Gohmert et al v. Pence

Filing 30

RESPONSE in Support re 2 Emergency MOTION for Preliminary Injunction AND EXPEDITED DECLARATORY JUDGMENT, 27 Unopposed MOTION for Extension of Time to File Plaintiff's Reply Brief filed by Tyler Bowyer, Nancy Cottle, Louie Gohmert, Jake Hoffman, Anthony Kern, James R. Lamon, Robert Montgomery, Sam Moorhead, Loraine Pellegrino, Greg Safsten, Kelli Ward, Michael Ward. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Errata Exhibit D, # 5 Exhibit Exhibit E)(Sessions, William)

Case 6:20-cv-00660-JDK Document 30 Filed 01/01/21 Page 1 of 43 PageID #: 335

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

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

Plaintiffs,
v.

(Election Matter)

THE HONORABLE MICHAEL R. PENCE, VICE
PRESIDENT OF THE UNITED STATES, in his
official capacity,
Defendant.
PLAINTIFFS’ REPLY IN SUPPORT OF EMERGENCY MOTION FOR
EXPEDITED DECLARATORY JUDGMENT AND EMERGENCY
INJUNCTIVE RELIEF
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]

William Lewis Sessions
Texas Bar No. 18041500
Sessions & Associates, PLLC
14591 North Dallas Parkway, Suite 400
Dallas, TX 75254
Tel: [phone]
Fax: [phone] (fax)
Email: [e-mail]

Lawrence J. Joseph
DC Bar No. 464777
Law Office of Lawrence J. Joseph
1250 Connecticut Ave, NW, Suite 700-1A
Washington, DC 20036
Tel: [phone]
Fax: [phone]
Email: [e-mail]

Julia Z. Haller
DC Bar No. 466921
Brandon Johnson
DC Bar No. 491370
Defending the Republic
601 Pennsylvania Ave., NW
Suite 900
South Building
Washington, DC 20004
Tel: [phone]
Fax: [phone]
Email: [e-mail]
Email: [e-mail]
Counsel for Plaintiffs

CASE NO. 6:20-CV-00660- JDK – REPLY IN SUPPORT OF MOTION FOR EXPEDITED
DECLARATORY JUDGMENT AND EMERGENCY INJUNCTIVE RELIEF

i

Case 6:20-cv-00660-JDK Document 30 Filed 01/01/21 Page 2 of 43 PageID #: 336

TABLE OF CONTENTS
Table of Contents ............................................................................................................................ ii
Introduction ......................................................................................................................................4
Facts 6
Argument .........................................................................................................................................7
I.

LEGAL AND HISTORICAL BACKGROUND. ................................................................7
A.
B.

The Vice Presidents of the Framers’ Generation Acted as Presiding
Officers and Established Rules of Parliamentary Procedure ...................................7
Presidential Electoral Count Provisions.................................................................10
1.
2.

C.

The Election of 1800. .................................................................................10
Legislative History and Ratification. .........................................................11

The Congress That Enacted 3 USC 5 Recognized that It Required a
Constitutional Amendment but Adopted the ECA as a Shortcut
Because They did not Have the Votes. ..................................................................11
1.

History of Competing State Electoral Slates .............................................13
a)

D.
II.

Binding Law, Congressional Rule, or Unreviewable
Statement of Principle/Moral Obligation? .....................................14

Plaintiffs’ requested remedy is warranted..............................................................16

Plaintiffs are likely to prevail on the merits. ......................................................................17
A.

The Electoral Count Act is unconstitutional. .........................................................17
1.
2.
3.
4.

5.
B.

Unconstitutional laws are nullities. ............................................................18
The Electoral Count Act violates the Electors Clause and
the Twelfth Amendment. ...........................................................................18
The Electoral Count Act violates the Constitution’s
structural protections of liberty. .................................................................18
The Electoral Count Act’s enactment in 1887 does not
create a vested right or tradition of violating the
Constitution. ...............................................................................................18
The Necessary and Proper Clause does not save the
Electoral Count Act....................................................................................20

Plaintiffs have a cause of action in this Court........................................................22
1.
2.
3.
4.
5.
6.

Ex parte Young applies. .............................................................................22
The Declaratory Judgment Act and Rule 57 apply. ...................................22
The action is not barred by laches..............................................................25
Transfer would be inappropriate. ...............................................................27
No absent third parties are necessary parties. ............................................27
28 U.S.C.§ 2403(a) does not require pausing relief. ..................................28

CASE NO. 6:20-CV-00660- JDK – REPLY IN SUPPORT OF MOTION FOR EXPEDITED
DECLARATORY JUDGMENT AND EMERGENCY INJUNCTIVE RELIEF

ii

Case 6:20-cv-00660-JDK Document 30 Filed 01/01/21 Page 3 of 43 PageID #: 337

C.

This Court has constitutional and prudential jurisdiction over
Plaintiffs’ claims. ...................................................................................................29
1.

This case presents an Article III case or controversy. ...............................30
a)
b)
c)
d)
e)
f)
g)
h)

2.

Prudential limits on Article III jurisdiction do not apply. ..........................37
a)
b)
c)

3.
4.
5.
6.
7.
III.

