Gohmert et al v. Pence

Filing 1

COMPLAINT EMERGENCY COMPLAINT FOR EXPEDITED DECLARATORY AND EMERGENCY INJUNCTIVE RELIEF against Michael R. Pence ( Filing fee $ 402 receipt number 0540-8169550.), filed by Louie Gohmert. (Attachments: # 1 Exhibit EX A Arizona Joint Resolution, # 2 Civil Cover Sheet)(Sessions, William)

Case 6:20-cv-00660 Document 1 Filed 12/27/20 Page 1 of 28 PageID #: 1

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION

LOUIE GOHMERT, TYLER BOWYER, NANCY
COTTLE, JAKE HOFFMAN, ANTHONY KERN,
JAMES R. LAMON, SAM MOORHEAD,
ROBERT MONTGOMERY, LORAINE
PELLEGRINO, GREG SAFSTEN, KELLI WARD
and MICHAEL WARD,
Plaintiffs,

Case No.

COMPLAINT FOR EXPEDITED
DECLARATORY AND
EMERGENCY INJUNCTIVE RELIEF

v.
(Election Matter)
THE HONORABLE MICHAEL R. PENCE, VICE
PRESIDENT OF THE UNITED STATES, in his
official capacity.
Defendant.
NATURE OF THE ACTION
1.

This civil action seeks an expedited declaratory judgment finding that the elector

dispute resolution provisions in Section 15 of the Electoral Count Act, 3 U.S.C. §§ 5 and 15, are
unconstitutional because these provisions violate the Electors Clause and the Twelfth Amendment
of the U.S. Constitution. U.S. CONST. art. II, § 1, cl. 1 & Amend. XII. Plaintiffs also request
emergency injunctive relief required to effectuate the requested declaratory judgment.
2.

These provisions of Section 15 of the Electoral Count Act are unconstitutional

insofar as they establish procedures for determining which of two or more competing slates of
Presidential Electors for a given State are to be counted in the Electoral College, or how objections
to a proffered slate are adjudicated, that violate the Twelfth Amendment. This violation occurs
because the Electoral Count Act directs the Defendant, Vice President Michael R. Pence, in his
capacity as President of the Senate and Presiding Officer over the January 6, 2021 Joint Session

Case 6:20-cv-00660 Document 1 Filed 12/27/20 Page 2 of 28 PageID #: 2

of Congress: (1) to count the electoral votes for a State that have been appointed in violation of the
Electors Clause; (2) limits or eliminates his exclusive authority and sole discretion under the
Twelfth Amendment to determine which slates of electors for a State, or neither, may be counted;
and (3) replaces the Twelfth Amendment’s dispute resolution procedure – under which the House
of Representatives has sole authority to choose the President.
3.

Section 15 of the Electoral Count Act unconstitutionally violates the Electors

Clause by usurping the exclusive and plenary authority of State Legislatures to determine the
manner of appointing Presidential Electors, and instead gives that authority to the State’s
Executive. Similarly, 3 USC § 5 makes clear that the Presidential electors of a state and their
appointment by the State Executive shall be conclusive.
4.

This is not an abstract or hypothetical question, but a live “case or controversy”

under Article III that is ripe for a declaratory judgment arising from the events of December 14,
2020, where the State of Arizona (and several others) have appointed two competing slates of
electors.
5.

Plaintiffs include the United States Representative for Texas’ First Congressional

District and the entire slate of Republican Presidential Electors for the State of Arizona. The
Arizona Electors have cast Arizona’s electoral votes for President Donald J. Trump on December
14, 2020, at the Arizona State Capitol with the permission and endorsement of the Arizona
Legislature, i.e., at the time, place, and manner required under Arizona state law and the Electoral
Count Act. At the same time, Arizona’s Governor and Secretary of State appointed a separate and
competing slate of electors who cast Arizona’s electoral votes for former Vice-President Joseph
R. Biden, despite the evidence of massive multi-state electoral fraud committed on Biden’s behalf
that changed electoral results in Arizona and in other states such as Georgia, Michigan,

2

Case 6:20-cv-00660 Document 1 Filed 12/27/20 Page 3 of 28 PageID #: 3

Pennsylvania and Wisconsin that have also put forward competing slates of electors (collectively,
the “Contested States”). Collectively, these Contested States have enough electoral votes in
controversy to determine the outcome of the 2020 General Election.
6.

On January 6, 2021, when Congress convenes to count the electoral votes for

President and Vice-President, Plaintiff Representative Gohmert will object to the counting of the
Arizona slate of electors voting for Biden and to the Biden slates from the remaining Contested
States. Rep. Gohmert is entitled to have his objection determined under the Twelve Amendment,
and not through the unconstitutional impositions of a prior Congress by 3 U.S.C. §§ 5 and 15.
7.

Senators have also stated that they may object to the Biden slate of electors from

the Contested States.1
8.

This Complaint addresses a matter of urgent national concern that involves only

issues of law – namely, a determination that Sections 5 and 15 of the Electoral Count Act violate
the Electors Clause and/or the Twelfth Amendment of the U.S. Constitution. The relevant facts
are not in dispute concerning the existence of a live case or controversy between Plaintiffs and
Defendant, ripeness, standing, and other matters related to the justiciability of Plaintiffs’ claims.2

1

See https://www.forbes.com/sites/jackbrewster/2020/12/17/here-are-the-gop-senators-who
have-hinted-at-defying-mcconnell-by-challenging-election/?sh=506395c34ce3.
The facts relevant to the justiciability of Plaintiffs’ claims are laid out below and demonstrate the
certainty or near certainty that the unconstitutional provisions in Section 15 of the Electoral Count
Act will be invoked at the January 6, 2021 Joint Session of Congress to choose the next President,
namely: (1) there are competing slates of electors for Arizona and the other Contested States that
have been or will be submitted to the Electoral College; (2) the Contested States collectively have
sufficient (contested) electoral votes to determine the winner of the 2020 General Election –
President Trump or former Vice President Biden; (3) legislators in Arizona and other Contested
States have contested the certification of their State’s electoral votes by State executives, due to
substantial evidence of election fraud that is the subject of ongoing litigation and investigations;
and (4) Senators and Members of the House of Representatives have expressed their intent to
challenge the electors and electoral votes certified by State executives in the Contested States.
2

3

Case 6:20-cv-00660 Document 1 Filed 12/27/20 Page 4 of 28 PageID #: 4

9.

Because the requested declaratory judgment will terminate the controversy arising

from the conflict between the Twelfth Amendment and the Electoral Count Act, and the facts are
not in dispute, it is appropriate for this Court to grant this relief in a summary proceeding without
an evidentiary hearing or discovery. See Notes of Advisory Committee on Federal Rules of Civil
Procedure, Fed. R. Civ. P. 57.
10.

