Gohmert et al v. Pence

Filing 2

Emergency MOTION for Preliminary Injunction AND EXPEDITED DECLARATORY JUDGMENT by Tyler Bowyer, Nancy Cottle, Louie Gohmert, Jake Hoffman, Anthony Kern, James R. Lamon, Robert Montgomery, Sam Moorhead, Loraine Pellegrino, Greg Safsten, Kelli Ward, Michael Ward. (Attachments: # 1 Text of Proposed Order Proposed Order)(Sessions, William)

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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,

Civil Action No. 6:20-cv-00660-JDK

Plaintiffs,
v.

(Election Matter)

THE HONORABLE MICHAEL R. PENCE, VICE
PRESIDENT OF THE UNITED STATES, in his
official capacity,
Defendant.
PLAINTIFFS’ EMERGENCY MOTION FOR EXPEDITED
DECLARATORY JUDGMENT AND EMERGENCY INJUNCTIVE RELIEF
COME NOW Plaintiffs, U.S. Rep. Louie Gohmert (TX-1), Tyler Bowyer, Nancy Cottle,
Jake Hoffman, Anthony Kern, James R. Lamon, Sam Moorhead, Robert Montgomery, Loraine
Pellegrino, Greg Safsten, Kelli Ward, and Michael Ward, by and through their undersigned
counsel, and file this Motion for Expedited Declaratory Judgment and Emergency Injunctive
Relief (“Motion”), and Memorandum of Law In Support Thereof, pursuant to Rules 57 and 65 of
the FEDERAL RULES OF CIVIL PROCEDURE to request the following relief.
As explained in the Complaint, Plaintiffs seek an expedited declaratory judgment declaring
that Sections 5 and 15 of the Electoral Count Act of 1887, PUB. L. NO. 49–90, 24 Stat. 373 (codified
at 3 U.S.C. §§ 5, 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.
The Complaint and this Motion address 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

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the Electors Clause and the Twelfth Amendment of the U.S. Constitution—where the relevant facts
concerning the Plaintiffs’ standing, the justiciability of Plaintiffs’ claims by this Court, and this
Court’s ability to grant the relief requested are not in dispute.
Further, the purpose of this Complaint is a declaratory judgment regarding the rights and
legal relations of Plaintiffs and of Defendant, namely, that Vice President Michael R. Pence, acting
in his capacity as President of the Senate and Presiding Officer for the January 6, 2021 Joint
Session of Congress to count Arizona and other States’ electoral votes for choosing President, is
free to exercise his exclusive authority and sole discretion under the Twelfth Amendment to
determine which slate of electoral votes to count, or neither, and must disregard any provisions of
the Electoral Count Act that conflict with the Twelfth Amendment, U.S. CONST. amend. XII.
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 FED. R. CIV. P. 57, Advisory Committee Notes.
Accordingly, Plaintiffs request an expedited summary proceeding under Rule 57 of the Federal
Rules of Civil Procedure to grant the relief requested herein no later than Thursday, December 31,
2020, and for emergency injunctive relief under FED. R. CIV. P. 65 consistent with the declaratory
judgment requested herein on that same date. Plaintiffs style their motion as an emergency motion
under Local Civil Rule 7(l) because there is not enough time before December 31 to move for an
expedited briefing schedule under Local Civil Rule 7(e).
Plaintiffs adopt all allegations contained in their Complaint.
Plaintiffs respectfully request an opportunity for oral argument. A proposed Order is
attached.

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TABLE OF CONTENTS
Table of Contents ........................................................................................................................... iii
Table of Authorities ....................................................................................................................... iv
Introduction ......................................................................................................................................1
Facts ..............................................................................................................................................1
Argument .........................................................................................................................................3
I.

This court has jurisdiction for Plaintiffs’ claims..................................................................3
A.

Plaintiffs have standing. ...........................................................................................3
1.
2.
3.
4.

B.
C.
D.
E.
F.
II.

Plaintiffs have suffered an injury in fact. .....................................................4
The Defendant has caused Plaintiffs’ injuries. ............................................7
This Court can redress Plaintiffs’ injuries. ..................................................9
Plaintiffs’ procedural injuries lower the constitutional bar
for immediacy and redressability. ..............................................................11

The Speech or Debate Clause does not insulate the Vice President. .....................12
Sovereign immunity does not bar this action. ........................................................13
The political-question doctrine does not bar this suit. ...........................................15
This case presents a federal question, and abstention principles do
not apply.................................................................................................................15
Plaintiffs are entitled to an expedited declaratory judgment. ................................16

Plaintiffs are entitled to an emergency injunctive relief. ...................................................17
A.

Plaintiffs have a substantial likelihood of success. ................................................17
1.
2.
3.

B.
C.
D.
E.

Unconstitutional laws are nullities. ............................................................18
The Electoral Count Act violates the Electors Clause and
the Twelfth Amendment. ...........................................................................18
The Electoral Count Act violates the Constitution’s
structural protections of liberty. .................................................................22

Plaintiffs will suffer irreparable injury. .................................................................23
Plaintiffs need not demonstrate irreparable harm for declaratory
relief. ......................................................................................................................24
The balance of equities favors Plaintiffs. ...............................................................25
The public interest favors Plaintiffs. ......................................................................26

Conclusion .....................................................................................................................................27