The parties seek different relief. ....................................................31
This Court must assume Plaintiffs’ merits views to
assess Plaintiffs’ standing to sue. ...................................................32
Plaintiffs suffer an injury in fact. ...................................................33
Plaintiffs’ injuries are traceable to Defendant. ..............................34
This Court can redress Plaintiffs’ injuries. ....................................36
Plaintiffs’ procedural injuries lower the
constitutional bar for immediacy and redressability. .....................36
This action is not moot...................................................................36
This action is ripe. ..........................................................................37
Plaintiffs are within the relevant zones of interests. ......................38
Rep. Gohmert can press the interests of his
constituents and of himself as a Texas voter. ................................39
This suit is not prudentially improper as a “friendly”
suit. .................................................................................................39

The Speech or Debate Clause does not insulate the Vice
President. ....................................................................................................40
Sovereign immunity does not bar this action. ............................................40
The political-question doctrine does not bar this suit. ...............................41
This case presents a federal question. ........................................................41
No abstention principles apply...................................................................41

Plaintiffs are entitled to emergency injunctive relief. ........................................................41

Conclusion .....................................................................................................................................41

CASE NO. 6:20-CV-00660- JDK – REPLY IN SUPPORT OF MOTION FOR EXPEDITED
DECLARATORY JUDGMENT AND EMERGENCY INJUNCTIVE RELIEF

iii

Case 6:20-cv-00660-JDK Document 30 Filed 01/01/21 Page 4 of 43 PageID #: 338

INTRODUCTION
Plaintiffs, U.S. Rep. Louie Gohmert (TX-1), Tyler Bowyer, Nancy Cottle, Jake Hoffman,
Anthony Kern, James R. Lamon, Sam Moorhead, Robert Montgomery, Loraine Pellegrino, Greg
Safsten, Kelli Ward, and Michael Ward, respectfully file this reply in support of their Motion for
Expedited Declaratory Judgment and Emergency Injunctive Relief (“Motion”). Neither the
opposition filed by the Defendant Vice President nor the supplemental arguments filed by amici
curiae briefs or would-be intervenors rebut the clear constitutional violations in Sections 5 and 15
of the Electoral Count Act of 1887, PUB. L. NO. 49–90, 24 Stat. 373 (codified at 3 U.S.C. §§ 5,
15), Plaintiffs’ right to petition this Court for review of those violations, or this Court’s jurisdiction
to enter the requested relief.

Before addressing the substantive and procedural arguments,

Plaintiffs first reiterate what their cause is about and what it is not about.
In 1787, James Madison explained that we live in a democratic republic, not a pure
democracy. That choice of government was designed by the framers of the Constitution, a
visionary work that has guided this country since its inception. The system of choosing a president
by the Electoral College, and not popular vote, was the product of deep thought and conviction. It
is the law of the land.
On January 6th, a joint session of Congress will convene to formally elect the President.
The defendant, Vice-President Pence, will preside. Under the Constitution, he has the authority to
conduct that proceeding as he sees fit. He may count elector votes certified by a state’s executive,
or he can prefer a competing slate of duly qualified electors. He may ignore all electors from a
certain state. That is the power bestowed upon him by the Constitution.
For over a century, the counting of elector votes and proclaiming the winner was a
formality to which the prying eye of the media and those outside the halls of the government paid

CASE NO. 6:20-CV-00660- JDK – REPLY IN SUPPORT OF MOTION FOR EXPEDITED
DECLARATORY JUDGMENT AND EMERGENCY INJUNCTIVE RELIEF

4

Case 6:20-cv-00660-JDK Document 30 Filed 01/01/21 Page 5 of 43 PageID #: 339

no attention.

But not this time.

Plaintiff Representative Gohmert, along with 140 of his

Republican House colleagues have announced that they will object to the counting of state certified
electors pledged to former Vice-President Biden1 because of the mounting and convincing
evidence of voter fraud in key swing states whose combined electoral count change the election
results. Ex. B.
The Court is now asked to rule on a pressing and critical question: which set of rules does
Vice-President Pence follow when confronted by these objections?

The rules set by the

Constitution, or those in a simple statute, 3 USC 15, last updated in 1948 by a session of Congress
long ago ended. Plaintiffs are not asking this Court to choose a winner of the presidential contest.
Nor are Plaintiffs asking the Court to rule on whether there was pervasive fraud in the swing states
that are subject to objection. Those are matters left to the January 6th joint session of Congress.
The issue before this Court hinges on an obvious and elementary concept – that a federal statute
cannot conflict or abrogate the United States Constitution.
In their submissions, Defendant and amici never reach this issue. Instead, they hide behind
procedural arguments such as standing, laches and other “gatekeeping” defenses that, as set forth
below, are easily disposed above. They argue that the January 6th joint session is no more than a
perfunctory coronation. A ceremony where the Vice-President is relegated to the mundane task
of opening envelopes filled with electoral votes certified by state governors. They say that the
Vice President, the glorified envelope-opener in chief, has no authority to preside over anything
else or to decide anything of substance or to even count the votes in those weighty envelopes. He
is only the envelope-opener.

1

Senator Josh Hawley has also pledged to object to the Biden electors in the contested states.
Ex. A.
CASE NO. 6:20-CV-00660- JDK – REPLY IN SUPPORT OF MOTION FOR EXPEDITED
DECLARATORY JUDGMENT AND EMERGENCY INJUNCTIVE RELIEF

5

Case 6:20-cv-00660-JDK Document 30 Filed 01/01/21 Page 6 of 43 PageID #: 340

This relief sought is supported by a clear historical perspective of the role of the Vice
President in the electoral process. Below, we set forth a brief study of the background to the VicePresident’s weighty and prudential powers afforded under the Constitution – the foundation of
American democracy -- which unequivocally entrusts to him all the prerogatives and rights to
determine what electoral votes to count or to disregard that are attendant to his role as President of
the Senate. We further explain how 3 USC 15 is unconstitutional and why it is of no force or effect
whatsoever. Finally, we discuss and dispose of the various defenses and arguments put forward
by the Defendant and amici.
This country is deeply divided along political lines. This division is compounded by a
broad and strongly held mistrust of the election processes employed and their putative result by a
very large segment of the American population. The Congress is set for a showdown on January
6th with over 140 House members pledging to object to Mr. Biden’s claim of victory. By
reaffirming the Constitutional prerequisites and processes for deciding the Presidential election
and granting the relief requested, this Court can set the stage for a calm and permanent resolution
of any and all objections and help smooth the path toward a reliable and peaceful conclusion to
the presidential election process. Accordingly, Plaintiffs’ motion for declaratory and injunctive
relief should be granted.
FACTS
In addition to the opposition (ECF #18) filed by the Defendant, Vice President Michael R.
Pence, the Democrat-dominated Bipartisan Legal Advisory Group (“BLAG”) of the U.S. House
of Representatives filed an amicus brief (ECF #22), with the two Republican BLAG members—
the Honorable Kevin McCarthy, Republican Leader, and the Honorable Steve Scalise, Republican
Whip—dissenting. See BLAG Br. at 1 n.1. In addition, a Texas resident— Timothy P. Dowling—

