In his reply to the injuction sought by Vice President Mike Pence, Texas Republican Congressman Louie Gohmert, joined by eleven others, claims that the powers of the Vice President extend far beyond that of a “glorified envelope opener” and extend to the ability to void slates of electors certified by the States.
Gohmert argues that instead of a simple ceremonial duty, the Vice President actually is imbued with “weighty and prudential powers afforded under the Constitution,” including the ability to undermine the determination of voters and the state authorities that determined the state’s respective electors. Gohmert claims that instead of exercising his immense authority, Pence is relegating his role to simply ceremonial.
“In their submissions, Defendant and amici never reach this issue. Instead, they hide behind procedural arguments such as standing, laches and other ‘gatekeeping’ defenses that, as set forth below, are easily disposed above [sic]. They argue that the January 6th joint session is no more than a perfunctory coronation,” Gohmert’s motion states. “A ceremony where the Vice-President is relegated to the mundane task of opening envelopes filled with electoral votes certified by state governors. They say that the Vice President, the glorified envelope-opener in chief, has no authority to preside over anything else or to decide anything of substance or to even count the votes in those weighty envelopes. He is only the envelope-opener.”
Gohmert’s case hinges on what he claims is the unconstitutionality of 3 U.S. Code § 15, one section of a series of laws passed in 1948 to codify the Electoral Count Act of 1887, which outlines the administrative aspects of the Electoral College vote. Section 15 notes that the entire extent of the role of the presiding officer of the Senate–the Vice President, who serves as the President of the Senate–is to confirm the slates of electors submitted by the states: “Two tellers shall be previously appointed on the part of the Senate and two on the part of the House of Representatives, to whom shall be handed, as they are opened by the President of the Senate, all the certificates and papers purporting to be certificates of the electoral votes, which certificates and papers shall be opened, presented, and acted upon in the alphabetical order of the States….”
The section also declares that the Presiding Officer will only accept slates of electors certified by the various states by the dates established by state law and within the laws prescribed by US Code 3 and state law.
Gohmert claims that 3 U.S. Code § 15 is unconstitutional, even though Article II of the Constitution clearly makes the role of the Vice President a “glorified envelope opener”: “The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted.”
The flaw in Gohmert’s filing is that the precedent he cites is the election of 1876, when four states submitted competing sets of electors. In each case, however, the alternate slate of electors was not certified by a duly appointed official of the state government; they were submitted by people who falsely claimed office or authority to name electors. None of the alternate slates were recognized by the presiding officer of the Senate.
Perhaps the most amusing part of the Gohmert filing is that assertion that Gohmert and his cohort are likely to prevail in further court proceedings.