Gohmert et al v. Pence

Filing 25

Unopposed MOTION to Intervene INTERVENORS MICHELE LUNDGREN ET.AL.S UNOPPOSED MOTION TO INTERVENE by MIchele Lundgren, Marian Sheridan, Meshawn Maddock, Mari-Ann Henry, Amy Facchinello. (Attachments: # 1 Exhibit Intervenor Lundgren's Original Complaint, # 2 Text of Proposed Order)(Bundren, Wm.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
LOUIE GOHMERT, TYLER BOWYER,
NANCY COTTLE, JAKE HOFFMAN,
ANTHONY KERN, JAMES R. LAMON,
SAM MOORHEAD, ROBERT
MONTGOMERY, LORAINE
PELLEGRINO, GREG SAFSTEN, KELLI
WARD and MICHAEL WARD,
Plaintiffs,

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

INTERVENORS’ MICHELE
LUNDGREN ET.AL.’S
MOTION TO INTERVENE

v.
(Election Matter)
THE HONORABLE MICHAEL R. PENCE,
VICE PRESIDENT OF THE UNITED
STATES, IN HIS OFFICIAL CAPACITY.
Defendant,
MICHELE LUNDGREN, MARIAN
SHERIDAN, MESHAWN MADDOCK,
MARI-ANN HENRY, AND
AMY FACCHINELLO, IN THEIR
OFFICIAL CAPACITY AS
PRESIDENTIAL ELECTORS,
REPRESENTING THEIR RESPECTIVE
STATES.
Intervenors.
INTERVENORS’ MICHELE LUNDGREN ET.AL.’S UNOPPOSED
MOTION TO INTERVENE

EXHIBIT 1

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
LOUIE GOHMERT, TYLER BOWYER,
NANCY COTTLE, JAKE HOFFMAN,
ANTHONY KERN, JAMES R. LAMON,
SAM MOORHEAD, ROBERT
MONTGOMERY, LORAINE
PELLEGRINO, GREG SAFSTEN, KELLI
WARD and MICHAEL WARD,
Plaintiffs,
v.
THE HONORABLE MICHAEL R. PENCE,
VICE PRESIDENT OF THE UNITED
STATES, IN HIS OFFICIAL CAPACITY.

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

INTERVENORS’ MICHELE
LUNDGREN ET.AL.’S
COMPLAINT FOR
EXPEDITED
DECLARATORY AND
EMERGENCY INJUNCTIVE
RELIEF

(Election Matter)

Defendant,
MICHELE LUNDGREN, MARIAN
SHERIDAN, MESHAWN MADDOCK,
MARI-ANN HENRY, AND
AMY FACCHINELLO, IN THEIR
OFFICIAL CAPACITY AS
PRESIDENTIAL ELECTORS,
REPRESENTING THEIR RESPECTIVE
STATES.
Intervenors.
INTERVENORS’ MICHELE LUNDGREN ET.AL.’S ORIGINAL
COMPLAINT
TO THE HONORABLE COURT:

Michele Lundgren, Marian Sheridan, Meshawn Maddock
Mari-Ann Henry and Amy Facchinello in their official capacities as Presidential
Electors for the State of Michigan (hereinafter referred to as the “Michigan
Electors”) complain of the Honorable Michael R. Pence, Vice President of the
United States, in his official capacity, and say:
NATURE OF THE ACTION
1.

This civil action seeks an expedited declaratory judgment finding that

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

These provisions of Section 15 of the Electoral Count Act are

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

2

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

Section 15 of the Electoral Count Act unconstitutionally violates the

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

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

controversy” under Article III that is ripe for a declaratory judgment arising from
the events of December 14, 2020, where the States of Arizona, Michigan, Georgia,
Pennsylvania, Wisconsin (and several others) have appointed two competing slates
of Presidential electors to represent their respective States.
5.

The Michigan Intervenors include portions of the slate of Republican

Presidential Electors for the State of Michigan. The Michigan Intervenors have cast
their Presidential electoral votes for the State of Michigan for President Donald J.
3

Trump and Vice-President Michael R. Pence on December 14, 2020, at the Michigan
State Capitol with the permission and endorsement of the Michigan Legislature, i.e.,
at the time, place, and manner required under Michigan state law and the Electoral
Count Act. At the same time, Michigan’s Governor and Secretary of State appointed
a separate and competing slate of electors who cast Michigan’s electoral votes for
former Vice-President Joseph R. Biden, despite the evidence of massive multi-state
electoral fraud committed on Biden’s behalf that changed electoral results in
Michigan, Arizona, Georgia, Pennsylvania, Wisconsin and other states that have also
put forward competing slates of Presidential Electors (collectively, the “Contested
States”).

Collectively, these Contested States have enough electoral votes in

controversy to determine the outcome of the 2020 United States Presidential General
Election.
6.

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

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

4

7.

United States Senators have also stated that they may object to the

Biden slate of electors from the Contested States.1 United States Senators that object
to the counting of the slate of electors voting for Biden and to the Biden slates from
the Contested States are entitled to have their objection determined under the Twelve
Amendment, and not through the unconstitutional impositions of a prior Congress
by 3 U.S.C. §§ 5 and 15.
8.

This Intervenor Complaint addresses a matter of urgent national

concern that involves only issues of law – namely, a determination that Sections 5
and 15 of the Electoral Count Act violate the Electors Clause and/or the Twelfth
Amendment of the U.S. Constitution.

