Gohmert et al v. Pence

Filing 22

TRIAL BRIEF Proposed Amicus Brief by U.S. House of Representatives. (Letter, Douglas)

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

LOUIE GOHMERT, et al.,
Plaintiffs,

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

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

BRIEF OF THE U.S. HOUSE OF REPRESENTATIVES AS AMICUS CURIAE
IN SUPPORT OF DISMISSAL

TABLE OF CONTENTS
INTRODUCTION AND INTEREST OF AMICUS CURIAE .......................................................1
BACKGROUND .............................................................................................................................3
A.  

The Relevant Constitutional And Statutory Scheme ...............................................3

B.  

The 2020 Election ....................................................................................................5

C.  

Plaintiffs’ Suit Before This Court ............................................................................8

ARGUMENT ...................................................................................................................................8
I. 

Plaintiffs Lack Standing ...........................................................................................9
A. 

Representative Gohmert Lacks Standing .....................................................9

B. 

The Arizona Plaintiffs Lack Standing........................................................12

II. 

The Laches Doctrine Bars Plaintiffs’ Claims ........................................................14

III. 

Plaintiffs Are Not Entitled To The Extraordinary Equitable Relief They
Seek ........................................................................................................................19

CONCLUSION ..............................................................................................................................22
CERTIFICATE OF SERVICE

ii

INTRODUCTION AND INTEREST OF AMICUS CURIAE
Amicus curiae, the United States House of Representatives, has a direct and immediate
interest in this case.1 Plaintiffs ask this Court to displace Congress’s longstanding role in
counting the votes of the Electoral College in Presidential elections. The unprecedented relief
plaintiffs seek would invalidate the primary role of Congress in counting electoral votes—a role
that Congress has played in our constitutional system for more than two hundred years and has
been embodied in a federal statute since 1887. In a radical departure from our constitutional
procedures and consistent legislative practices, it would authorize the Vice President to ignore
the will of the Nation’s voters and to choose the winner in an election in which the holder of the
office will often be a candidate, as is true in the 2020 election. To achieve this extraordinary
result, plaintiffs filed suit on the eve of the Joint Session of Congress, when electoral votes are
counted, to ask this Court to strike down an Act of Congress—“the gravest and most delicate
duty that this Court is called on to perform,” Blodgett v. Holden, 275 U.S. 142, 148 (1927)
(opinion of Holmes, J.). This belated and disruptive effort to impose a novel legal rule is at odds
with sound judicial process, the limited role of the Article III courts, constitutional text, and
American history.
Pursuant to the Twelfth Amendment, following each Presidential election, each state’s
properly designated electors meet in their respective states, certify lists of all electors who voted

1

The Bipartisan Legal Advisory Group (BLAG) of the U.S. House of Representatives,
which “speaks for, and articulates the institutional position of, the House in all litigation
matters,” has authorized the filing of an amicus brief in this matter. Rules of the U.S. House of
Representatives (116th Cong.), Rule II.8(b), https://perma.cc/M25F-496H. The BLAG
comprises the Honorable Nancy Pelosi, Speaker of the House, the Honorable Steny H. Hoyer,
Majority Leader, the Honorable James E. Clyburn, Majority Whip, the Honorable Kevin
McCarthy, Republican Leader, and the Honorable Steve Scalise, Republican Whip.
Representative McCarthy and Representative Scalise dissented.

for President and Vice President, and transmit their lists to the President of the United States
Senate. After that process, “[t]he President of the Senate shall, in the presence of the Senate and
House of Representatives, open all the certificates and the votes shall then be counted.” U.S.
Const. amend. XII.
This Court should reject plaintiffs’ effort to overturn Congress’s centuries-old role in
counting electoral votes and resolving disputes about them in the constitutionally mandated Joint
Session. In 1865, Congress formalized its primacy in counting electoral votes with the passage
of the 22d Joint Rule, which specified a procedure for resolving objections.2 Since the
Presidential election of 1888, Congress has conducted the Joint Session pursuant to procedures
set forth in the Electoral Count Act of 1887. Consistent with the text of the Twelfth
Amendment, the Electoral Count Act assigns a ministerial role to the Vice President as President
of the Senate. The Vice President opens the electors’ certificates, but does not count the votes.
Congress designed the Electoral Count Act to ensure an orderly process for it to count the
electoral votes and thus enhance public confidence in Presidential elections. Traditionally,
Congress has also adopted a concurrent resolution before each such electoral count that
incorporates the Electoral Count Act’s provisions by reference.3
Plaintiffs’ motion should be denied and their complaint dismissed for multiple reasons.
This Court has no jurisdiction over plaintiffs’ claims because plaintiffs lack standing. Plaintiffs’
delay in bringing their claims independently warrants dismissal based on the doctrine of laches.
Their constitutional challenges have no merit. And the public interest and equities cut strongly

2

Subcomm. on Compilation of Precedents, Counting Electoral Votes, H.R. Misc. Doc.
No. 44-13, at 148 (1877) (House of Representatives); id. at 224 (Senate). Compare 3 U.S.C.
§ 15.
3
See Dechsler’s Precedents, ch. 10, § 2.6.
2

against a first-of-its-kind injunction that would rewrite longstanding procedural rules for
Congressional vote counting and create confusion just days before the required Joint Session.
Setting aside Representative Gohmert’s claims—for which he clearly lacks standing—
this case is simply another attempt by defeated Arizona electoral nominees to overturn the results
of the popular vote in their state. The Arizona plaintiffs have tried and failed to overturn the
election in suits they filed in federal and state courts in Arizona. Thus, they now ask this Court
in Texas to help them achieve what they failed to do in Arizona. This Court should reject
plaintiffs’ bid to overturn a cornerstone of our Nation’s democratic processes.
BACKGROUND
A.