CASE NO. 6:20-CV-00660- JDK – REPLY IN SUPPORT OF MOTION FOR EXPEDITED
DECLARATORY JUDGMENT AND EMERGENCY INJUNCTIVE RELIEF

6

Case 6:20-cv-00660-JDK Document 30 Filed 01/01/21 Page 7 of 43 PageID #: 341

who supports former Vice President Joseph R. Biden’s candidacy moved to intervene (ECF #19),
also filing a motion to dismiss (ECF #20), and a Colorado elector for Mr. Biden— Alan Kennedy—
moved to intervene in a unified document (ECF #15) that includes a section opposing the merits
of Plaintiffs’ claims. For purposes of their Motion, Plaintiffs will treat the Dowling and Kennedy
filings as amicus briefs opposed to Plaintiffs’ Motion. See, e.g., Lelsz v. Kavanagh, 98 F.R.D. 11,
13 (E.D. Tex. 1982) (denying leave to intervene but allowing movant to file amicus brief).
Plaintiffs reserve the right to oppose the two motions to intervene, as well as to respond to the
Dowling motion to dismiss in the event that the Court grants the Dowling motion to intervene.
In the interval since Plaintiffs filed their Motion, Sen. Josh Hawley of Missouri has
announced the intent to object to Biden electors On the House side, in addition to Plaintiff Louie
Gohmert (“Rep. Gohmert”), approximately 140 Republican Members of the House have
announced plans to object to the Biden electors.
ARGUMENT
I.

LEGAL AND HISTORICAL BACKGROUND.
A.

The Vice Presidents of the Framers’ Generation Acted as Presiding Officers
and Established Rules of Parliamentary Procedure

While the discussion of the Vice President’s role in the Constitutional Convention and
Ratification Debates is sparse, two of the most significant Framers, John Adams and Thomas
Jefferson, subsequently served as Vice Presidents. In these roles, they immediately established
that the Vice President was not a merely ceremonial position, but rather an active and leading role
as Presiding Officer of the Senate in establishing rules of parliamentary procedure for the new
Congress.
Vice President Adams drew upon his knowledge of British parliamentary procedure in
presiding over the Senate. See Richard Allan Baker, The Senate of the United States: “Supreme
CASE NO. 6:20-CV-00660- JDK – REPLY IN SUPPORT OF MOTION FOR EXPEDITED
DECLARATORY JUDGMENT AND EMERGENCY INJUNCTIVE RELIEF

7

Case 6:20-cv-00660-JDK Document 30 Filed 01/01/21 Page 8 of 43 PageID #: 342

Executive Council of the Nation,” 1787-1800, in 1 THE CONGRESS OF THE UNITED STATES,
1787-1989, at 135, 148 (Joel H. Silbey ed., 1991). Vice President Jefferson, also on expert on
British parliamentary procedure, authored the Senate’s first manual of procedure. See Thomas
Jefferson, A Manual of Parliamentary Practice: for the Use of the Senate of the United States, in
JEFFERSON'S PARLIAMENTARY WRITINGS: “PARLIAMENTARY POCKET-BOOK”
AND A MANUAL OF PARLIAMENTARY PRACTICE (Wilbur Samuel Howell ed., 1988).
Thus, two of the most important men who not only wrote the Constitution, but also established
and documented the Senate’s first rules as Presiding Officers, did not see their role as clerks or
tabulators in counting votes. They were candidates and parliamentarians who also established the
rules and processes for deciding the winner (i.e., them in both cases). This is not a new or
convenient theory. In fact, this has been the case since the founding of the nation.
The process for electing the President was one of the most divisive of all issues debated in
the Philadelphia Convention, with competing proposals for direct election, federal congressional
election and state election argued. See 3 Jonathan Elliot , Debates on the Adoption of the Federal
Constitution 547 (James McClellan & M.E. Bradford eds., James River Press 1989) (2d ed. 1836).
Sixty ballots were taken before the original 1787 Constitution was adopted, pursuant to which
electors from each State, appointed by the State Legislature under the Electors Clause, elect the
President; or in the event no candidate receives a majority as counted by the Vice President, the
House of Representatives chooses the President by the “one vote per state delegation” rule.
U.S. CONST. art II, § 1, cl. 3, amended by U.S. CONST. amend. XII. Article II of the
Constitution provides, in relevant part:
The Electors shall meet in their respective States, and vote by Ballot
for two Persons, of whom one at least shall not be an Inhabitant of
the same State with themselves. And they shall make a List of all
the Persons voted for, and of the Number of Votes for each; which
CASE NO. 6:20-CV-00660- JDK – REPLY IN SUPPORT OF MOTION FOR EXPEDITED
DECLARATORY JUDGMENT AND EMERGENCY INJUNCTIVE RELIEF

8

Case 6:20-cv-00660-JDK Document 30 Filed 01/01/21 Page 9 of 43 PageID #: 343

List 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. 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., art. II, § 1, cl. 3 (amended by U.S. Const. amend. XII). (Emphasis added)
In The Federalist Papers, No. 68, Alexander Hamilton provides the rationale for the unique
role of Presidential Electors in electing the President of the United States. Hamilton first explains
that the choice of indirect election through electors, rather than direct democracy, because it is
preferable for “[a] small number of persons, selected by their fellow-citizens from the general
mass, will be most likely to possess the information and discernment requisite to such complicated
investigations,” and it will “afford as little opportunity as possible to tumult and disorder.”
Hamilton, Alexander. The Federalist Papers, No. 68, at 410-11 (C. Rossiter, ed. 1961).
Hamilton reasoned that the Electoral College should not meet as a national body in one
place, but instead should meet and elect the President in each State: the electors chosen in each
State are to assemble and vote in the State in which they are chosen. This detached and divided
construct intentionally exposes the electors to far less heats and ferments which might be
communicated from them to the people than if they were all convened at one time in one place.
Nothing was more desired by the Framers than that every practicable obstacle should be
opposed to cabal, intrigue, and corruption. These most deadly adversaries of republican
government might naturally have been expected to make their approaches from more than one
quarter -- but chiefly from foreign powers desire to gain an improper ascendant in our councils.
Id.
If no candidate received a majority of the Electors’ vote, then and only then, should the
decision be made by the national legislature, namely the House of Representatives: Id.