The relevant facts are not in dispute

concerning the existence of a live case or controversy between Plaintiffs and
Intervenors and Defendant, ripeness, standing, and other matters related to the
justiciability of Intervenors’ claims.2

 See https://www.forbes.com/sites/jackbrewster/2020/12/17/here-are-the-gop-senators-who
have-hinted-at-defying-mcconnell-by-challenging-election/?sh=506395c34ce3.
1

2

  The facts relevant to the justiciability of Intervenors’ claims are laid out below and demonstrate

the certainty or near certainty that the unconstitutional provisions in Section 15 of the Electoral
Count Act will be invoked at the January 6, 2021 Joint Session of Congress to choose the next
President, namely: (1) there are competing slates of electors for Michigan 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 Michigan and other
Contested States have contested the certification of their State’s electoral votes by State executives,
due to substantial evidence of election fraud that is the subject of ongoing litigation and
investigations; and (4) Senators and Members of the House of Representatives have expressed
their intent to challenge the electors and electoral votes certified by State executives in the
Contested States.
5

9.

Because the requested declaratory judgment will terminate the

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

Accordingly, Intervenors join Plaintiffs’ motion for a speedy summary

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

Accordingly, Intervenors respectfully request this Court to issue a

declaratory judgment finding that:
A. Sections 5 and 15 of the Electoral Count Act, 3 U.S.C. §§ 5 and 15, are
unconstitutional because they violate the Twelfth Amendment, U.S.
CONST. art. II, § 1, cl. 1 & amend. XII on the face of it; and further
violate the Electors Clause;
B. That Vice-President Pence, in his capacity as President of Senate and
Presiding Officer of the January 6, 2021 Joint Session of Congress
under the Twelfth Amendment, is subject solely to the requirements of
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the Twelfth Amendment and may exercise the exclusive authority and
sole discretion in determining which electoral votes to count for a given
State, and must ignore and may not rely on any provisions of the
Electoral Count Act that would limit his exclusive authority and his
sole discretion to determine the count, which could include votes from
the slates of Republican electors from the Contested States;
C. That, with respect to competing slates of electors from the Contested
States, the Twelfth Amendment contains the exclusive dispute
resolution mechanisms, namely, that (i) Vice-President Pence
determines which slate of electors’ votes count, or neither, for that
State; (ii) how objections from members of Congress to any proffered
slate of electors is adjudicated; and (iii) if no candidate has a majority
of 270 elector votes, then the House of Representatives (and only the
House of Representatives) shall choose the President where “the votes
[in the House of Representatives] shall be taken by states, the
representation from each state having one vote,” U.S. CONST. amend.
XII;
D. That with respect to the counting of competing slates of electors, the
alternative dispute resolution procedure or priority rule in 3 U.S.C. §
15, together with its incorporation of 3 U.S.C. § 5, shall have no force
7

or effect because it nullifies and replaces the Twelfth Amendment rules
above with an entirely different procedure; and
E. Issue any other declaratory judgments or findings or injunctive relief
necessary to support or effectuate the foregoing declaratory judgments.
JURISDICTION AND VENUE
12.

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

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

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

because this action involves a federal election for President of the United States. “A
significant departure from the legislative scheme for appointing Presidential electors
presents a federal constitutional question.” Bush v. Gore, 531 U.S. 98, 113 (2000)
(Rehnquist, C.J., concurring); Smiley v. Holm, 285 U.S. 355, 365 (1932).
14.

The jurisdiction of the Court to grant declaratory relief is conferred by

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

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

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

8

THE PARTIES
16.

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

House of Representatives for the First Congressional District of Texas.

On

November 3, 2020 he won re-election of this Congressional seat and plans to attend
the January 6, 2021 session of Congress. He resides in the City of Tyler, in Smith
County, Texas.
17.

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

Arizona voter and a Republican Party Presidential Elector on behalf of the State of
Arizona, who voted their competing slate for President and Vice President on
December 14, 2020 for Donald J. Trump and Michael R. Pence: a) Tyler Bowyer, a
resident of Maricopa County and a Republican National Committeeman; b) Nancy
Cottle, a resident of Maricopa County and Second Vice-Chairman of the Maricopa
County Republican Committee; c) Jake Hoffman, a resident of Maricopa County
and member-elect of the Arizona House of Representatives; d) Anthony Kern, a
resident of Maricopa County and an outgoing member of the Arizona House of
Representatives; e) James R. Lamon, a resident of Maricopa County; f) Samuel
Moorhead, a resident of Gila County; g) Robert Montgomery, a resident of Cochise
County and Republican Party Chairman for Cochise County; h) Loraine Pellegrino,
a resident of Maricopa County; i) Greg Safsten, a resident of Maricopa County and
Executive Director of the Republican Party of Arizona; j) Kelli Ward, a resident of
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Mohave County and Chair of the Arizona Republican Party; and k) Michael Ward,
a resident of Mohave County.
18.

The above eleven Intervenors constitute the full slate of the Arizona

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

The Michigan Intervenors are residents of Michigan, registered

Michigan voters and Republican Party Presidential Electors on behalf of the State of
Michigan, who voted their competing slate for President and Vice President on
December 14, 2020 for Donald J. Trump and Michael R. Pence.
20.

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

capacity as the Vice President of the United States. The declaratory and injunctive
relief requested herein applies to his duties as President of the Senate and Presiding
Officer at the January 6, 2021 Joint Session of Congress carried out pursuant to the
Electoral Count Act and the Twelfth Amendment.
STATEMENT OF FACTS
21.

The Plaintiffs include a United States Representative from Texas, the

entire slate of Republican Presidential Electors for the State of Arizona as well as an
outgoing and incoming member of the Arizona Legislature. On December 14, 2020,
pursuant to the requirements of applicable state laws and the Electoral Count Act,
the Arizona Electors, with the knowledge and permission of the Republican-majority
Arizona Legislature, convened at the Arizona State Capitol, and cast Arizona’s
10

electoral votes for President Donald J. Trump and Vice President Michael R. Pence.3
On the same date, the Republican Presidential Electors for the States of Georgia,4
Pennsylvania5 and Wisconsin6 met at their respective State Capitols to cast their
States’ electoral votes for President Trump and Vice President Pence.
22.