Accordingly, Plaintiffs have concurrently submitted a motion for a speedy

summary proceeding under Rule 57 of the Federal Rules of Civil Procedure (“FRCP”) to grant the
relief requested herein as soon as possible, and for emergency injunctive relief under Rule 65
thereof consistent with the declaratory judgment requested herein on that same date.
11.

Accordingly, Plaintiffs respectfully request this Court to issue a declaratory

judgment finding that:
A. Sections 5 and 15 of the Electoral Count Act, 3 U.S.C. §§ 5 and 15, are
unconstitutional because they violate the Twelfth Amendment, U.S. CONST. art.
II, § 1, cl. 1 & amend. XII on the face of it; and further violate the Electors Clause;
B. That Vice-President Pence, in his capacity as President of Senate and Presiding
Officer of the January 6, 2021 Joint Session of Congress under the Twelfth
Amendment, is subject solely to the requirements of the Twelfth Amendment and
may exercise the exclusive authority and sole discretion in determining which
electoral votes to count for a given State, and must ignore and may not rely on any
provisions of the Electoral Count Act that would limit his exclusive authority and
his sole discretion to determine the count, which could include votes from the slates
of Republican electors from the Contested States;

4

Case 6:20-cv-00660 Document 1 Filed 12/27/20 Page 5 of 28 PageID #: 5

C. That, with respect to competing slates of electors from the State of Arizona or other
Contested States, the Twelfth Amendment contains the exclusive dispute
resolution mechanisms, namely, that (i) Vice-President Pence determines which
slate of electors’ votes count, or neither, for that State; (ii) how objections from
members of Congress to any proffered slate of electors is adjudicated; and (iii) if
no candidate has a majority of 270 elector votes, then the House of Representatives
(and only the House of Representatives) shall choose the President where “the
votes [in the House of Representatives] shall be taken by states, the representation
from each state having one vote,” U.S. CONST. amend. XII;
D. That with respect to the counting of competing slates of electors, the alternative
dispute resolution procedure or priority rule in 3 U.S.C. § 15, together with its
incorporation of 3 U.S.C. § 5, shall have no force or effect because it nullifies and
replaces the Twelfth Amendment rules above with an entirely different procedure;
and
E. Issue any other declaratory judgments or findings or injunctive relief necessary to
support or effectuate the foregoing declaratory judgments.
JURISDICTION AND VENUE
12.

This Court has subject matter jurisdiction under 28 U.S.C. § 1331 which provides,

“The district courts shall have original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States.”
13.

This Court also has subject matter jurisdiction under 28 U.S.C. § 1343 because this

action involves a federal election for President of the United States. “A significant departure from
the legislative scheme for appointing Presidential electors presents a federal constitutional

5

Case 6:20-cv-00660 Document 1 Filed 12/27/20 Page 6 of 28 PageID #: 6

question.” Bush v. Gore, 531 U.S. 98, 113 (2000) (Rehnquist, C.J., concurring); Smiley v. Holm,
285 U.S. 355, 365 (1932).
14.

The jurisdiction of the Court to grant declaratory relief is conferred by 28 U.S.C.

§§ 2201 and 2202 and by Rule 57, Fed. R. Civ. P., and emergency injunctive relief by Rule 65,
Fed. R. Civ. P.
15.

Venue is proper because Plaintiff Gohmert resides in Tyler, Texas, he maintains his

primary congressional office in Tyler, and no real property is involved in the action. 28 U.S.C. §
1391(e)(1).
THE PARTIES
16.

Plaintiff Louie Gohmert is a duly elected member of the United States House of

Representatives for the First Congressional District of Texas. On November 3, 2020 he won reelection of this Congressional seat and plans to attend the January 6, 2021 session of Congress.
He resides in the city of Tyler, in Smith County, Texas.
17.

Each of the following Plaintiffs is a resident of Arizona, a registered Arizona voter

and a Republican Party Presidential Elector on behalf of the State of Arizona, who voted their
competing slate for President and Vice President on December 14, 2020: a) Tyler Bowyer, a
resident of Maricopa County and a Republican National Committeeman; b) Nancy Cottle, a
resident of Maricopa County and Second Vice-Chairman of the Maricopa County Republican
Committee; c) Jake Hoffman, a resident of Maricopa County and member-elect of the Arizona
House of Representatives; d) Anthony Kern, a resident of Maricopa County and an outgoing
member of the Arizona House of Representatives; e) James R. Lamon, a resident of Maricopa
County; f) Samuel Moorhead, a resident of Gila County; g) Robert Montgomery, a resident of
Cochise County and Republican Party Chairman for Cochise County; h) Loraine Pellegrino, a

6

Case 6:20-cv-00660 Document 1 Filed 12/27/20 Page 7 of 28 PageID #: 7

resident of Maricopa County; i) Greg Safsten, a resident of Maricopa County and Executive
Director of the Republican Party of Arizona; j) Kelli Ward, a resident of Mohave County and Chair
of the Arizona Republican Party; and k) Michael Ward, a resident of Mohave County.
18.

The above eleven plaintiffs constitute the full slate of the Arizona Republican

party’s nominees for presidential electors (the “Arizona Electors”).
19.

The Defendant is Vice President Michael R. Pence named in his official capacity

as the Vice President of the United States. The declaratory and injunctive relief requested herein
applies to his duties as President of the Senate and Presiding Officer at the January 6, 2021 Joint
Session of Congress carried out pursuant to the Electoral Count Act and the Twelfth Amendment.
STATEMENT OF FACTS
20.

The Plaintiffs include a United States Representative from Texas, the entire slate

of Republican Presidential Electors for the State of Arizona as well as an outgoing and incoming
member of the Arizona Legislature. On December 14, 2020, pursuant to the requirements of
applicable state laws and the Electoral Count Act, the Arizona Electors, with the knowledge and
permission of the Republican-majority Arizona Legislature, convened at the Arizona State Capitol,
and cast Arizona’s electoral votes for President Donald J. Trump and Vice President Michael R.
Pence.3 On the same date, the Republican Presidential Electors for the States of Georgia,4

3

See GOP Elector Nominees cast votes for Trump in Arizona, Georgia, Pennsylvania, by Dave
Boyer, The Washington Times, December 14, 2020.
https://www.washingtontimes.com/news/2020/dec/14/gop-electors-cast-votes-trump-georgiapennsylvania/.
4

See id.
7

Case 6:20-cv-00660 Document 1 Filed 12/27/20 Page 8 of 28 PageID #: 8

Pennsylvania5 and Wisconsin6 met at their respective State Capitols to cast their States’ electoral
votes for President Trump and Vice President Pence.
21.

