A federal judge on Friday dismissed a lawsuit brought by Congressman Louie Gohmert of Texas that sought to empower Vice President Mike Pence to unilaterally decide the 2020 election results rather than have. Pence and the Department of Justice on Thursday had urged the court to reject Gohmert's lawsuit, saying the power lies with the House and the Senate.
U.S. District Court Judge Jeremy Kernodle of the Eastern District of Texas said the plaintiffs lack "standing" to sue, since they claim "institutional injury" to the House of Representatives, but "that is insufficient to support standing."
The court also said Gohmert "does not identify any injury to himself as an individual, but rather a 'wholly abstract and widely dispersed' institutional injury to the House of Representatives."
On Saturday, a three-judge panel on the Fifth Circuit Court of Appeals upheld the lower court's ruling. In the one-paragraph ruling the judges wrote "We need say no more," but also noted, "We express no view on the underlying merits."
The appeals court ruled so quickly that the plaintiffs' request for an expedited decision was rendered moot.
The House and the Senate are set to count the Electoral College votes on January 6, an event that usually draws little fanfare. But some of President Trump's supporters are using it as a last-ditch attempt to overturn the election results.
Gohmert had claimed in the lawsuit that Pence has the "sole" power to decide the outcome of the election, and Gohmert claimed he had 140 House members willing to object to the election results.
"Under the Constitution, he has the authority to conduct that proceeding as he sees fit," Gohmert wrote in the lawsuit. "He may count elector votes certified by a state's executive, or he can prefer a competing slate of duly qualified electors. He may ignore all electors from a certain state. That is the power bestowed upon him by the Constitution."
The Justice Department said Thursday that Republican lawmakers could not overturn the 130-year-old law that governs how Congress counts electoral votes. Gohmert argued that giving Pence the unilateral power to decide the election results will "help smooth the path toward a reliable and peaceful conclusion to the presidential election process,"
Deputy assistant attorney general John Coghlan, representing Pence, called the suit a "walking legal contradiction," because Gohmert was suing the vice president to empower the vice president.
As presiding officer of the Senate, Pence will preside over the counting of the votes, as President-elect Joe Biden did in 2017 for Mr. Trump's victory. If Pence refuses to preside over the count, then the president pro tempore of the Senate, Senator Chuck Grassley, will step in.
Lawmakers can object to the results and Senator Josh Hawley of Missouri so far is the only senator who has said he will object. CBS News has learned that Senate Majority Leader Mitch McConnell held a conference call on Thursday asking Hawley to lay out his plans, but Hawley was not on it.
said on Friday that Hawley's objection is "dangerous for democracy here and abroad," as it "continues to spread the false rumor that somehow the election was stolen."
GOP Majority Whip John Thune said in December that any objection is likely to "go down like a shot dog." Mr. Trump on Friday called Thune "Mitch's boy" and "RINO John Thune" in a tweet. Mr. Trump also tweeted that he would "hope to see" his ally, South Dakota Governor Kristi Noem, primary Thune in 2022.
Thune laughed when he was told about the tweet, and told reporters "well, finally an attack tweet! What took him so long? It's fine that's the way he communicates."
Thune said that GOP leadership was allowing the conference to "vote their conscience" on January 6 and described the Electoral College certification as "incredibly consequential, incredibly rare historically and very precedent setting."
Weijia Jiang, Arden Farhi, Jack Turman and Alan He contributed to this report.