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TABLE OF AUTHORITIES
CASES
ACLU v. Ashcroft, 322 F.3d 240 (3d Cir. 2003) ............................................................................26
Baker v. Carr, 369 U.S. 186 (1962) ..........................................................................................6, 15,
Bond v. United States, 564 U.S. 211 (2011) ..................................................................................11
Brown v. Maryland, 25 U.S. (12 Wheat.) 419 (1827) ...................................................................18
Bush v. Gore, 531 U.S. 98 (2000) ..................................................................................................15
Carson v. Simon, 978 F.3d 1051 (8th Cir. 2020) .............................................................................6
Clinton v. New York, 524 U.S. 417 (1998) ....................................................................................12
Commissioner v. Shapiro, 424 U.S. 614 (1976) ............................................................................24
Common Cause v. Biden, 748 F.3d 1280 (D.C. Cir. 2014) ...........................................................12
Cook v. Gralike, 531 U.S. 510 (2001) ...........................................................................................16
Ctr. for Biological Diversity v. United States EPA, 937 F.3d 533 (5th Cir. 2019)..........................8
Davis v. Passman, 442 U.S. 228 (1979) ........................................................................................14
FEC v. Akins, 524 U.S. 11 (1998)..................................................................................................10
Franklin v. Massachusetts, 505 U.S. 788 (1992).............................................................................9
Harman v. Forssenius, 380 U.S. 528 (1965) .................................................................................18
Heckler v. Mathews, 465 U.S. 728 (1984) .....................................................................................10
Hurley v. Reed, 288 F.2d 844 (D.C. Cir. 1961) .............................................................................24
Jackson Women’s Health Org. v. Currier, 760 F.3d 448 (5th Cir. 2014) .....................................25
League of Women Voters of the United States v. Newby, 838 F.3d 1 (D.C. Cir. 2016).................26
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ............................................................4, 7, 11
Marine Chance Shipping v. Sebastian, 143 F.3d 216 (5th Cir. 1998) ...........................................24
McPherson v. Blacker, 146 U.S. 1 (1892) .....................................................................................15
Minton v. St. Bernard Par. Sch. Bd., 803 F.2d 129 (5th Cir. 1986) ..............................................12
Murphree v. Winter, 589 F. Supp. 374 (S.D. Miss. 1984) .............................................................23
Nat’l Treasury Employees Union v. U.S., 101 F.3d 1423 (D.C. Cir. 1996) ..................................11
Obama for Am. v. Husted, 697 F.3d 423 (6th Cir. 2012)...............................................................23
Pac. Frontier v. Pleasant Grove City, 414 F.3d 1221 (10th Cir. 2005) ........................................26
Powell v. McCormack, 395 U.S. 486 (1969) .......................................................... 10, 12-13, 17-18
Reynolds v. Sims, 377 U.S. 533 (1964) ..........................................................................................23

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Rowan Cos. v. Griffin, 876 F.2d 26 (5th Cir. 1989) ......................................................................24
Russian Standard Vodka (USA), Inc. v. Allied Domecq Spirits & Wine USA, Inc.,
523 F.Supp.2d 376 (S.D.N.Y. 2007)..................................................................................24
Sierra Club v. Glickman, 156 F.3d 606 (5th Cir. 1998) ............................................................8, 11
Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26 (1976) ............................................8
Synthetic Organic Chem. Mfrs. Ass’n v. Sec’y, Dep’t of Health & Human Servs., 720 F.Supp.
1244 (W.D. La. 1989) ..........................................................................................................8
Tel. & Data Sys. v. FCC, 19 F.3d 42 (D.C. Cir. 1994) ....................................................................8
Tex. Democratic Party v. Benkiser, 459 F.3d 582 (5th Cir. 2006) .......................................... 25-26
Tierney v. Schweiker, 718 F.2d 449 (D.C. Cir. 1983)....................................................................24
Trump v. Wis. Elections Comm’n, No. 20-cv-1785, 2020 U.S. Dist. LEXIS 233765
(E.D. Wis. Dec. 12, 2020) ....................................................................................................6
United States v. Morrison, 529 U.S. 598 (2000) ...........................................................................18
United States v. Winstar Corp., 518 U.S. 839 (1996)....................................................................22
Verizon Md. Inc. v. Pub. Serv. Comm’n of Maryland, 535 U.S. 635 (2002) .................................14
Washington v. Reno, 35 F.3d 1093 (6th Cir. 1994) .......................................................................26
Webster v. Doe, 486 U.S. 592 (1988) ............................................................................................25
Wesberry v. Sanders, 376 U.S. 1 (1964) ..........................................................................................6
Williams v. Brooks, 945 F.2d 1322 (5th Cir. 1991) .......................................................................12
Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008)........................................17
Wood v. Raffensperger, No. 20-14418, 2020 WL 7094866 (11th Cir. Dec. 5, 2020) .....................6
STATUTES
U.S. CONST. art. I, § 5, cl. 2 .........................................................................................................23
U.S. CONST. art I, § 6, cl. 1 ...................................................................................................... 12-13
U.S. CONST. art. I, § 7, cl. 3 ...........................................................................................................22
U.S. CONST. art. II, § 1, cl. 1........................................................................ 1, 6, 17-18, 21, 23, 26
U.S. CONST. art. III ................................................................................................. 3, 6-8, 10-11, 15
U.S. CONST. art. III, § 2 .................................................................................................................15
U.S. CONST. amend. XII ........................................................................................................ passim
3 U.S.C. § 5 ................................................................................................1-5, 14, 18-19, 21-22, 26
3 U.S.C. § 6 ....................................................................................................................................21
3 U.S.C. § 15 ....................................................................................1, 4-5, 10-12, 14, 16, 19-21, 26
28 U.S.C. § 1331 ..............................................................................................................................3
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28 U.S.C. §2201 .............................................................................................................................24
Electoral Count Act of 1887, PUB. L. NO. 49–90, 24 Stat. 373 ............................................. passim
ARIZ. REV. STAT. § 16-212 ..............................................................................................................6
RULES
FED. R. CIV. P. 57 .....................................................................................................................16, 24
FED. R. CIV. P. 57 Advisory Committee Notes ..............................................................................16
LEGISLATIVE HISTORY
2 M. Farrand, RECORDS OF THE FEDERAL CONVENTION OF 1787 (1911) .........................................9
OTHER AUTHORITIES
10 Fed. Proc., L. Ed. §23:4 ............................................................................................................24
A.B.A. Section of Admin. Law & Regulatory Practice, A Blackletter Statement of
Federal Administrative Law, 54 ADMIN. L. REV. 1 (2002) ...............................................13
Louis L. Jaffee, The Right to Judicial Review I, 71 HARV. L. REV. 401 (1958) ............................13
Chris Land & David Schultz, On the Unenforceability of the Electoral Count Act,
13 Rutgers J.L. & Pub. Policy 340 (2016) .........................................................................23
J. Story, 1 COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 627
(3d ed. 1858) ......................................................................................................................16
Laurence H. Tribe, Erog v. Hsub and Its Disguises: Freeing Bush v. Gore from Its Hall of
Mirrors, 115 HARV. L. REV. 170 (2001) ............................................................................22