Michigan’s Republican electors attempted to vote at their State Capitol on

December 14th but were denied entrance by the Michigan State Police. Instead, they met on the
grounds of the State Capitol and cast their votes for President Trump and Vice President Pence
vote.7
22.

On December 14, 2020, in Arizona and the other States listed above, the

Democratic Party’s slate of electors convened in their respective State Capitols to cast their
electoral votes for former Vice President Joseph R. Biden and Senator Kamala Harris. On the
same day, Arizona Governor Doug Ducey and Arizona Secretary of State Katie Hobbs submitted
the Certificate of Ascertainment with the Biden electoral votes pursuant to the National Archivist
pursuant to the Electoral Count Act.8
23.

Accordingly, there are now competing slates of Republican and Democratic

electors in five States with Republican majorities in both houses of their State Legislatures –
Arizona, Georgia, Michigan, Pennsylvania, and Wisconsin (i.e., the Contested States) – that

5

See id.

6

See Wisconsin GOP Electors Meet to Cast their own Votes Too Just in Case, by Nick Viviani,
WMTV, NBC15.com, December 14, 2020, https://www.nbc15.com/2020/12/14/wisconsin-gopelectors-meet-to-cast-their-own-votes-too-just-in-case/ last visited December 14, 2020.
7

See Michigan Police Block GOP Electors from Entering Capitol, by Jacob Palmieri, the
Palmieri Report, December 14, 2020, https://thepalmierireport.com/michigan-state-police-blockgop-electors-from-entering-capitol/.
8

See Democratic Electors Cast Ballots in Arizona for First Time Since 1996, by Nicole Valdes,
ABC15.com, December 14, 2020, available at: https://www.abc15.com/news/election2020/democratic-electors-cast-ballots-in-arizona-for-first-time-since-1996.
8

Case 6:20-cv-00660 Document 1 Filed 12/27/20 Page 9 of 28 PageID #: 9

collectively have 73 electoral votes, which are more than sufficient to determine the winner of the
2020 General Election.9
24.

The Arizona Electors, along with Republican Presidential Electors in Georgia,

Michigan, Pennsylvania, and Wisconsin, took this step as a result of the extraordinary events and
substantial evidence of election fraud and other illegal conduct before, during and after the 2020
General Election in these States. The Arizona Legislature has conducted legislative hearings into
these voting fraud allegations, and is actively investigating these matters, including issuing
subpoenas of Maricopa County, Arizona (which accounts for over 60% of Arizona’s population
and voters) voting machines for forensic audits.10
25.

On December 14, 2020, members of the Arizona Legislature passed a Joint

Resolution in which they: (1) found that the 2020 General Election “was marred by irregularities
so significant as to render it highly doubtful whether the certified result accurately represents the
will of the voters;” (2) invoked the Arizona Legislature’s authority under the Electors Clause and
5 U.S.C. § 2 to declare the 2020 General Election a failed election and to directly appoint Arizona’s
electors; (3) resolved that the Plaintiff Arizona Electors’ “11 electoral votes be accepted for …
Donald J. Trump or to have all electoral votes nullified completely until a full forensic audit can
be conducted;” and (4) further resolved “that the United States Congress is not to consider a slate

9

Republican Presidential Electors in the States of Nevada and New Mexico, which have
Democrat majority state legislature, also met on December 14, 2020, at their State Capitols to
cast their votes for President Trump and Vice President Pence.
10

Maricopa County election officials have refused to comply with these subpoenas or to turn
over voting machines or voting records and have sued to quash the subpoena. Plaintiff Arizona
Electors have moved to intervene in this Arizona state proceeding. See generally Maricopa Cty.
v. Fann, Case No. CV2020-016840 (Az. Sup. Ct. Dec. 18, 2020).
9

Case 6:20-cv-00660 Document 1 Filed 12/27/20 Page 10 of 28 PageID #: 10

of electors from the State of Arizona until the Legislature deems the election to be final and all
irregularities resolved.”11
26.

Public reports have also highlighted wide-spread election fraud in the other

Contested States that prompted competing Electors’ slates. 12
27.

Republican Senators and Republican Members of the House of Representatives

have also expressed their intent to oppose the certified slates of electors from the Contested States
due to the substantial evidence of election fraud in the 2020 General Election. Multiple Senators
and House Members have stated that they will object to the Biden electors at the January 6, 2021
Joint Session of Congress.13 Plaintiff Gohmert will object to the counting of the Arizona electors
voting for Biden, as well as to the Biden electors from the remaining Contested States.
28.

Based on the foregoing facts, Defendant Vice President Pence, in his capacity as

President of the Senate and Presiding Officer at the January 6, 2021 Joint Session of Congress to
select the next President, will be presented with the following circumstances: (1) competing slates
of electors from the State of Arizona and the other Contested States (namely, Georgia, Michigan,
Pennsylvania, and Wisconsin) (2) that represent sufficient electoral votes (a) if counted, to
determine the winner of the 2020 General Election, or (b) if not counted, to deny either President
Trump or former Vice President Biden sufficient votes to win outright; and (3) objections from at

See Ex. A, “A Joint Resolution of the 54th Legislature, State of Arizona, To The 116th Congress,
Office of the President of the Senate Presiding,” December 14, 2020 (“December 14, 2020 Joint
Resolution”).
11

12

See The Immaculate Deception, Six Key Dimensions of Election Irregularities, The Navarro Report.
https://bannonswarroom.com/wp-content/uploads/2020/12/The-Immaculate-Deception-12.15.20-1.pdf
13

See, e.g., Dueling Electors and the Upcoming Joint Session of Congress, by Zachary Steiber,
Epoch Times, Dec. 17, 2020, available at: https://www.theepochtimes.com/explainer-duelingelectors-and-the-upcoming-joint-session-of-congress_3622992.html.
10

Case 6:20-cv-00660 Document 1 Filed 12/27/20 Page 11 of 28 PageID #: 11

least one Senator and at least one Member of the House of Representatives to the counting of
electoral votes from one or more of the Contested States.
29.

The choice between the Twelfth Amendment and 3 U.S.C. § 15 raises important

procedural differences. In the incoming 117th Congress, the Republican Party has a majority in
27 of the House delegations that would vote under the Twelfth Amendment. The Democrat Party
has a majority in 20 of those House delegations, and the two parties are evenly divided in three of
those delegations. By contrast, under 3 U.S.C. § 15, Democrats have a ten- or eleven-seat majority
in the House, depending on the final outcome of the election in New York’s 22nd District.
30.

