PHOENIX β Vice President Mike Pence will not cooperate with a bid by the Arizona Republican Party chairwoman and others to put him in a position to keep President Trump in the White House for another four years.
The complaint filed by Kelli Ward against the vice president is flawed, said John Coghlan, an attorney with the U.S. Justice Department which is representing Pence, in legal papers filed late Thursday.
Coghlan noted that Ward wants a federal judge to rule that the procedures for counting electoral votes from the various states do not comply with constitutional provisions.
According to Ward and other Republicans who claim they are the rightful electors, that gives Pence, as the presiding officer of the Senate, the power to unilaterally decide whether to accept or reject Arizonaβs 11 electoral votes, which are designated for Joe Biden.
βBut these plaintiffsβ suit is not a proper vehicle for addressing those issues because plaintiffs have sued the wrong defendant,β wrote Coughlan. βThe vice president β the only defendant in this case β is ironically the very person whose power they seek to promote.β
He told the judge that if Ward and her allies have a legal complaint about the procedure to count electoral votes they should be suing the U.S. Senate and House of Representatives, not Pence.
The opposition is a crucial setback for Ward, who was hoping for a quick and unopposed order from the judge directing Pence to decide which electoral votes to count from each state where Trump allies contend the president won the popular vote, despite the results in each of those states being certified for Biden.
U.S. District Judge Jeremy Kernodle is giving Ward and her attorneys through Friday, Jan. 1, to file a response. So far, though, he has declined to schedule a hearing on the bid, suggesting he may dismiss it without oral arguments.
Ward and her attorneys are relying on the Twelfth Amendment to the U.S. Constitution. It says after each state has voted and chosen its electors, Congress convenes in joint session on Jan. 6 to certify the count, normally a routine procedure conducted under the 1887 Electoral Control Act.
But U.S. Rep. Louie Gohmert, R-Texas, a plaintiff in the lawsuit along with Ward, said he intends to object to the delegates from Arizona and several other states won by Biden.
The lawsuit is based on the premise that once that happens, the Constitution empowers the vice president to unilaterally decide whether to count the 11 electoral votes for Biden from Arizona or instead accept an alternate βslateβ chosen by Republicans in an unofficial and unsanctioned meeting, who would vote for Trump.
Ward would be just as happy if Pence were to reject both slates from Arizona and other states.
That would throw the decision to the U.S. House, where each state gets only one vote, a point Ward herself emphasized by noting there are more states with Republican-controlled delegations than with Democrats in the majority.
Coghlan told the judge there are other problems with the lawsuit.
He said that Ward and the other nonofficial Arizona βelectorsβ β she is one of them β claim they have a right to sue because of a βtheoretical injury in the debasement of their votes.β
But Coghlan said that even if the judge were to rule that Pence has certain powers, that doesnβt guarantee that they will get the outcome they want.
βThey do not seek an order requiring that the presidential election be resolved by the House of Representatives, or that the Republican electorsβ votes from Arizona be counted,β Coghlan said.
Finally, he noted that Pence is being sued in his capacity as presiding officer of the Senate.
But Coghlan noted that the U.S. Constitution prohibits other branches of government from questioning Congress in connection with βlegislative acts.β
Ward and her allies had hoped Pence would not oppose the lawsuit, potentially allowing the judge to simply enter an order against him.
In paperwork filed earlier this week, William L. Sessions, the lead attorney for those filing suit, acknowledged that he had a teleconference with Penceβs council in βa meaningful attempt to resolve the underlying legal issues by agreement,β complete with telling the vice presidentβs lawyers he would sue if there was no deal.
βThose discussions were not successful in reaching an agreement and this lawsuit was filed,β Sessions wrote.
There are two other cases pending before the U.S. Supreme Court.
One, by all 11 Republican βelectors,β contains various allegations of fraud and misconduct they claim should require the official count of the Arizona vote be thrown out.
That case was dismissed by U.S. District Judge Diane Humetewa, who said the allegations βfail in their particularity and plausibility.β
Ward has a separate case before the nationβs high court in which she contends she was denied her legal right to inspect all the ballots cast in the general election so she could properly prepare her claim that the results are not valid.