The Relevant Constitutional And Statutory Scheme

1. Every four years, voters nationwide cast their ballots in the Presidential election. See
U.S. Const., Art. II, § 1, cl. 3; 3 U.S.C. § 1. Those votes “go toward selecting members of the
Electoral College.” Chiafalo v. Washington, 140 S. Ct. 2316, 2319 (2020). The Constitution
provides that the electors are, in turn, empowered to elect the President and Vice President.
U.S. Const. amend. XII. “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[.]” U.S. Const., Art. II, § 1, cl. 2. This
constitutional power to appoint electors “gives the States far-reaching authority over
presidential electors.” Chiafalo, 140 S. Ct. at 2324; accord McPherson v. Blacker, 146 U.S. 1,
27 (1892) (states have “broadest power of determination” over who may serve as an elector).
The Constitution also addresses the process for electoral voting: The Twelfth
Amendment requires that electors “meet in their respective states,” cast ballots for President and
Vice President, “sign and certify” their votes, and transmit the results “sealed to the seat of
3

government of the United States, directed to the President of the Senate.” U.S. Const. amend.
XII. The Amendment further provides that “[t]he 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.” Id.
2. Consistent with these constitutional requirements, Congress has long established the
process needed to carry out the Twelfth Amendment responsibilities of casting and counting
electoral votes. See generally Stephen A. Siegel, The Conscientious Congressman’s Guide to
the Electoral Count Act of 1887, 56 Fla. L. Rev. 541, 551-53 (2004) (Conscientious
Congressman’s Guide) (describing historical understanding of electoral vote counting).
Although Congress had been responsible for counting electoral votes and resolving
disputes about them since the early days of our Nation, the Electoral Count Act, 24 Stat. 373, 3
U.S.C. §§ 5-6, 15-18, sought to clarify—and codify—Congress’s role in the wake of the
disputed 1876 Presidential election. See Siegel, Conscientious Congressman’s Guide, 56 Fla. L.
Rev. at 547-50. For more than 130 years, the Electoral Count Act has governed the electoral
voting process, and its procedures have been followed in every election since its enactment. See
Cong. Rsch. Serv., RL32717, Counting Electoral Votes: An Overview of Procedures at the Joint
Session, Including Objections by Members of Congress (Dec. 8, 2020), https://perma.cc/8TS38873.
The Electoral Count Act, as revised and in conjunction with other statutes, establishes
procedures by which electoral votes must be cast and counted, culminating with the final count
in the Joint Session of Congress on January 6. See 3 U.S.C. §§ 5-8, 15. The statute assigns
primary responsibility to the states for resolving challenges to electoral slates, id. § 5; requires
state executives to certify final vote counts and send those counts to the Archivist of the United
4

States in “a certificate of such ascertainment,” id. § 6; specifies when electors shall meet to
ensure uniformity, id. §§ 7-9; and provides that, during the Joint Session, the President of the
Senate will open and present the vote certificates to the House and Senate for counting, id. § 15.
The Electoral Count Act also establishes a process by which objections to slates of electors may
be made and considered by Congress. See id. §§ 15, 17.
3. Under Arizona law, electors are chosen by popular vote. See Ariz. Rev. Stat. § 16212(A). Then, after the “secretary of state issues the statewide canvass containing the results
of” the election, the electors must “cast their electoral college votes for the [Presidential ticket
that] received the highest number of votes in [the] state as prescribed in the canvass.” Id. § 16212(B). Indeed, Arizona law specifically prohibits the electors from voting for other
candidates, stating that any “elector who knowingly refuses” to vote for the winner of the state’s
popular vote “is no longer eligible to hold the office of presidential elector” and shall be
replaced with a qualified elector (who must vote for the ticket that won the popular vote). Id.
§ 16-212(C).4
B.

The 2020 Election

1. On November 3, 2020, more than 3.4 million Arizona voters participated in the
general election. See Bowyer v. Ducey, __ F. Supp.3d __, No. CV-20-02321, 2020 WL 7238261,
at *1 (D. Ariz. Dec. 9, 2020), appeal filed, No. 20-17399 (9th Cir. Dec. 10, 2020). After the
election, all fifteen counties in Arizona performed a hand-count audit, which confirmed that
there were no discrepancies with the tabulation equipment (as in the case of Maricopa County,

4

Arizona law does not permit the state legislature to replace electors or appoint new
ones. See Ariz. Rev. Stat. § 16-212(A). Rather, if an elector position becomes vacant, the
“chairperson of the state committee of the political party represented by that elector shall appoint
a person who is otherwise qualified to be a presidential elector.” Id. § 16-212(C).
5