Accordingly, it is the foregoing conflict between the Twelfth Amendment of the

U.S. Constitution and Section 15 of the Electoral Count Act that establish the urgency for this
Court to issue a declaratory judgment that Section 15 of the Electoral Count Act is unconstitutional.
RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS
31.

Presidential Electors Clause. The U.S. Constitution grants State Legislatures the

exclusive authority to appoint Presidential Electors:
Each State shall appoint, in such Manner as the Legislature thereof may direct, a
number of electors, equal to the whole Number of Senators and Representatives to
which the State may be entitled in the Congress: but no Senator or Representative,
or Person holding an Office of Trust or Profit under the United States, shall be
appointed an Elector. U.S. CONST. art. II, § 1 ("Electors Clause").
32.

The Supreme Court has affirmed that the “power and jurisdiction of the state

[legislature]” to select electors “is exclusive,” McPherson v. Blacker, 146 U.S. 1, 11 (1892); this
power “cannot be taken from them or modified” by statute or even the state constitution,” and
“there is no doubt of the right of the legislature to resume the power at any time.” Id. at 10
(citations omitted).

In Bush v. Gore, 531 U.S. 98 (2000), the Supreme Court reaffirmed

McPherson’s holding that “the state legislature’s power to select the manner for appointing

11

Case 6:20-cv-00660 Document 1 Filed 12/27/20 Page 12 of 28 PageID #: 12

electors is plenary,” Bush, 531 U.S. at 104 (citing McPherson, 146 U.S. at 35), noting that the state
legislature “may, if it so chooses, select the electors itself,” and that even after deciding to select
electors through a statewide election, “can take back the power to appoint electors.” Id. (citation
omitted).
33.

The Twelfth Amendment. The Twelfth Amendment sets forth the procedures for

counting electoral votes and for resolving disputes over whether and which electoral votes may be
counted for a State. The first section describes the meeting of the Electoral College and the
procedures up to the casting of the electoral votes by the Presidential Electors in their respective
states, which occurred on December 14, 2020, with respect to the 2020 General Election:
The electors shall meet in their respective states and vote by ballot for President
and Vice-President, one of whom, at least, shall not be an inhabitant of the same
state with themselves; they shall name in their ballots the person voted for as
President, and in distinct ballots the person voted for as Vice-President, and they
shall make distinct lists of all persons voted for as President, and of all persons
voted for as Vice-President, and of the number of votes for each, which lists they
shall sign and certify, and transmit sealed to the seat of the government of the
United States, directed to the President of the Senate.
U.S. CONST. amend. XII.
34.

The second section describes how Defendant Vice President Pence, in his role as

President of the Senate and Presiding Officer for the January 6, 2021 Joint Session of Congress,
shall “count” the electoral votes.
The 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[.]
U.S. CONST. amend. XII.
35.

Under the Twelfth Amendment, Defendant Pence alone has the exclusive authority

and sole discretion to open and permit the counting of the electoral votes for a given state, and
where there are competing slates of electors, or where there is objection to any single slate of
electors, to determine which electors’ votes, or whether none, shall be counted. Notably, neither
12

Case 6:20-cv-00660 Document 1 Filed 12/27/20 Page 13 of 28 PageID #: 13

the Twelfth Amendment nor the Electoral Count Act, provides any mechanism for judicial review
of the Presiding Officer’s determinations.14 Instead, the Twelfth Amendment and the Electoral
Count Act adopt different procedures for the President of the Senate (Twelfth Amendment) or both
Houses of Congress (Electoral Count Act) to resolve any such disputes and the authority for the
final determinations, in the event of disagreement, to different parties; namely, the Electoral Count
Act gives it to the Executive of the State; while the Twelfth Amendment vests sole authority with
the Vice President.
36.

The third section of the Twelfth Amendment sets forth the procedures for selecting

the President (solely) by the House of Representatives, in the event that no candidate has received
a majority of electoral votes counted by the President of the Senate.
The person having the greatest number of votes for President, shall be the President,
if such number be a majority of the whole number of electors appointed; and if no
person have such majority, then from the persons having the highest numbers not
exceeding three on the list of those voted for as President, the House of
Representatives shall choose immediately, by ballot, the President. But in choosing
the President, the votes shall be taken by states, the representation from each state
having one vote; a quorum for this purpose shall consist of a member or members
from two-thirds of the states, and a majority of all the states shall be necessary to
a choice. And if the House of Representatives shall not choose a President
whenever the right of choice shall devolve upon them, before the fourth day of
March next following, then the Vice-President shall act as President, as in the case
of the death or other constitutional disability of the President.
U.S. CONST. amend. XII (emphasis added).

14

See, e.g., Nathan L. Colvin & Edward B. Foley, The Twelfth Amendment: A Constitutional
Ticking Time Bomb, U. of Miami L. Rev. 64:475, 526 (2010) (discussing reviews of the Electoral
Count Act’s (“ECA”) legislative history and concluding that, “[o]ne of the more thorough reviews
of the legislative history of the ECA reveals that Congress considered giving the Court some role
in the process but rejected the idea every time, and it was clear that Congress did not think the
Court had a constitutional role nor did it believe that the Court should have any jurisdiction at all.”
Plaintiffs agree that resolution of disputes before Congress, arising on January 6, 2021, over
competing slates of electors, or objections to any slate of electors, are matters outside the purview
of federal courts; but the federal courts must determine whether the ECA is unconstitutional. This
position is fully consistent with the declaratory judgment requested herein.
13

Case 6:20-cv-00660 Document 1 Filed 12/27/20 Page 14 of 28 PageID #: 14

37.

There are four key features of this Twelfth Amendment procedure that should be

noted when comparing it with the Electoral Count Act’s procedures: (1) the President is to be
chosen solely by the House of Representatives, with no role for the Senate; (2) votes are taken by
State (with one vote per State), rather than by individual House members; (3) the President is
deemed the candidate that receives the majority of States’ votes, rather than a majority of
individual House members’ votes; and (4) there are no other restrictions on this majority rule
provision; in particular, no “tie breaker” or priority rules based on the manner or State authority
that originally appointed the electors on December 14, 2020 as is the case under the Electoral
Count Act (which gives priority to electors’ certified by the State’s executive).
38.

The Electoral Count Act. The Electoral Count Act of 1887, as subsequently

amended, includes a number of provisions that are in direct conflict with the text of the Electors
Clause and the Twelfth Amendment.
39.