The Michigan Intervenors include the Republican Presidential Electors

for the State of Michigan. On December 14, 2020, pursuant to the requirements of
applicable state laws and the Electoral Count Act, the Michigan Intervenors, with
the knowledge and permission of the Republican-majority Michigan Legislature,
convened at the Michigan State Capitol, and cast Michigan’s electoral votes for
President Donald J. Trump and Vice President Michael R. Pence. Michigan’s
Republican electors attempted to vote indoors at their State Capitol on December
14th but were unlawfully denied entrance to the Michigan State Capital by the
Michigan State Police. Instead, they met on the grounds of the Michigan State

3

  See GOP Elector Nominees cast votes for Trump in Arizona, Georgia, Pennsylvania, by Dave

Boyer, The Washington Times, December 14, 2020.
https://www.washingtontimes.com/news/2020/dec/14/gop-electors-cast-votes-trump-georgiapennsylvania/.
4

  See id.

5

  See id. 

6

  See Wisconsin GOP Electors Meet to Cast their own Votes Too Just in Case, by Nick Viviani,

WMTV, NBC15.com, December 14, 2020, https://www.nbc15.com/2020/12/14/wisconsin-gopelectors-meet-to-cast-their-own-votes-too-just-in-case/ last visited December 14, 2020.
11

Capitol and cast their votes for Donald J. Trump as President and Michael R. Pence
as Vice President.7
23.

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

the Democratic Party’s slate of electors convened in their respective State Capitols
to cast their electoral votes for former Vice President Joseph R. Biden as President
and Senator Kamala Harris as Vice President. On the same day, Arizona Governor
Doug Ducey and Arizona Secretary of State Katie Hobbs submitted the Certificate
of Ascertainment with the Biden electoral votes pursuant to the National Archivist
pursuant to the Electoral Count Act.8
24.

Accordingly, there are now competing slates of Republican and

Democratic electors in five States with Republican majorities in both houses of their
State Legislatures – Arizona, Georgia, Michigan, Pennsylvania, and Wisconsin (i.e.,
the Contested States) – that collectively have 73 electoral votes, which are more than
sufficient to determine the winner of the 2020 General Election.9

  See Michigan Police Block GOP Electors from Entering Capitol, by Jacob Palmieri, the
Palmieri Report, December 14, 2020, https://thepalmierireport.com/michigan-state-police-blockgop-electors-from-entering-capitol/.
7

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

8

9

  Republican Presidential Electors in the States of Nevada and New Mexico, which have

Democrat majority state legislature, also met on December 14, 2020, at their State Capitols to
cast their votes for President Trump and Vice President Pence.
12

25.

The Arizona Electors, along with Republican Presidential Electors in

Georgia, Michigan, Pennsylvania, and Wisconsin, took this step as a result of the
extraordinary events and substantial evidence of election fraud and other clearly
unlawful and illegal conduct before, during and after the 2020 General Election in
these States. The Arizona Legislature has conducted legislative hearings into these
voting fraud allegations, and is actively investigating these matters, including issuing
subpoenas of Maricopa County, Arizona (which accounts for over 60% of Arizona’s
population and voters) voting machines for forensic audits.10
26.

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

Joint Resolution in which they: (1) found that the 2020 General Election “was
marred by irregularities so significant as to render it highly doubtful whether the
certified result accurately represents the will of the voters;” (2) invoked the Arizona
Legislature’s authority under the Electors Clause and 5 U.S.C. § 2 to declare the
2020 General Election a failed election and to directly appoint Arizona’s electors;
(3) resolved that the Plaintiff Arizona Electors’ “11 electoral votes be accepted for
… Donald J. Trump or to have all electoral votes nullified completely until a full
forensic audit can be conducted;” and (4) further resolved “that the United States

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

10

13

Congress is not to consider a slate of electors from the State of Arizona until the
Legislature deems the election to be final and all irregularities resolved.”11
27.

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

other Contested States that prompted competing Electors’ slates. 12
28.

Republican Senators and Republican Members of the House of

Representatives have also expressed their intent to oppose the certified slates of
electors from the Contested States due to the substantial evidence of election fraud
in the 2020 General Election. Multiple Senators and House Members have stated
that they will object to the Biden electors at the January 6, 2021 Joint Session of
Congress.13 Plaintiff Gohmert will object to the counting of the Arizona electors
voting for Biden, as well as to the Biden electors from the remaining Contested
States.
29.

Also, the Legislatures of, inter alia, Michigan, Georgia, Pennsylvania

and Wisconsin have conducted extensive hearings and received substantial evidence

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

11

12

  See The Immaculate Deception, Six Key Dimensions of Election Irregularities, The Navarro Report.

https://bannonswarroom.com/wp-content/uploads/2020/12/The-Immaculate-Deception-12.15.20-1.pdf  
13

   See, e.g., Dueling Electors and the Upcoming Joint Session of Congress, by Zachary Steiber,

Epoch Times, Dec. 17, 2020, available at: https://www.theepochtimes.com/explainer-duelingelectors-and-the-upcoming-joint-session-of-congress_3622992.html.
14

of clearly unlawful voter fraud, election irregularities and counterfeit ballots cast and
counted for Joe Biden.
30.

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

capacity as President of the Senate and Presiding Officer at the January 6, 2021 Joint
Session of Congress to select the next President, will be presented with the following
circumstances: (1) competing slates of electors from the State of Arizona and the
other Contested States (namely, Georgia, Michigan, Pennsylvania, and Wisconsin)
(2) that represent sufficient electoral votes (a) if counted, to determine the winner of
the 2020 General Election, or (b) if not counted, to deny either President Trump or
former Vice President Biden sufficient votes to win outright; and (3) objections from
at 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.
31.

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

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

15

32.

Accordingly, it is the foregoing conflict between the Twelfth

Amendment of the U.S. Constitution and Section 15 of the Electoral Count Act that
establish the urgency for this Court to issue a declaratory judgment that Section 15
of the Electoral Count Act is unconstitutional.
RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS
33.

