Gohmert v. Pence

Arizona
Dec 27, 2020
Jan 2, 2021
VP Pence has sole discretion to decide which slate of electors is valid.
plaintiffs “raise only legal issues"
for the court to declare VP Pence's authority
plaintiff lost; no impact

Summary

A group of Republican candidates and party officials that also constituted Trump's slate of preferred electors for the electoral college for the State of Arizona ("the Nominee-Electors") collectively sued Vice President Mike Pence, alleging that the Electoral Count Act of 1887 (the ECA), a federal law, was unconstitutional. Specifically, they argued that Governor Ducey illegally chose Biden's slate of preferred electors instead of them Trump's Nominee-Electors, and that VP Pence, in his role as President of the Senate, was the only governmental authority who could make the final decision about which slate of electors, if any, was legitimate. They claimed that the ECA's instructions to leave it up to a vote by Congress overall unconstitutionally striped the President of the Senate of that power, and they wanted the courts to declare the ECA unconstitutional.

This case was purely a matter of law, so the Nominee-Electors requested not to hold any evidentiary hearing and just get a summary judgement about the law. Some of Trump's potential electors from Michigan, where the official results listed Biden as the winner, also chimed in, also requesting that the court assert the Vice President's authority to decide which electoral votes were valid.

Vice President Pence argued that the Nominee-Electors were trying to grant him an additional right, which puts them on the same side of this case. He argued that they should have sued someone whose rights they wanted to reduce instead of him; namely, they should have sued the House of Representatives. Pence and several other parties who wrote in (including a Biden elector, the House of Representatives, and a random lawyer from Texas) all argued that winning the case wouldn't actually fix the Nominee-Electors' complaint. The Nominee-Electors' complaint is that they were being denied their legal role as presidential electors, but if they won they wouldn't automatically become electors. Pence or Congress would still choose who would be the electors, and it wasn't clear who they would pick. If winning the case can't fix the Nominee-Electors' problems, they argued, then the Nominee-Electors don't have a case at all.

On Jan 1st, 2021, District Judge Jeremy Kernodle agreed with that latter argument. Judge Kernodle said that even if the Nominee-Electors win the case, it's not clear how that would help them with their problem. They claim that Governor Ducey illegally picked the wrong electors, but they didn't sue Governor Ducey and they weren't asking for his decision to be reversed by the court. They sued VP Mike Pence, but Pence didn't certify the other electors, Pence can't nullify or reverse Governor Ducey certification choice, it wasn't clear that Pence was the one with the authority to count electoral votes, counting electoral votes at the federal level isn't the same as certifying them at the state level, and even if the court ordered that Pence had the authority to count electors AND that counting them was close enough to the same thing as states certifying them, it still wasn't clear which electors Pence would actually pick. All of that would have to go the Nominee-Electors' way in order to make the logic work that they had standing to bring the case to the courts in the first place. Therefore, Judge Kernodle ruled the Court finds that the Nominee-Electors lack standing. Judge Kernodle dismissed the case.

The Nominee-Electors appealed to the 5th Circuit Court, which affirmed the District Court's ruling that none of the Nominee-Electors had standing to sue.

Courts

5th Circuit Court

# 21-40001
Judges:
Patrick Higginbotham
Jerry Smith
Andrew Oldham
Jan 1, 2021
Jan 2, 2021

Eastern District of Texas

# 6:20-cv-00660-JDK
Judge Jeremy Kernodle
Dec 27, 2020
Jan 1, 2021

Court Documents (69)

Sources: