Gohmert et al v. Pence

Filing 18

RESPONSE in Opposition re 2 Emergency MOTION for Preliminary Injunction AND EXPEDITED DECLARATORY JUDGMENT filed by Michael R. Pence. (Coghlan, John)

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

LOUIE GOHMERT, et al.,
Plaintiffs,
v.

Case No. 6:20-cv-00660

THE HONORABLE MICHAEL R. PENCE,
VICE PRESIDENT OF THE UNITED
STATES, in his official capacity,
Defendant
.

DEFENDANT’S RESPONSE TO PLAINTIFF’S EMERGENCY MOTION
FOR EXPEDITED DECLARATORY JUDGMENT AND
EMERGENCY INJUNCTIVE RELIEF

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TABLE OF CONTENTS
TABLE OF AUTHORITIES .................................................................................................... ii
INTRODUCTION .................................................................................................................... 1
BACKGROUND ...................................................................................................................... 1
ARGUMENT ............................................................................................................................ 2
CONCLUSION ......................................................................................................................... 7

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TABLE OF AUTHORITIES
Cases
Armstrong v. Exceptional Child Center, Inc., 575 U.S. 320 (2015) ............................................... 7
Castanon v. United States, 444 F. Supp. 3d 118 (D.D.C. 2020) ...................................................... 4
Common Cause v. Biden, 748 F.3d 1280 (D.C. Cir. 2014) .............................................................. 4
Donelon v. Louisiana Div. of Admin. Law ex rel. Wise, 522 F.3d 564 (5th Cir. 2008)..................... 3
eBay, Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006)............................................................. 5
Escambia Cty., Fla. v. McMillan, 466 U.S. 48 (1984) ..................................................................... 7
Ex Parte Young, 209 U.S. 123 (1908) ............................................................................................ 6
Franklin v. Massachusetts, 505 U.S. 788 (1992). ............................................................................ 5
Frye v. Anadarko Petroleum Corp., 9553 F.3d 285 (5th Cir. 2019)................................................. 3
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ................................................................... 5, 6
MedImmunte, Inc. v. Genentech, Inc., 549 U.S. 118 (2007) ............................................................ 3
Muskrat v. United States, 219 U.S. 346 (1911) ................................................................................ 3
Okpalobi v. Foster, 244 F.3d 405 (5th Cir. 2001) ............................................................................ 3
Poe v. Gerstein, 417 U.S. 281 (1974) .............................................................................................. 5
Robinson v. Hunt County, Texas, 921 F.3d 440 (5th Cir. 2019)....................................................... 5
Texas v. United States, 328 F. Supp. 3d 662 (S.D. Tex. 2018)......................................................... 7
United States v. Brewster, 408 U.S. 501 (1972) ............................................................................. 6
Constitution and Statutes
3 U.S.C. § 15. .................................................................................................................................. 2
3 U.S.C. § 5. .................................................................................................................................... 2
U.S. Const. art. I, § 6, cl. 1............................................................................................................... 4
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U.S. Const., amend. XII. ................................................................................................................. 2
U.S. Const., Art. II, § 2, cl. 2 .......................................................................................................... 1
Other Authorities
Stephen A. Siegel, The Conscientious Congressman’s Guide to the Electoral Count Act of 1887,
56 Fla. L. Rev. 541 (2004). ......................................................................................................... 2