Sections 5 and 15 of the Electoral Count Act adopt an entirely different set of

procedures for the counting of electoral votes, for addressing situations where one candidate does
not receive a majority, and for resolving disputes. Sections 16 to 18 of the Electoral Count Act
provide additional procedural rules governing the Joint Session of Congress (to be held January 6,
2021 for the 2020 General Election).
40.

The first part of Section 15 is consistent with the Twelfth Amendment insofar as it

provides that “the President of the Senate shall be their presiding officer” and that “all the
certificates and papers purporting to be certificates of the electoral votes” are to be “opened by the
President of the Senate.” 3 U.S.C. § 15. However, Section 15 diverges from the Twelfth
Amendment by adopting procedures for the President of the Senate to “call for objections,” and if
there are objections made in writing by one Senator and one Member of the House of

14

Case 6:20-cv-00660 Document 1 Filed 12/27/20 Page 15 of 28 PageID #: 15

Representatives, then this shall trigger a dispute-resolution procedure found nowhere in the
Twelfth Amendment.
41.

The Section 15’s dispute resolution procedures are lengthy and reproduced in their

entirety below:
When all objections so made to any vote or paper from a State shall have been
received and read, the Senate shall thereupon withdraw, and such objections shall
be submitted to the Senate for its decision; and the Speaker of the House of
Representatives shall, in like manner, submit such objections to the House of
Representatives for its decision; and no electoral vote or votes from any State which
shall have been regularly given by electors whose appointment has been lawfully
certified to according to section 6 of this title [3 USCS § 6]15 from which but one
return has been received shall be rejected, but the two Houses concurrently may
reject the vote or votes when they agree that such vote or votes have not been so
regularly given by electors whose appointment has been so certified. If more than
one return or paper purporting to be a return from a State shall have been received
by the President of the Senate, those votes, and those only, shall be counted which
shall have been regularly given by the electors who are shown by the determination
mentioned in section 5 [3 USCS § 5] of this title to have been appointed, if the
determination in said section provided for shall have been made, or by such
successors or substitutes, in case of a vacancy in the board of electors so
ascertained, as have been appointed to fill such vacancy in the mode provided by
the laws of the State; but in case there shall arise the question which of two or more
of such State authorities determining what electors have been appointed, as
mentioned in section 5 of this title [3 USCS § 5], is the lawful tribunal of such State,
the votes regularly given of those electors, and those only, of such State shall be
counted whose title as electors the two Houses, acting separately, shall concurrently
decide is supported by the decision of such State so authorized by its law; and in
such case of more than one return or paper purporting to be a return from a State,
if there shall have been no such determination of the question in the State aforesaid,
then those votes, and those only, shall be counted which the two Houses shall
concurrently decide were cast by lawful electors appointed in accordance with the
laws of the State, unless the two Houses, acting separately, shall concurrently
decide such votes not to be the lawful votes of the legally appointed electors of such
3 U.S.C. § 6 is inconsistent with the Electors Clause—which provides that electors “shall sign
and certify, and transmit sealed to the seat of the government of the United States” the results of
their vote, U.S. Const. art. II, § 1, cl. 2-3—because § 6 relies on state executives to forward the
results of the electors’ vote to the Archivist for delivery to Congress. 3 U.S.C. § 6. Although the
means of delivery are arguably inconsequential, the Constitution vests state executives with no
role whatsoever in the process of electing a President. A state executive lends no official
imprimatur to a given slate of electors under the Constitution.
15

15

Case 6:20-cv-00660 Document 1 Filed 12/27/20 Page 16 of 28 PageID #: 16

State. But if the two Houses shall disagree in respect of the counting of such votes,
then, and in that case, the votes of the electors whose appointment shall have been
certified by the executive of the State, under the seal thereof, shall be counted.
When the two Houses have voted, they shall immediately again meet, and the
presiding officer shall then announce the decision of the questions submitted. No
votes or papers from any other State shall be acted upon until the objections
previously made to the votes or papers from any State shall have been finally
disposed of.
3 U.S.C. § 15 (emphasis added).
42.

First, the Electoral Count Act submits disputes over the “count” of electoral votes

to both the House of Representatives and to the Senate. The Twelfth Amendment envisages no
such role for both Houses of Congress. The President of the Senate, and the President of the Senate
alone, shall “count” the electoral votes. This intent is borne out by a unanimous resolution attached
to the final Constitution that described the procedures for electing the first President (i.e., for a
time when there would not already be a Vice President), stating in relevant part “that the Senators
should appoint a President of the Senate, for the sole Purpose of receiving, opening and counting
the Votes for President.” 2 M. Farrand, RECORDS OF THE FEDERAL CONVENTION OF 1787, at 666
(1911). For all subsequent elections, when there would be a Vice President to act as President of
the Senate, the Constitution vests the opening and counting in the Vice President.
43.

Second, the Electoral Count Act gives both the House of Representatives and the

Senate the power to vote, or “decide,” which of two or more competing slates of electors shall be
counted, and it requires the concurrence of both to “count” the electoral votes for one of the
competing slates of electors.
44.

Under the Twelfth Amendment, the President of the Senate has the sole authority

to count votes in the first instance, and then the House may do so only in the event that no candidate
receives a majority counted by the President of the Senate. There is no role for the Senate to
participate in choosing the President.
16

Case 6:20-cv-00660 Document 1 Filed 12/27/20 Page 17 of 28 PageID #: 17

45.

Third, the Electoral Count Act eliminates entirely the unique mechanism by which

the House of Representatives under the Twelve Amendment is to choose the President, namely,
where “the votes shall be taken by states, the representation for each state having one vote.” U.S.
CONST. amend. XII. The Electoral Count Act is silent on how the House of Representatives is to
“decide” which electoral votes were cast by lawful electors.
46.

Fourth, the Electoral Count Act adopts a priority rule, or “tie breaker,” “if the two

Houses shall disagree in respect of counting of such votes,” in which case “the votes of the electors
whose appointment shall have been certified by the executive of the State … shall be counted.”
This provision not only conflicts with the President of the Senate’s exclusive authority and sole
discretion under the Twelfth Amendment to decide which electoral votes to count, but also with
the State Legislature’s exclusive and plenary authority under the Electors Clause to appoint the
Presidential Electors for their State.
47.

The Electoral Count Act is unconstitutional because it exceeds the power of

Congress to enact. It is well settled that “one legislature may not bind the legislative authority of
its successors,” United States v. Winstar Corp., 518 U.S. 839, 872 (1996), which is a foundational
and “centuries-old concept,” id., that traces to Blackstone’s maxim that “Acts of parliament
derogatory from the power of subsequent parliaments bind not.” Id. (quoting 1 WILLIAM
BLACKSTONE, COMMENTARIES *90). “There is no constitutionally prescribed method by
which one Congress may require a future Congress to interpret or discharge a constitutional
responsibility in any particular way.” Laurence H. Tribe, Erog v. Hsub and Its Disguises: Freeing
Bush v. Gore from Its Hall of Mirrors, 115 HARV. L. REV. 170, 267 n.388 (2001).
48.

