WASHINGTON — President Donald Trump and his allies are growing increasingly desperate as Congress prepares to formally receive the votes that will confirm his election loss next week, filing lawsuits against nonexistent entities and even Trump’s own vice president as they try to come up with new ways to overturn the vote.
One lawsuit filed last week by a conservative group that supports Trump targeted the electoral college — which does not exist as a permanent body. Another lawsuit filed Sunday by Rep. Louie Gohmert, R-Texas, and several Arizona Republicans against Vice President Mike Pence attempts to get a federal judge to expand Pence’s power to affect the outcome.
Pence will preside over next week’s joint session of Congress, where the electoral votes cast earlier this month will be read aloud. President-elect Joe Biden won 306 electoral votes, and Trump won 232, reflecting Biden’s 81 million votes nationwide as he secured the White House.
Trump has been working to incite his supporters over the ceremonial milestone, falsely portraying it as a final showdown in his battle to alter the election’s outcome. “See you in Washington, DC, on January 6th. Don’t miss it,” Trump tweeted Sunday.
There were some initial signs Tuesday that Trump’s last-ditch appeal may be faltering, even among some of his most fervent supporters.
In an interview, Stanley Grot, a Trump elector in Michigan who is a longtime Republican and the clerk of the Detroit suburb of Shelby Township, said he does not plan to come to Washington.
When the electoral college met Dec. 14 to certify Biden’s win in the state, Grot joined other Trump electors in Lansing to register their continued support for the president in a state where Trump has exerted especially strong pressure on supporters to overturn the vote. But Grot said Tuesday that there is nothing more he can do next week.
“It is out of our hands now,” he said.
He said that if Congress certifies Biden’s victory, he would “not be in a position to challenge anything,” and, “we always must respect the office of the presidency.”
Another Michigan elector for Trump, Timothy King of Ypsilanti, also said he has no plans to travel to the District of Columbia — though he said he will not be persuaded of the legitimacy of Biden’s win regardless of what happens in Congress.
“I don’t think Joe Biden would be the legal president if they go through with this,” the retired autoworker said. “People are not stepping up and doing their constitutional duty,” he said, to examine unverified claims of fraud that he and others say took place.
King is a plaintiff in a lawsuit challenging the Michigan election results that has already been rejected by a federal judge; he and his fellow plaintiffs have asked the Supreme Court to review the matter.
Republicans’ ability to challenge the congressional process is limited.
Any member of the House, joined by a member of the Senate, could contest the electoral votes, citing an 1880s election law. But the challenge will merely prompt a floor debate followed by a vote in each chamber. Trump probably will lose that vote, given that Democrats control the House and a number of Senate Republicans have publicly recognized Biden’s victory, including Sen. Mitt Romney of Utah, who has called Trump’s refusal to accept the election dangerous.
Even in the unlikely event that Trump were to prevail in the Senate, where Pence would be in position to cast a tie-breaking vote if needed, the challenge would fail given the House vote.
A number of Republican members of the House, led by Rep. Mo Brooks, R-Ala., and egged on by the president, have said they plan to challenge votes in swing states where they have made unfounded allegations that the vote was marred by fraud.
One incoming Republican senator, Tommy Tuberville of Alabama, has said he is considering signing on. He would do so over the opposition of Majority Leader Mitch McConnell, R-Ky., and other leading Republican senators, who have said it would be politically harmful to force Republicans to decide whether back Trump out of loyalty in a vote bound to fail.
Even so, experts fear that the vote could cast a cloud over Biden as he prepares to take office Jan. 20, creating the impression that his victory was in some way contested or that he was installed by congressional Democrats.
Next week’s ceremony will come at the end of a grueling period in Congress in which Trump angered members of his own party by vetoing a major defense bill and initially balking at a coronavirus relief measure that had been negotiated by his aides. The legislative maneuvering may also dampen Republican enthusiasm to back Trump’s effort to overturn the election.
The lawsuits are designed to get a judge to expand Republican options in Congress next week or to create the impression that the law might allow additional options.
Trump and his allies have sought judicial intervention in dozens of suits filed since the election and have met no success. More than 90 state and federal judges, appointed by members of both parties, have rejected challenges to the election by the president, his campaign and his allies.
In some cases, judges have found that the party objecting to the election did not have standing to sue, or inappropriately challenged the voting procedures only after the election.
But in many of the suits, judges evaluated Trump’s claims of fraud and found no evidence to support them.
Gohmert’s suit, which was joined by a group of Republicans in Arizona including the chairwoman of the state GOP, argued that the law that governs next week’s congressional action is unconstitutional because it impinges on Pence’s sole authority to recognize electors. The suit argues that a federal judge should order that Pence can choose to recognize alternate electors who support Trump should he wish to do so.
Legal experts said the lawsuit was meritless and probably would be dismissed by a federal judge for multiple reasons.
The suit envisions competing slates of electors from which Pence could choose. However, despite intense pressure from Trump, no state legislature actually agreed to set aside the November vote and appoint alternate electors. Instead, informal groups of Trump supporters met in some state capitols and appointed themselves electors in ceremonies that had no force of law.
In a statement, Gohmert nevertheless asserted that seven states had sent “dueling slates of electors” to Washington.
“We continue to hold out hope that there is a federal judge who understands that the fraud that stole this election will mean the end of our republic, and this suit would insure that the Vice-President will only accept electors legitimately and legally elected,” he said.
The case, which was filed in Texas, has been randomly assigned to District Judge Jeremy Kernodle, a Trump appointee who took the bench in 2018.
Gohmert and his fellow plaintiffs have requested a hearing for no later than Thursday and a ruling by the judge by Monday. In a filing Tuesday, their lawyers revealed that they had contact with attorneys for the vice president and the Justice Department and were unable to come to an agreement with them about the suit, including about when Pence must file a response. They asked the judge to order Pence to respond by the close of business Wednesday.
In a video posted to Twitter on Tuesday, Arizona Republican Party Chairwoman Kelli Ward, a plaintiff, called it a “friendly lawsuit.”
“It’s all on the shoulders of Vice President Mike Pence, and we have this lawsuit to assist him in being able to do his job and to do it well,” she said.
The suit highlights the awkward role Pence will play next week, when, by law, the task of presiding over the last step before Biden takes the oath falls to the vice president. A Pence spokesman did not respond to questions about the suit. A spokesman for the Department of Justice declined to comment.
“This Gohmert suit has had me scratching my head, and I don’t think the courts will take it seriously,” said Trevor Potter, a Republican election law expert who has been reviewing such cases as a member of the nonpartisan National Task Force on Election Crises.
Among other problems, Potter said the remedy Gohmert is seeking “would stand the Constitution on its head. It would effectively deliver to the vice president the right to determine who won the presidential election. If the vice president has authority to pick his favorite electors, then you wouldn’t need a Congress or a Constitution.”
Norm Eisen, a Democrat who is counsel to the nonpartisan Voter Protection Program, called the Gohmert lawsuit more “absurd and extreme” than those that came before.
“This attempt to throw out the entire legal structure which has guided American presidential elections for almost 150 years is utterly unfounded,” Eisen said. “It is destined to end up where sixty-plus other cases have: the legal ash heap.”
Eisen’s group has been monitoring the efforts closely in the courts and in key states; it has worked out an expected timeline of events on Jan. 6, when the two chambers will meet at 1 p.m.
They confidently predict that the day will end with Biden officially being declared the president-elect.
“If they choose to waste the time of Congress and the nation in the middle of a health and economic crisis, it will be for no purpose at all, except to stroke the president’s ego,” Eisen said.