Arizona’s largest county) or that, if any discrepancies existed, they were “within the acceptable
margin.” Ariz. Sec’y of State, Summary of Hand Count Audits—2020 General Election (Nov.
17, 2020), https://perma.cc/VJD8-6YL8; see also Ariz. Rev. Stat. § 16-602; Bowyer, 2020 WL
7238261, at *1. Following the audits, each county’s Board of Supervisors timely canvassed the
election results and transmitted them to the Arizona Secretary of State Katie Hobbs. See Arizona
2020 General Election County Canvass Returns, https://perma.cc/6SU9-D239; Ariz. Rev. Stat.
§§ 16-642(A), 16-645(B).
On November 30, 2020, Secretary Hobbs certified the statewide canvass, reporting that
President-Elect Joseph Biden had prevailed over President Donald Trump by 10,457 votes. See
2020 General Election Official Canvass Certification (Nov. 30, 2020), https://perma.cc/N7NT43EP; Ariz. Rev. Stat. § 16-648. On the same day, Arizona Governor Douglas Ducey signed
the state’s Certificate of Ascertainment for the Biden electors. See Certificate of Ascertainment
for Presidential Electors (Nov. 30, 2020), https://perma.cc/WQ9D-FRDF.
On December 14, 2020, pursuant to federal and state law, Arizona’s electors met and
cast Arizona’s electoral votes for President-Elect Biden and Vice President-Elect Kamala
Harris. See 3 U.S.C. § 7; Ariz. Rev. Stat. § 16-212; Arizona Presidential Elector Ballot
Certificate of Vote (Dec. 14, 2020), https://perma.cc/KWS2-E8D6.
2. Before, during, and in the immediate aftermath of the general election, the Arizona
state courts heard numerous challenges to the conduct of the election—all of which were
rejected. The courts rejected an attempt to redo the hand-count audit. See Arizona Republican
Party v. Fontes, No. CV2020-014553 (Ariz. Super. Ct., Maricopa Cnty. Dec. 21, 2020). The
Trump Campaign dismissed its own case that had initially challenged the performance of the
tabulation machines. See Donald J. Trump for President v. Hobbs, No. CV2020-014248 (Ariz.
6

Super. Ct., Maricopa Cnty. Nov. 13, 2020). The courts found no merit to challenges based on
the purported misuse of “Sharpies” to fill out ballots. See Aguilera v. Fontes, No. CV2020014562 (Ariz. Super. Ct., Maricopa Cnty. Nov. 30, 2020); Aguilera v. Fontes, No. CV2020014083 (Ariz. Super. Ct., Maricopa Cnty. Nov. 7, 2020). And another lawsuit challenging the
election results was voluntarily dismissed even before an initial hearing in court. See Stevenson
v. Ducey, No. CV2020-096490 (Ariz. Super. Ct., Maricopa Cnty. filed Dec. 4, 2020).
After the electoral slate was certified, putative Republican elector Kelli Ward—who is
also a plaintiff in this suit—filed an election contest challenging the statewide canvass. The trial
court rejected her claims, finding no fraud, no misconduct, and no illegal votes. The court
entered an order “confirming” that President-Elect Biden had won the state’s electoral votes. See
Ward v. Jackson, No. CV2020-015285 (Ariz. Super. Ct., Maricopa Cnty. Dec. 4, 2020). The
Arizona Supreme Court unanimously affirmed that ruling, finding that “the challenge fails to
present any evidence of ‘misconduct,’ ‘illegal votes’ or that the Biden Electors ‘did not in fact
receive the highest number of votes for office,’ let alone establish any degree of fraud or a
sufficient error rate that would undermine the certainty of the election results.” Ward v. Jackson,
CV-20-0343-AP/EL, slip op. at 6 (Ariz. Dec. 8, 2020), pet. for cert. filed, No. 20-809 (U.S. Dec.
11, 2020). The court therefore “confirm[ed] the election of the Biden Electors” under state law.
Id.
At nearly the same time, Ward and others (including many of the plaintiffs here) filed suit
in federal district court, alleging fraud and seeking to “decertify” Arizona’s election results. The
district court rejected the challenge. Bowyer, 2020 WL 7238261, at *16. The court found that,
among other things, the plaintiffs lacked standing because they alleged only a generalized
grievance, id. at *2-*5, and that their claims were barred by laches, id. at *9-*11.
7

C.

Plaintiffs’ Suit Before This Court

Plaintiffs in this suit are Louie Gohmert, United States Representative for the First
Congressional District of Texas, and eleven individuals. Compl. ¶¶ 16-17. The individual
plaintiffs are all unsuccessful electors in Arizona; they allege that they constitute a putative slate
of Arizona electors that also met on December 14, 2020—and, contrary to the state’s popular
vote, cast electoral votes for President Trump and Vice President Pence. Id. ¶ 20. But see Ariz.
Rev. Stat. § 16-212 (providing that electors must vote for the party of the candidate who won
the statewide popular vote; failure to do so renders one ineligible to serve as an elector). Their
purported slate was not certified by the Governor and did not otherwise comply with the state
statutory scheme (as enacted by the Arizona legislature) or the Electoral Count Act.
Plaintiffs waited until December 27, 2020, to file this complaint against Vice President
Michael Pence. Compl. Plaintiffs allege that Sections 5 and 15 of the Electoral Count Act are
unconstitutional because, among other reasons, the Vice President assertedly has “exclusive
authority and sole discretion under the Twelfth Amendment to determine which slates of
electors for a State, or neither, may be counted.” Id. ¶¶ 2, 3. Plaintiffs seek emergency
declaratory relief that those sections of the Electoral Count Act are unconstitutional and an
injunction prohibiting Vice President Pence “from following any Electoral Count Act
procedures in 3 U.S.C. §§ 5 and 15.” Doc. 2, at 3 (Mot. for Expedited Declaratory Judgment
and Emergency Injunctive Relief).
ARGUMENT
This Court should dismiss the complaint and deny the extraordinary and unprecedented
relief requested: a declaration that the Electoral Count Act is unconstitutional and an injunction
that would interfere with the time-honored procedures of Congress for counting electoral votes.
8

Plaintiffs lack standing; their claims are barred by laches; and their legal and constitutional
claims—which this Court should not reach—lack merit. At bottom, this litigation seeks to enlist
the federal courts in a belated and meritless assault on longstanding constitutional processes for
confirming the results of a national election for President. The Court should reject this improper
and legally unfounded effort.
I.

