By Howard Fischer
Capitol Media Services
PHOENIX -- The head of the Arizona Republican Party is suing Vice President Mike Pence in a bid to give the election to Donald Trump.
Legal papers filed Sunday and Monday in federal court in Texas ask a judge there to void laws which give the ultimate authority to Congress to decide which Electoral College delegates should be counted.
But it's not that Kelli Ward wants Arizona's 11 electoral votes to go for Joe Biden, as reflected in the official and certified results. Instead, she wants the court to order that Pence has and must exercise unilateral power to decide which slate of electors from Arizona and other disputed states should be counted -- or if none of the electoral votes for Biden from Arizona should be counted at all. And even in that case, Ward's lawsuit proposes an option that could still throw the election to Trump.
The lawsuit is a last-ditch effort to put Arizona's 11 electoral votes into Trump's column despite the popular vote giving Biden 10,457 more votes than the incumbent.
Ward is the plaintiff in a case before the U.S. Supreme Court where she wants the justices to grant her more time to review what she claims are questionable ballots in Maricopa County. That effort was rebuffed by lower courts who not only said there was no evidence that further review would change the outcome but that they had to decide the issue by Dec. 14, the date that Arizona's 11 officially chosen electors cast their votes for Biden.
Ward contends that deadline is unconstitutional. But the high court is not expected to even look at her complaint until Jan. 14, eight full days after Congress makes the final count of the electoral votes.
That leaves this new claim which, if it gains traction, could make all of the litigation claiming election improprieties moot by simply declaring that Pence -- and only Pence -- gets to decide which electoral votes count.
The reason the lawsuit was filed in federal court in Texas is because one of the plaintiffs is Congressman Louie Gohmert, a Texas Republican. He intends to make a motion when Congress convenes on Jan. 6 to count the electoral votes to not accept the official results from Arizona, setting the stage for the legal showdown Ward seeks to provoke.
And the lead attorney is Texas attorney William Sessions who served as director of the FBI from 1983 to 1993 when he was dismissed by President Clinton amid allegations of ethical improprieties.
Central to the litigation is the Twelfth Amendment to the U.S. Constitution.
The first step is electors in each state cast their votes for president. That is what occurred here and in all other states on Dec. 14, giving Biden 306 electoral votes against 232 for Trump.
Then Congress meets in joint session on Jan. 6 to certify the count. All that is normally routine with Pence, as presiding officer of the Senate, running the show.
When Gohmert objects to counting the Arizona slate of electors for Biden and to Biden slates from other contested states, that triggers Ward's legal theory based on the second part of the Twelfth Amendment. It says "the president of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.''
"Pence alone has the exclusive authority and sole discretion to open and permit the counting of the electoral votes for a given state,'' the lawsuit says, regardless of what are the official certified results -- and regardless of whether members of Congress disagree and believe Biden won. It also says Pence can decide if a competing slate should instead be counted.
That, in turn, plugs into a maneuver engineered by Ward: Even as the official Biden-pledged Electoral College delegates were casting their votes for him in Phoenix on Dec. 14, she had a separate slate of Republicans, including herself, casting their own votes for Trump in what can only be described as an unofficial and unsanctioned event. That means there are Trump-pledged delegates ready to be recognized and have their votes counted should Pence choose.
The lawsuit is even more complex than that.
It says another option would be for Pence to decide that neither slate gets to vote because of questions about the election. That, in turn, could leave both candidates with fewer than the 270 electoral votes needed for election.
In that scenario, federal law sets up a procedure for both the U.S. House and Senate to review the vote. But if they can't agree, then the default is to count the votes as each state certified, meaning Biden gets Arizona's 11 electoral votes.
Ward's lawyers, however, contend the Twelfth Amendment then gives the decision solely to the U.S. House.
But a House vote is not individual by lawmakers in the Democrat-controlled chamber. It's by state.
There are more states with Republican-controlled congressional delegations than those where Democrats make up the majority. And that means if each state delegation casts one vote, and that vote reflects the political makeup of that delegation, Trump would get another four years in office.
All that comes down to why Pence is named as a defendant: The lawsuit seeks to bar him from exercising his authority on Jan. 6 in any way but the manner that Ward's lawsuit demands.
This lawsuit and others by Ward and Trump supporters are not the only way they have been seeking to overturn the official results of the Arizona election.
One is supporting a bid by Sen. Eddie Farnsworth, R-Gilbert, to subpoena election materials from Maricopa County to determine if there is any evidence of fraud.
But even if the Senate Judiciary Committee gets the materials it wants -- Farnsworth lost the first round in that lawsuit -- and even if there is a conclusion something was done wrong, there may be no legal procedure to use that information to change the official results.
That's because Gov. Doug Ducey, who certified the results, has refused to call such a special legislative session which could give the Republican-controlled legislature a chance to appoint its own slate of electoral college delegates. And both Senate President Karen Fann and House Speaker Rusty Bowers have said there is no legal way for lawmakers to convene to even consider the issue before the regular session starts on Jan. 11, five days after the final congressional count.