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

Legislatures the exclusive authority to appoint Presidential Electors:
Each State shall appoint, in such Manner as the Legislature thereof may
direct, a number of electors, equal to the whole Number of Senators and
Representatives to which the State may be entitled in the Congress: but
no Senator or Representative, or Person holding an Office of Trust or
Profit under the United States, shall be appointed an Elector. U.S.
CONST. art. II, § 1 ("Electors Clause").
34.

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

state [legislature]” to select electors “is exclusive,” McPherson v. Blacker, 146 U.S.
1, 11 (1892); this power “cannot be taken from them or modified” by statute or even
the state constitution,” and “there is no doubt of the right of the legislature to resume
the power at any time.” Id. at 10 (citations omitted). In Bush v. Gore, 531 U.S. 98
(2000), the Supreme Court reaffirmed McPherson’s holding that “the state
legislature’s power to select the manner for appointing electors is plenary,” Bush,
531 U.S. at 104 (citing McPherson, 146 U.S. at 35), noting that the state legislature
“may, if it so chooses, select the electors itself,” and that even after deciding to select

16

electors through a statewide election, “can take back the power to appoint electors.”
Id. (citation omitted).
35.

The Twelfth Amendment. The Twelfth Amendment sets forth the

procedures for counting electoral votes and for resolving disputes over whether and
which electoral votes may be counted for a State. The first section describes the
meeting of the Electoral College and the procedures up to the casting of the electoral
votes by the Presidential Electors in their respective states, which occurred on
December 14, 2020, with respect to the 2020 General Election:
The electors shall meet in their respective states and vote by ballot for
President and Vice-President, one of whom, at least, shall not be an
inhabitant of the same state with themselves; they shall name in their
ballots the person voted for as President, and in distinct ballots the
person voted for as Vice-President, and they shall make distinct lists of
all persons voted for as President, and of all persons voted for as VicePresident, 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.
36.

The second section describes how Defendant Vice President Pence, in

his role as President of the Senate and Presiding Officer for the January 6, 2021 Joint
Session of Congress, shall “count” the electoral votes.
The President of the Senate shall, in the presence of the Senate and
House of Representatives, open all the certificates and the votes shall
then be counted[.]
U.S. CONST. amend. XII.

17

37.

Under the Twelfth Amendment, Defendant Pence alone has the

exclusive authority and sole discretion to open and permit the counting of the
electoral votes for a given state, and where there are competing slates of electors, or
where there is objection to any single slate of electors, to determine which electors’
votes, or whether none, shall be counted. Notably, neither the Twelfth Amendment
nor the Electoral Count Act, provides any mechanism for judicial review of the
Presiding Officer’s determinations.14 Instead, the Twelfth Amendment and the
Electoral Count Act adopt different procedures for the President of the Senate
(Twelfth Amendment) or both Houses of Congress (Electoral Count Act) to resolve
any such disputes and the authority for the final determinations, in the event of
disagreement, to different parties; namely, the Electoral Count Act gives it to the
Executive of the State; while the Twelfth Amendment vests sole authority with the
Vice President.
38.

The third section of the Twelfth Amendment sets forth the procedures

for selecting the President (solely) by the House of Representatives, in the event that

14

  See, e.g., Nathan L. Colvin & Edward B. Foley, The Twelfth Amendment: A Constitutional

Ticking Time Bomb, U. of Miami L. Rev. 64:475, 526 (2010) (discussing reviews of the Electoral
Count Act’s (“ECA”) legislative history and concluding that, “[o]ne of the more thorough reviews
of the legislative history of the ECA reveals that Congress considered giving the Court some role
in the process but rejected the idea every time, and it was clear that Congress did not think the
Court had a constitutional role nor did it believe that the Court should have any jurisdiction at all.”
Plaintiffs agree that resolution of disputes before Congress, arising on January 6, 2021, over
competing slates of electors, or objections to any slate of electors, are matters outside the purview
of federal courts; but the federal courts must determine whether the ECA is unconstitutional. This
position is fully consistent with the declaratory judgment requested herein.
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no candidate has received a majority of electoral votes counted by the President of
the Senate.
The person having the greatest number of votes for President, shall be
the President, if such number be a majority of the whole number of
electors appointed; and if no person have such majority, then from the
persons having the highest numbers not exceeding three on the list of
those voted for as President, the House of Representatives shall choose
immediately, by ballot, the President. But in choosing the President, the
votes shall be taken by states, the representation from each state having
one vote; a quorum for this purpose shall consist of a member or
members from two-thirds of the states, and a majority of all the states
shall be necessary to a choice. And if the House of Representatives
shall not choose a President whenever the right of choice shall devolve
upon them, before the fourth day of March next following, then the
Vice-President shall act as President, as in the case of the death or other
constitutional disability of the President.
U.S. CONST. amend. XII (emphasis added).
39.

There are four key features of this Twelfth Amendment procedure that

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

19

Electoral Count Act (which gives priority to electors’ certified by the State’s
executive).
40.

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

subsequently amended, includes a number of provisions that are in direct conflict
with the text of the Electors Clause and the Twelfth Amendment.
41.

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

set of procedures for the counting of electoral votes, for addressing situations where
one candidate does not receive a majority, and for resolving disputes. Sections 16
to 18 of the Electoral Count Act provide additional procedural rules governing the
Joint Session of Congress (to be held January 6, 2021 for the 2020 General Election).
42.

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

insofar as it provides that “the President of the Senate shall be their presiding officer”
and that “all the certificates and papers purporting to be certificates of the electoral
votes” are to be “opened by the President of the Senate.” 3 U.S.C. § 15. However,
Section 15 diverges from the Twelfth Amendment by adopting procedures for the
President of the Senate to “call for objections,” and if there are objections made in
writing by one Senator and one Member of the House of Representatives, then this
shall trigger a dispute-resolution procedure found nowhere in the Twelfth
Amendment.

20

43.

