Lawsuit Highlights Deep Divide Over Whether Pence Can Reject Biden

Can Vice President Mike Pence unilaterally reverse Donald Trump’s election loss at a joint session of Congress next week as a Republican congressman is claiming in an 11th-hour lawsuit?

Depends on whom you ask. The answer is an emphatic no, one Democratic presidential elector from Colorado told a judge.

On the flip side, GOP Rep. Louie Gohmert argues Pence can hand Trump a second term by simply rejecting swing states’ slates of Democratic electors and instead choosing competing GOP electors when the Senate and House meet jointly on Jan. 6 to open and count certificates of electoral votes.

But in a Thursday filing, Colorado elector Alan Kennedy argues that competing slates of electors cannot be chosen because they don’t exist. States can only choose one slate -- and the swing states at issue already did so -- for President-elect Joe Biden and Vice President-elect Kamala Harris, he said.

“If an incumbent vice president could keep his or her job that way, then votes of millions of people and votes of duly elected and certified electors would be meaningless, and our nation’s most cherished principle -- ‘here, We the People rule’ -- would be eviscerated,” Kennedy said.

The vice president has the constitutional role of presiding over the Senate, which has traditionally included overseeing the formal acceptance of the Electoral College vote.

“I can tell you that the argument is something we expected and are not worried about,” Gohmert’s attorney Howard Kleinhendler said in an email, adding that a more-detailed response will be filed Friday.

The Dec. 27 lawsuit by Gohmert, of Texas, echoes Trump’s claim that Biden won the election only through rampant voter fraud perpetrated by thousands of corrupt Democratic officials and election workers. Some members of Congress have signaled they will object during the joint session, though not enough to block Biden’s win.

“The fact that a few members of Congress plan to oppose electoral votes cast for President-elect Biden and Vice President-elect Harris, for purely partisan reasons, adds no support for plaintiffs’ false claims of ‘competing slates of electors’ and ‘substantial voter fraud’ in this election,” Kennedy said.