Colorado member of Electoral College challenges lawsuit that seeks to expand vice president’s role

Alan Kennedy asks the court to dismiss case brought by Texas Rep. Louie Gohmert

By: - December 31, 2020 7:09 pm

Sen. Rick Scott, Gov. Ron DeSantis, U.S. Coast Guard Admiral Eric Jones, Vice President Mike Pence, Chad Wolf, acting Secretary of Homeland Security, and Sen. Marco Rubio during a press conference after participating in a discussion held at Port Everglades about possible coronavirus issues that the cruise line company leaders are experiencing, on March 7, 2020. (Joe Raedle/Getty Images)

A Democratic Colorado elector is challenging a federal lawsuit brought by a Texas lawmaker and Arizona Republicans that aims to expand the powers of Vice President Mike Pence when he presides over Congress’ certification of the presidential election on Jan. 6.

Alan Kennedy, a Denver resident, was one of nine Democratic members of the Electoral College in Colorado who on Dec. 14 cast their votes for President-elect Joe Biden and Vice President-elect Kamala Harris. On Thursday he filed a motion to be an intervenor-defendant in support of Pence, the defendant in a case brought by Republican Texas U.S. Rep. Louie Gohmert and the 11 Republican electors from Arizona, a state Biden won.

The lawsuit, filed Dec. 27 in U.S. District Court of the Eastern District of Texas, asks Judge Jeremy Kernodle, a Trump appointee, to strike down an 1887 law, the Electoral Count Act, that describes how Congress should process Electoral College results. The vice president in his constitutional role as president of the Senate presides over the counting of electoral votes in Congress. Gohmert and the other plaintiffs in the lawsuit want to secure authority for Pence to decide whether electoral votes are valid. Such authority could allow him to overturn the results in favor of President Trump.

“Legal experts said the lawsuit was meritless and would probably be dismissed,” reported the Washington Post.

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“This is a frivolous lawsuit, the facts are not facts, and they present no legal argument regarding the Electoral Count Act that has any merit,” Kennedy said in an interview with Newsline on Thursday. “It appears to be pure partisanship.”

The lawsuit focuses on electoral votes in “contested” states, such as Arizona, but Kennedy said he, as one of the electors who cast ballots for the Biden ticket, has a direct interest in its outcome.

“My position is not unique. There are 306 presidential electors who have the same position at this point,” Kennedy said. “So I think any presidential electors for President-elect Biden and Vice President-elect Harris would be justified in challenging a lawsuit that seeks to overturn our electoral votes. I mean I take that personally … I feel a sense of responsibility to the voters of Colorado and millions of Americans who voted for Biden and Harris.”

In his motion, Kennedy wrote, “If President Trump could be re-elected simply by the Vice President exercising falsely claimed ‘discretion’ … there would be no point to hold elections. If an incumbent Vice President could keep his or her job that way, then votes of millions of people and votes of duly elected and certified electors would be meaningless, and our nation’s most cherished principle — ‘here, We the People rule’ — would be eviscerated.” If the court granted the plaintiffs’ “meritless requests,” Kennedy’s interests as a presidential elector “would be harmed,” he wrote.

Kennedy asks the court to dismiss the lawsuit.

Pence responded Thursday to a plaintiff’s motion for an expedited declaratory judgment. In summing up Pence’s view of the case, his response says, “The Vice President is not the proper defendant to this lawsuit.” Rather, the plaintiffs should target the U.S. House and Senate for legal relief, Pence’s response says.

Some U.S. House Republicans, including Colorado’s Lauren Boebert, who is due to be sworn in on Sunday, have said they plan to object to Electoral College results on Jan. 6, during Congress’ joint session to count Electoral College votes. Trump and many of his supporters have protested that his loss was due to election fraud, though no evidence of widespread fraud has been produced. If at least one member of the House and one member of the Senate objects to Electoral College votes, the objection is considered and voted on in each chamber separately. The objection is upheld only if both the House and Senate vote in favor of it.

On Wednesday, Missouri Republican Sen. Josh Hawley announced that he will object to the certification of President-elect Joe Biden’s Electoral College victory in the Senate.

Nita Lynch, also a Colorado Democratic member of the Electoral College, said in an interview Thursday with Newsline that, like Kennedy, she felt her electoral vote for the Biden ticket was put at risk by the Gohmert lawsuit.

“It’s just outrageous that this group of people is continuing to create chaos,” she said. “It really concerns me, it really is threatening our democracy.” She said the same would be true if Democrats were challenging the election results in the way Republicans are doing now.

Colorado’s reputation for strong election security made it less likely that the state’s electoral votes would be challenged in Congress, Lynch said. But she added, “At the same time, yes, I do feel like what’s to keep them coming for our electoral votes?”

Kennedy is a captain and deputy staff judge advocate in the Colorado Army National Guard.

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