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INTRODUCTION
Plaintiffs, U.S. Representative Louie Gohmert (TX-1) (“Rep. 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 seek an expedited
declaratory judgment declaring that Sections 5 and 15 of the Electoral Count Act of 1887, PUB. L.
NO. 49–90, 24 Stat. 373 (codified at 3 U.S.C. §§ 5, 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.
FACTS
The facts relevant to this motion are set forth in the Complaint and its accompanying
exhibit are incorporated herein by reference. Plaintiffs present here only a summary.
The Plaintiffs include Rep. Louie Gohmert—a Member of the U.S. House of
Representatives, representing Texas’s First Congressional District in both the current and the next
Congress—who seeks to enjoin the operation of the Electoral Count Act to prevent a deprivation
of his rights—and the rights of those he represents—under the Twelfth Amendment. The Plaintiffs
also include 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, the Constitution, and the Electoral Count Act, the
Plaintiff 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. On the same date, the Republican
Presidential Electors for the States of Georgia, Pennsylvania, and Wisconsin met at their respective
State Capitols to cast their States’ electoral votes for President Trump and Vice President Pence

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(or in the case of Michigan, attempted to do so but were blocked by the Michigan State Police, and
ultimately voted on the grounds of the State Capitol).
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 collectively have 73 electoral votes,
which are more than sufficient to determine the winner of the 2020 General Election. On
December 14, 2020, in Arizona and the other Contested States, the Democratic Party’s slate of
electors convened in the State Capitol 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
Secretary of State Katie Hobbs submitted the Certificate of Ascertainment with the Biden electoral
votes to the National Archivist pursuant to the Electoral Count Act.
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 voter 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. These public statements by legislators, combined with the fact that President Trump
has not conceded and has given no indication that he will concede and political pressure from his
nearly 75 million voters and other supporters, make it a near certainty that at least one Senator and
one House Member will follow through on their commitments and invoke the (unconstitutional)
Electoral Count Act’s dispute resolution procedures.
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

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Arizona and the other Contested States, (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
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 and thereby invoking the unconstitutional
procedures set forth in Section 15 of the Electoral Count Act.
As a result, Defendant Vice President Pence will necessarily have to decide whether to
follow the unconstitutional provisions of the Electoral Count Act or the Twelfth Amendment to
the U.S. Constitution at the January 6, 2021 Joint Session of Congress. This approaching deadline
establishes the urgency for this Court to issue a declaratory judgment that Sections 5 and 15 of the
Electoral Count Act are unconstitutional and provide the undisputed factual basis for this Court to
do so on an expedited basis, and to enjoin Defendant Vice President Pence from following any
Electoral Count Act procedures in 3 U.S.C. §§ 5 and 15 because they are unconstitutional under
the Twelfth Amendment.
ARGUMENT
I.

THIS COURT HAS JURISDICTION FOR PLAINTIFFS’ CLAIMS.
Before entertaining the merits of this action, the Court first must establish its jurisdiction

over the subject matter and the parties. This action obviously raises a federal question, 28 U.S.C.
§ 1331, so Plaintiffs establish below that this action presents a case or controversy for purposes of
Article III and their entitlement to seek relief in this Court via this action.
A.

Plaintiffs have standing.

Article III standing presents the tripartite test of whether the party invoking a court’s
jurisdiction raises an “injury in fact” under Article III: (a) a legally cognizable injury (b) that is

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both caused by the challenged action, and (c) redressable by a court. Lujan v. Defenders of
Wildlife, 504 U.S. 555, 561-62 (1992). The task of establishing standing varies, depending
“considerably upon whether the plaintiff is himself an object of the action (or forgone action) at
issue.” Id at 561. If so, “there is ordinarily little question that the action or inaction has caused
him injury, and that a judgment preventing or requiring the action will redress it.” Id. at 562. If
not, standing may depend on third-party action:
When … a plaintiff’s asserted injury arises from the government’s
allegedly unlawful regulation (or lack of regulation) of someone
else, much more is needed. In that circumstance, causation and
redressability ordinarily hinge on the response of the regulated (or
regulable) third party to the government action or inaction – and
perhaps on the response of others as well.
Id. (emphasis in original). Here, Plaintiffs can assert both first-party and third-party injuries, with
the showing for standing easier for the first-party injuries. Specifically, Vice President Pence’s
action under the unconstitutional Electoral Count Act would have the effect of ratifying injuries
inflicted—in the first instance—by third parties in Arizona.
1.

Plaintiffs have suffered an injury in fact.

Plaintiffs have standing as a member of the United States House of Representatives,
Members of the Arizona Legislature, and as Presidential Electors for the State of Arizona.
Rep. Louie Gohmert is a Member of the U.S. House of Representatives, representing
Texas’s First Congressional District in both the current and the next Congress. Rep. Louie
Gohmert requests declaratory relief from this Court to prevent action as prescribed by 3 U.S.C. §
5, and 3 U.S.C. §15 and to give the power back to the states to vote for the President in accordance
with the Twelfth Amendment.

Otherwise he will not be able to vote as a Congressional

Representative in accordance with the Twelfth Amendment, and instead, his vote in the House, if
there is disagreement, will be eliminated by the current statutory construct under the Electoral

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Count Act, or diluted by votes of the Senate and ultimately by passing the final determination to
the state Executives.
In the event that objections occur leading to a vote in the House of Representatives, then
under the Twelfth Amendment, on January 6, in the new House of Representatives, there will be
twenty-seven states led by Republican majorities, and twenty states led by Democrat majorities,
and three states that are tied. Twenty-six seats are required for a victor under the Twelfth
Amendment, and further that, under the Twelfth Amendment, in the event neither candidate wins
twenty-six seats by March 4, then the then-current Vice President would be declared the President.
However, if the Electoral Count Act is followed, this one vote on a state-by-state basis in the House
of Representatives for President simply would not occur and would deprive this Member of his
constitutional right as a sitting member of a Republican delegation, where his vote matters.
The Twelfth Amendment specifically states that “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.” The authority to vote with this authority is taken from the House of Representatives,
of which Mr. Gohmert is a member, and usurped by statutory construct set forth in 3 U.S.C. § 5
and 3 U.S.C. §15. Therein the authority is given back to the state’s executive branch in the process
of counting and in the event of disagreement – while also giving the Senate concurrent authority
with the House to vote for President. As a result, the application of 3 U.S.C. § 5 and 3 U.S.C. §15
would prevent Rep. Gohmert from exercising his constitutional duty to vote pursuant for President
to the Twelfth Amendment.