Plaintiffs Lack Standing
“The familiar elements of standing are (1) an injury in fact, (2) that is fairly traceable to

the challenged conduct of the respondent, and (3) that is likely to be redressed by a favorable
judicial decision.” Shrimpers & Fishermen of RGV v. Texas Comm’n on Envtl. Quality, 968
F.3d 419, 424 (5th Cir. 2020). The standing inquiry is “especially rigorous” when, as here,
plaintiffs ask the court to declare a statute unconstitutional. Raines v. Byrd, 521 U.S. 811, 81920 (1997); Clapper v. Amnesty Int’l USA, 568 U.S. 398, 408 (2013) (“The law of Article III
standing, which is built on separation-of-powers principles, serves to prevent the judicial process
from being used to usurp the powers of the political branches.”). Plaintiffs do not satisfy the
requirements for standing.
A. Representative Gohmert Lacks Standing
Under established Supreme Court precedent, individual legislators like Representative
Gohmert lack standing to assert abstract injuries to their legislative interests. In Raines, the
Supreme Court addressed the standing of legislators who brought suit alleging that a statute was
unconstitutional because it “diluted their Article I voting power.” 521 U.S. at 817 (alteration
omitted). The Court held that the legislators lacked standing because their alleged injury was
“wholly abstract and widely dispersed.” Id. at 829. It was abstract because the plaintiffs had not
“claim[ed] that they ha[d] been deprived of something to which they personally [were] entitled.”
9

Id. at 821. And it was widely dispersed because the plaintiffs had “not been singled out for
specially unfavorable treatment as opposed to other Members of their respective bodies.” Id. In
addition, the suit was “contrary to historical experience,” and “ha[d] not been authorized” by the
legislators’ “respective Houses of Congress.” Id. at 829.
Following Raines, courts have repeatedly rejected individual legislators’ claims to
standing when they are “not singled out” and when “their claim is based entirely on the loss of
political power.” Blumenthal v. Trump, 949 F.3d 14, 19 (D.C. Cir. 2020); Chenoweth v. Clinton,
181 F.3d 112, 115 (D.C. Cir. 1999); Campbell v. Clinton, 203 F.3d 19, 22 (D.C. Cir. 2000); see
also Maloney v. Murphy, __F.3d__ , No. 18-5305, 2020 WL 7702700, *1 (D.C. Cir. Dec. 29,
2020) (reiterating that “generalized injuries claimed by legislators that are tied broadly to the
law-making process and that affect all legislators equally” are “non-cognizable”). Each of these
cases, like Raines itself, stressed “the need for the judiciary to avoid meddling in the internal
affairs of the legislative branch by entertaining a lawsuit by an individual legislator whose rights
could be vindicated by congressional repeal of the offending statute.” Comm. on Judiciary of
U.S. House of Reps. v. McGahn, 968 F.3d 755, 770 (D.C. Cir. 2020) (en banc) (alterations,
quotation marks, and citations omitted).
Representative Gohmert’s claim is even weaker than the claims to legislator standing that
the Supreme Court and other courts have rejected. The complaint contains no specific
allegations of injury to Representative Gohmert at all. In the motion for a preliminary
injunction, Representative Gohmert asserts an interest in “vot[ing] as a Congressional
Representative” under the Twelfth Amendment, which establishes procedures for the House to
select a President if no candidate receives an electoral college majority. Mot. 4-5.
Representative Gohmert appears to contend that the Electoral Count Act, by giving States and
10

the Senate a role in selecting the electoral college winner, makes it less likely that the House will
be called upon to select the President under the Twelfth Amendment, which in turn he claims
“eviscerates [his] constitutional right and duty to vote for President.” Mot. 7.
This standing argument fails for several reasons. Representative Gohmert’s asserted
interest in voting for President under the Twelfth Amendment is “wholly abstract.” Raines, 521
U.S. at 829. As in Raines, Representative Gohmert alleges the “dilution of institutional
legislative power” rather than the “loss of any private right.” Id. at 821, 826. And he alleges “no
injury to [himself] as [an] individual[]” as opposed to the body in which he serves. Id. at 829.
There is thus a “mismatch” between Representative Gohmert—an individual legislator—and the
entity to whom his alleged injury belongs—the House as a whole. See Virginia House of
Delegates v. Bethune-Hill, 139 S. Ct. 1945, 1953 (2019). Indeed, Representative Gohmert’s
asserted injury is yet more abstract than the injury rejected in Raines, because the gravamen of
Representative Gohmert’s complaint is that the Electoral Count Act diminishes the power of the
Vice President, as distinct from the legislative body in which Representative Gohmert serves.
See Compl. ¶¶ 42-44 (arguing that the Electoral Count Act violates the Twelfth Amendment by
depriving the Vice President of the power to count Electoral College votes).
Representative Gohmert’s asserted injury fails under Raines for additional reasons. It is
“widely dispersed,” Raines, 521 U.S. at 829, because it is shared by every Member of the House,
each of whom is affected by the Electoral Count Act in the same way. As in Raines, his claims
are contrary to historical practice and opposed by the House. And, also as in Raines, rejecting
his claim to standing will not deprive him of an adequate remedy, because he may always work
to repeal the Electoral Count Act through the legislative process.