CASE NO. 6:20-CV-00660- JDK – REPLY IN SUPPORT OF MOTION FOR EXPEDITED
DECLARATORY JUDGMENT AND EMERGENCY INJUNCTIVE RELIEF

9

Case 6:20-cv-00660-JDK Document 30 Filed 01/01/21 Page 10 of 43 PageID #: 344

B.

Presidential Electoral Count Provisions.

The presidential electoral count procedures in the original Constitution are largely identical
to those in the Twelfth Amendment. These procedures – in particular those regarding the Vice
President’s role as Presiding Officer in counting electoral votes and the House’s “one vote per
state delegation” for choosing the President – were carried over into the Twelfth Amendment
verbatim -- with one important exception.
A critical and near fatal flaw in this process became apparent immediately after the
Presidency of George Washington, in the elections of 1796 and 1800, namely, that the while the
original Constitutional language gave each elector two votes, “it did not allow the electors to
designate one of their votes for President and one for Vice President.2” As a result, “the vice
presidency went to the losing Presidential candidate with the largest number of electoral votes.”
Richard K. Neumann, The Revival of Impeachment as a Partisan Political Weapon, 34 Hastings
Const. L.Q. 161, 180 (2002).
1.

The Election of 1800.

Thomas Jefferson lost the election of 1796 to John Adams, receiving the second highest
number of electoral votes. As a result, he became President Adams’ Vice President. Jefferson ran
for President again in 1800 for the Democratic-Republican Party, as the candidate for President
and Aaron Burr as candidate for Vice President. As sitting Vice President, Vice President
Jefferson was also President of the Senate and Presiding Officer over the Electoral College
proceedings. As such, he was responsible for counting electoral votes for himself and competing
candidates.

2

The Twelfth Amendment: A Constitutional Ticking Time Bomb, Nathan L. Colvin & Edward B. Foley, 65
U. MIAMI L. REV. 475, 489 (2010).

CASE NO. 6:20-CV-00660- JDK – REPLY IN SUPPORT OF MOTION FOR EXPEDITED
DECLARATORY JUDGMENT AND EMERGENCY INJUNCTIVE RELIEF

10

Case 6:20-cv-00660-JDK Document 30 Filed 01/01/21 Page 11 of 43 PageID #: 345

2.

Legislative History and Ratification.

In 1803, both Houses approved the text of the Twelfth Amendment, and 13 of 17 States
had ratified it by June of 1804. Foley (2010) at 490. The Amendment provides, in relevant part:
The Electors shall meet in their respective states and vote by ballot
for President and Vice-President, one of whom, at least, shall not be
an inhabitant of the same state with themselves; they shall name in
their ballots the person voted for as President, and in distinct ballots
the person voted for as Vice-President, and they shall make distinct
lists of all persons voted for as President, and of all persons voted
for as Vice-President, and of the number of votes for each, which
lists they shall sign and certify, and transmit sealed to the seat of the
government of the United States, directed to the President of the
Senate; -- 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 (emphasis added).
Commentators argue that the passive voice in the sentence “and the votes shall then be
counted” means that the President of the Senate, the Vice President, has “further powers hidden in
the passive voice” which today would be referenced as “discretion.” Bruce Ackerman & David
Fontana, Thomas Jefferson Counts Himself into the Presidency, 90 VA. L. REV. at 629 (2004).
This is consistent with the Framers’ original intent and their inherent bias that a presiding
officer was not merely a ceremonial figure, but one that has authority to render substantive
decisions in the face of disputes or other disruptions to the electoral process devolved to his
mandate.
C.

The Congress That Enacted 3 USC 5 Recognized that It Required a
Constitutional Amendment but Adopted the ECA as a Shortcut Because
They did not Have the Votes.

In Section 2 of the Electoral Count Act of 1887, codified at 3 U.S.C. § 5, Congress sought
to require States to resolve any disputes over the appointment of Presidential electors to avoid the
necessity for Congress to do so in the 1876 election. “What Congress wanted was for the states to

CASE NO. 6:20-CV-00660- JDK – REPLY IN SUPPORT OF MOTION FOR EXPEDITED
DECLARATORY JUDGMENT AND EMERGENCY INJUNCTIVE RELIEF

11

Case 6:20-cv-00660-JDK Document 30 Filed 01/01/21 Page 12 of 43 PageID #: 346

develop, or apply, their existing, more streamlined election laws to Presidential Elections.”
Stephen A Siegel, The Conscientious Congressman’s Guide to the Electoral Count Act of 1887,
56 Fla. L. Rev. 541, 585 (2004). Members of Congress recognized at the time that they could not
require states to do so “absent a constitutional amendment.” Id. at 586 (citations omitted). Because
Congress was “[u]nable to agree on any constitutional amendment,” it attempted, “to remove, as
far as it is possible to be done by legislation . . ., a difficulty which grows out of an imperfection
in the Constitution itself.’” Id. at 658-59 (quoting 17 Cong. Rec. 1019 (1886) (statement of Sen.
Hoar)).
This was a continuation of Congress’ prior debate over the repeal of the ReconstructionEra Twenty-Second Joint Rule of 1865 (“Joint Rule”), which had authorized either house of
Congress to reject a State’s electors. Republicans had been dominant in the Reconstruction Era
following 1865, but by 1875 it was “anticipated that the Democrats would control the House of
Representatives for the first time in two decades,” and “Senate Republicans were no longer willing
to allow the House to unilaterally discard electoral votes that could turn the outcome of the election
or throw the election to the House.” Nathan L. Colvin & Edward B. Foley, The Twelfth
Amendment: A Constitutional Ticking Time Bomb, 64 U. MIAMI L. REV. 475, 499 (2010).
In the run up to the 1876 election, the Senate debated repeal or modification of the Joint
Rule where the “primary disagreement” was whether Congress could adopt a rule permitting one
house of Congress to reject a State’s electoral votes “without a constitutional amendment,” and
“[t]he dividing lines were drawn between those did not believe the Constitution gave Congress a
right to say whether votes shall be counted or not be counted and those who did.” Id. at 500
(internal quotations and citations omitted). Consequently, if Congress itself cannot determine

