Gohmert v. Pence

• Decision Date: 01 January 2021
• Docket Number: Case No. 6:20-cv-660-JDK
• Citation: 510 F.Supp.3d 435
• Parties: The Honorable Louie GOHMERT, et al., Plaintiffs, v. The Honorable Michael R. PENCE, in his official capacity as Vice President of the United States, Defendant.
• Court: U.S. District Court — Eastern District of Texas

510 F.Supp.3d 435

The Honorable Louie GOHMERT, et al., Plaintiffs,

v.The Honorable Michael R. PENCE, in his official capacity as Vice President of the United States, Defendant.

Case No. 6:20-cv-660-JDK

United States District Court, E.D. Texas, Tyler Division.

Signed January 1, 2021

Howard Kleinhendler, New York, NY, Julia Zsuzsa Haller, Defending the Republic, Lawrence J. Joseph, Law Office of Lawrence J. Joseph, Washington, DC, William Lewis Sessions, Sessions & Associates, Dallas, TX, for Plaintiffs.

John V. Coghlan, United States Department of Justice, Washington, DC, for Defendant.

ORDER OF DISMISSAL

JEREMY D. KERNODLE, UNITED STATES DISTRICT JUDGE

This case challenges the constitutionality of the Electoral Count Act of 1887, as codified at 3 U.S.C. §§ 5, 15. The Court cannot address that question, however, without ensuring that it has jurisdiction. See, e.g. , U.S. CONST. art. III, § 2; Cary v. Curtis , 44 U.S. 236, 245, 3 How. 236, 11 L.Ed. 576 (1845). One crucial component of jurisdiction is that the plaintiffs have standing. This requires the plaintiffs to show a personal injury that is fairly traceable to the defendant's allegedly unlawful conduct and is likely to be redressed by the requested relief. See, e.g. , U.S. CONST. art. III, § 2; Lujan v. Defenders of Wildlife , 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Requiring plaintiffs to make this showing helps enforce the limited role of federal courts in our constitutional system.

The problem for Plaintiffs here is that they lack standing. Plaintiff Louie Gohmert, the United States Representative for Texas's First Congressional District, alleges at most an institutional injury to the House of Representatives. Under well-settled Supreme Court authority, that is insufficient to support standing. Raines v. Byrd , 521 U.S. 811, 829, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997).

The other Plaintiffs, the slate of Republican Presidential Electors for the State of Arizona (the "Nominee-Electors"), allege an injury that is not fairly traceable to the Defendant, the Vice President of the United States, and is unlikely to be redressed by the requested relief.

Accordingly, as explained below, the Court lacks subject matter jurisdiction over this case and must dismiss the action.

I.

A.

The Electors Clause of the U.S. Constitution requires that each state appoint, in the manner directed by the state's legislature, the number of presidential electors to which it is constitutionally entitled. U.S. CONST. art. II, § 1, cl. 2. Under the Twelfth Amendment, each state's electors meet in their respective states and vote for the President and Vice President. U.S. CONST. amend XII. The electors then certify the list of their votes and transmit the sealed lists to the President of the United States Senate—that is, the Vice President of the United States. The Twelfth Amendment then provides that, "[t]he 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." Id. A candidate winning a majority of the electoral votes wins the Presidency. However, if no candidate obtains a majority of the electoral votes, the House of Representatives is to choose the President—with each state delegation having one vote. Id.

The Electoral Count Act, informed by the Hayes-Tilden dispute of 1876, sought to standardize the counting of electoral votes in Congress. Stephen A. Siegel, The Conscientious Congressman's Guide to the Electoral Count Act of 1887 , 56 FLA. L. REV. 541, 547–50 (2004). Section 5 makes states’ determinations as to their electors, under certain circumstances, "conclusive" and provides that these determinations govern the counting of electoral votes. 3 U.S.C. § 5. Section 15 requires a joint session of Congress to count the electoral votes on January 6, with the President of the Senate presiding. Id. § 15.

During that session, the President of the Senate calls for objections on the electoral votes. Written objections submitted by at least one Senator and at least one Member of the House of Representatives trigger a detailed dispute-resolution procedure. Id. Most relevant here, Section 15 requires both the House of Representatives and the Senate—by votes of their full membership rather than by state delegations—to decide any objection. The Electoral Count Act also gives the state governor a role in certifying the state's electors, which Section 15 considers in resolving objections. Id. § 6.

It is these dispute-resolution procedures that Plaintiffs challenge in this case.

B.

