In a last-ditch bid, Rep. Louie GohmertLouis (Louie) Buller GohmertHouse passes bill to end crack and powder cocaine sentencing disparity Republicans keep distance from 'Justice for J6' rally Security forces under pressure to prevent repeat of Jan. 6 MORE (R-Texas) on Wednesday asked the Supreme Court to take up a far-fetched effort to expand Vice President Pence's legal authority to effectively overturn President-elect Joe BidenJoe BidenJill Biden campaigns for McAuliffe in Virginia Fill the Eastern District of Virginia Biden: Those who defy Jan. 6 subpoenas should be prosecuted MORE’s electoral win.
Election law experts said the request was almost certain to fail. Gohmert’s suit was recently dismissed in quick order by lower federal courts, and his Supreme Court bid came just moments before Vice President Pence began presiding over a joint session of Congress to finalize Biden’s victory.
“Given the track record of this lawsuit in the lower courts, the attempt now to get the Supreme Court to take it up gives new meaning to a last-minute ‘Hail Mary,’ ” said Edward Foley, a law professor at Ohio State University. “It’s hard to imagine it having less chance of success and thus it would be beyond shocking if the Court agreed to intervene as requested.”
In the lower courts, a federal district court judge and a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit found that Gohmert and the other Republican plaintiffs lacked a legal right to sue in the case.
The legal effort seeks 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 meeting is typically a ceremonial one governed by an 1887 federal law known as the Electoral Count Act. But the Republican lawsuit asks the courts 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.
President TrumpDonald TrumpTrump criticizes Justice for restoring McCabe's benefits Biden: Those who defy Jan. 6 subpoenas should be prosecuted Hillicon Valley — Presented by LookingGlass — Hackers are making big money MORE and his allies have increasingly pressured Pence to disregard federal law to effectively hand himself and Trump a second term, despite losing to Biden and Vice President-elect Kamala HarrisKamala HarrisDemocrats' reconciliation bill breaks Biden's middle class tax pledge We have a presidential leadership crisis — and it's only going to get worse Blinken pressed to fill empty post overseeing 'Havana syndrome' MORE by more than 7 million votes.
In a letter to Congress released just before its joint session on Wednesday, Pence said he lacks the "unilateral authority" to reject electoral votes.