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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 ARIZ. REV. STAT. § 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
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.”).

Plaintiffs suffer a

“debasement” of their votes, which “state[s] a justiciable cause of action on which relief could be
granted” Wesberry v. Sanders, 376 U.S. 1, 5-6 (1964) (citing Baker v. Carr, 369 U.S. 186 (1962)).
The Twelfth Amendment provides as follows:
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 (emphasis added).

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2.

Plaintiffs’ injuries are traceable to Defendant.

Rep. Gohmert faces imminent threat of injury that the Defendant will follow the unlawful
Electoral Count Act and, in so doing, eviscerate Rep. Gohmert’s constitutional right and duty to
vote for President under the Twelfth Amendment. With injuries directly caused by a defendant,
plaintiffs can show an injury in fact with “little question” of causation or redressability. Defenders
of Wildlife, 504 U.S. at 561-62. Although the Defendant did not cause the underlying election
fraud, the Defendant nonetheless will directly cause Rep. Gohmert’s injury, which is causation—
and redressability—under Defenders of Wild.
By contrast, the Arizona Electors suffer indirect injury vis-à-vis this Defendant. But for
the alleged wrongful conduct of Arizona executive branch officials under color of law, 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. While the Vice President did not cause Plaintiffs’ initial injury—that happened in
Arizona—the Vice President stands in the position at the Joint Session on January 6 to ratify and
purport to make lawful the unlawful injuries that Plaintiffs suffered in Arizona. That is causation
enough for Article III:
According to the USDA, the injury suffered by Sierra Club is caused
by the independent actions (i.e., pumping decisions) of third party
farmers, over whom the USDA has no coercive control. Although
we recognize that causation is not proven if the injury complained
of is the result of the independent action of some third party not
before the court, this does not mean that causation can be proven
only if the governmental agency has coercive control over those
third parties. Rather, the relevant inquiry in this case is whether the
USDA has the ability through various programs to affect the
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pumping decisions of those third party farmers to such an extent that
the plaintiff’s injury could be relieved.
Sierra Club v. Glickman, 156 F.3d 606, 614 (5th Cir. 1998) (interior quotation marks, citations,
and alterations omitted, emphasis in original); Tel. & Data Sys. v. FCC, 19 F.3d 42, 47 (D.C. Cir.
1994); Synthetic Organic Chem. Mfrs. Ass’n v. Sec’y, Dep’t of Health & Human Servs., 720
F.Supp. 1244, 1248 n.2 (W.D. La. 1989) (“any traceable injury will provide a basis for standing,
even where it occurs through the acts of a third party”).
When third parties inflict injury—even private third parties—that injury is traceable to
government action if the injurious conduct “would have been illegal without that [governmental]
action.” Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 45 n.25 (1976). As
explained below, Vice President Pence stands ready to ratify Plaintiffs’ injuries via the
unconstitutional Electoral Count Act, which is causation enough to enjoin his actions.
Alternatively, “plaintiff’s injury could be relieved” within the meaning of Sierra Club v. Glickman
if the Vice President rejected the Electoral Count Act as unconstitutional.
A procedural-rights plaintiff must also show that “fixing the alleged procedural violation
could cause the agency to ‘change its position’ on the substantive action,” Ctr. for Biological
Diversity v. United States EPA, 937 F.3d 533, 543 (5th Cir. 2019), which is easy enough here/
Under the Electoral Count Act, the “Blue” or “Biden” states have a bare House majority in the
Congress that will vote on January 6. Under the Twelfth Amendment, however, the “Red” or
“Trump” states have a 27-20-3 majority where each state delegation gets one vote in the House’s
election of the President. That distinction satisfies both third-party causation and procedural-rights
tests for Article III standing.
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

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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,
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 shall be counted because the
Biden slate of electors was certified by Arizona’s executive. Under the Constitution, by contrast,
the Vice President counts the votes and—if the count is indeterminate—the vote proceeds
immediately to the House for President and to the Senate for Vice President. See U.S. CONST.
amend. XII.1
3.

This Court can redress Plaintiffs’ injuries.

Even if this Court would lack jurisdiction to enjoin the Vice President, but see Sections
I.B-I.C, infra (immunity does not bar this action), this Court’s authoritative declaration would
provide redress enough. See Franklin v. Massachusetts, 505 U.S. 788, 803 (1992) (“we may
assume it is substantially likely that the President and other executive and congressional officials
would abide by an authoritative interpretation of the census statute and constitutional provision by
the District Court, even though they would not be directly bound by such a determination”). The

1

This intent that the Vice President count the votes is borne out by a unanimous resolution
attached to the final Constitution that described the procedures for electing the first President (i.e.,
for the one time when there would not already be a sitting 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.

