Appeals court dismisses Gohmert’s election suit against Pence

A federal appeals court on Saturday dismissed a lawsuit by Rep. Louie Gohmert (R-Texas) and other Republicans that sought to expand Vice President Pence’s legal authority to effectively overturn President-elect Joe Biden’s electoral win.

A three-judge panel of the U.S. Court of Appeals for the Fifth Circuit affirmed a lower court judge’s decision from Friday that the GOP plaintiffs lacked a legal right to sue. 

The ruling was the latest setback for President Trump and his allies who have increasingly looked to Pence to challenge normal election protocols when he presides over a joint session of Congress on Wednesday.

The three-judge panel that issued the ruling Saturday comprised of Republican appointees, including two judges tapped by former President Ronald Reagan and a Trump appointee.

They largely endorsed the lower court ruling issued by Texas-based U.S. District Judge Jeremy Kernodle, a Trump appointee, who said the GOP plaintiffs lacked standing.

Kernodle found that Gohmert suffered no legally recognizable injury, and that the other plaintiffs, a group of Arizona Republicans who self-identify as an alternate “slate” of pro-Trump electors, could not link their supposed injury to Pence.

The suit’s dismissal was expected. The consensus among election law experts was that the judge would toss the case without reaching the core substantive claims alleged by the Republican plaintiffs.

The legal effort sought to permit Pence to sidestep federal election law when he presides over a joint session of Congress on Wednesday. Rather than carry out his statutory duty to finalize Biden’s win, Pence would be free to effectively change the 2020 results.

The vice president’s role in presiding over the Jan. 6 meeting is usually a ceremonial one governed by an 1887 federal law known as the Electoral Count Act. But the Republican lawsuit asked the judge to invalidate the law, arguing that it places an unconstitutional constraint on the vice president’s authority to choose among competing claims of victory when state-level election results are disputed.

The lawsuit was an outgrowth of GOP efforts in several key battleground states to overturn Biden’s win based on claims that his victory was tainted by widespread fraud.

Republicans in several key swing states have disputed Biden’s win and offered alternate “slates” of pro-Trump electors to be counted Wednesday, but experts say these efforts carry no legal weight.

Pence, for his part, told the court this week that he was not a proper defendant to the suit. As vice president, he said, his legal interests are not “sufficiently adverse to plaintiffs” to clear the constitutional requirement that there be a “case or controversy” before a court weighs in.

“The Vice President—the only defendant in this case—is ironically the very person whose power they seek to promote,” wrote a Department of Justice attorney representing Pence. “A suit to establish that the Vice President has discretion over the count, filed against the Vice President, is a walking legal contradiction.”

Updated 9:05 p.m.