Vice-President Mike Pence, as President of the Senate come January 6th, will be faced with dueling electoral votes for the six disputed swing states, Michigan, Wisconsin, Pennsylvania, Georgia, Arizona, and Nevada, with a Biden slate from the governors, and a Trump slate from the lawmakers. The six disputed swing states account for 79 electoral votes. Not counting them, Trump stands at 232 and Biden at 227. Thus, the disputed votes are sufficient to make either candidate a winner, if they are counted, or neither candidate a winner, if they are not counted, since in the latter case, neither candidate will reach 270 votes.
Recently, a lawsuit was brought by Texas Congressman Gohmert, regarding a seldom if ever heard Act called The Electoral Count Act or ECA. Gohmer’s lawsuit contends that the Electoral Count Act of 1887, contravenes the 12th Amendment—by imbuing (federal) senators and representatives with power that belongs, in the first instance, solely to the Vice-president, and once a dispute emerges, solely to the House of Representatives. But why now? Because it’s been long overdue and because it is particularly important in this 2020 election circus of demonstrable unprecedented massive voter. Let me explain.
The Electoral Count Act, passed in 1887, and later codified at Title 3, Chapter 1, is a United States federal law establishing procedures for the counting of electoral votes by Congress, following a presidential election. The law was enacted a decade after the disputed 1876 presidential election. The central provisions of the law have never been seriously tested in a disputed election since the bill was enacted. The Act aims to minimize Congressional involvement in election disputes, instead placing the primary responsibility to resolve disputes upon the states but many doubt whether the Act can actually bind Congress or that it can overrule the Vice President's constitutional authority to include or exclude electoral votes. Many see the Act as unconstitutional.
Gohmert in his suit, asks for a declaratory judgment and an order that directs Pence to proceed in accordance with the Constitution, as reflected in the 12th Amendment, and not pursuant to the contrary, unconstitutional, procedures set forth in the ECA. The Gohmert suit presents an odd situation. Powerful allies of the president—Rep. Gohmert and the Arizona Trump-pledged electors—are suing the vice president, the president’s running mate, who by some indications, is not playing in Team Trump.
It is an unclear picture on the vice president’s position. Possibly, the vice president intends to follow the ECA, in which case, because the objections will never pass both houses, the “governor-certified” slates will be counted and Biden will win despite the allegations of massive election fraud. If I was a gambler I say don’t put your money on Pence.