11

Finally, Representative Gohmert’s alleged injury is neither “actual” nor “imminent.” See
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Even if—contrary to constitutional
text, logic, and history—the procedures of the Congressional Joint Session were altered as
Representative Gohmert seeks, he makes no plausible claim that the Presidential election would
be thrown to the House under the Twelfth Amendment. Nor could he, as that remarkable
outcome has not happened in nearly 200 years and there is no plausible basis for questioning the
state-certified electoral votes in this Presidential election.
Representative Gohmert therefore lacks a cognizable injury and must be dismissed as a
plaintiff. Because venue in this Court is supported only by Representative Gohmert’s residency
in this district (see Compl. ¶ 15), dismissal of the case on venue grounds or transfer to a more
appropriate venue may be warranted. See 28 U.S.C. § 1406(a) (providing that the district court
in “a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of
justice, transfer such case to any district or division in which it could have been brought”).
B. The Arizona Plaintiffs Lack Standing
The eleven plaintiffs purporting to be “Arizona Electors” (Compl. ¶¶ 17-18) also lack
standing. They have not suffered an injury that is “concrete and particularized” or “actual or
imminent.” Lujan, 504 U.S. at 560. A “grievance that amounts to nothing more than an abstract
and generalized harm to a citizen’s interest in the proper application of the law does not count as
an ‘injury in fact’” and “does not show standing.” Carney v. Adams, — S. Ct. —, No. 19-309,
2020 WL 7250101, at *3 (U.S. Dec. 10, 2020).
The Arizona plaintiffs have merely alleged just such a generalized grievance. They assert
injury from “having a competing slate of electors take their place and their votes in the Electoral
College” and from the use of the Electoral Count Act at the Joint Session “to resolve the dispute
12

over which slate of Arizona electors is to be counted.” Compl. ¶¶ 57-58. But, as Plaintiffs
themselves appear to concede (see id. ¶ 57), they have no special status at the Joint Session.
Under Arizona law, the only individuals entitled to cast electoral college votes are the electors
for the “candidate for president and the candidate for vice president who jointly received the
highest number of votes in this state,” Ariz. Rev. Stat. § 16-212(B)—here, President-Elect Biden
and Vice President-Elect Harris. The appointment of the Biden electors was certified by
Governor Ducey on November 30, and was “confirm[ed]” by the Arizona Supreme Court on
December 8. See supra pp. 6-7. Thus, by binding operation of Arizona law, the Arizona
plaintiffs are not “candidates for office” (Compl. ¶ 56); nor are they Presidential electors, see
Ariz. Rev. Stat.§ 16-212(C); and they cannot assert any interests that might be available to lawful
electors. They instead stand in the same position as the other 3.4 million Arizona voters with
“no particularized stake in the litigation.” Lance v. Coffman, 549 U.S. 437, 442 (2007).
The Arizona plaintiffs’ alleged injury from the Electoral Count Act is therefore “precisely
the kind of undifferentiated, generalized grievance about the conduct of government that [courts]
have refused to countenance in the past.” Id.; see also Bowyer, 2020 WL 7238261, at *4-*5.
While plaintiffs invoke (Mot. 6) Carson v. Simon, 978 F.3d 1051 (8th Cir. 2020) (per curiam),
that case actually undermines their standing. Carson held that prospective Minnesota electors
had standing because Minnesota law gave them a “cognizable interest” in ensuring the integrity
of an election in which they were candidates. Id. at 1057. Here, by contrast, even if their
nominations rendered them “candidates” prior to the election, now that the election has occurred,
Arizona law makes clear that the plaintiffs are not and may not serve as electors representing the
state. See Ariz. Rev. Stat. § 16-212(B)-(C). They therefore lack any special interest in the
administration of the Joint Session.
13

The Arizona plaintiffs have likewise not met their burden as to causation. To establish
causation for purposes of standing, a plaintiff must show “a causal connection between the injury
and the conduct complained of.” Lujan, 504 U.S. at 560. But plaintiffs acknowledge (Mot. 7)
that the “Vice President did not cause [their] initial injury,” which they concede “happened in
Arizona.” Their complaint and motion for a preliminary injunction repeatedly emphasize that
their injury is caused by the “conduct of Arizona executive branch and Maricopa County
officials” in certifying the election results (Compl. ¶ 57), and that they are challenging “unlawful
injuries that Plaintiffs suffered in Arizona” (Mot. 7). Their true grievance is not with Vice
President Pence or the functioning of the Electoral Count Act, but with the operation of Arizona
law and the decisions of Arizona officials who are not parties to this suit. They nonetheless seek
to establish causation (Mot. 7) on the ground that Vice President Pence may “ratify” their statelaw injury at the Joint Session, but they fail to explain how any such ratification would render
their state-law injury legally traceable to him.
For the same reason, an order from this Court invalidating the Electoral Count Act would
provide no redress to the Arizona plaintiffs. It would have no bearing on the Arizona law that
determined the slate of Biden electors to be presented to the President of the Senate at the Joint
Session, and it could not require Arizona to appoint them as electors instead. See Ariz. Rev. Stat.
§ 16-212(B).
II.