The Section 15’s dispute resolution procedures are lengthy and

reproduced in their entirety below:
When all objections so made to any vote or paper from a State shall
have been received and read, the Senate shall thereupon withdraw, and
such objections shall be submitted to the Senate for its decision; and the
Speaker of the House of Representatives shall, in like manner, submit
such objections to the House of Representatives for its decision; and no
electoral vote or votes from any State which shall have been regularly
given by electors whose appointment has been lawfully certified to
according to section 6 of this title [3 USCS § 6]15 from which but one
return has been received shall be rejected, but the two Houses
concurrently may reject the vote or votes when they agree that such
vote or votes have not been so regularly given by electors whose
appointment has been so certified. If more than one return or paper
purporting to be a return from a State shall have been received by the
President of the Senate, those votes, and those only, shall be counted
which shall have been regularly given by the electors who are shown
by the determination mentioned in section 5 [3 USCS § 5] of this title
to have been appointed, if the determination in said section provided
for shall have been made, or by such successors or substitutes, in case
of a vacancy in the board of electors so ascertained, as have been
appointed to fill such vacancy in the mode provided by the laws of the
State; but in case there shall arise the question which of two or more of
such State authorities determining what electors have been appointed,
as mentioned in section 5 of this title [3 USCS § 5], is the lawful
tribunal of such State, the votes regularly given of those electors, and
those only, of such State shall be counted whose title as electors the two
Houses, acting separately, shall concurrently decide is supported by the
decision of such State so authorized by its law; and in such case of more
than one return or paper purporting to be a return from a State, if there

 3 U.S.C. § 6 is inconsistent with the Electors Clause—which provides that electors “shall sign
and certify, and transmit sealed to the seat of the government of the United States” the results of
their vote, U.S. Const. art. II, § 1, cl. 2-3—because § 6 relies on state executives to forward the
results of the electors’ vote to the Archivist for delivery to Congress. 3 U.S.C. § 6. Although the
means of delivery are arguably inconsequential, the Constitution vests state executives with no
role whatsoever in the process of electing a President. A state executive lends no official
imprimatur to a given slate of electors under the Constitution. 
15

21

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 (emphasis added).
44.

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

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

OF THE

FEDERAL CONVENTION OF 1787, at 666 (1911). For all subsequent elections, when
there would be a Vice President to act as President of the Senate, the Constitution
vests the opening and counting in the Vice President.
22

45.

Second, the Electoral Count Act gives both the House of

Representatives and the Senate the power to vote, or “decide,” which of two or more
competing slates of electors shall be counted, and it requires the concurrence of both
to “count” the electoral votes for one of the competing slates of electors.
46.

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

authority to count votes in the first instance, and then the House may do so only in
the event that no candidate receives a majority counted by the President of the
Senate. There is no role for the Senate to participate in choosing the President.
47.

Third, the Electoral Count Act eliminates entirely the unique

mechanism by which the House of Representatives under the Twelve Amendment
is to choose the President, namely, where “the votes shall be taken by states, the
representation for each state having one vote.” U.S. CONST. amend. XII. The
Electoral Count Act is silent on how the House of Representatives is to “decide”
which electoral votes were cast by lawful electors.
48.

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

“if the two Houses shall disagree in respect of counting of such votes,” in which case
“the votes of the electors whose appointment shall have been certified by the
executive of the State … shall be counted.” This provision not only conflicts with
the President of the Senate’s exclusive authority and sole discretion under the
Twelfth Amendment to decide which electoral votes to count, but also with the State
23

Legislature’s exclusive and plenary authority under the Electors Clause to appoint
the Presidential Electors for their State.
49.

The Electoral Count Act is unconstitutional because it exceeds the

power of Congress to enact. It is well settled that “one legislature may not bind the
legislative authority of its successors,” United States v. Winstar Corp., 518 U.S. 839,
872 (1996), which is a foundational and “centuries-old concept,” id., that traces to
Blackstone’s maxim that “Acts of parliament derogatory from the power of
subsequent parliaments bind not.” Id. (quoting 1 WILLIAM BLACKSTONE,
COMMENTARIES *90). “There is no constitutionally prescribed method by which
one Congress may require a future Congress to interpret or discharge a constitutional
responsibility in any particular way.” Laurence H. Tribe, Erog v. Hsub and Its
Disguises: Freeing Bush v. Gore from Its Hall of Mirrors, 115 HARV. L. REV. 170,
267 n.388 (2001).
50.

The Electoral Count Act also violates the Presentment Clause by

purporting to create a type of bicameral order, resolution, or vote that is not presented
to the President. See U.S. CONST. art. I, § 7, cl. 3 (“Every Order, Resolution, or
Vote, to Which the Concurrence of the Senate and House of Representatives may be
necessary (except on a question of Adjournment) shall be presented to the President
of the United States; and before the Same shall take Effect, shall be approved by
him, or being disapproved by him, shall be repassed by two thirds of the Senate and
24

House of Representatives, according to the Rules and Limitations prescribed in the
Case of a Bill.”)
51.

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

Act asks them to resolve without either a supermajority in both houses or
presentment. The Electoral Count Act similarly restricts the authority of the House
of Representatives and the Senate to control their internal discretion and procedures
pursuant to Article I, Section 5 which provides that “[e]ach House may determine
the Rules of its Proceedings …” U.S. CONST. art. I, § 5, cl. 2.
52.

Further, the Electoral Count Act improperly delegates tie-breaking

authority to State executives (who have no agency under the Electors Clause or
election amendments) when a State presents competing slates that Congress cannot
resolve, or when an objection is presented to a particular slate of electors.
53.

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

separation-of-powers and anti-entrenchment doctrines. See generally Chris Land &
David Schultz, On the Unenforceability of the Electoral Count Act, 13 Rutgers J.L.
& Pub. Policy 340, 364-377 (2016).
JUSTICIABILITY AND JURISDICTION
54.

