Last-ditch lawsuit arguing Pence has ‘sole discretion’ to select electors thrown out

A lawsuit arguing Vice President Mike Pence has the “sole discretion” to name which electoral votes are valid was thrown out of court Friday by a Trump-appointed judge.

The case, led by Rep. Louie Gohmert (R-TX) along with several representatives from Arizona, was a last minute effort to give President Trump a path to staying in the White House. U.S. District Judge Jeremy Kernodle, however, threw the suit out claiming the plaintiffs lacked standings.

An appeal has been filed with the Fifth Circuit Court of Appeals.

The case claimed that the Electoral Count Act of 1887 violates the 12th Amendment, according to the Daily Wire. The case argued Pence has the sole authority to deem which electors are valid and which will cast their vote for president. In the case of two or more dueling electors, the now-appealed case was one of the strongest remaining paths for President Trump to win the highly-contested and fraud-saturated election.

As previously reported by, “Under current law, the Vice President’s role in certifying the electoral college results is one that is more symbolic. However, this lawsuit seeks to make that role one that is more active and can contest the results over allegations of widespread voter fraud in many key swing states.”

“[P]rovisions of Section 15 of the Electoral Count Act are unconstitutional insofar as they establish procedures for determining which of two or more competing slates of Presidential Electors for a given State are to be counted in the Electoral College, or how objections to a proffered slate are adjudicated, that violate the Twelfth Amendment,” the lawsuit reads, as reported by the Daily Wire.

“This violation occurs because the Electoral Count Act directs the Defendant, Vice President Michael R. Pence, in his capacity as President of the Senate and Presiding Officer over the January 6, 2021 Joint Session of Congress: (1) to count the electoral votes for a State that have been appointed in violation of the Electors Clause; (2) limits or eliminates his exclusive authority and sole discretion under the Twelfth Amendment to determine which slates of electors for a State, or neither, may be counted; and (3) replaces the Twelfth Amendment’s dispute resolution procedure – under which the House of Representatives has sole authority to choose the President,” the lawsuit reads.

Whether the Court of Appeals will see the suit as legal and having a solid argument, will be announced in the coming days.

You can follow Ben Wilson on Twitter @BenDavisWilson