The Laches Doctrine Bars Plaintiffs’ Claims
Even if plaintiffs had standing, the doctrine of laches would bar their claims. Laches bars

equitable relief when a plaintiff’s inexcusable delay in asserting a claim unduly prejudices the
defendant. See Save Our Wetlands, Inc. v. U.S. Army Corps of Eng’rs, 549 F.2d 1021, 1026 (5th

14

Cir. 1977); see also, e.g., Elvis Presley Enters. v. Capece, 141 F.3d 188, 205 (5th Cir. 1998).
Those criteria are plainly met here.5
Federal courts have long recognized that the laches doctrine bars untimely claims for
equitable relief in election challenges. See, e.g., Lopez v. Hale County, 797 F. Supp. 547, 550
(N.D. Tex. 1992) (three-judge district court) (plaintiff was “guilty of laches” in waiting until
after the primary election to file suit), aff’d, 506 U.S. 1042 (1993); Dulcan v. Martin, 64 F.R.D.
327, 328-29 (D.D.C. 1974) (three-judge district court) (per curiam) (“plaintiffs have waited too
long in bringing their allegations of unconstitutionality of the Act for this court to act responsibly
without interfering” with upcoming election); see also Toney v. White, 488 F.2d 310, 314 (5th
Cir. 1973) (“[T]he law imposes the duty on parties . . . to bring [their] grievances forward for
pre-election adjudication. . . . [T]he failure to require prompt pre-election action in such
circumstances as a prerequisite to post-election relief may permit, if not encourage, parties who
could raise a claim to lay by and gamble upon receiving a favorable decision of the electorate
and then, upon losing, seek to undo the ballot results in a court action.” (internal quotation marks
and citation omitted)).

5

This Court may in its discretion choose to dismiss this case on laches grounds before
addressing Article III jurisdiction. “[A] federal court has leeway to choose among threshold
grounds for denying audience to a case on the merits.” Sinochem Int'l Co. v. Malaysia Int'l
Shipping Corp., 549 U.S. 422, 431 (2007) (quotation marks omitted). Numerous courts have
held that laches is one such threshold ground, and have accordingly denied claims on laches
grounds without addressing standing. See Memphis A. Phillip Randolph Inst. v. Hargett, 473 F.
Supp. 3d 789, 802 n.18 (M.D. Tenn. 2020) (“the Court can decide the applicability of laches
before deciding whether it has subject-matter jurisdiction”); Singh v. Joshi, 152 F. Supp. 3d 112,
121 (E.D.N.Y. 2016) (because laches and standing were both threshold issues “distinct from the
merits,” the court may “address them in any order”); Collins v. W. Digital Techs., Inc., 2011 WL
3849310, at *6 (E.D. Tex. 2011) (similar). And this Court may deny plaintiffs’ request for
equitable relief on laches grounds regardless of whether the Vice President invokes it. Cf. Day v.
McDonough, 547 U.S. 198, 209 (2006).
15

Indeed, federal and state courts in Arizona, Georgia, Michigan, Pennsylvania, and
Wisconsin have held that laches barred post-election challenges to the 2020 Presidential election
in suits filed well before this one—including in a suit brought in Arizona federal district court by
the same purported Arizona Republican electors who filed suit here. Bowyer, 2020 WL
7238261, at *10-*11 (applying laches to lawsuit filed nearly one month after Election Day and
two days after Governor certified results, where basis for claimed violations of the Electors
Clause “was either known well before Election Day or soon thereafter” and “the prejudice to the
Defendants and the nearly 3.4 million Arizonans who voted in the 2020 General Election would
be extreme, and entirely unprecedented”).6
Plaintiffs inexcusably delayed filing this suit—which they initiated only after the Arizona
federal district court and the Arizona Supreme Court rejected other attempts to invalidate the
election (including by the same Arizona plaintiffs who filed suit here). Plaintiffs filed this
complaint on December 27, 2020, and effectuated service on December 29. Doc. Nos. 1, 5, 11.
Plaintiffs thus waited almost an entire month after November 30, when the Arizona Secretary of
State certified the election and the Secretary and Governor signed the Certificate of
Ascertainment for the Biden electors; almost twenty days after December 8, when the Arizona

6

See Trump v. Wisconsin Elections Comm’n, – F.3d. –, No. 20-3414, 2020 WL 7654295,
at *3-4 (7th Cir. Dec. 24, 2020) (explaining that “[t]he President’s delay alone is enough to
warrant affirming” dismissal because “[a]ny claim against a state electoral procedure must be
expressed expeditiously” and “[a]llowing the President to raise his arguments, at this late date,
after Wisconsin has tallied the votes and certified the election outcome, would impose
unquestionable harm on the defendants, and the State’s voters”); King v. Whitmer, – F. Supp. 3d.
– , No. CV 20-13134, 2020 WL 7134198, at *7 (E.D. Mich. Dec. 7, 2020), appeal filed, No. 202205 (6th Cir. Dec. 8, 2020); Wood v. Raffensperger, No. 1:20-CV-04651-SDG, 2020 WL
6817513, at *7-8 (N.D. Ga. Nov. 20, 2020), aff’d on other grounds, 981 F.3d 1307 (11th Cir.
2020); Trump v. Biden, No. 2020AP2038, 2020 WL 7331907 ¶ 32 (Wis. Dec. 14, 2020); Kelly v.
Commonwealth, 240 A.3d 1255, 1257 (Pa. 2020).
16