This Court Can Grant Declaratory Judgment in a Summary

Proceeding. This Court has the authority to enter a declaratory judgment and to
provide injunctive relief pursuant to Rules 57 and 65 of the Federal Rules of Civil
25

Procedure and 28 U.S.C. §§ 2201 and 2202. The court may order a speedy hearing
of a declaratory judgment action. Fed. Rules Civ. Proc. R. 57, Advisory Committee
Notes.

A declaratory judgment is appropriate when it will “terminate the

controversy” giving rise to the proceeding. Id. Inasmuch as it often involves only
an issue of law on undisputed or relatively undisputed facts, it operates frequently
as a summary proceeding, justifying docketing the case for early hearing as on a
motion. Id.
55.

As described above, Intervenors’ claims involve legal issues only –

specifically, whether the Electoral Count Act violates the Twelfth Amendment of
the U.S. Constitution – that do not require this court to resolve any disputed factual
issues.
56.

Moreover, the factual issues related to the justiciability of Intervenors’

claims are not in dispute. To assist this Court to grant the relief on the expedited
basis requested herein, Intervenors address a number of likely objections to this
Court’s jurisdiction and the justiciability of Intervenors’ claims that may be raised
by Defendant.
57.

Intervenors Have Standing. The Michigan Intervenors have standing

as Presidential Electors for the State of Michigan.
58.

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

under the Electors Clause as candidates for the office of Presidential Elector because,
26

under Arizona law, a vote cast for the Republican Party’s President and Vice
President is cast for the Republican Presidential Electors. See ARS § 16-212.
Similarly, Intervenors had standing under the Electors Clause as candidates for the
office of Presidential Elector because, under their State’s law, a vote cast for the
Republican Party’s President and Vice President is cast for the Republican
Presidential Electors Accordingly, Plaintiff Arizona Electors and Intervenors, 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.”).
59.

But for the alleged wrongful conduct of Arizona executive branch and

Maricopa County officials under color of law, by certifying a fraudulently produced
election result in Mr. Biden’s favor, the Plaintiff Arizona Electors would have been
27

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.
60.

Likewise, but for the alleged wrongful conduct of the executive

branches and the action of select County officials in their respective States under
color of law, by certifying a fraudulently produced election result in Mr. Biden’s
favor, the Intervenors would have been certified as the Presidential Electors for their
respective States, and their respective State’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
and Intervenors could suffer, namely, having a competing slate of electors take their
place and their votes in the Electoral College.
61.

The upcoming January 6, 2021 Joint Session of Congress provides

further grounds of standing for the requested declaratory judgment that the Electoral
Count Act is unconstitutional. Then, Intervenors are certain to suffer an injury-infact caused by Defendant Vice President Pence, acting as Presiding Officer, if
28

Defendant ignores the Twelfth Amendment and instead follows the procedures in
Section 15 of the Electoral Count Act to resolve the dispute over which slate of
Contested State electors is to be counted.
62.

The Twelfth Amendment gives Defendant exclusive authority and sole

discretion as to which set of electors to count, or not to count any set of electors; if
no candidate receives a majority of electoral votes, then the President is to be chosen
by the House, where “the votes shall be taken by States, the representation from each
state having one vote.” U.S. CONST. amend. XII. If Defendant Pence instead
follows the procedures in Section 15 of the Electoral Count Act, Intervenors’
electoral votes will not be counted because (a) the Democratic majority House of
Representatives will not “decide” to count the electoral votes of Intervenor
Republican electors; and (b) either the Senate will concur with the House not to
count their votes, or the Senate will not concur, in which case, the electoral votes
cast by Biden’s electors will be counted because the Biden slate of electors was
certified by Intervenors’ respective State’s executives.
63.

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

is threatened. The declaratory and injunctive relief requested by Intervenors “may
be made before actual completion of the injury-in-fact required for Article III
standing,” namely, the application of Section 15 of the Electoral Count Act, rather
than the Twelfth Amendment to resolve disputes over which of two competing slates
29

of electors to count “if the plaintiff can show an actual present harm or significant
possibility of future harm to demonstrate the need for pre-enforcement review.” 10
FED. PROC. L. ED. § 23.26 (“Standing to Seek Declaratory Judgment”) (citations
omitted).
64.

Intervenors have demonstrated above that this injury-in-fact is to occur

at the January 6, 2021 Joint Session of Congress, and they seek the requested
declaratory and injunctive relief “only in the last resort, and as a necessity in the
determination of a vital controversy.” Id.
65.

Intervenors Present a Live “Case or Controversy.” Intervenors’

claims present a live “case or controversy” with the Defendant, rather than
hypothetical or abstract dispute, that can be litigated and decided by this Court
through the requested declaratory and injunctive relief. Here there is a clear threat
of the application of an unconstitutional statute, Section 15 of the Electoral Count
Act, which is sufficient to establish the requisite case or controversy. See, e.g.,
Navegar, Inc. v. U.S., 103 F.3d 994, 998 (D.C. Cir. 1997) (“the threat of prosecution
provides the foundation of justiciability as a constitutional and prudential matter,
and the Declaratory Judgments Act provides the mechanism for seeking preenforcement review in federal court.”).
66.

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

slates of electors for the State of Arizona and the other Contested States: the Plaintiff
30

Arizona Electors, supported by Arizona State legislators (as evidenced by the
December 14, 2020 Joint Resolution and the participation of Arizona legislator
Intervenors), who cast their electoral votes for President Trump and Vice President
Pence, and one certified by the Arizona state executives who cast their votes for
former Vice President Biden and Senator Harris. Second, the text of the Twelfth
Amendment of the Constitution expressly commits to the Defendant Vice President
Pence, acting as the President of the Senate and Presiding Officer for the January 6,
2021 Joint Session of Congress, the authority and discretion to “count” electoral
votes, i.e., deciding in his sole discretion as to which one of the two, or neither, set
of electoral votes shall be counted. The Electoral Count Act similarly designates
Defendant as the Presiding Officer responsible for opening and counting electoral
votes, but sets forth a different set of procedures, inconsistent with the Twelfth
Amendment, for deciding which of two or more competing slates of electors and
electoral votes, or neither, shall be counted.
67.

