Gohmert’s new brief contends that the Constitution effectively makes Pence the sole arbiter of which electoral votes to count during the Jan. 6 session of Congress to certify the election.
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Although the Twelfth Amendment to the Constitution requires Pence, as vice president, to preside over the Jan. 6 session, his authority is detailed in the Electoral Count Act of 1887. It requires Pence to introduce electors alphabetically by state, and it sets out a process for House members and senators to challenge disputed electors.
Under the Electoral Count Act, that challenge would be resolved by separate votes of the House and Senate — and in the case of the 2020 election, those challenges would effectively be doomed. The Democratic House majority would certainly oppose them and the closely divided Senate includes a slew of Republicans who have acknowledged that Biden is the unequivocal winner of the contest.