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Appeals court dismisses lawsuit aimed at giving Pence power to overturn election

It's the second time in two days the lawsuit, which seeks to give Vice President Mike Pence the ability to reject electoral votes, has been thrown out.

A federal appeals court on Saturday dismissed a last-gasp lawsuit led by a House Republican that aimed to give Vice President Mike Pence the power to overturn the results of the presidential election won by Joe Biden when Congress formally counts the Electoral College votes Wednesday. It came a day after a district court judge dismissed the case.

Pence, as president of the Senate, will oversee the session and declare the winner of the White House race. The Electoral College this month cemented Biden’s 306-232 victory, and multiple legal efforts by President Donald Trump's campaign to challenge the results have failed.

The suit named Pence, who has a largely ceremonial role in next week's proceedings, as the defendant and asked the court to throw out the 1887 law that spells out how Congress handles the vote counting. It asserted that the vice president “may exercise the exclusive authority and sole discretion in determining which electoral votes to count for a given State.”

RELATED: 11 Republican senators, led by Cruz, join challenge to Biden's Electoral College win

RELATED: Judge dismisses lawsuit aimed at giving Pence power to overturn election

In dismissing the lawsuit filed by Rep. Louie Gohmert, R-Texas, and a group of Republican electors from Arizona, the 5th U.S. Circuit Court of Appeals on Saturday agreed with Friday's ruling of U.S. District Judge Jeremy Kernodle -- a Trump appointee -- that the plaintiffs had no standing to bring the suit. 

Kernodle wrote that the plaintiffs “allege an injury that is not fairly traceable” to Pence, “and is unlikely to be redressed by the requested relief.”

"We need say no more, and we affirm the judgment essentially for the reasons stated by the district court," the three-judge appeals panel ruled Saturday.

Credit: AP
Rep. Louie Gohmert, R-Texas., arrives before President Donald Trump delivers his State of the Union address to a joint session of Congress on Capitol Hill in Washington, Tuesday, Feb. 4, 2020. (AP Photo/Patrick Semansky)

The Justice Department represented Pence in a case that aimed to find a way to keep his boss, President Donald Trump, in power. In a court filing in Texas on Thursday, the department said the plaintiffs “have sued the wrong defendant" — if, in fact, any of those suing actually have “a judicially cognizable claim.”

The department said, in effect, that the suit objects to long-standing procedures laid out in law, “not any actions that Vice President Pence has taken," so he should not be the target of the suit.

“A suit to establish that the Vice President has discretion over the count, filed against the Vice President, is a walking legal contradiction,” the department argued.

Trump, the first president to lose a reelection bid in almost 30 years, has attributed his defeat to widespread voter fraud. But a range of nonpartisan election officials and Republicans has confirmed there was no fraud in the November contest that would change the results of the election. That includes former Attorney General William Barr, who said he saw no reason to appoint a special counsel to look into the president’s claims about the 2020 election. He resigned from his post last week.

Trump and his allies have filed roughly 50 lawsuits challenging election results, and nearly all have been dismissed or dropped. He’s also lost twice at the Supreme Court.

As many as 140 Republican members of the House and at least 12 Republican members of the Senate are set to formally object to the Biden's win when the votes are counted Wednesday. Several other Republicans have criticized this effort, calling it a "dangerous" and "egregious" ploy.