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

competing slates of electors for Arizona and the other Contested States, and (2)
distinct and inconsistent procedures under the Twelfth Amendment and the Electoral
Count Act to determine which slate of electors and their electoral votes, or neither,
shall be counted in choosing the next President. Further, this controversy must be
resolved at the January 6, 2021 Joint Session of Congress. Finally, the Constitution
31

expressly designates Defendant Pence as the individual who decides which set of
electoral votes, or neither, to count, and the requested declaratory judgment that the
procedures under Electoral Count Act are unconstitutional is necessary to ensure that
Defendant Pence counts electoral votes in a manner consistent with the Twelfth
Amendment of the U.S. Constitution.
68.

The injuries that Intervenors assert affect the procedure by which the

status of their votes will be considered, which lowers the thresholds for immediacy
and redressability under this Circuit’s and the Supreme Court’s precedents. Nat’l
Treasury Employees Union v. U.S., 101 F.3d 1423, 1428-29 (D.C. Cir. 1996); Lujan
v. Defenders of Wildlife, 504 U.S. 555, 571-72 & n.7 (1992). Similarly, a plaintiff
with concrete injury can invoke Constitution’s structural protections of liberty. Bond
v. United States, 564 U.S. 211, 222-23 (2011).
69.

Intervenors’ Claims Are Ripe for Adjudication. Intervenors’ claims

are ripe for the same reasons that they present a live “case or controversy” within
the meaning of Article III. “[T]he ripeness doctrine seeks to separate matters that are
premature for review because the injury is speculative and may never occur from
those cases that are appropriate for federal court action.” Roark v. Hardee LP v. City
of Austin, 522 F.3d 533, 544 n.12 (5th Cir. 2008) (quoting ERWIN
CHEMERINSEY, FEDERAL JURISDICTION § 2.4.18 (5th Ed. 2007)).

As

explained above, the facts underlying the justiciability of Intervenors’ claims are not
32

in dispute. Further, it is certain or nearly certain that Intervenors will suffer an
injury-in-fact at the January 6, 2021 Joint Session of Congress, if Defendant Pence
disregards the exclusive authority and sole discretion granted to him under the
Twelfth Amendment to “count” electoral votes, and instead follows the conflicting
and unconstitutional procedures in Section 15 of the Electoral Count Act, pursuant
to which Intervenors’ electoral votes will be disregarded in favor of the competing
electors for the State of Arizona.
70.

Intervenors’ Claims Are Not Moot. Intervenors seek prospective

declaratory judgment that portions of the Electoral Count Act are unconstitutional
and injunctive relief prohibiting Defendant from following the procedures in Section
15 thereof that authorize the House and Senate jointly to resolve disputes regarding
competing slates of electors. This prospective relief would apply to Defendants’
future actions at the January 6, 2021 Joint Session of Congress. The requested relief
thus is not moot because it is prospective and because it addresses an
unconstitutional “ongoing policy” embodied in the Electoral Count Act that is likely
to be repeated and will evade review if the requested relief is not granted. Del Monte
Fresh Produce v. U.S., 570 F.3d 316, 321-22 (D.C. Cir. 2009).

33

COUNT I
DEFENDANT WILL NECESSARILY VIOLATE THE TWELFTH
AMENDMENT AND THE ELECTORS CLAUSE OF THE UNITED
STATES CONSTITUTION IF HE FOLLOWS THE ELECTORAL COUNT
ACT.
71.

Intervenors reallege all preceding paragraphs as if fully set forth

herein.
72.

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

Manner as the Legislature thereof may direct, a Number of Electors” for President
and Vice President. U.S. Const. art. II, §1, cl. 2 (emphasis added).
73.

The Twelfth Amendment of the U.S. Constitution gives Defendant

Vice President, as President of the Senate and the Presiding Officer of January 6,
2021 Joint Session of Congress, the exclusive authority and sole discretion to
“count” the electoral votes for President, as well as the authority to determine which
of two or more competing slates of electors for a State, or neither, may be counted,
or how objections to any single slate of electors is resolved. In the event no candidate
receives a majority of the electoral votes, then the House of Representatives shall
have sole authority to choose the President where “the votes shall be taken by states,
the representation from each state having one vote.” U.S. CONST. amend. XII.
74.

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

in the Twelfth Amendment with a different and inconsistent set of decision making
and dispute resolution procedures. As detailed above, these provisions of Section
34

15 of the Electoral Count Act are unconstitutional insofar as they require Defendant:
(1) to count the electoral votes for a State that have been appointed in violation of
the Electors Clause; (2) limits or eliminates his exclusive authority and sole
discretion under the Twelfth Amendment to determine which slates of electors for a
State, or neither, may be counted; and (3) replaces the Twelfth Amendment’s dispute
resolution procedure which provides for the House of Representatives to choose the
President under a procedure where “the votes shall be taken by states, the
representation from each state having one vote” – with an entirely different
procedure in which the House and Senate each separately “decide” which slate is to
be counted, and in the event of a disagreement, then only “the votes of the electors
whose appointment shall have been certified by the executive of the State … shall
be counted.” 3 U.S.C. § 15.
75.

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

by usurping the exclusive and plenary authority of State Legislatures to determine
the manner of appointing Presidential Electors and gives that authority instead to the
State’s Executive.
76.

Intervenors incorporate into their Complaint the claims, facts,

allegations and causes of action complained about and as contained in Plaintiffs’
Original Complaint filed herein.

35

PRAYER FOR RELIEF
77.