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Electoral Count Act is blatantly unconstitutional in many respects, see Section I.A, infra, and “it
is the province and duty of the judicial department to determine in cases regularly brought before
them, whether the powers of any branch of the government, and even those of the legislature in
the enactment of laws, have been exercised in conformity to the Constitution.” Powell v.
McCormack, 395 U.S. 486, 506 (1969) (interior quotations omitted).
Even if Plaintiffs do not ultimately prevail under the process that the Twelfth Amendment
requires, the relief requested would nonetheless redress their injuries from the unconstitutional
Electoral Count Act process in two respects . First, with respect to seeking to follow the Twelfth
Amendment procedure over that of 3 U.S.C. § 15, it would redress Rep. Gohmert’s procedural
injuries enough to proceed under the correct procedure, even if they do not prevail substantively.
FEC v. Akins, 524 U.S. 11, 25 (1998). Second, with respect to the Arizona Electors, it would
redress their unequal-footing injuries to treat all rival elector slates the same, even if the House
and not the electors choose the next President. Heckler v. Mathews, 465 U.S. 728, 739-40 (1984)
(“when the right invoked is that to equal treatment, the appropriate remedy is a mandate of equal
treatment, a result that can be accomplished by withdrawal of benefits from the favored class as
well as by extension of benefits to the excluded class”) (citations and footnotes omitted, emphasis
in original). In each respect, Article III does not require that Plaintiffs show that they will prevail
in order to show redressability.
The declaratory relief that Plaintiffs request would redress their injuries enough for Article
III and in the chart as set forth:

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Event/Issue

3 U.S.C. § 15

Twelfth Amendment

One Congress purports to bind
future Congresses

Yes

No

Rival slates of electors

Bicameral dispute resolution Vice President counts; House
with no presentment; state and Senate respectively elect
executive breaks ties
President and Vice President
if inconclusive

Violates Presentment Clause

Yes

No

Role for state governors

Yes

No

House voters

Each member votes (e.g., CA Each state delegation votes
gets 53 votes, ND gets 1)
(e.g., CA and ND get 1 vote)

As is plain from these material—and, here, dispositive—differences between the Twelfth
Amendment and 3 U.S.C. § 15, the two provisions cannot be reconciled.
4.

Plaintiffs’ procedural injuries lower the constitutional bar for
immediacy and redressability.

Given that Plaintiffs suffer a concrete injury to their voting rights, Plaintiffs also can press
their procedural injuries under the Electoral Count Act. For procedural injuries, Article III’s
redressability and immediacy requirements apply to the procedural violation that will (or someday
might) injure a concrete interest, rather than to the concrete future injury. Defenders of Wildlife,
504 U.S. at 571-72 & n.7. Specifically, 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. Id.; Glickman, 156 F.3d
at 613 (“in a procedural rights case, … the plaintiff is not held to the normal standards for
[redressability] and immediacy”); accord Nat’l Treasury Employees Union v. U.S., 101 F.3d 1423,
1428-29 (D.C. Cir. 1996). 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).
Finally, voters from smaller states like Arizona suffer an equal-footing injury and a
procedural injury vis-à-vis larger states like California because the Electoral Count Act purports

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to replace the process provided in the Twelfth Amendment. Under the Electoral Count Act,
California has five times the votes that Arizona has, but under the Twelfth Amendment California
and Arizona each have one vote. Compare 3 U.S.C. § 15 with U.S. CONST. amend. XII. That
analysis applies in third-party injury cases. See Clinton v. New York, 524 U.S. 417, 433 & n.22
(1998) (unequal-footing analysis applies to indirect-injury plaintiffs); cf. id. at 456-57 (that
analysis should apply only to equal-protection cases) (Scalia, J., dissenting). Nullification of a
procedural protection and any related bargaining power is injury enough, even in third-party cases.
Clinton, 524 U.S. at 433 & n.22.
B.

The Speech or Debate Clause does not insulate the Vice President.

The Speech or Debate Clause provides that “Senators and Representatives” “shall not be
questioned in any other Place” “for any Speech or Debate in either House”:
The Senators and Representatives … for any speech or debate in
either House, … shall not be questioned in any other place.
U.S. CONST. art I, § 6, cl. 1. “Not everything a Member of Congress may regularly do is a
legislative act within the protection of the Speech or Debate Clause,” Minton v. St. Bernard Par.
Sch. Bd., 803 F.2d 129, 134-35 (5th Cir. 1986) (interior quotations omitted), because the “clause
has been interpreted to protect only purely legislative activities,” Williams v. Brooks, 945 F.2d
1322, 1326 (5th Cir. 1991) (internal quotation marks omitted), which renders it inapposite here.
Where it applies, the Clause poses a jurisdictional bar not only to a court reaching the merits but
also to putting the defendant to the burden of putting up a defense. Powell, 395 U.S. at 502-03.
But “Legislative immunity does not, of course, bar all judicial review of legislative acts,” Powell,
395 U.S. at 503, and the Speech or Debate Clause does not even apply—by its terms—to the Vice
President in his role as President of the Senate or to the Joint Session on January 6.

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First, the Clause does not protect the Vice President acting in his role as President of the
Senate. See U.S. CONST. art I, § 6, cl. 1; cf. Common Cause v. Biden, 748 F.3d 1280, 1284 (D.C.
Cir. 2014) (declining to decide whether or not the Speech or Debate Clause protects the Vice
President). At best for the Vice President, the question is an open one, but Plaintiffs respectfully
submit that the Constitution’s plain language should govern: The Clause does not apply to the
Vice President. Instead, as here, where an unprotected officer of the House or Senate implements
an unconstitutional action of the House or Senate, the judiciary has the power to enjoin the officer,
even if it would lack the power to enjoin the House, the Senate, or their Members. Powell, 395
U.S. at 505. In short, the Speech or Debate Clause does not protect Vice President Pence at all.
Second, even if the Speech or Debate Clause did protect the Vice President acting as
President of the Senate for legislative activity in the Senate, the Joint Session on January 6 is no
such action. See U.S. CONST. art I, § 6, cl. 1. This is an election, and the Vice President has no
more authority to disenfranchise voters via unconstitutional means as any other person.
C.

Sovereign immunity does not bar this action.

