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

Plaintiffs,
v.

(Election Matter)

THE HONORABLE MICHAEL R. PENCE, VICE
PRESIDENT OF THE UNITED STATES, in his
official capacity,
Defendant.
[PROPOSED] ORDER GRANTING EMERGENCY INJUNCTIVE
RELIEF
The Court has before it Plaintiffs’ Emergency Motion for Expedited Declaratory
Judgment and Emergency Motion for Injunctive Relief filed December 28, 2020 (“Motion”) and
the Plaintiffs’ December 27, 2020 Complaint for Expedited Declaratory Judgment and
Emergency Injunctive Relief (“Complaint”) seeking:
1.

A declaratory judgment finding that:
a. 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, U.S. CONST. art. II, § 1, cl. 1 &
amend. XII;
b. That Defendant Vice-President Michael R. Pence, in his capacity as
President of Senate and Presiding Officer of the January 6, 2021 Joint
Session of Congress under the Twelfth Amendment, is subject solely to

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the requirements of the Twelfth Amendment and may exercise the
exclusive authority and sole discretion in determining which electoral
votes to count for a given State, and must ignore and may not rely on any
provisions of the Electoral Count Act that would limit his exclusive
authority and at his sole discretion to determine which of two or more
competing slates of electors’ votes are to be counted for President;
c. That, with respect to competing slates of electors the State of Arizona or
other Contested States, the Twelfth Amendment contains the exclusive
dispute resolution mechanisms, namely, that (i) Vice-President Pence
determines which slate of electors’ votes shall be counted, or neither, for
that State and (ii) if no person has a majority, then the House of
Representatives (and only the House of Representatives) shall chose the
President where “the votes [in the House of Representatives] shall be
taken by states, the representation from each state having one vote,” U.S.

CONST. amend. XII;
d. That, also with respect to competing slates of electors, the alternative
dispute resolution procedure or priority rule in 3 U.S.C. § 15, is null and
void insofar as it nullifies and replaces the Twelfth Amendment rules
above by with an entirely different procedure in which the House and
Senate each separately “decide” which slate is to be counted, and in the
event of a disagreement, then only “the votes of the electors whose
appointment shall have been certified by the executive of the State … shall
be counted,” 3 U.S.C. § 15; and

Proposed Order - 2

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2.

An order granting any other declaratory or injunctive relief necessary to support
or effectuate the foregoing declaratory judgments.

The Court has reviewed the terms and conditions of the December 28, 2020 Motion and
Complaint, and the Court’s Declaratory Judgment issued December 31, 2020, granting the
requested expedited declaratory judgments in Paragraphs 1(a)-1(d) above and for good cause
shown IT IS HEREBY ORDERED THAT:
1.

Defendant Vice President Michael R. Pence shall, in his capacity as President of
the Senate and as Presiding Officer for the January 6, 2021 Joint Session of
Congress (“Joint Session”), solely follow the terms of the Twelfth Amendment in
counting the electoral votes at the Joint Session and any other proceedings
addressing the counting of electoral votes for choosing the next President in
connection with the 2020 General Election;

2.

Defendant Vice President Pence shall not follow the provisions of Sections 5 or
15 of the Electoral Count Act that this Court has found to be unconstitutional and
in conflict with the Twelfth Amendment, and in particular, Defendant Vice
President Pence
a. Shall not “call for objections” from Senators or House Members following
the reading of any certificate or paper from electors for a given State, and
instead shall exercise his exclusive authority and sole discretion under the
Twelfth Amendment to “count” the electoral votes for a given state,
including the decision as to which of the competing slates of electors’
electoral votes to count, or not to count, for that State;

Proposed Order - 3

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b. Shall not give any preference or priority in counting electors certified by
the State’s executive over any other slate of electors, and shall instead give
effect to the provisions of the Electors Clause for electors appointed by the
State Legislature in whatever manner indicated by that State’s legislatures;
c. Shall not submit any disputes between competing slates of electors to be
resolved under the procedures set forth in Section 15 of the Electoral
Count Act, nor as Presiding Officer shall he permit any such objections or
disputes to interrupt the counting of electoral votes at the Joint Session or
delegate his exclusive authority under the Twelfth Amendment to
Congress to determine which electoral votes are to be counted; and
d. If and only if neither President Trump nor former Vice President Biden
fails to receive a majority of electoral votes at the Joint Session, is he
relieved is his exclusive authority to count electoral votes for choosing the
President, at which point he shall direct the House of Representatives to
“choose immediately by ballot” the President where “the votes shall be
taken by states, the representation from each state having one vote,” as
required under the Twelfth Amendment.
SO ORDERED.

Proposed Order - 4