law professor Neal Katyal, who served as acting solicitor general in the Obama administration, makes a similar point in a New York Times op-ed piece co-authored by historian John Monsky. "Nothing in either the text of the Constitution or the Electoral Count Act gives the vice president any substantive powers," they write. "His powers are ministerial, and that circumscribed role makes general sense: The whole point of an election is to let the people decide who will rule them. If an incumbent could simply maneuver to keep himself in office—after all, a maneuver to protect Mr. Trump also protects Mr. Pence—the most foundational precept of our government would be gravely undermined."
The 12th Amendment was ratified in 1804. Yet in the 216 years since, it seems, no vice president has thought to invoke it in the way Gohmert suggests to favor his own party—or, in Pence's case, himself. If Gohmert were right, for example, Vice President Al Gore could have tipped the outcome of the very close 2000 election to himself, and Vice President Richard Nixon could have rejected electoral votes for John F. Kennedy in 1960.
Apparently Pence did not consider that option either, which is why Gohmert is suing him. The congressman, who filed his case in the U.S. District Court for the Eastern District of Texas, is seeking a judgment declaring the Electoral Count Act unconstitutional and affirming that Pence "may exercise the exclusive authority and sole discretion in determining which electoral votes to count for a given State." In the unlikely event that Gohmert can obtain such a judgment, of course, Pence would still be under no obligation to reverse the outcome of the election.
"The 2020 presidential election was one we'd expect to see in a banana republic, not the United States of America," Gohmert said on Monday, alluding to Trump's wild claims of massive election fraud. How would you describe a country where the current leaders have the power to remain in office regardless of what voters say?