CASE NO. 6:20-CV-00660- JDK – REPLY IN SUPPORT OF MOTION FOR EXPEDITED
DECLARATORY JUDGMENT AND EMERGENCY INJUNCTIVE RELIEF

12

Case 6:20-cv-00660-JDK Document 30 Filed 01/01/21 Page 13 of 43 PageID #: 347

whether to count (or not count votes), then that function must remain with the President of the
Senate.
1.

History of Competing State Electoral Slates

Historical precedent for dual electoral slates getting to the President of the Senate arose,
before the ECA. While the circumstances varied, in the Tilden and Hayes election of 1876 each
of three states submitted two or three slates of electors with at least one each for Tilden and Hayes.
There were also serious allegations of violence, voter intimidation, fraud, and corruption.
•

Florida: Three sets of electors: (1) Hayes, from Board of State Canvassers and signed by
Governor; (2) Tilden, alleging violence, voter intimidation, fraud, and discarding Tilden
ballots, “the slate of Presidential electors pledged to Tilden decided to go ahead and meet
as if they were the authorized Electoral College delegates from Florida,” certified by
Florida Attorney General; and (3) Tilden, when the Florida legislature called for a new
canvas, which certified electors for Tilden and a Florida court ruling that Tilden electors
were legitimate, the newly elected Democratic Governor certified third slate of electors for
Tilden. Foley (2010) at 503-04.

•

Louisiana: “The first slate of electors was for Hayes; it came from the canvassing board
and was certified by the ostensible governor. The second was for Tilden, with these electors
disregarding the work of the canvassing board on the ground that the board was corrupt.157
This slate was certified by a different individual who purported to be the lawful governor.
The third slate was in effect a duplicate of the first.” Id. at 504.

•

South Carolina: “South Carolina submitted two slates, one for Hayes from the Board of
Canvassers, certified by the governor, and another for Tilden, alleging that the Tilden
electors were the rightful voters.” Id.

CASE NO. 6:20-CV-00660- JDK – REPLY IN SUPPORT OF MOTION FOR EXPEDITED
DECLARATORY JUDGMENT AND EMERGENCY INJUNCTIVE RELIEF

13

Case 6:20-cv-00660-JDK Document 30 Filed 01/01/21 Page 14 of 43 PageID #: 348

•

Oregon: “In Oregon, the voters had elected a postmaster general as one of Hayes’s
electors, a possible violation of the constitutional prohibition against federal office holders
acting as electors. Because of this, the elector resigned from his office as postmaster, and
Oregon law allowed the remaining electors to choose a replacement; they chose the
resigned elector. The Democratic Oregon governor refused to certify this slate of electors
and instead certified a slate with two Hayes electors and a Tilden elector as a replacement
for the former postmaster. The secretary of state, on the other hand, submitted a certificate
that contained the three original Hayes electors and noted that there was no question that
the Hayes electors received the most votes on election day.” Id. at 504-05.

As a result of this tumult, Congress found a quick fix to potential future disruptions through
enactment of the ECA.
a)

Binding Law, Congressional Rule, or Unreviewable Statement
of Principle/Moral Obligation?

“Whether the ECA is a statute or a joint rule enacted in statutory form is ambiguous. In
truth, both theories underlay its enactment. The difference between the two theories disappears,
however, to the extent that the ECA involves political questions not subject to judicial review. The
difference between the two theories also disappears to the extent that Congress self-enforces its
own internal rules.” Siegel at 565.
Internal Rule: “Many congressmen spoke in opposition to the ECA on the grounds that
legislating the matter was an unconstitutional attempt to bind Congress's discretion. It was
unconstitutional, they said, because enacting and amending legislation required Presidential
approval (or an extraordinary majority in Congress), and thus improperly involved the President
in implementing the rules for determining Presidential Elections. In addition, one Congress could
never bind another in this matter. Congress could govern itself, they reasoned, by enacting
CASE NO. 6:20-CV-00660- JDK – REPLY IN SUPPORT OF MOTION FOR EXPEDITED
DECLARATORY JUDGMENT AND EMERGENCY INJUNCTIVE RELIEF

14

Case 6:20-cv-00660-JDK Document 30 Filed 01/01/21 Page 15 of 43 PageID #: 349

concurrent rules for each vote count, or a continuing joint rule which the houses could amend at
any time.” Siegel at 560-61.
Binding Legislation: “Many other congressmen believed that electoral vote counting was
a proper subject for binding legislation. Congress's rulemaking authority governed its own
proceedings, and the ECA was properly legislative because through it the two houses adopted rules
to govern each other's actions. Moreover, the power to count electoral votes was a power vested
in the national government, and the Sweeping Clause allows Congress to “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 Department . . . thereof.” Siegel at
561.
“Recognizing the equality of the houses of Congress, the authors of the ECA presumed
that, under the Constitution, Congress could not count an electoral vote unless both the House and
the Senate agreed that it should be counted. Given the frequency of houses of Congress being
controlled by different political parties, frequent tie votes and the inability to decide questions
raised during the count were ever-present threats when Congress met to count electoral votes. …
The ECA, in effect, arbitrated differences between the houses by “reduc[ing] to a minimum the
cases where any difference [between the houses] can properly arise.’” Stephen A Siegel, The
Conscientious Congressman’s Guide to the Electoral Count Act of 1887, 56 Fla. L. Rev. 541, 557
(2004).
Unreviewable/Unenforceable Statement of Principle/Moral Obligation: “These
congressmen assumed that Congress's electoral count decisions were not subject to judicial review.
Because they believed that ‘[n]o power in this Government can or ever will set aside and annul the