The Electoral Count Act also violates the Presentment Clause by purporting to

create a type of bicameral order, resolution, or vote that is not presented to the President. See U.S.

17

Case 6:20-cv-00660 Document 1 Filed 12/27/20 Page 18 of 28 PageID #: 18

CONST. art. I, § 7, cl. 3 (“Every Order, Resolution, or Vote, to Which the Concurrence of the
Senate and House of Representatives may be necessary (except on a question of Adjournment)
shall be presented to the President of the United States; and before the Same shall take Effect, shall
be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate
and House of Representatives, according to the Rules and Limitations prescribed in the Case of a
Bill.”)
49.

The House and Senate cannot resolve the issues that the Electoral Count Act asks

them to resolve without either a supermajority in both houses or presentment. The Electoral Count
Act similarly restricts the authority of the House of Representatives and the Senate to control their
internal discretion and procedures pursuant to Article I, Section 5 which provides that “[e]ach
House may determine the Rules of its Proceedings …” U.S. CONST. art. I, § 5, cl. 2.
50.

Further, the Electoral Count Act improperly delegates tie-breaking authority to

State executives (who have no agency under the Electors Clause or election amendments) when a
State presents competing slates that Congress cannot resolve, or when an objection is presented to
a particular slate of electors.
51.

The Electoral Count Act also violates the non-delegation doctrine, the separation-

of-powers and anti-entrenchment doctrines. See generally Chris Land & David Schultz, On the
Unenforceability of the Electoral Count Act, 13 Rutgers J.L. & Pub. Policy 340, 364-377 (2016).
JUSTICIABILITY AND JURISDICTION
52.

This Court Can Grant Declaratory Judgment in a Summary Proceeding. This

Court has the authority to enter a declaratory judgment and to provide injunctive relief pursuant to
Rules 57 and 65 of the Federal Rules of Civil Procedure and 28 U.S.C. §§ 2201 and 2202. The
court may order a speedy hearing of a declaratory judgment action. Fed. Rules Civ. Proc. R. 57,

18

Case 6:20-cv-00660 Document 1 Filed 12/27/20 Page 19 of 28 PageID #: 19

Advisory Committee Notes. A declaratory judgment is appropriate when it will “terminate the
controversy” giving rise to the proceeding. Id. Inasmuch as it often involves only an issue of law
on undisputed or relatively undisputed facts, it operates frequently as a summary proceeding,
justifying docketing the case for early hearing as on a motion. Id.
53.

As described above, Plaintiffs’ claims involve legal issues only – specifically,

whether the Electoral Count Act violates the Twelfth Amendment of the U.S. Constitution – that
do not require this court to resolve any disputed factual issues.
54.

Moreover, the factual issues related to the justiciability of Plaintiffs’ claims are not

in dispute. To assist this Court to grant the relief on the expedited basis requested herein, Plaintiffs
address a number of likely objections to this Court’s jurisdiction and the justiciability of Plaintiffs’
claims that may be raised by Defendant.
55.

Plaintiffs Have Standing. Plaintiffs have standing as including a Member of the

House of Representatives, Members of the Arizona Legislature, and as Presidential Electors for
the State of Arizona.
56.

Prior to December 14, 2020, Plaintiff Arizona Electors had standing under the

Electors Clause as candidates for the office of Presidential Elector because, under Arizona law, a
vote cast for the Republican Party’s President and Vice President is cast for the Republican
Presidential Electors. See ARS § 16-212. Accordingly, Plaintiff Arizona Electors, like other
candidates for office, “have a cognizable interest in ensuring that the final vote tally reflects the
legally valid votes cast,” as “[a]n inaccurate vote tally is a concrete and particularized injury to
candidates such as the Electors.” Carson v. Simon, 978 F.3d 1051, 1057 (8th Cir. 2020) (affirming
that Presidential Electors have Article III and prudential standing under Electors Clause). See also
Wood v. Raffensperger, No. 20-14418, 2020 WL 7094866, *10 (11th Cir. Dec. 5, 2020) (affirming

19

Case 6:20-cv-00660 Document 1 Filed 12/27/20 Page 20 of 28 PageID #: 20

that if Plaintiff voter had been a candidate for office “he could assert a personal, distinct injury”
required for standing); Trump v. Wis. Elections Comm’n, No. 20-cv-1785, 2020 U.S. Dist. LEXIS
233765 at *26 (E.D. Wis. Dec. 12, 2020) (President Trump, “as candidate for election, has a
concrete particularized interest in the actual results of the election.”).
57.

But for the alleged wrongful conduct of Arizona executive branch and Maricopa

County officials under color of law, by certifying a fraudulently produced election result in Mr.
Biden’s favor, the Plaintiff Arizona Electors would have been certified as the presidential electors
for Arizona, and Arizona’s Governor and Secretary of State would have transmitted uncontested
votes for Donald J. Trump and Michael R. Pence to the Electoral College. The certification and
transmission of a competing slate of Biden electors has resulted in a unique injury that only
Plaintiff Arizona Electors could suffer, namely, having a competing slate of electors take their
place and their votes in the Electoral College.
58.

The upcoming January 6, 2021 Joint Session of Congress provides further grounds

of standing for the requested declaratory judgment that the Electoral Count Act is unconstitutional.
Then, Plaintiffs are certain or nearly certain to suffer an injury-in-fact caused by Defendant Vice
President Pence, acting as Presiding Officer, if Defendant ignores the Twelfth Amendment and
instead follows the procedures in Section 15 of the Electoral Count Act to resolve the dispute over
which slate of Arizona electors is to be counted.
59.

The Twelfth Amendment gives Defendant exclusive authority and sole discretion

as to which set of electors to count, or not to count any set of electors; if no candidate receives a
majority of electoral votes, then the President is to be chosen by the House, where “the votes shall
be taken by States, the representation from each state having one vote.” U.S. CONST. amend.
XII. If Defendant Pence instead follows the procedures in Section 15 of the Electoral Count Act,

20

Case 6:20-cv-00660 Document 1 Filed 12/27/20 Page 21 of 28 PageID #: 21

Plaintiffs’ electoral votes will not be counted because (a) the Democratic majority House of
Representatives will not “decide” to count the electoral votes of Plaintiff Republican electors; and
(b) either the Senate will concur with the House not to count their votes, or the Senate will not
concur, in which case, the electoral votes cast by Biden’s electors will be counted because the
Biden slate of electors was certified by Arizona’s executive.
60.

