Thread by @jedshug

Republicans file another delusional lawsuit today:
Gohmert v. Pence.
Text of complaint linked here.
Last week, I explained why Pence can't overturn the 2020 election b/c of the 12th A. & the Electoral Count Act.
This GOP complaint is nonsense.
/Thread/
electioncases.osu.edu/wp-content/upl…

2/ My thread last Friday here:
"I've been getting inquiries worrying that Pence will block the Biden electoral college win when he presides in the Senate on Jan 6.
Don't worry.
Neither the 12th A nor the Electoral Count Act gives him that power."

https://twitter.com/jedshug/status/1342558145382670337?s=20

3/ I turned the thread into this blogpost linked below (for easier sharing with my non-Twitter-using anxious older relatives).
Next, I'll explain why this new lawsuit is baseless and moot.
shugerblog.com/2020/12/26/pen…

4/ The Republicans' very first legal claim is an obvious misrepresentation of the 12th Amendment. They claim the 12th A. grants the vice president "exclusive authority and sole discretion... to determine which slates of electors may be counted."
Nonsense.

5/ Did they even read the 12th Amendment?
The only part about the VP:
"The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates."
"SHALL OPEN ALL"

https://twitter.com/jedshug/status/1342558839909081089?s=20

6/ Full sentence from 12th A:

"The President of the Senate shall, in the presence of the Senate and House of Reps, open all the certificates and the votes shall then be counted."

If the drafters wanted the VP to do the counting, why didn't they say that?
law.cornell.edu/constitution/a…

7/ It would have been far easier to write "shall open all the certificates and *count* the votes."
Instead, they repeated the language from the original 1787 text and switched to passive voice:
"The votes shall then be counted."
By whom?
Implicit but clear: the House & Senate.

8/ It would be bizarre to switch from the active to passive voice without intending the counters to be the people explicitly present (Senators and Reps)
But the passive voice leaves open the rules for counting, implicitly inviting Congress to fill in that deliberate space.

9/ See the Necessary & Proper Clause, Art I, Sec 8:
“Congress shall have Power...To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Govt...”
Like the details of counting.

10/ On page 2 is their most outrageous (and moot!) argument:
They pretend they are relying on Article II's reference to "state legislatures" as the deciding body for the Electoral College...
But all of Biden's electors were certified in accordance with each state legislature!

11/ Art II Sec 1:
"Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors..."

Accepting their argument that the deciding body is the state legislature, Biden still wins 306-232.

All the states certified following state legislation.

12/ No state legislature selected any alternative Trump slate.
Even if we accept the Republicans' own argument, it changes not a single vote.
Moreover, the Electoral Count Act creates no relevant problem. Each state legislature granted the state executive a role in certifying.

13/ The point is that even if one accepts the Republicans' argument that the Electoral Count Act improperly assigns power to the "state executive," when a state legislature *could have* bypassed the state executive in some alternate universe, nothing like that happened here.

14/ For entertainment, I recommend reading the full complaint's statement of "facts."

Bad-faith delusional gymnastics to create an alternate reality where MAGA make-believe dungeons & dragons electors meet outside on state capitol grounds to become "the legislature's slate."

15/ Finally, for now, regardless of the GOP's moot complaint about the "executive" in 3 USC 6, Congress still passed a Safe Harbor relying on *state legislation*.
It governs any dispute, and Biden's electors were all certified on time.
It's over.

https://twitter.com/jedshug/status/1342563455782563840?s=20

16/ One more point: In case you're worried about a Senate fililbuster to run out the clock on counting Electors, the Electoral Count Act sets a time limit on debate about each state at 2 hours. 3 USC 17.
Not even Mitch McConnell can run out that clock.
law.cornell.edu/uscode/text/3/…