Howard Fischer/Capitol Media Services

Kelli Ward

A federal judge has tossed out a bid by Kelli Ward and other Arizona would-be Republican electors to force Vice President Mike Pence to use a different procedure when counting electoral votes this coming Wednesday.

In a 13-page order, Judge Jeremy Kernodle said that Ward, who is chair of the Arizona Republican Party, and her fellow plaintiffs lack standing to even sue Pence in the first place.

→ Kelli Ward's Lawsuit Met With Opposition By Vice President Mike Pence's Legal Team

He said what they want is for him to order the vice president to ignore the procedures set forward in the federal Electoral Count Act, one that should result in a finding that Democrat Joe Biden won the race with 306 electoral votes versus 232 for President Trump. That would set the set the stage for Pence, as presiding officer of the U.S. Senate, to reject the election results, certified by Gov. Doug Ducey, which found that Biden had outpolled Trump in Arizona by 10,457 votes.

Kernodle said that, in the minds of the Arizona challengers, that would open the door for Pence to decline to give the state's 11 electoral votes to Biden — and possibly do the same in other states where Biden won. At that point, the way Ward and the other GOP "electors'' see it, Pence could either count their votes for Trump despite the fact they're not the electors certified by the governor, or refuse to count either slate, setting the stage for the House, with one vote per state, to choose the president.

But the judge said their lawsuit is based on the premise that Ducey unlawfully certified and transmitted the votes of the Biden electors. And even if that were true, Kernodle said is not the fault of Pence who is named as the sole defendant in the lawsuit.

"Plaintiffs do not allege that the vice president had any involvement in the certification and transmission of a competing slate of electors,'' he said.

"That act is performed solely by the Arizona governor, who is a third party not before the court, the judge continued. "The vice president's anticipated actions on Jan. 6 will not affect the decision of Gov. Ducey regarding the certification of presidential electors — which occurred more than two weeks ago on Dec. 14.

And Kernodle said there's something else.

C-SPAN

Vice President Mike Pence speaks at a campaign rally in Flagstaff on Oct. 30, 2020.

He pointed out that what Ward and the other electors want him to do is order Pence to follow a certain procedure when opening the votes, one they contend gives the vice president the "exclusive authority and sole discretion in determining which electoral votes to count for a given state.''

But Kernodle pointed out that even if he were to do that, that still doesn't guarantee they will get the result they want: rejection of the 11 Democratic votes, whether by Pence or the full Congress. And that, he said, means they lack legal standing to bring the lawsuit.

The judge reached a similar conclusion that Republican Congressman Louie Gohmert of Texas, who also is part of the lawsuit, lacks standing to sue.

He said Gohmert intends to raise an objection on Wednesday when the electoral votes are counted for Arizona and several other states where voters chose Biden over Trump.

The Electoral Count Act then requires each member of the House and Senate to vote to resolve the objections. But Gohmert contends that violates the Twelfth Amendment which he said requires state-by-state voting, which each state having one vote, for which slate to accept, a process that likely would favor Trump.

"Members of Congress lack standing to bring a claim for an injury suffered solely because they are members of Congress,'' Kernodle wrote. "And that is all Congressman Gohmert is alleging here.''
He said Gohmert is not alleging that he was denied the right to vote in the 2020 presidential election.

"Rather, he asserts that under the Electoral Count Act, he will not be able to vote as a congressional representative in accordance with the 12th Amendment,'' the judge wrote, something Kernodle said he is legally powerless to address.

The judge also said that Gohmert's claim suffers from the same flaw as does the one by Kelly and the other would-be GOP electors: It is based on what Gohmert believes would happen in "a series of hypothetical — but by no means certain — events.''

That ranges from what Pence will do on Wednesday in opening and counting the votes, whether any member of Congress would object, how members of Congress would vote individually if that were the process and how a one-vote-per-state result might be different.

There was no immediate response from Ward to the ruling. But the attorneys representing her, the other would-be Arizona GOP electors and Gohmert already have filed notice they intend to seek review by the Fifth Circuit Court of Appeals.

This is the second federal court defeat for Ward and that Republican "slate.''

Last month Judge Diane Humetewa tossed out claims of fraud and irregularities based on theories that Secretary of State Katie Hobbs conspired with various foreign and domestic individuals and companies to manipulate the results and allow Biden to win.

"The allegations they put forth to support their claim of fraud fail in their particularity and plausability,'' the judge wrote. "The various affidavits and expert reports are largely based on anonymous witnesses, hearsay and irrelevant analysis of unrelated elections.''

That is among more than four dozen lawsuits filed by Trump or his supporters that have been rejected by state and federal courts. The U.S. Supreme Court also has turned away several appeals, though Ward is involved with two more which technically remain on the court's docket.

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