CASE NO. 6:20-CV-00660- JDK – REPLY IN SUPPORT OF MOTION FOR EXPEDITED
DECLARATORY JUDGMENT AND EMERGENCY INJUNCTIVE RELIEF

15

Case 6:20-cv-00660-JDK Document 30 Filed 01/01/21 Page 16 of 43 PageID #: 350

declaration of who is elected President . . . when that declaration is made in the presence of the
two Houses of Congress.’” Siegel at 563.
“Yet, to these congressmen, an unenforceable law was better than no agreement at all. In
addition, they believed an unenforceable law was better than a joint rule because of the law's
greater ability to bind Congress's conscience and create a moral obligation to abide by its terms.
Congress understood that even if the ECA enacted rules of only moral obligation, it nonetheless
would constrain behavior both outside and inside Congress” Siegel at 564. In Chris Land &
David Schultz, ON THE UNENFORCEABILITY OF THE ELECTORAL COUNT ACT, 13
Rutgers J.L. & Pub. Pol'y 340, 386 (2016), Land and Shultz note that, while the concept of nonbinding “rulemaking statutes” and “anti-entrenchment clauses” developed during the 20th
Century, “a number of Congressmen stated during debate on the ECA that this measure would
attempt in vain to entrench procedures that would bind future Congresses.” Land at 376 (citing 8
CONG. REC. 164 (1878)
As stated by Sen. Augustus Garland in debate on a precursor to the ECA: “An act passed
by a previous Congress assuming to bind ... a succeeding Congress need not be repealed
because it is void; and for that I reason I oppose this bill.” Id. (Emphasis added).
Plaintiffs could not have stated the principle any clearer.

The ECA is void and

unconstitutional because a previous Congress cannot bind a succeeding one.
D.

Plaintiffs’ requested remedy is warranted.

Amicus BLAG argues that abandoning the ECA will create havoc and cast the upcoming
January 6th Joint Session into turmoil. They offer a “parade of horribles” that somehow justify
continuing with a statutory scheme that flies on the face of the Constitution and the Framer’s intent.
They argue, “we know better” than those who framed the Constitution. Indeed, under their casual

CASE NO. 6:20-CV-00660- JDK – REPLY IN SUPPORT OF MOTION FOR EXPEDITED
DECLARATORY JUDGMENT AND EMERGENCY INJUNCTIVE RELIEF

16

Case 6:20-cv-00660-JDK Document 30 Filed 01/01/21 Page 17 of 43 PageID #: 351

degradation of the Vice-President’s role at the Joint Session, they may be right. If we abandon the
ECA, there is no one in charge. And that’s precisely the point.
The Constitution did not leave matters to chance. It empowered the Vice-President to take
control of the proceeding and resolve disputes. Therefore, the remedy sought by Plaintiffs is easily
crafted. The Court should declare that:
•

ECA sections 5 and 15 are unconstitutional.

•

When a member of the House objects to a slate of electors or between two slates of
competing electors presented for any single state, the Vice President, as President of the
Senate, shall determine the dispute as he sees fit. He may choose between competing
elector slates or he may choose to disregard electors altogether from any state.

•

If after all the states’ electors are counted, no single candidate had 270 votes, the House
shall vote for President, which each State delegation having one vote.

The sections that follow demonstrate Plaintiffs’ entitlement to that relief.
II.

PLAINTIFFS ARE LIKELY TO PREVAIL ON THE MERITS.
In evaluating a plaintiff’s claim for interim or emergency relief, the first—and most

important—factor is the likelihood of movants’ prevailing. Winter v. Natural Resources Def.
Council, Inc., 555 U.S. 7, 20 (2008). As set forth in this section, Plaintiffs are likely to prevail
because they are right on the merits, have a cause of action against the Defendant in this Court,
and this Court has jurisdiction over Plaintiffs’ claims.
A.

The Electoral Count Act is unconstitutional.

With limited exceptions, the Defendant and amici rely jurisdictional and prudential gatekeeper arguments to avoid the merits. In so doing, they largely concede the merits. See U.S. Bank
Nat'l Ass'n v. Verizon Commc'ns, Inc., 761 F.3d 409, 425 (5th Cir. 2014).

CASE NO. 6:20-CV-00660- JDK – REPLY IN SUPPORT OF MOTION FOR EXPEDITED
DECLARATORY JUDGMENT AND EMERGENCY INJUNCTIVE RELIEF

17

Case 6:20-cv-00660-JDK Document 30 Filed 01/01/21 Page 18 of 43 PageID #: 352

1.

Unconstitutional laws are nullities.

Neither the Defendant nor amici dispute that—to the extent a statute is unconstitutional—
the statute is a nullity. See Pls.’ Mot. at 18.
2.

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

Neither the Defendant nor his amici dispute that nothing in the Constitution supports the
Electoral Count Act’s use of the state executive’s decisions on a state’s voting. See Pls.’ Mot. at
18-22.
3.

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

Neither the Defendant nor his amici dispute that the Electoral Count Act violates the
Presentment Clause. See Pls.’ Mot. at 22-23.
4.

The Electoral Count Act’s enactment in 1887 does not create a vested
right or tradition of violating the Constitution.

