Vice President Mike Pence, shown at a Trump campaign rally in Mesa on Aug. 11.

 Michael Chow / The Az Republic

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 Arizona’s 11 electoral votes, which are designated for Joe Biden.

β€œBut these plaintiffs’ suit is not a proper vehicle for addressing those issues because plaintiffs have sued the wrong defendant,” wrote Coughlan. β€œThe vice president β€” the only defendant in this case β€” is ironically the very person whose power they seek to promote.”

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.

Weeks after Election Day, attention turns to the Electoral College and its members who are responsible for formally electing the next president.Β "When we go to vote for president in November, we are not actually voting for president. You are casting your ballot for the electors of that person," said Gayle Alberda, an assistant professor of politics at Fairfield University."It used to be a little clear on our ballots where it said, you're voting for the electors of, you know, Joe Biden or the electors of Donald Trump. Our ballots don't say that anymore," said Matthew Weil, the director of the Elections Project for the Bipartisan Policy Center.The Founding Fathers debated how the country's presidents should be picked either by Congress or by a national popular vote. The Electoral College was created as a compromise between the two."It was supposed to be a time where the electors got together and really made sure and debated and discussed the winner of that election to make sure that indeed that was the person that would be right for the nation," said Alberda.The Electoral College physically casting their ballots is more of a formality today, but the Constitution still determines how the process works.Β The number of votes each state gets is based on the number of representatives they have in Congress. Washington D.C., also gets three electoral vote. With 538 votes available, that makes 270 the magic number.Β Federal law does not dictate how states award their electoral votes. Forty-eight states and Washington D.C. have a winner-take-all system. Nebraska and Maine are the two exceptions, though it's rare for either to split its vote total.The state electors meet on the first Monday after the second Wednesday in December to cast their votes. This year, that's December 14.Β "In most states, there are two sets of electors one for the Democratic candidate, one for the Republican candidate. And which slate of electors has to show up at the state capitol is determined by the announcement of who won the popular vote in that state," said Steven Smith, a professor of political science at Washington University in St. Louis."So the electors are generally picked by the campaigns or the state parties. They are traditionally loyalists to the parties. They are longtime members of the party," said Weil.Because electors are usually loyal to the political party they're representing, it's rare for one of them to vote for someone other than the designated party nominee."A faithless elector is that stray soul who decides that even though they were chosen to vote for this candidate or that candidate, they're going to choose someone else. Maybe another person or maybe some hero or whatever. They're making a political statement," said Michael Waldman, president of the Brennan Center for Justice at NYU Law School.We've seen "faithless electors" in a handful previous Electoral College votes, but those votes have never impacted the final outcome of the presidential race.Β Once the Electoral College ballots are cast, those votes areΒ sent to Washington D.C.Β The final step will happen when Congress formally counts and accepts those ballots on Jan. 6, 2021.Β 

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 β€œslate” 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 β€œelectors” β€” she is one of them β€” claim they have a right to sue because of a β€œtheoretical injury in the debasement of their votes.”

But Coghlan said that even if the judge were to rule that Pence has certain powers, that doesn’t guarantee that they will get the outcome they want.

β€œThey do not seek an order requiring that the presidential election be resolved by the House of Representatives, or that the Republican electors’ votes from Arizona be counted,” 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 β€œlegislative acts.”

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 Pence’s council in β€œa meaningful attempt to resolve the underlying legal issues by agreement,” complete with telling the vice president’s lawyers he would sue if there was no deal.

β€œThose discussions were not successful in reaching an agreement and this lawsuit was filed,” Sessions wrote.

There are two other cases pending before the U.S. Supreme Court.

One, by all 11 Republican β€œelectors,” 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 β€œfail in their particularity and plausibility.”

Ward has a separate case before the nation’s 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.

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