A YouTube video in which the chairwoman of the Arizona GOP describes her legal effort to reverse the results of the 2020 election as a “friendly lawsuit” is now being used to undercut her case.
The far-fetched GOP bid filed by Kelli Ward and Rep. Louie Gohmert (R-Texas) seeks to permit Vice President Pence to sidestep federal election law when he presides over a joint session of Congress on Wednesday. Rather than carry out his statutory duty to finalize President-elect Joe Biden’s win, Pence would be free to effectively grant himself and President Trump a second term.
Election law experts say the lawsuit is a non-starter — and it’s possible that the YouTube video of Ward could help hasten its demise.
Courts are limited under the Constitution to decide only actual legal disputes, or what the drafters called “cases or controversies.” So Ward’s suggestion that the GOP plaintiffs share the same goal as Pence in nullifying Biden’s win could help persuade a judge to toss the suit.
“We love Vice President Mike Pence,” Ward said in the Tuesday YouTube video. “We love him. And this is what’s known in Democrat circles as a ‘friendly lawsuit.’”
“What we all want here is election integrity, Vice President Pence included,” she added. “And we want to give him the tools necessary to be able to do that.”
Neither Ward nor her lawyers responded to a request for comment.
In a legal brief filed on Friday, lawyers for Ward, Gohmert and the other Republican plaintiffs downplayed the significance of the remarks, noting that Ward is only one of several plaintiffs in the case and suggesting that “the ‘friendly’ remark” could have been a reference to “personal relationships.”
Ward’s YouTube video was first brought to the court’s attention in a Thursday night brief by Timothy Dowling, a Texas attorney who seeks to intervene against the GOP plaintiffs. Dowling cited Ward’s comments at length in a filing to U.S. District Judge Jeremy Kernodle, a Trump appointee who is presiding over the case in Texas federal court.
“Ms. Ward’s video is a party admission of what is obvious: There is no real case or controversy here,” Dowling wrote. “All plaintiffs and the lone defendant wish to achieve the same result: have Donald Trump remain as the President of the United States after January 20, 2021.”
“This lawsuit is a phony dispute,” Dowling added, “and this court should decline plaintiffs’ invitation to swim in these political waters where it does not have proper subject matter jurisdiction over this bogus alleged controversy.”
Typically, the vice president’s role in presiding over the Jan. 6 meeting is a largely ceremonial one governed by an 1887 federal law known as the Electoral Count Act. But the Republican lawsuit seeks to invalidate the law, arguing that it places an unconstitutional constraint on the vice president’s authority to choose among competing claims of victory when state-level election results are disputed.
Republicans in several key battleground states have disputed Biden’s win and offered alternate “slates” of pro-Trump electors to be counted Wednesday, but experts say these efforts carry no legal weight.
Pence, for his part, told the court Thursday that he was not a proper defendant to the suit. As vice president, Pence said, his legal interests are not “sufficiently adverse to plaintiffs” to clear the constitutional requirement that there be a “case or controversy” before a court weighs in.
“The Vice President—the only defendant in this case—is ironically the very person whose power they seek to promote,” wrote a Department of Justice attorney representing Pence. “A suit to establish that the Vice President has discretion over the count, filed against the Vice President, is a walking legal contradiction.”
Separately, a Biden elector from Colorado asked the judge for permission to join the lawsuit as a defendant, citing concerns that Pence and the Justice Department would not adequately represent the interests of Biden electors. The judge has not yet said whether additional parties will be permitted.
A ruling in the case is expected within days.