On December 14, 2020, electors convened in each state to cast their electoral votes. Id. § 7; Docket No. 1 ¶ 5. In Arizona, the Democratic Party's slate of eleven electors voted for Joseph R. Biden and Kamala D. Harris. These votes were certified by Arizona Governor Doug Ducey and Arizona Secretary of State Katie Hobbs and submitted as required under the Electoral Count Act. Docket No. 1 ¶ 22. That same day, the Nominee-Electors state that they also convened in Arizona and voted for Donald J. Trump and Michael R. Pence. Id. ¶ 20. Similar actions took place in Georgia, Pennsylvania, Wisconsin, and Michigan (with Arizona, the "Contested States"). Id. ¶ 20–21. Combined, the Contested States represent seventy-three electoral votes. See id. ¶ 23.

On December 27, Plaintiffs filed this lawsuit, alleging that there are now "competing slates" of electors from the Contested States and asking the Court to declare that the Electoral Count Act is unconstitutional and that the Vice President has the "exclusive authority and sole discretion" to determine which electoral votes should count. Id. ¶ 73. They also ask for a declaration that "the Twelfth Amendment contains the exclusive dispute resolution mechanisms" for determining an objection raised by a Member of Congress to any slate of electors and an injunction barring the Vice President from following the Electoral Count Act. Id . On December 28, Plaintiffs filed an Emergency Motion for Expedited Declaratory Judgment and Emergency Injunctive Relief ("Emergency Motion"). Docket No. 2. Plaintiffs request "an expedited summary proceeding" under Federal Rule of Civil Procedure 57. Id.

On December 31, the Vice President opposed Plaintiffs’ motion. Docket No. 18.

II.

As mentioned above, before the Court can address the merits of Plaintiff's Emergency Motion, it must ensure that it has subject matter jurisdiction. See, e.g. , Cary , 44 U.S. at 245 ("The courts of the United States are all limited in their nature and constitution, and have not the powers inherent in courts existing by prescription or by the common law."); DaimlerChrysler Corp. v. Cuno , 547 U.S. 332, 340–41, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006) ("If a dispute is not a proper case or controversy, the courts have no business deciding it, or expounding the law in the course of doing so."). Article III of the U.S. Constitution limits federal courts to deciding only "cases" or "controversies," which ensures that the judiciary "respects ‘the proper—and properly limited—role of the courts in a democratic society.’ " DaimlerChrysler , 547 U.S. at 341, 126 S.Ct. 1854 (quoting Allen v. Wright , 468 U.S. 737, 750, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) ); see also Raines , 521 U.S. at 828, 117 S.Ct. 2312 (quoting United States v. Richardson , 418 U.S. 166, 192, 94 S.Ct. 2940, 41 L.Ed.2d 678 (1974) ) ("Our regime contemplates a more restricted role for Article III courts ... ‘not some amorphous general supervision of the operations of government.’ ").

"[A]n essential and unchanging part of the case-or-controversy requirement of Article III" is that the plaintiff has standing. Lujan , 504 U.S. at 560, 112 S.Ct. 2130. The standing requirement is not subject to waiver and requires strict compliance. E.g. , Lewis v. Casey , 518 U.S. 343, 349 n.1, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996) ; Raines , 521 U.S. at 819, 117 S.Ct. 2312. A standing inquiry is "especially rigorous" where the merits of the dispute would require the Court to determine whether an action taken by one of the other two branches of the Federal Government is unconstitutional. Raines , 521 U.S. at 819–20, 117 S.Ct. 2312 (citing Bender v. Williamsport Area Sch. Dist. , 475 U.S. 534, 542, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986), and Valley Forge Christian Coll. v. Ams. United for Separation of Church & St., Inc. , 454 U.S. 464, 473–74, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982) ). This is because "the law of Art. III standing is built on a single basic idea—the idea of separation of powers." Allen , 468 U.S. at 752, 104 S.Ct. 3315, abrogated on other grounds by Lexmark Int'l, Inc. v. Static Control Components, Inc. , 572 U.S. 118, 128, 134 S.Ct. 1377, 188 L.Ed.2d 392 (2014). Article III standing "enforces the Constitution's case-or-controversy requirement." DaimlerChrysler Corp. , 547 U.S. at 342, 126 S.Ct. 1854 (quoting Elk Grove Unified Sch. Dist. v. Newdow , 542 U.S. 1, 11, 124 S.Ct. 2301, 159 L.Ed.2d 98 (2004) ). And "[n]o principle is more fundamental to the judiciary's proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies." Raines, 521 U.S. at 818, 117 S.Ct. 2312.

Article III standing requires a plaintiff to show: (1) that he "has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical"; (2) that "the injury is fairly traceable to the challenged action of the defendant"; and (3) that "it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." El Paso Cnty. v. Trump , 982 F.3d 332, 336 (5th Cir. 2020) (quoting Friends of the Earth, Inc. v. Laidlaw Env't. Servs. (TOC), Inc. , 528 U.S. 167, 180–81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) ). "The party invoking federal jurisdiction bears the burden of establishing these elements," and "each element must be supported in the...