The Defendant is Vice President Pence named as a defendant in his official capacity as the
Vice President of the United States. With respect to injunctive or declaratory relief, it is a historical
fact that at the time that the states ratified the federal Constitution, the equitable, judge-made,
common-law doctrine that allows use of the sovereign’s courts in the name of the sovereign to
order the sovereign’s officers to account for their unlawful conduct (i.e., the rule of law) was as
least as firmly established and as much a part of the legal system as the judge-made, common-law
doctrine of federal sovereign immunity. Louis L. Jaffee, The Right to Judicial Review I, 71 HARV.
L. REV. 401, 433 (1958); A.B.A. Section of Admin. Law & Regulatory Practice, A Blackletter
Statement of Federal Administrative Law, 54 ADMIN. L. REV. 1, 46 (2002) (it is blackletter law

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that “suits against government officers seeking prospective equitable relief are not barred by the
doctrine of sovereign immunity”).
In determining whether the doctrine of Ex parte Young avoids immunity, a court need only
conduct a “straightforward inquiry into whether [the] complaint alleges an ongoing violation of
federal law and seeks relief properly characterized as prospective.” Verizon Md. Inc. v. Pub. Serv.
Comm’n of Maryland, 535 U.S. 635, 645 (2002) (citations omitted). That is enough to survive a
motion to dismiss on jurisdictional grounds: “The inquiry into whether suit lies under Ex parte
Young does not include an analysis of the merits of the claim[.]” Id. at 638. Sovereign immunity
poses no bar to jurisdiction here.2
The prayer for injunctive relief—that the Vice President be restrained from enforcing 3
U.S.C. §5 and §15 in contravention of the Twelfth Amendment of the Constitution—to instead
follow the Twelfth Amendment, clearly satisfies the “straightforward inquiry.” Plaintiffs request
declaratory relief to prevent unconstitutional action under 3 U.S.C. § 5 and § 15 and to give the
power back to the states to vote for the President in accordance with the Twelfth Amendment.
Therefore, the Defendant should be enjoined from proceeding to certify or count dueling electoral
votes under the unconstitutional dispute resolution procedures in 3 U.S.C. § 5 and § 15, and instead
to follow the constitutional process as set forth in the Twelfth Amendment of the Constitution.

2

Indeed, the sovereign immunity afforded a Member of Congress is co-extensive with the
protections afforded by the Speech or Debate Clause. In all other respects, Members of Congress
are bound by the law to the same extent as other persons. Davis v. Passman, 442 U.S. 228, 246
(1979) (“although a suit against a Congressman for putatively unconstitutional actions taken in the
course of his official conduct does raise special concerns counseling hesitation, we hold that these
concerns are coextensive with the protections afforded by the Speech or Debate Clause”).

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D.

The political-question doctrine does not bar this suit.

The “political questions doctrine” can bar review of certain issues that the Constitution
delegates to one of the other branches, but that bar does not apply to constitutional claims related
to voting (other than claims brought under the Guaranty Clause of Article IV, §4):
We hold that this challenge to an apportionment presents no
nonjusticiable “political question.” The mere fact that the suit seeks
protection of a political right does not mean it presents a political
question. Such an objection “is little more than a play upon words.”
Baker, 369 U.S. at 209. As in Baker, litigation over political rights is not the same as a political
question.
E.

This case presents a federal question, and abstention principles do not apply.

Article III, § 2, of the Federal Constitution provides that, “The judicial Power shall extend
to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and
Treaties made, or which shall be made, under their Authority[.]” It is clear that the cause of action
is one which “arises under” the Federal Constitution. Baker, 369 U.S. at 199. In Baker, the
Plaintiffs alleged that, by means of a 1901 Tennessee statute that arbitrarily and capriciously
apportioned the seats in the General Assembly among the State’s 95 counties and failed to
reapportion them subsequently notwithstanding substantial growth and redistribution of the State’s
population, they suffered a “debasement of their votes” and were thereby denied the equal
protection of the laws guaranteed them by the Fourteenth Amendment. They sought, inter alia, a
declaratory judgment that the 1901 statute is unconstitutional and an injunction restraining certain
state officers from conducting any further elections under it. Id. The Baker line of cases
recognizes that “that voters who allege facts showing disadvantage to themselves as individuals
have standing to sue.’

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The federal and constitutional nature of these controversies deprives abstention doctrines
of any relevance whatsoever. First, state laws for the appointment of presidential electors are
federalized by the operation of The Electoral Count Act of 1887. McPherson v. Blacker, 146 U.S.
1, 27 (1892); Bush v. Gore, 531 U.S. 98, 113 (2000) (Rehnquist, C.J., concurring) (“A significant
departure from the legislative scheme for appointing Presidential electors presents a federal
constitutional question.”). Second, “[i]t is no original prerogative of State power to appoint a
representative, a senator, or President for the Union.” J. Story, 1 COMMENTARIES

ON THE

CONSTITUTION OF THE UNITED STATES § 627 (3d ed. 1858). Logically, “any state authority to
regulate election to [federal] offices could not precede their very creation by the Constitution,”
meaning that any “such power had to be delegated to, rather than reserved by, the States.” Cook
v. Gralike, 531 U.S. 510, 522 (2001) (internal quotations omitted).
A more quintessentially federal question than which slate of electors will be counted under
the 12th Amendment and 3 U.S.C. § 15 to elect the President and Vice President can scarcely be
imagined.
F.

Plaintiffs are entitled to an expedited declaratory judgment.

Under Rule 57, an expedited declaratory judgment is appropriate where, as here, it would
“terminate the controversy” based on undisputed or relatively undisputed facts. See FED. R. CIV.
P. 57, Advisory Committee Notes. The facts relevant to this controversy are not in dispute,
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 voter fraud that is the subject of ongoing litigation and investigations; and
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(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.
As a result, Defendant Vice President Pence, in his capacity as President of the Senate and
as the Presiding Officer for the January 6, 2021 Joint Session of Congress will be have to decide
between (a) following the requirements of the Twelfth Amendment, and exercising his exclusive
authority and sole discretion in deciding which slate of electors and electoral votes to count for
Arizona, or neither, or (b) following the distinct and inconsistent procedures set forth in Section
15 of the Electoral Count Act. The expedited declaratory judgment requested, namely, declaring
that Section 5 and 15 of the Electoral Count Act are unconstitutional to the extent they conflict
with the Twelfth Amendment and the Electors Clause, and that Defendant Pence may not follow
these unconstitutional procedures, will terminate the controversy. Further, as discussed below, the
requested declaratory judgment would also establish that Plaintiffs meet all of the requirements
for any additional injunctive relief required to effectuate the declaratory judgment by enjoining
Defendant Pence from violating the Twelfth Amendment.
II.