It is sufficient for the purposes of declaratory judgment that the injury is threatened.

The declaratory and injunctive relief requested by Plaintiffs “may be made before actual
completion of the injury-in-fact required for Article III standing,” namely, the application of
Section 15 of the Electoral Count Act, rather than the Twelfth Amendment to resolve disputes over
which of two competing slates of electors to count “if the plaintiff can show an actual present harm
or significant possibility of future harm to demonstrate the need for pre-enforcement review.” 10
FED. PROC. L. ED. § 23.26 (“Standing to Seek Declaratory Judgment”) (citations omitted).
61.

Plaintiffs have demonstrated above that this injury-in-fact is to occur at the January

6, 2021 Joint Session of Congress, and they seek the requested declaratory and injunctive relief
“only in the last resort, and as a necessity in the determination of a vital controversy.” Id.
62.

Plaintiffs Present a Live “Case or Controversy.” Plaintiffs’ claims present a live

“case or controversy” with the Defendant, rather than hypothetical or abstract dispute, that can be
litigated and decided by this Court through the requested declaratory and injunctive relief. Here
there is a clear threat of the application of an unconstitutional statute, Section 15 of the Electoral
Count Act, which is sufficient to establish the requisite case or controversy. See, e.g., Navegar,
Inc. v. U.S., 103 F.3d 994, 998 (D.C. Cir. 1997) (“the threat of prosecution provides the foundation
of justiciability as a constitutional and prudential matter, and the Declaratory Judgments Act
provides the mechanism for seeking pre-enforcement review in federal court.”).

21

Case 6:20-cv-00660 Document 1 Filed 12/27/20 Page 22 of 28 PageID #: 22

63.

First, the events of December 14, 2020, gave rise to two competing slates of electors

for the State of Arizona: the Plaintiff Arizona Electors, supported by Arizona State legislators (as
evidenced by the December 14, 2020 Joint Resolution and the participation of Arizona legislator
Plaintiffs), who cast their electoral votes for President Trump and Vice President Pence, and one
certified by the Arizona state executives who cast their votes for former Vice President Biden and
Senator Harris. Second, the text of the Twelfth Amendment of the Constitution expressly commits
to the Defendant Vice President Pence, acting as the President of the Senate and Presiding Officer
for the January 6, 2021 Joint Session of Congress, the authority and discretion to “count” electoral
votes, i.e., deciding in his sole discretion as to which one of the two, or neither, set of electoral
votes shall be counted. The Electoral Count Act similarly designates Defendant as the Presiding
Officer responsible for opening and counting electoral votes, but sets forth a different set of
procedures, inconsistent with the Twelfth Amendment, for deciding which of two or more
competing slates of electors and electoral votes, or neither, shall be counted.
64.

Accordingly, a controversy presently exists due to: (1) the existence of competing

slates of electors for Arizona and the other Contested States, and (2) distinct and inconsistent
procedures under the Twelfth Amendment and the Electoral Count Act to determine which slate
of electors and their electoral votes, or neither, shall be counted in choosing the next President.
Further, this controversy must be resolved at the January 6, 2021 Joint Session of Congress.
Finally, the Constitution expressly designates Defendant Pence as the individual who decides
which set of electoral votes, or neither, to count, and the requested declaratory judgment that the
procedures under Electoral Count Act are unconstitutional is necessary to ensure that Defendant
Pence counts electoral votes in a manner consistent with the Twelfth Amendment of the U.S.
Constitution.

22

Case 6:20-cv-00660 Document 1 Filed 12/27/20 Page 23 of 28 PageID #: 23

65.

The injuries that Plaintiffs assert affect the procedure by which the status of their

votes will be considered, which lowers the thresholds for immediacy and redressability under this
Circuit’s and the Supreme Court’s precedents. Nat’l Treasury Employees Union v. U.S., 101 F.3d
1423, 1428-29 (D.C. Cir. 1996); Lujan v. Defenders of Wildlife, 504 U.S. 555, 571-72 & n.7
(1992). Similarly, a plaintiff with concrete injury can invoke Constitution’s structural protections
of liberty. Bond v. United States, 564 U.S. 211, 222-23 (2011).
66.

Plaintiffs’ Claims Are Ripe for Adjudication. Plaintiffs’ claims are ripe for the

same reasons that they present a live “case or controversy” within the meaning of Article III.
“[T]he ripeness doctrine seeks to separate matters that are premature for review because the injury
is speculative and may never occur from those cases that are appropriate for federal court action.”
Roark v. Hardee LP v. City of Austin, 522 F.3d 533, 544 n.12 (5th Cir. 2008) (quoting ERWIN
CHEMERINSEY, FEDERAL JURISDICTION § 2.4.18 (5th Ed. 2007)). As explained above, the
facts underlying the justiciability of Plaintiffs’ claims are not in dispute. Further, it is certain or
nearly certain that Plaintiffs will suffer an injury-in-fact at the January 6, 2021 Joint Session of
Congress, if Defendant Pence disregards the exclusive authority and sole discretion granted to him
under the Twelfth Amendment to “count” electoral votes, and instead follows the conflicting and
unconstitutional procedures in Section 15 of the Electoral Count Act, pursuant to which Plaintiffs’
electoral votes will be disregarded in favor of the competing electors for the State of Arizona.
67.

Plaintiffs’ Claims Are Not Moot.

Plaintiffs seek prospective declaratory

judgment that portions of the Electoral Count Act are unconstitutional and injunctive relief
prohibiting Defendant from following the procedures in Section 15 thereof that authorize the
House and Senate jointly to resolve disputes regarding competing slates of electors.

This

prospective relief would apply to Defendants’ future actions at the January 6, 2021 Joint Session

23

Case 6:20-cv-00660 Document 1 Filed 12/27/20 Page 24 of 28 PageID #: 24

of Congress. The requested relief thus is not moot because it is prospective and because it
addresses an unconstitutional “ongoing policy” embodied in the Electoral Count Act that is likely
to be repeated and will evade review if the requested relief is not granted. Del Monte Fresh
Produce v. U.S., 570 F.3d 316, 321-22 (D.C. Cir. 2009).

COUNT I
DEFENDANT WILL NECESSARILY VIOLATE THE TWELFTH AMENDMENT AND
THE ELECTORS CLAUSE OF THE UNITED STATES CONSTITUTION IF HE
FOLLOWS THE ELECTORAL COUNT ACT.
68.