Amicus BLAG argues not only that the Electoral Count Act creates a “tradition” but also
that “since the Presidential election of 1888 that Congress has conducted the Joint session pursuant
to the procedures set forth in the Electoral Count Act of 1887.” BLAG Br. at 2. Citing Chiafalo
v. Washington, 140 S.Ct. 2316, 2326 (2020), Amicus BLAG further argues that “[s]uch a long and
established practice [carries] great weight in a proper interpretation of constitutional provisions.”
BLAG Br. at 20. Similarly, Defendant’s brief argues that the Electoral Count Act is “procedure”
that “[f]ollow[s] a century of debate over the appropriate process under the Constitution for
counting electoral votes and resolving any objections thereto, Congress enacted the Electoral
Control Act of 1887.” Def.’s Opp’n at 2.
The Chiafalo Court, however, held that
“[T]he presidential electors,” one historian writes, “were understood
to be instruments for expressing the will of those who selected them,
CASE NO. 6:20-CV-00660- JDK – REPLY IN SUPPORT OF MOTION FOR EXPEDITED
DECLARATORY JUDGMENT AND EMERGENCY INJUNCTIVE RELIEF

18

Case 6:20-cv-00660-JDK Document 30 Filed 01/01/21 Page 19 of 43 PageID #: 353

not independent agents authorized to exercise their own judgment.”
Whittington, Originalism, Constitutional Construction, and the
Problem of Faithless Electors, 59 Ariz. L. Rev. 904, 911 (2017).
And when the time came to vote in the Electoral College, all but one
elector did what everyone expected, faithfully representing their
selectors’ choice of presidential candidate.
Chiafalo v. Washington, 140 S.Ct. at 2326. Wherein Presidential Electors went against their own
party candidates as individuals - despite their elected roles… and completely in opposite to the
case at bar where Plaintiff Electors, unified with their Party’s Presidential nominee, seek relief on
the unconstitutional application of the ECA because of its direct violation of how their slate of
electors’ votes are to be treated under it versus the Twelfth Amendment. The Supreme Court
explained that in Chiafalo, “[t]he Electors’ constitutional claim has neither text nor history on its
side.” Id. at 2328. Whereas these Plaintiffs submit that both history and text of the Twelfth
Amendment is on their side – which neither the House in its Amicus or the Defendant actually
genuinely dispute, but instead relying heavily on the history of process since 18883--while ignoring
the history that led to the Congressional Amendment of the Twelfth Amendment.
The passage of time does not bar fresh challenges to the application of unconstitutional or
ultra vires laws or regulations. Texas v. United States, 749 F.2d 1144, 1146 (5th Cir. 1985).
“Arbitrary [governmental] action becomes no less so by simple dint of repetition.” Judulang v.
Holder, 565 U.S. 42, 61 (2011). Mere “tradition” is no basis for preserving legal doctrines that
plainly violate the Constitution. Compare Plessy v. Ferguson, 163 U.S. 537, 540 (1896) with
Brown v. Bd. of Educ., 347 U.S. 483, 495 (1954). Defendant cannot claim “prejudice” from a suit
that challenges the Electoral Count Act in the first election since that statute’s enactment in 1887
where the statute could unconstitutionally affect the outcome.

3

The Electoral Count Act was amended in 1948 in its present form, but never has it been
passed as a Constitutional Amendment.
CASE NO. 6:20-CV-00660- JDK – REPLY IN SUPPORT OF MOTION FOR EXPEDITED
DECLARATORY JUDGMENT AND EMERGENCY INJUNCTIVE RELIEF

19

Case 6:20-cv-00660-JDK Document 30 Filed 01/01/21 Page 20 of 43 PageID #: 354

5.

The Necessary and Proper Clause does not save the Electoral Count
Act.

Amicus BLAG argues that the Necessary and Proper Clause authorized Congress to enact
the Electoral Count Act.4 BLAG Br. at 21. The Twelfth Amendment is not one of the “foregoing
powers” under the Clause, id., and the Twelfth Amendment does not expressly vest any power in
the Congress to count votes or to vote, unless and until no candidate achieves a majority of electoral
votes. See U.S. CONST. amend. XII. To the extent that the Constitution does vest a disputeresolution power for the vote-counting function, that power could just as easily be assigned to the
Vice President as an “officer thereof” as to Congress itself under the express terms of the Necessary
and Proper Clause. U.S. CONST. art. I, §8, cl. 18. Indeed, Vice Presidents Adams and Jefferson
undertook such actions in the 1796 and 1800 elections, Bruce Ackerman & David Fontana,
Thomas Jefferson Counts Himself into the Presidency, 90 VA. L. REV. 551, 585, 571-90 (2004),
and the United States adopted the Twelfth Amendment shortly thereafter, without trimming the
Vice President’s responsibilities.
To contrary, as Justice Story explained, neither the original Constitution nor the Twelfth
Amendment included a dispute-resolution provision:
In the original plan, as well as in the amendment, no provision is
made for the discussion or decision of any questions, which may
arise, as to the regularity and authenticity of the returns of the
electoral votes …. It seems to have been taken for granted, that no
question could ever arise on the subject; and that nothing more was
necessary, than to open the certificates, which were produced, in the
presence of both houses, and to count the names and numbers, as
returned.

The Clause provides that “Congress shall have power … [t]o make all laws which shall be
necessary and proper for carrying into execution the foregoing powers, and all other powers vested
by this Constitution in the government of the United States, or in any department or officer
thereof.” U.S. CONST. art. I, §8, cl. 18.
4

CASE NO. 6:20-CV-00660- JDK – REPLY IN SUPPORT OF MOTION FOR EXPEDITED
DECLARATORY JUDGMENT AND EMERGENCY INJUNCTIVE RELIEF