Accordingly, Intervenors respectfully request that this Court issue a

judgment that:
A. Declares that Section 15 of the Electoral Count Act, 3 U.S.C. §§5 and
15, is unconstitutional because it violates the Twelfth Amendment on
its face, Amend. XII, Constitution;
B. Declares that Section 15 of the Electoral Count Act, 3 U.S.C. §§5 and
15, is unconstitutional because it violates the Electors Clause. U.S.
CONST. art. II, § 1, cl. 1;
C. Declares that Vice-President Pence, in his capacity as President of
Senate and Presiding Officer of the January 6, 2021 Joint Session of
Congress, is subject solely to the requirements of the Twelfth
Amendment and may exercise the exclusive authority and sole
discretion in determining which electoral votes to count for a given
State;
D. Enjoins reliance on any provisions of the Electoral Count Act that
would limit Defendant’s exclusive authority and his sole discretion to
determine which of two or more competing slates of electors’ votes
are to be counted for President;

36

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

37

G. Enjoins the Defendant from executing his duties on January 6th during
the Joint Session of Congress in any manner that is insistent with the
declaratory relief set forth herein, and
H. Issue any other declaratory judgments or findings or injunctions
necessary to support or effectuate the foregoing declaratory
judgment.
Intervenors adopt Plaintiffs’ motion for a speedy summary proceeding under FRCP
Rule 57 to grant the relief requested herein as soon as practicable, and for
emergency injunctive relief under FRCP Rule 65 thereof consistent with the
declaratory judgment requested herein on that same date.
Respectfully submitted,
By: /s/ Charles Bundren
BUNDREN LAW GROUP, PLLC
Wm. Charles Bundren, Esq.
Lead Attorney and Attorney-in Charge
State Bar No. 03343200
2591 Dallas Parkway, Suite 300
Frisco, Texas 75034
[phone] Telephone
[phone] Facsimile
e-mail:
[e-mail]
ATTORNEY FOR INTERVENORS:

38

CERTIFICATE OF ELECTRONIC FILING
The undersigned hereby certifies that this document has been filed by
electronic means through the court's CM/ECF electronic filing system on the date
indicated below.
CERTIFICATE OF SERVICE UNDER LOCAL RULE
Pursuant to LOCAL RULE CV-5 (c)&(d) of the Local Civil Rules of the
United States District Court for the Eastern District of Texas, Notice of Electronic
Filing of this document automatically generated by this Court’s CM/ECF system
constitutes service of this document under Federal Rule of Civil Procedure
5(b)(2)(E) and is sufficient service by serving the parties indicated below.
CERTIFICATE OF SERVICE
This is to certify that on this 1st day of January 2020 a true and correct copy
of the foregoing document was served in accordance with the Federal Rules of Civil
Procedure and the United States District Court for the Eastern District of Texas Local
Rules on all legal counsel of record for any party and all pro se parties by serving
the following:
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]
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]
39

Lawrence J. Joseph
DC Bar No. 464777
Law Office of Lawrence J. Joseph
1250 Connecticut Ave, NW, Suite 700-1A
Washington, DC 20036
Tel: [phone]
Fax: [phone]
Email: [e-mail]
Julia Z. Haller
DC Bar No. 466921
Brandon Johnson
DC Bar No. 491370
Defending the Republic
601 Pennsylvania Ave., NW
Suite 900
South Building
Washington, DC 20004
Tel: [phone]
Fax: [phone]
Email: [e-mail]
Email: [e-mail]
ATTORNEYS FOR PLAINTIFFS.
JEFFREY BOSSERT CLARK
Acting Assistant Attorney General
JENNIFER B. DICKEY
Principal Deputy Assistant Attorney General
/s/ John V. Coghlan
JOHN V. COGHLAN
Deputy Assistant Attorney General
Federal Programs Branch
U.S. Department of Justice, Civil Division
950 Pennsylvania Avenue N.W.
Washington, DC 20530
Tel: [phone]
Email: [e-mail]
ATTORNEYS FOR DEFENDANT. 

40

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
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)
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]
ATTORNEYS FOR AMICUS U.S. HOUSE OF REPRESENTATIVES.
John S. Campbell, pro se
Amicus Curiae
17 Oakland Terrace
Mobile, AL 36604
[phone]
[e-mail]
AMICUS CURIAE

41

Alan Kennedy
Alan Hamilton Kennedy, Esquire
Colorado Bar No. 50275
1975 North Grant Street, # 421
Denver, CO 80203
[phone]
[e-mail]
PROPOSED INTERVENOR-DEFENDANT.
Timothy P. Dowling
Pro se
Texas State Bar No. 06083900
8017 Villefranche Dr.
Corpus Christi, TX 78414
[phone]
[e-mail]
PRO SE
__x__by the Court's CM/ECF Pacer electronic filing System pursuant to FRCP
5(b)(2)(E) and 5(b)(3), and LOCAL RULE CV-5 (c)&(d),
____ by certified mail return receipt requested deposited with the United States
Postal Service on the date indicated above pursuant to FRCP 5(b)(2)(C),
____ by email at the email address indicated above pursuant to FRCP 5(b)(2)(E),
and/or
____ by hand delivery service on the date indicated above pursuant to FRCP
5(b(2)(A) and
(B).
By: /s/ Charles Bundren
BUNDREN LAW GROUP, PLLC
Wm. Charles Bundren, Esq.
ATTORNEY FOR INTERVENORS:

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CERTIFICATE OF CONFERENCE
Intervenors’ Counsel has complied with the meet and confer requirements in
LOCAL RULE CV-7(h). Intervenors counsel, Mr. Bundren, conferred by personal
telephone call with Lewis Sessions, Esq. December 31, 2020, counsel for Plaintiffs
and Plaintiffs do not oppose Intervenors motion.
For Defendant, the personal conference required by LOCAL RULE CV-7(h)
was conducted on December 31, 2020 with John Coughlan, Esq., Counsel for
Defendant. Mr. Coughlan stated that Defendant takes no position with respect to
Intervenors’ motion
By: /s/ Charles Bundren
BUNDREN LAW GROUP, PLLC
Wm. Charles Bundren, Esq.
ATTORNEY FOR INTERVENORS:

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