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INTRODUCTION
Plaintiffs have presented this Court with an emergency motion raising a host of weighty
legal issues about the manner in which the electoral votes for President are to be counted. But
these plaintiffs’ suit is not a proper vehicle for addressing those issues because plaintiffs have sued
the wrong defendant. The Vice President—the only defendant in this case—is ironically the very
person whose power they seek to promote. The Senate and the House, not the Vice President,
have legal interests that are sufficiently adverse to plaintiffs to ground a case or controversy under
Article III. Defendant respectfully request denial of plaintiffs’ emergency motion because the
relief that plaintiffs request does not properly lie against the Vice President.
BACKGROUND
The Constitution of the United States establishes the process for the election of a President
and Vice President of the United States. The Electors Clause of Article II provides, “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, § 2, cl. 2. The Twelfth
Amendment then describes the process by which these Electors cast their ballots for President and
those ballots are counted:
The Electors shall meet in their respective states and vote by ballot for President
and Vice-President, . . . they shall make distinct lists of all persons voted for as
President, and of all persons voted for as Vice-President . . . ; 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; 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 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
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be taken by states, the representation from each state having one vote. . . .
U.S. Const., amend. XII.
Following a century of debate over the appropriate process under the Constitution for
counting electoral votes and resolving any objections thereto, Congress enacted the Electoral
Control Act of 1887. See Stephen A. Siegel, The Conscientious Congressman’s Guide to the
Electoral Count Act of 1887, 56 Fla. L. Rev. 541, 551-56 (2004). That Act sets forth a procedure
by which the Senate and the House of Representatives can, jointly, decide upon objections to votes
or papers purporting to certify electoral votes submitted by the States. 3 U.S.C. § 15. It further
sets forth a procedure for determining a controversy as to the appointment of electors. 3 U.S.C.
§ 5.
Plaintiffs, who are the U.S. Representative for Texas’ First Congressional District, together
with the slate of Republican Presidential Electors for the State of Arizona, filed this lawsuit and
emergency motion on Sunday, December 27, 2020, challenging the constitutionality of these
provisions of the Electoral Count Act. Plaintiffs allege that the procedures violate the Electors
Clause of Article II and the Twelfth Amendment because they “take[] away the authority given to
the Vice-President under the Twelfth Amendment” Mot. at 19, and “exceeded the power of
Congress to enact,” Mot. 22. They seek, inter alia, a declaratory judgment that “Sections 5 and
15 of the Electoral Count Act, 3 U.S.C. §§ 5 and 15, are unconstitutional insofar as they conflict
with and violate the Electors Clause and the Twelfth Amendment” and that Vice President Pence
“may exercise the exclusive authority and sole discretion in determining which electoral votes to
count for a given State,” along with related injunctive relief.
ARGUMENT
The Vice President is not the proper defendant to this lawsuit. “When considering a
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declaratory judgment action, a district court must engage in a three-step inquiry. The court must ask
(1) whether an actual controversy [of legal interests] exists between the parties in the case; (2)
whether it has authority to grant declaratory relief; and (3) whether to exercise its broad discretion
to decide or dismiss a declaratory judgment action.” Frye v. Anadarko Petroleum Corp., 9553 F.3d
285, 293-94 (5th Cir. 2019) (internal citations and quotation marks omitted). With respect to the
first inquiry, the Supreme Court has required that a dispute be “definite and concrete, touching the
legal relations of parties having adverse legal interests; and that it be real and substantial and admit
of specific relief through a decree of a conclusive character, as distinguished from an opinion
advising what the law would be upon a hypothetical set of facts.” MedImmunte, Inc. v. Genentech,
Inc., 549 U.S. 118, 127 (2007) (internal quotation marks and alteration omitted). Plaintiffs’ lawsuit
against the Vice President does not meet that standard.
Plaintiffs’ suit seeks to empower the Vice President to unilaterally and unreviewably decide
objections to the validity of electoral votes, notwithstanding the Electoral Count Act. Plaintiffs are
thus not sufficiently adverse to the legal interests of the Vice President to ground a case or
controversy under Article III. Cf. Muskrat v. United States, 219 U.S. 346, 361 (1911) (no case or
controversy where “the United States is made a defendant to this action, but it has no interest adverse
to the claimants” who are simply seeking “to determine the constitutional validity of this class of
legislation”); Donelon v. Louisiana Div. of Admin. Law ex rel. Wise, 522 F.3d 564, 568 (5th Cir.
2008) (no case or controversy where the plaintiff head of a state agency created a situation “where
the state is essentially suing itself”); Okpalobi v. Foster, 244 F.3d 405, 409 (5th Cir. 2001) (en banc)
(“Although, in this facial attack on the constitutionality of the statute, consideration of the merits
may have strong appeal to some, we are powerless to act except to say that we cannot act: these
plaintiffs have no case or controversy with these defendants, the Governor and Attorney General of
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Louisiana, and consequently we lack Article III jurisdiction to decide this case.”). Indeed, if
plaintiffs’ suit were to succeed, the result would be to remove any constraint the Electoral Count Act
places on the Vice President.
To the extent any of these particular plaintiffs have a judicially cognizable claim, it would
be against the Senate and the House of Representatives. After all, it is the role prescribed for the
Senate and the House of Representatives in the Electoral Count Act to which plaintiffs object, not
any actions that Vice President Pence has taken. Specifically, plaintiffs object to the Senate and the
House of Representatives asserting a role for themselves in determining which electoral votes may
be counted—a role that these plaintiffs assert is constitutionally vested in the Vice President. Cf.
Common Cause v. Biden, 748 F.3d 1280, 1285 (D.C. Cir. 2014) (“In short, Common Cause’s alleged
injury was caused not by any of the defendants, but by an ‘absent third party’—the Senate itself.”);
Castanon v. United States, 444 F. Supp. 3d 118, 133 (D.D.C. 2020) (three-judge court) (citing
Common Cause and noting that plaintiffs’ injuries were not caused by defendants (including the Vice
President) but by “the House and the Senate.”). And it would be the Senate and the House of
Representatives that are best positioned to defend the Act.1 Indeed, as a matter of logic, it is those
bodies against whom plaintiffs’ requested relief must run. The House of Representatives has already
expressly recognized those interests by informing the Defendant that it intends to present the Court
numerous arguments in response to plaintiffs’ motion. By contrast, a suit to establish that the Vice
President has discretion over the count, filed against the Vice President, is a walking legal
contradiction.

