By Howard Fischer
Twitter: @azcapmedia

PHOENIX — Vice President Mike Pence is not going to cooperate with a bid by the head of the Arizona Republican Party and others to put him in a position to keep Donald Trump in the White House for another four years.

In legal papers filed late Thursday, John Coghlan, an attorney with the U.S. Department of Justice, which is representing Mr. Pence, said the complaint filed by Dr. Kelli Ward against the vice president is flawed.

Mr. Coghlan noted Dr. Ward wants U.S. District Court Judge Jeremy Kernodle to rule the procedures for counting the electoral votes from the various states does not comply with provisions of the U.S. Constitution. And that, according to Ms. Ward and other Republicans who claim they are the rightful electors, gives Mr. Pence, as the presiding officer of the Senate, the power to unilaterally decide whether to accept or reject Arizona’s 11 electoral votes, which are now designed for Joe Biden.

“But these plaintiffs’ suit is not a proper vehicle for addressing those issues because plaintiffs have sued the wrong defendant,” wrote Mr. Coghlan. “The vice president — the only defendant in this case — is ironically the very person whose power they seek to promote.”

He told the judge if Dr. Ward and her allies have a legal complaint about the procedure to count electoral votes they should be suing the U.S. Senate and House of Representatives, not Mr. Pence.

The opposition is a crucial setback for Dr. Ward, who was hoping for a quick — and unopposed — order from the judge directing Mr. Pence to decide which electoral votes to count from each states where Trump allies contend that the president won the popular vote despite the results in each state being certified for Mr. Biden.

Mr. Kernodle is giving Dr. Ward and her attorneys through Friday to file a response. So far, though, the judge has refused to even schedule a hearing on the bid, suggesting he may dismiss it without oral arguments.

Ms. Ward and her attorneys are relying on the 12th Amendment to the U.S. Constitution. It says after each state has voted and chosen its electors, Congress convenes in joint session on Jan. 6 to certify the count, normally a routine procedure conducted under the 1887 Electoral Control Act.

But U.S. Rep. Louie Gohmert, R-Tex., also a plaintiff in the lawsuit, said he intends to object to the delegates from Arizona and several other states won by Mr. Biden.

The lawsuit is based on the premise that once that happens, the Constitution empowers the vice president, as the presiding officer of the Senate, to unilaterally decide whether to count the 11 electoral votes for Mr. Biden from Arizona or instead accept an alternate “slate” chosen by Republicans in an unofficial and unsanctioned meeting who would vote for Mr. Trump.

Dr. Ward would be just as happy if Mr. Pence were to reject both slates from Arizona and other states. That would throw the decision to the U.S. House where each state gets only one vote, a point Dr. Ward herself emphasized by noting there are more states with Republican-controlled delegations than with Democrats in the majority.

Mr. Coghlan said if Dr. Ward, Mr. Gohmert and unofficial Arizona GOP electors have a question about the law, asking Mr. Kernodle to usurp those power for himself is not the answer.

“Plaintiffs’ suit seeks to empower the vice president to unilaterally and unreviewably decide objections to the validity of the electoral college votes, notwithstanding the Electoral Count Act,” Mr. Coghlan said. “Indeed, if plaintiffs’ suit were to succeed, the result would be to remove any constraint the Electoral Count Act places on the vice president.”

Mr. Coghlan told the judge there are other problems with the lawsuit.

He said Dr. Ward and the other non-official Arizona electors — she is one of them — claim they have a right to sue because of a “theoretical injury in the debasement of their votes.”

But Mr. Coghlan said even if the judge were to rule Mr. Pence has certain powers, that doesn’t guarantee they will get the outcome they want.

“They do not seek an order requiring that the presidential election be resolved by the House of Representatives, or that the Republican electors’ votes from Arizona be counted,” Mr. Coghlan said.

Finally, he noted Mr. Pence was being sued in his capacity as presiding officer of the Senate. But Mr. Coghlan noted the U.S. Constitution prohibits other branches of government from questioning Congress in connection with “legislative acts.”

It is no secret that Dr. Ward and her allies had been hoping to convince Mr. Pence not to oppose the lawsuit, potentially allowing the judge to simply enter an order against him.

In paperwork filed earlier this week, William L. Sessions, the lead attorney for those filing suit, acknowledged he had a teleconference with Mr. Pence’s council in “a meaningful attempt to resolve the underlying legal issues by agreement,” complete with telling the vice president’s lawyers he would sue if there was no deal.

“Those discussions were not successful in reaching an agreement and this lawsuit was filed,” Mr. Sessions wrote.

There are two other cases pending before the U.S. Supreme Court.

One, by all 11 Republican “electors,” contains various allegations of fraud and misconduct that should require the official count of the Arizona vote be thrown out.

That case was dismissed by U.S. District Court Judge Diane Humetewa saying the allegations “fail in their particularity and plausibility.”

Dr. Ward has a separate case before the nation’s high court in which she contends she was denied her legal right to inspect all the ballots cast in the general election so she could properly prepare her claim that the results are not valid.

In that case, Maricopa County Superior Court Judge Randall Warner acknowledged that there were some human errors made when ballots that could not be read by machines due to marks or other problems were duplicated by hand. But he said the random sample he allowed Ms. Ward to review showed even if this error rate played out, there were not enough to change the outcome of the election.