Supreme Court confirmed the election of the Biden electors, see Ward, CV-20-0343-AP/EL, at
*6; and almost two weeks after December 14, when the Biden electors voted pursuant to Arizona
state law. Plaintiffs could have brought their claims weeks ago, if not earlier. See Bowyer, 2020
WL 7238261, at *10 (“When contesting an election, any delay is prejudicial, but waiting until a
month after Election Day and two days after certification of the election is inexcusable.”).
In addition, the provisions of the Electoral Count Act that plaintiffs challenge have been
in force since 1887. See Pub. L. No. 49-90, 24 Stat. 373 (1887). Plaintiffs have thus known
from the start what rules would govern the Joint Session and, to the extent they could ever have
standing to bring this suit, they could have done so earlier. Representative Gohmert—who has
been a Member of Congress for four previous Joint Sessions (in 2005, 2009, 2013, and 2017)—
was well aware of the rules governing that proceeding and could have brought this challenge
immediately after the 2020 election, if not earlier. And the putative elector plaintiffs could have
filed at the same time.7 They did not do so, attempting to reserve their claims for extreme relief
sought here until the many other legal challenges to the Arizona election were explored
unsuccessfully. Plaintiffs offer no justification—nor could they— for their eleventh-hour resort
to this Court.
The prejudice to Congress, the states, millions of voters—and, indeed, to the VicePresident himself—that would result from entertaining plaintiffs’ claims at this late date would
be immense. Plaintiffs request a declaration that the challenged provisions of the Electoral
Count Act are unconstitutional and that the Vice President (in his capacity as President of the
Senate) “may exercise the exclusive authority and sole discretion in determining which electoral

7

Presidential elector nominations were due in Arizona by August 14, 2020. See
https://perma.cc/TJ9X-XS5Z.
17

votes to count for a given State.” Compl. ¶ 73(C); see also Mot. 3, 27. Such relief would upend
the electoral count system that has governed Presidential elections, and that has clearly defined
the role and responsibilities of the President of the Senate in a manner that no prior Vice
President has found objectionable, for well over a century. See Republican Nat’l Comm. v.
Democratic Nat’l Comm., 140 S. Ct. 1205, 1207 (2020) (per curiam) (“This Court has repeatedly
emphasized that lower federal courts should ordinarily not alter the election rules on the eve of
an election.” (citing Purcell v. Gonzalez, 549 U.S. 1 (2006) (per curiam)).
If plaintiffs obtain the relief they seek, they would drastically unsettle expectations about
the Vice President’s role at the Joint Session in a manner calculated to turn a ministerial duty
into one fraught with peril and controversy. Moreover, their arguments could result in the
disenfranchisement of millions of voters, if (as plaintiffs intend) the Vice President went on to
disregard certified slates of electors or to refuse to accept any slates at all from a particular state.
Cf. Wood, 2020 WL 6817513, at *8 (“[The] requested relief could disenfranchise a substantial
portion of the electorate and erode the public’s confidence in the electoral process.”). Plaintiffs
effectively ask this Court to turn over determination of the 2020 Presidential election in its
entirety to Vice President Pence, and they would have him make that determination in the
absence of any governing rules. This would create chaos at the Joint Session, present intractable
conflicts of interest, and prejudice the Vice President in the execution of his duties. Plaintiffs
should not be permitted, at this late date, to pursue such “extreme, and entirely unprecedented”
relief. Bowyer, 2020 WL 7238261, at *11.
Plaintiffs’ delay has also prejudiced this Court’s ability to decide this case before the
Joint Session on January 6. See id. (“[T]he challenges that Plaintiffs assert quite simply could
have been made weeks ago, when the Court would have had more time to reflect and resolve the
18

issues.”); Dulcan, 64 F.R.D. at 329 (“[P]laintiffs have waited too long in bringing their
allegations of unconstitutionality of the Act for this court to act responsibly without interfering
with the date of the November 5, 1974 election. A court must have time for study and
reflection.”). Courts have cautioned against “taking action in a case where the election was
imminent, even where constitutional defects in the election process have already been found.”
Dulcan, 64 F.R.D. at 330; see also Sw. Voter Registration Educ. Project v. Shelley, 344 F.3d
914, 919 (9th Cir. 2003) (per curiam) (en banc) (“Interference with impending elections is
extraordinary, and interference with an election after voting has begun is unprecedented.” (citing
Reynolds v. Sims, 377 U.S. 533, 585 (1964)). “Unreasonable delay can prejudice the
administration of justice by compelling the court to steamroll through delicate legal issues in
order to meet election deadlines.” Bowyer, 2020 WL 7238261, at *11 (alteration and quotation
marks omitted). That principle applies with even greater force where—as here—plaintiffs’
constitutional claims have profound ramifications for the Nation and yet lack any colorable
support in constitutional text, precedent, or practice.
III.

Plaintiffs Are Not Entitled To The Extraordinary Equitable Relief They Seek
For the reasons noted above, the Court should not reach the merits of plaintiffs’ claims.

But if the Court reaches the merits, it should reject plaintiffs’ erroneous arguments.
1. To the extent that plaintiffs contend (see Mot. 18-22) that the Twelfth Amendment
endows the Vice President with substantive authority concerning the counting of electoral votes,
that contention is belied by the Amendment’s text.
The relevant portion of the Twelfth Amendment states: “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 Amendment’s use of the active voice and mention of the Vice
19