The United States disagrees with plaintiffs’ unsupported assertion that the Constitution’s Speech or
Debate Clause does not apply to the Vice President in his official capacity as the President of the
Senate. See U.S. Const. art. I, § 6, cl. 1(“[F]or any Speech or Debate in either House, [Senators and
Representatives] shall not be questioned in any other Place.”); Mot. 12.

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Plaintiffs also have not established that they are entitled to the extraordinary relief of an
injunction against the Vice President. “According to well-established principles of equity, a plaintiff
seeking a permanent injunction . . . must demonstrate: (1) that it has suffered an irreparable injury;
(2) that remedies available at law, such as monetary damages, are inadequate to compensate for
that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a
remedy in equity is warranted; and (4) that the public interest would not be disserved by a
permanent injunction.” eBay, Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006). A district
court properly refuses to issue an injunction when it is anticipated that a defendant will “respect
[a] declaratory judgment.” See Robinson v. Hunt County, Texas, 921 F.3d 440, 450 (5th Cir. 2019)
(quoting Poe v. Gerstein, 417 U.S. 281, 281 (1974)). Plaintiffs have made no allegation that the
Vice President would refuse to respect a declaratory judgment issued against him. The extraordinary
remedy of an injunction is accordingly unnecessary and inappropriate in this case. Cf. Franklin v.
Massachusetts, 505 U.S. 788, 802 (1992).
It is the responsibility of the Department of Justice, on behalf of the United States, to also
raise to the Court’s attention a number of threshold issues, which plaintiffs themselves anticipate at
pp. 4-15 of their opening brief. First, it is well established that Article III standing requires a plaintiff
to “have suffered an ‘injury in fact’ . . . which is (a) concrete and particularized, and (b) actual or
imminent, not conjectural or hypothetical”’; the injury must be “fairly traceable to the challenged
action of the defendant, and not . . . the result of the independent action of some third party not before
the court”; and “it must be likely, as opposed to merely speculative, that the injury will be redressed
by a favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (internal citations
and quotation marks omitted). Here, Representative Gohmert identifies as his injury the mere
possibility that “he will not be able to vote as a Congressional Representative in accordance with the
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Twelfth Amendment, and instead, his vote in the House, if there is disagreement, will be eliminated
by the current statutory construct under the Electoral Count Act, or diluted by votes of the Senate
and ultimately by passing the final determination to the state Executives.”2 Mot. at 4-5. Plaintiff
Arizona Electors claim a theoretical injury in the “debasement of their votes.” Mot. at 6. But the
declaration and injunction these plaintiffs seek would not ensure any particular outcome that favors
plaintiffs. 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, and even if
plaintiffs were granted the relief that they do request, any possibility that those events might occur
depends on speculation concerning objections that may or may not be raised in the future, and
exercises of discretion concerning those as-yet-unraised objections. Thus, these plaintiffs have not
adequately alleged redress for their specifically-asserted conjectural injuries. See Lujan, 504 U.S.
at 568-69 (finding no standing where plaintiffs had not sued all of the relevant parties needed to
provide redress). The Senate and the House of Representatives, by contrast, could take action to
redress such injury by amending the Electoral Control Act.
These plaintiffs’ claims against the Vice President in his capacity as President of the Senate
also fail to address the Constitution’s Speech and Debate Clause, which prevents the other
Branches of Government from questioning Congress in connection with “legislative acts,” which
have “consistently been defined as an act generally done in Congress in relation to the business
before it.” United States v. Brewster, 408 U.S. 501, 512 (1972). See also supra n.1. Moreover,
nothing in Ex Parte Young, 209 U.S. 123 (1908), or its progeny supports these particular plaintiffs’
novel suit to enjoin the Vice President in the exercise of his constitutional authority as President