Plaintiffs reallege all preceding paragraphs as if fully set forth herein.

69.

The Electors Clause states that “[e]ach State shall appoint, in such Manner as the

Legislature thereof may direct, a Number of Electors” for President and Vice President. U.S.
Const. art. II, §1, cl. 2 (emphasis added).
70.

The Twelfth Amendment of the U.S. Constitution gives Defendant Vice President,

as President of the Senate and the Presiding Officer of January 6, 2021 Joint Session of Congress,
the exclusive authority and sole discretion to “count” the electoral votes for President, as well as
the authority to determine which of two or more competing slates of electors for a State, or neither,
may be counted, or how objections to any single slate of electors is resolved. In the event no
candidate receives a majority of the electoral votes, then the House of Representatives shall have
sole authority to choose the President where “the votes shall be taken by states, the representation
from each state having one vote.” U.S. CONST. amend. XII.
71.

Section 15 of the Electoral Count Act replaces the procedures set forth in the

Twelfth Amendment with a different and inconsistent set of decision making and dispute
resolution procedures. As detailed above, these provisions of Section 15 of the Electoral Count
Act are unconstitutional insofar as they require Defendant: (1) to count the electoral votes for a
24

Case 6:20-cv-00660 Document 1 Filed 12/27/20 Page 25 of 28 PageID #: 25

State that have been appointed in violation of the Electors Clause; (2) limits or eliminates his
exclusive authority and sole discretion under the Twelfth Amendment to determine which slates
of electors for a State, or neither, may be counted; and (3) replaces the Twelfth Amendment’s
dispute resolution procedure which provides for the House of Representatives to choose the
President under a procedure where “the votes shall be taken by states, the representation from each
state having one vote” – with an entirely different procedure in which the House and Senate each
separately “decide” which slate is to be counted, and in the event of a disagreement, then only “the
votes of the electors whose appointment shall have been certified by the executive of the State …
shall be counted.” 3 U.S.C. § 15.
72.

Section 15 of the Electoral Count Act also violates the Electors Clause by usurping

the exclusive and plenary authority of State Legislatures to determine the manner of appointing
Presidential Electors and gives that authority instead to the State’s Executive.

PRAYER FOR RELIEF
73.

Accordingly, Plaintiffs respectfully request that this Court issue a judgment that:
A. Declares that Section 15 of the Electoral Count Act, 3 U.S.C. §§5 and 15, is
unconstitutional because it violates the Twelfth Amendment on its face, Amend.
XII, Constitution;
B. Declares that Section 15 of the Electoral Count Act, 3 U.S.C. §§5 and 15, is
unconstitutional because it violates the Electors Clause. U.S. CONST. art. II, § 1,
cl. 1;
C. Declares that Vice-President Pence, in his capacity as President of Senate and
Presiding Officer of the January 6, 2021 Joint Session of Congress, is subject
solely to the requirements of the Twelfth Amendment and may exercise the
25

Case 6:20-cv-00660 Document 1 Filed 12/27/20 Page 26 of 28 PageID #: 26

exclusive authority and sole discretion in determining which electoral votes to
count for a given State;
D. Enjoins reliance on any provisions of the Electoral Count Act that would limit
Defendant’s exclusive authority and his sole discretion to determine which of two
or more competing slates of electors’ votes are to be counted for President;
E. Declares that, with respect to competing slates of electors from the State of
Arizona or other Contested States, or with respect to objection to any single slate
of electors, the Twelfth Amendment contains the exclusive dispute resolution
mechanisms, namely, that (i) Vice-President Pence determines which slate of
electors’ votes shall be counted, or if none be counted, for that State and (ii) if no
person has a majority, then the House of Representatives (and only the House of
Representatives) shall choose the President where “the votes [in the House of
Representatives] shall be taken by states, the representation from each state
having one vote,” U.S. CONST. amend. XII;
F. Declares that, also with respect to competing slates of electors, the alternative
dispute resolution procedure or priority rule in 3 U.S.C. § 15, is null and void
insofar as it contradicts and replaces the Twelfth Amendment rules above by with
an entirely different procedure in which the House and Senate each separately
“decide” which slate is to be counted, and in the event of a disagreement, then
only “the votes of the electors whose appointment shall have been certified by
the executive of the State … shall be counted,” 3 U.S.C. § 15;

26

Case 6:20-cv-00660 Document 1 Filed 12/27/20 Page 27 of 28 PageID #: 27

G. Enjoins the Defendant from executing his duties on January 6th during the Joint
Session of Congress in any manner that is insistent with the declaratory relief set
forth herein, and
H. Issue any other declaratory judgments or findings or injunctions necessary to
support or effectuate the foregoing declaratory judgment.
74.

Plaintiffs have concurrently submitted a motion for a speedy summary proceeding

under FRCP Rule 57 to grant the relief requested herein as soon as practicable, and for emergency
injunctive relief under FRCP Rule 65 thereof consistent with the declaratory judgment requested
herein on that same date.

27

Case 6:20-cv-00660 Document 1 Filed 12/27/20 Page 28 of 28 PageID #: 28

Dated: December 27, 2020

Respectfully submitted,

Howard Kleinhendler
Howard Kleinhendler Esquire
NY Bar No. 2657120
369 Lexington Ave., 12th Floor
New York, New York 10017
Tel: [phone]
Fax: [phone]
Email: [e-mail]

___/s/ William Lewis Sessions____
William Lewis Sessions
Texas Bar No. 18041500
Sessions & Associates, PLLC
14591 North Dallas Parkway, Suite 400
Dallas, TX 75254
Tel: [phone]
Fax: [phone] (fax)
Email: [e-mail]

Lawrence J. Joseph
DC Bar No. 464777
Law Office of Lawrence J. Joseph
1250 Connecticut Ave, NW, Suite 700-1A
Washington, DC 20036
Tel: [phone]
Fax: [phone]
Email: [e-mail]

Julia Z. Haller
DC Bar No. 466921
Brandon Johnson
DC Bar No. 491370
Defending the Republic
601 Pennsylvania Ave., NW
Suite 900
South Building
Washington, DC 20004
Tel: [phone]
Fax: [phone]
Email: [e-mail]
Email: [e-mail]
COUNSEL FOR PLAINTIFFS
LOUIE GOHMERT, TYLER BOWYER,
NANCY COTTLE, JAKE HOFFMAN,
ANTHONY KERN, JAMES R. LAMON,
SAM MOORHEAD, ROBERT
MONTGOMERY, LORAINE
PELLEGRINO, GREG SAFSTEN, KELLI
WARD and MICHAEL WARD

28