PHOENIX — A federal court has swatted down the latest bid by the head of the Arizona Republican Party to change the rules for counting electoral votes that Trump supporters need by Wednesday to keep him in the White House.
It took just eight hours and three minutes for the Fifth Circuit Court of Appeals from the time Kelli Ward and her fellow plaintiffs filed their paperwork for the judges to rule they have no legal standing to challenge the Electoral Count Act. The plaintiffs includes Republican Congressman Louie Gohmert of Texas.
The three-judge panel didn’t wait for Vice President Mike Pence, who is the defendant in the lawsuit, to file a reply to the legal brief filed by their attorneys. Instead, the judges said all they needed to do is review what was filed in trial court as well as the 13-page opinion of U.S. District Court Judge Jeremy Kernodle who tossed the case only a day before on that question of the right to sue.
“We need say no more,’’ the three-judge panel wrote in a brief unsigned order. “We affirm the judgment essentially for the reasons stated by the district court.’’
The judges, all appointed to the appellate bench by Republican presidents, including one tapped three years ago by President Trump — declined to say who, if anyone, might actually have standing to challenge the 1887 law that governs how Congress is required to deal with the electoral votes and a move by any federal lawmakers to contest the votes of any state.
Absent intervention now by the U.S. Supreme Court, that clears the way for Congress to meet on Wednesday to count the electoral votes which, according to results certified by the states, would make Democrat Joe Biden is the next president, with 306 electoral votes — including 11 from Arizona — against 232 for the incumbent.
There was no immediate response from Ward or her lead attorneys.
The ruling is not stopping Trump supporters in Congress from proceeding with their plans on Wednesday to challenge the results in several states that were won by Biden
In a press release Saturday, several lawmakers said they will vote on Wednesday to reject electors from “disputed states’’ until there is an electoral commission “with full investigatory and fact-finding authority’’ to conduct an emergency 10-day audit of the election result in those states. They said the results would be turned over to individual states to evaluate the commission’s finding, a move they said would allow lawmakers in those states to “convene a special legislative session to certify a change in their vote, if needed.’’
All that, however, appears to depend on the litigation by Gohmert, Ward and the other 10 would-be Republican electors form Arizona to change the procedures for Wednesday’s count of the electoral votes by Congress.
The U.S. Constitution puts Pence, as presiding officer of the Senate, in charge of what is normally a routine process. But the plans to object change all that.
That’s where the lawsuit comes in.
Under the Electoral Count Act, both the House and Senate vote separately on whether each state’s disputed votes should be counted.
If the two chambers disagree, however, then the votes of the electors whose appointments have been certified by the governor of each state are the ones counted, just like has been done in Arizona by Gov. Doug Ducey. That would be give the election to Biden.
Ward, however, argues the Electoral Count Act violates a provision of the U.S. Constitution that she contends gives each state one vote on such disputes, regardless of the number of members of Congress. The lawsuit seeks to require Pence to follow that procedures.
Following the Electoral Count Act likely means insufficient votes to reject the electors. By contrast, Ward has admitted that the procedure she wants — the one vote per state — would give the edge to Trump, as there are more state delegations in which Republicans outnumber Democrats.
While Pence, through his attorneys, fought the lawsuit against him, that doesn’t mean he is hostile to what Republican supporters of the president are trying to do.
“Vice President Pence shares the concerns of millions of Americans about voter fraud and irregularities in the last election,’’ his chief of staff, Marc Short, said in a statement Saturday. “The vice president welcomes the efforts of members of the House and Senate to use the authority they have under the law to raise objections and bring evidence before the Congress and the American people on January 6th.’’
That comes despite the fact that audits conducted in the disputed states have so far failed to show any level of fraud or misconduct that would alter the outcome of elections. And Trump, his attorneys and his allies, including Ward in separate litigation, have failed more than four dozen times to convince courts there is any reason to reject the outcome of the vote.