2

Ironically, Representative Gohmert’s position, if adopted by the Court, would actually deprive
him of his opportunity as a Member of the House under the Electoral Count Act to raise
objections to the counting of electoral votes, and then to debate and vote on them.
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of the Senate. See Armstrong v. Exceptional Child Center, Inc., 575 U.S. 320, 327 (2015) (looking
to history to understand the scope of equitable suits to enjoin executive action). To the extent the
Court is inclined to address these and other issues, the House of Representatives has informed the
Defendant that it intends to present this Court with a number of arguments in response to plaintiffs’
motion. In light of Congress’s comparative legal interests in the Electoral Count Act, Defendant
respectfully defers to the Senate and the House of Representatives, as those bodies see fit, to present
those arguments.
Finally “[i]t is a well established principle . . . that normally the Court will not decide a
constitutional question if there is some other ground upon which to dispose of the case.” Escambia
Cty., Fla. v. McMillan, 466 U.S. 48, 51 (1984); see also Texas v. United States, 328 F. Supp. 3d 662,
710 (S.D. Tex. 2018) (“There is no need to rule on the Take Care Clause issue because the Court has
reached a conclusion on a non-constitutional basis.”). Plaintiffs’ motion presents several novel
constitutional issues with respect to the Act. But this Court can and should resolve this motion under
the well settled requirement of true and not artificial adversity or the other threshold issues outlined
above, particularly given the time constraints and expedited briefing necessitated by Plaintiffs’ recent
filings.
CONCLUSION
The relief requested by plaintiffs does not properly lie against the Vice President, and
plaintiffs’ suit can be resolved on a number of threshold issues. For the foregoing reasons, the Court
should deny plaintiffs’ request for expedited declaratory judgment and emergency injunctive relief
against the Vice President.

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Dated: December 31, 2020

Respectfully submitted,

JEFFREY BOSSERT CLARK
Acting Assistant Attorney General
JENNIFER B. DICKEY
Principal Deputy Assistant Attorney General
/s/ John V. Coghlan
JOHN V. COGHLAN
Deputy Assistant Attorney General
Federal Programs Branch
U.S. Department of Justice, Civil Division
950 Pennsylvania Avenue N.W.
Washington, DC 20530
Tel: [phone]
Email: [e-mail]
Attorneys for Defendant

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CERTIFICATE OF SERVICE
I certify that on December 31, 2020, this document was electronically filed with the Clerk
of the Court using the CM/ECF system, which will send notification of such filing to all counsel
of record.
/s/ John V. Coghlan
JOHN V. COGHLAN
Deputy Assistant Attorney General
Federal Programs Branch
U.S. Department of Justice, Civil Division
950 Pennsylvania Avenue N.W.
Washington, DC 20530
Tel: [phone]
Email: [e-mail]

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

LOUIE GOHMERT, et al.,
Plaintiffs,
v.

Case No. 6:20-cv-00660

THE HONORABLE MICHAEL R. PENCE,
VICE PRESIDENT OF THE UNITED
STATES, in his official capacity,
Defendant
.

[PROPOSED] ORDER DENYING EMERGENCY INJUNCTIVE RELIEF
Plaintiffs’ Emergency Motion for Expedited Declaratory Judgment and Emergency Motion
for Injunctive Relief filed December 28, 2020 is hereby DENIED.

______________________________
Judge Jeremy D. Kernodle