PLAINTIFFS ARE ENTITLED TO EMERGENCY INJUNCTIVE RELIEF.
“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on

the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the
balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v.
Natural Resources Defense Council, Inc., 555 U.S. 7, 21 (2008). If this Court grants the requested
declaratory judgment, then all elements required for injunctive relief will have been met.
A.

Plaintiffs have a substantial likelihood of success.

The first—and most important—Winter factor is the likelihood of movants’ prevailing.
Winter, 555 U.S. at 20. Plaintiffs are likely to prevail because this Court has jurisdiction for this
action, see Section I, supra, and because the Electoral Count Act is blatantly unconstitutional.
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1.

Unconstitutional laws are nullities.

At the outset, if the Electoral Count Act violates the Constitution, the Electoral Count Act
is a nullity:
[I]t is the province and duty of the judicial department to determine
in cases regularly brought before them, whether the powers of any
branch of the government, and even those of the legislature in the
enactment of laws, have been exercised in conformity to the
Constitution; and if they have not, to treat their acts as null and void.
Powell, 395 U.S. at 506 (interior quotations omitted, emphasis added). “Due respect for the
decisions of a coordinate branch of Government demands that we invalidate a congressional
enactment only upon a plain showing that Congress has exceeded its constitutional bounds.”
United States v. Morrison, 529 U.S. 598, 607 (2000) (finding Congress exceeded its authority
under the Commerce Clause in regulating an area of the law left to the States. “Constitutional
deprivations may not be justified by some remote administrative benefit to the State.” Harman v.
Forssenius, 380 U.S. 528, 542-43 (1965). Put simply, “that which is not supreme must yield to
that which is supreme.” Brown v. Maryland, 25 U.S. (12 Wheat.) 419, 448 (1827). Although
Brown arose in a federal-versus-state context, the same simple truth applies in a constitutionversus-statute context: the supreme enactment controls the lesser enactment.
2.

The Electoral Count Act violates the Electors Clause and the Twelfth
Amendment.

The requested expedited summary proceeding granting declaratory judgment will address
the merits of Plaintiffs’ claims, which raise only legal issues as to whether the provisions of
Sections 5 and 15 of the Electoral Count Act addressing the counting of electoral votes from
competing slates of electors for a given state are in conflict with the Twelfth Amendment and the
Electors Clause and are therefore unconstitutional. In other words, if the Court grants the requested
relief, that holding and relief will be granted because the Court has found that these provisions of

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the Electoral Count Act are unconstitutional and that Plaintiffs have in fact succeeded on the
merits.
Under 3 USC § 5, the Presidential electors of a state and their appointment by the State
shall be conclusive:
If any State shall have provided, by laws enacted prior to the day
fixed for the appointment of the electors, for its final determination
of any controversy or contest concerning the appointment of all or
any of the electors of such State, by judicial or other methods or
procedures, and such determination shall have been made at least
six days before the time fixed for the meeting of the electors, such
determination made pursuant to such law so existing on said day,
and made at least six days prior to said time of meeting of the
electors, shall be conclusive, and shall govern in the counting of the
electoral votes as provided in the Constitution, and as hereinafter
regulated, so far as the ascertainment of the electors appointed by
such State is concerned.
3 USCS § 5.
This statutory provision takes away the authority given to the Vice-President under the
Twelfth Amendment in determining which electoral votes are conclusive. 3 U.S.C. §15 in relevant
part states that both Houses, referencing the House of Representatives and the Senate, may
concurrently reject certified votes, and further that if there is a disagreement, then, in that case, the
votes of the electors who have been certified by the Executive of the State shall be determinative:
…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] 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,
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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 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.
This expressly conflicts with the Twelfth Amendment which has already set what role the
House and the Senate play in addressing the votes of electors:
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
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Senate;--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 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.
The person having the greatest number of votes as Vice-President,
shall be the Vice-President, if such number be a majority of the
whole number of electors appointed, and if no person have a
majority, then from the two highest numbers on the list, the Senate
shall choose the Vice-President; a quorum for the purpose shall
consist of two-thirds of the whole number of Senators, and a
majority of the whole number shall be necessary to a choice. But no
person constitutionally ineligible to the office of President shall be
eligible to that of Vice-President of the United States.
U.S. CONST. amend. XII. (emphasis added).
The Constitution is unambiguously clear that: “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” “… 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 [who] 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.”
Whereas 3 U.S.C. §15 and the incorporated referenced to 3 U.S.C. §5 delegate the authority to the

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Executive of the State in the event of disagreement, in direct conflict with the Twelfth Amendment
and directly taking the opportunity of Presidential Electors’ competing slates from being counted.3
3.

The Electoral Count Act violates the Constitution’s structural
protections of liberty.

The Electoral Count Act exceeds the power of Congress to enact because “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). Thus, the Electoral Count Act is a nullity because it
exceeded the power of Congress to enact.
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:
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

3

Similarly, 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 Unit-ed 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.

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two thirds of the Senate and House of Representatives, according to
the Rules and Limitations prescribed in the Case of a Bill.
U.S. CONST. art. I, § 7, cl. 3 (emphasis added). 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 improperly 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. The Electoral Count Act also 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. As such, 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).
As indicated, Plaintiffs have standing to press these structural protections of liberty because
Plaintiffs also suffer concrete injury through the debasement of their votes. See Section I.A.4,
supra.
B.

Plaintiffs will suffer irreparable injury.

Plaintiffs’ votes will be counted or not counted at the January 6 joint session. The failure
to count a lawful vote is an irreparable injury. See, e.g., Obama for Am. v. Husted, 697 F.3d 423,
436 (6th Cir. 2012) (“A restriction on the fundamental right to vote . . . constitutes irreparable
injury.”).