President in the first clause—“The President of the Senate shall … open all the certificates”—in
contrast with its use of the passive voice and omission of the Vice President from the second
clause—“the votes shall then be counted”—demonstrates that the Amendment assigns the Vice
President the task of opening the certificates and leaves the counting of the votes to others.
In other words, the text does not say that the Vice President shall “open all the certificates
and then count the votes.” Significantly, it separates those two actions through distinct
grammatical constructions and assigns only the first of them to the Vice President. The linguistic
formulation used in the Amendment would be an extremely odd way to describe in common
speech an intent for the Vice President to open the certificates and for him to also count the
votes. The Amendment’s text thus provides no support for the claim that the Vice President has
unreviewable discretion to decide which slate of electors shall be counted from each State.
This conclusion is reinforced by constitutional understandings and consistent practice,
dating back to the Nation’s early days, of the Vice President presiding at the Joint Session and
the House and Senate themselves resolving any substantive disputes over counting electoral
votes. See, e.g., Siegel, Conscientious Congressman’s Guide, 56 Fla. L. Rev. at 551-53. Such a
“[l]ong settled and established practice [carries] great weight in a proper interpretation of
constitutional provisions.” Chiafalo, 140 S. Ct. at 2326 (quoting The Pocket Veto Case, 279 U.S.
655, 689 (1929)). This conclusion is further supported by the structure of the Constitution,
which cannot reasonably be understood to assign to the sitting Vice President the momentous
decision of who shall be elected to the Presidency and Vice Presidency—offices for which he
might in that very election actually be a candidate. Granting such power to the Vice President
would be at odds with the Constitution’s numerous provisions designed to avoid conflicts of
interest of this type and with basic principles of democratic governance.
20

Plaintiffs’ claim (Mot. 22-23) that Congress lacks the authority to create procedures for
implementing the Twelfth Amendment is equally misconceived. From the beginning of the
Republic, Congress has been understood to have the power to establish the procedures for
electoral vote counting, whether by resolution or by statute. See also U.S. Const., Art. I, § 8, cl.
18 (“Congress shall have Power … [t]o make all Laws which shall be necessary and proper for
carrying into Execution … all … Powers vested by this Constitution in the Government of the
United States, or in any … Officer thereof.”). The Electoral Count Act is only one example of
Congress’s exercise of that power.8
To the extent plaintiffs argue that the Electoral Count Act violates the Electors Clause
(Mot. 21, 22 n.3), that argument also fails. The Electoral Count Act is entirely consistent with
the Electors Clause, which provides that each State shall appoint electors “in such Manner as the
Legislature thereof may direct.” U.S. Const., Art. II § 1, cl. 2. The Electoral Count Act is
grounded in deference to the laws and procedures of the states. And any assertion that the statute
deprives the Arizona legislature of its constitutionally assigned role in the process of selecting
electors is incorrect: The Arizona legislature exercised its authority to create the system of
popular election and gubernatorial certification that was used to appoint Arizona’s electors. Cf.
Wisconsin Elections Comm’n, 2020 WL 7654295, at *4 (rejecting a similar Electors Clause
argument). The procedures followed here effectuate, rather than undermine, the Electors Clause.

8

Congress’s consistent practice of establishing procedures for electoral vote counting—
typically based on the recommendations of a joint committee—can be traced in Hinds’
Precedents of the House of Representatives ch. 59, §§ 1929, 1952 (counts of 1793-1873); id. at
ch. 60 (counts of 1877-1905); see also House Practice: A Guide to the Rules, Precedents, and
Procedures of the House (2017) ch. 24 §§ 1-3.
21

2. The balance of equities and the public interest strongly support denial of declaratory
and injunctive relief. Courts have repeatedly warned of the dangers of altering election rules on
the eve of elections “absent a powerful reason for doing so.” Crookston v. Johnson, 841 F.3d
396, 398 (6th Cir. 2016) (citing Purcell, 549 U.S. at 5-6). Principles of judicial restraint apply
with special force where plaintiffs seek to alter the established rules governing the
constitutionally prescribed Joint Session to count the electoral votes after millions of voters have
cast their ballots and the electoral results have been duly certified.
Plaintiffs ask this Court to authorize the Vice President to ignore the will of the Nation’s
voters and determine the winner in an election in which he is a candidate. Granting plaintiffs this
extraordinary relief just days before the Joint Session would not only reward their inexcusably
delayed filing; it would also risk upending the orderly rules that have governed Congressional
counting of electoral votes for more than a century and undermining the public’s confidence in
the constitutionally prescribed processes for confirming—not overturning—the results of the
election.
CONCLUSION
The Court should deny plaintiffs’ motion for expedited declaratory judgment and
emergency injunctive relief, and dismiss plaintiffs’ complaint.
Respectfully submitted,
Caitlin Halligan (NY Bar No. 3933447)
Samuel Breidbart (NY Bar No. 5783352)
Adam K. Hersh (NY Bar No. 5693064)
Max H. Siegel (NY Bar No. 5652235)
SELENDY & GAY PLLC
1290 Avenue of the Americas
New York, New York 10104

/s/ Douglas N. Letter
Douglas N. Letter (DC Bar No. 253492)
General Counsel
Todd B. Tatelman (VA Bar No. 66008)
Megan Barbero (MA Bar No. 668854)
Josephine Morse (DC Bar No. 1531317)
William E. Havemann (VA Bar No. 86961)
Eric R. Columbus (DC Bar No. 487736)
Lisa K. Helvin (DC Bar No. 988143)
22

Michael R. Dreeben (DC Bar No. 370586)
GEORGETOWN UNIVERSITY LAW
CENTER
600 New Jersey Avenue NW
Washington, D.C. 20001

Jonathan B. Schwartz (DC Bar No. 342758)
OFFICE OF GENERAL COUNSEL
U.S. HOUSE OF REPRESENTATIVES
219 Cannon House Office Building
Washington, DC 20515
Telephone: [phone]
Facsimile: [phone]
[e-mail]
Counsel for Amicus U.S. House of Representatives

December 31, 2020

23

CERTIFICATE OF SERVICE
I certify that on December 31, 2020, I caused the foregoing document to be filed via the
United States District Court for the Eastern District of Texas CM/ECF system, which I
understand caused a copy to be served on all registered parties.
/s/ Douglas N. Letter
Douglas N. Letter