Indeed, the deprivation of any fundamental right constitutes irreparable injury,

Murphree v. Winter, 589 F. Supp. 374, 381 (S.D. Miss. 1984) (citing Elrod v. Burns, 427 U.S. 347,
373-74 (1976)), and voting rights are “a fundamental political right, because preservative of all

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rights.” Reynolds v. Sims, 377 U.S. 533, 561-62 (1964) (internal quotations omitted). Moreover,
if the counting of votes proceeds under the Electoral Count Act, Plaintiffs’ votes will be
adjudicated via an unconstitutional procedure, which also qualifies as irreparable harm: there will
be no opportunity to revisit the issue. As with standing for procedural injuries, irreparable harm
from a procedural violation requires an underlying concrete injury or due-process interest, which
Plaintiffs have and which will be irretrievably lost if the Vice President proceeds under the
Electoral Count Act. Under the circumstances, Plaintiffs’ procedural harms also are irreparable.
Commissioner v. Shapiro, 424 U.S. 614, 629-30 (1976).
C.

Plaintiffs need not demonstrate irreparable harm for declaratory relief.

“The traditional prerequisite for the granting of injunctive relief, demonstration of
irreparable injury, is not a prerequisite to the granting of a declaratory relief” because the
Declaratory Judgments Act “provides an adequate remedy and at law, and hence a showing of
irreparable injury is unnecessary.” 10 FED. PROC., L. ED. §23 :4 (citing 28 U.S.C. § 2201 and
Steffel v. Thompson, 415 U.S. 452 (1974)). “The existence of another adequate remedy does not
preclude a declaratory judgment that is otherwise appropriate.” FED. R. CIV. P. 57. In fact, the
central purpose of the Declaratory Judgments Act is to enable parties to adjudicate their rights
without waiting until after the injury has occurred or damages have accrued. See, e.g., Russian
Standard Vodka (USA), Inc. v. Allied Domecq Spirits & Wine USA, Inc., 523 F.Supp.2d 376, 381
(S.D.N.Y. 2007) (citing In re Combustion, 838 F.2d 35, 36 (2d Cir. 1988)).
In any event, the irreparable-harm requirement for injunctive relief does not apply to
declaratory relief. The fact that another remedy would be equally effective affords no ground for
declining declaratory relief: “Rule 57 … expressly states that the availability of an alternative
remedy does not prevent the district court from granting a declaratory judgment.” Marine Chance
Shipping v. Sebastian, 143 F.3d 216, 218-19 (5th Cir. 1998); see also 28 U.S.C. §2201; Hurley v.
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Reed, 288 F.2d 844, 848 (D.C. Cir. 1961); Tierney v. Schweiker, 718 F.2d 449, 457 (D.C. Cir.
1983). A prior formal or informal demand to the defendant is not a prerequisite to seeking
declaratory relief, Rowan Cos. v. Griffin, 876 F.2d 26, 28 (5th Cir. 1989), and showing “irreparable
injury… is not necessary for the issuance of a declaratory judgment.” Tierney, 718 F.2d at 457
(citing Steffel v. Thompson, 415 U.S. 452, 471-72 (1974)). Thus, even if not entitled to injunctive
relief, Plaintiffs still would be entitled to declaratory relief.
The requested declaratory judgment would terminate the controversy, offer relief from
uncertainty, and eliminate the need for Plaintiffs to suffer the irreparable harm from the certainty
that their electoral votes would be disregarded that would occur if Defendant Vice President Pence
were to count electoral votes, and resolve disputes regarding competing slates of electors, under
the unconstitutional provisions of the Electoral Count Act, rather than the procedures set forth in
the Twelfth Amendment.
D.

The balance of equities favors Plaintiffs.

“Traditional equitable principles requiring the balancing of public and private interests
control the grant of declaratory or injunctive relief in the federal courts.” Webster v. Doe, 486
U.S. 592, 604-05 (1988). The scope of requested injunctive relief—directing Defendant Pence to
carry out his duties as President of the Senate and as Presiding Officer for the January 6, 2021
Joint Session of Congress in compliance with the U.S. Constitution—is drawn as narrowly as
possible and does not require Defendant Pence to take any affirmative action apart from those he
is authorized to take under the Twelfth Amendment. Moreover, it is difficult to imagine how the
relief requested, which expands rather than restricts Defendant’s discretion and authority, by
eliminating facially unconstitutional restrictions on the same could cause any hardship to
Defendant.

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E.

The public interest favors Plaintiffs.

The last stay criterion is the public interest. Where the parties dispute the lawfulness of
government actions, the public interest collapses into the merits: “It is always in the public interest
to prevent the violation of a party’s constitutional rights.” Jackson Women’s Health Org. v.
Currier, 760 F.3d 448, 458 n.9 (5th Cir. 2014) (alterations omitted); cf. Tex. Democratic Party v.
Benkiser, 459 F.3d 582, 595 (5th Cir. 2006) (“injunction serves the public interest in that it enforces
the correct and constitutional application of Texas’s duly-enacted election laws”) League of
Women Voters of the United States v. Newby, 838 F.3d 1, 12 (D.C. Cir. 2016) (“no public interest
in the perpetuation of unlawful [government] action”); accord ACLU v. Ashcroft, 322 F.3d 240,
247 (3d Cir. 2003) (“the public interest [is] not served by the enforcement of an unconstitutional
law”) (interior quotation omitted); Washington v. Reno, 35 F.3d 1093, 1103 (6th Cir. 1994)
(recognizing “greater public interest in having governmental agencies abide by the federal laws”);
Pac. Frontier v. Pleasant Grove City, 414 F.3d 1221, 1237 (10th Cir. 2005).
Here the declaratory and injunctive relief sought vindicates both Defendant Vice
President’s plenary authority as President of the Senate and Presiding Officer to count electoral
votes, as well as the constitutional rights of the Plaintiffs to have their electoral votes counted in
the manner that the Constitution provides, the rights of the Arizona legislative Plaintiffs under the
Electors Clause to appoint Presidential Electors for the State of Arizona, and the right of Rep
Gohmert and those he represents to have their vote counted in the manner that the Twelfth
Amendment provides.

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CONCLUSION
Therefore, it is respectfully requested that the Court grant Plaintiffs’ Motion and the Court
grant a declaratory judgment declaring 3 U.S.C. §5 - §15 unconstitutional on its face for violating
the specific delegated authorities of the Twelfth Amendment of the Constitution.
Dated: December 28, 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 L. 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:
Email: [e-mail]
Email: [e-mail]
Counsel for Plaintiffs

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