20

Case 6:20-cv-00660-JDK Document 30 Filed 01/01/21 Page 21 of 43 PageID #: 355

J. Story, 3 COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 1464 (Boston, Hilliard,
Gray, & Co. 1833). Whatever the Vice President’s dispute-resolution powers, the House’s theory
of dispute resolution by the House and Senate is constitutionally impossible.
Constitutional law recognizes two distinct types of unconstitutionality: “laws for the
accomplishment of objects not entrusted to the government” and those “which are prohibited by
the constitution.” McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 423 (1819). Put another way,
“a federal statute, in addition to being authorized by Art. I, § 8, must also ‘not [be] prohibited’ by
the Constitution.” United States v. Comstock, 560 U.S. 126, 135 (2010) (quoting McCulloch, 17
U.S. (4 Wheat.) at 421) (alterations in Comstock, emphasis added). Clearly, “the Constitution does
not conflict with itself by conferring, upon the one hand, a … power, and taking the same power
away, on the other, by the limitations of the due process clause.” Brushaber v. Union Pac. R. Co.,
240 U.S. 1, 24 (1916). As applied here, that means that the Necessary and Proper Clause did not
authorize the joint session or the two houses, separately, to violate the Presentment Clause. See
Pls.’ Mot. at 22-23 (all votes, resolutions, and orders—except adjournments—require
presentment).
The fact that Congress steadfastly believed in bicameral resolutions steadfastly until the
Supreme Court resolved the issues almost 200 years into the Constitution, INS v. Chadha, 462
U.S. 919, 946 (1983), goes a long way to explaining how the Electoral Count Act survived 133
years:
A close reading of Chadha, unavailable of course to the participants
in the Electoral Count Act debates, fortifies the basic argument
made by Senator George and casts further doubt upon the
constitutionality of the Electoral Count Act. The Chadha Court
carefully explained why the "one-House veto" provision of the
Immigration and Nationality Act was subject to the requirements of
bicameralism and presentment in Article I. The Court began by
noting that whether actions taken by either House are, in law and
CASE NO. 6:20-CV-00660- JDK – REPLY IN SUPPORT OF MOTION FOR EXPEDITED
DECLARATORY JUDGMENT AND EMERGENCY INJUNCTIVE RELIEF

21

Case 6:20-cv-00660-JDK Document 30 Filed 01/01/21 Page 22 of 43 PageID #: 356

fact, an exercise of legislative power depends not on their form but
upon whether they contain matter which is properly to be regarded
as legislative in its character and effect. The Court then described
the one-House veto provision in that case as one that had the purpose
and effect of altering the legal rights, duties and relations of persons,
including the Attorney General, Executive Branch officials and
Chadha, all outside the legislative branch[.]
Vasan Kesavan, Is the Electoral Count Act Unconstitutional?, 80 N.C.L. REV. 1653, 1791 (2002).
A second factor is that the last election where the Electoral Count Act would have mattered was
in 1876 (i.e., more than a decade prior to its enactment). It should be no surprise that Plaintiffs
bring this suit now, a fortnight after an electoral vote in which the Electoral Count Act matters for
the first time. These two factors—the advent of Chadha in 1983 and the novelty of this pandemic
election in 2020—readily answer the House’s incredulity about “why now?”
B.

Plaintiffs have a cause of action in this Court.

Plaintiffs have a cause of action under Ex parte Young and the Declaratory Judgment Act.
1.

Ex parte Young applies.

The availability of judicial review does not hinge on the merits of an argument that
government action violated a statute or the Constitution: “inquiry into whether suit lies [for judicial
review] under Ex parte Young does not include [merits] analysis,” Verizon Md., Inc. v. Public Serv.
Comm’n of Md., 535 U.S. 635, 636-37 (2002). Plaintiffs allege that proceeding under the Electoral
Count Act violates the Constitution, and this is all the is required for purposes of a cause of action.
2.

The Declaratory Judgment Act and Rule 57 apply.

With the advent of the Declaratory Judgment Act, 28 U.S.C. §§2201-2202 (“DJA”),
equitable relief in the form of a declaration of the law is even more readily available that traditional
equitable relief in the form of injunctions. The federal-question statute, 28 U.S.C. §1331, provides
subject-matter jurisdiction for nonstatutory review of federal agency action. Califano v. Sanders,
430 U.S. 99, 105 (1977) (1976 amendments to §1331 removed the amount-in-controversy
CASE NO. 6:20-CV-00660- JDK – REPLY IN SUPPORT OF MOTION FOR EXPEDITED
DECLARATORY JUDGMENT AND EMERGENCY INJUNCTIVE RELIEF

22

Case 6:20-cv-00660-JDK Document 30 Filed 01/01/21 Page 23 of 43 PageID #: 357

threshold for “any [federal-question] action brought against the United States, any agency thereof,
or any officer or employee thereof in his official capacity”) (quoting Pub. L. 94-574, 90 Stat. 2721
(1976)), and 28 U.S.C. §2201(a) authorizes declaratory relief “whether or not further relief …
could be sought.” Accord Duke Power Co. v. Carolina Envtl. Study Group, Inc., 438 U.S. 59, 7071 n.15 (1978); Steffel v. Thompson, 415 U.S. 452, 471-72 (1974). Since 1976, §1331 has
authorized DJA actions against federal officers, regardless of the amount in controversy. Sanders,
430 U.S. at 105 (quoted supra). Declaratory relief makes it even easier for parties to obtain preenforcement review.5
Significantly, the availability of declaratory relief against federal officers predates the
Administrative Procedure Act, 5 U.S.C. §§ 551-706 (“APA”), see WILLIAM J. HUGHES, FEDERAL
PRACTICE §25387 (1940 & Supp. 1945); EDWIN BORCHARD, DECLARATORY JUDGMENTS, 787-88,
909-10 (1941), and the APA did not displace such relief, either as enacted in 1946 or as amended
in 1976. See APA LEG. HIST., at 37, 212, 276; 5 U.S.C. §559; Darby v. Cisneros, 509 U.S. 137,
153 (1993) (rejecting argument that 1976 APA amendments expanded APA’s preclusion of
review). Thus, even if APA §10(c) precludes declaratory relief under the APA, 5 U.S.C. §704,
suitable plaintiffs nonetheless can obtain that relief under the DJA.
The Fifth Circuit has identified a nonexclusive list of seven factors that a district court must
consider when exercising its discretion to hear, stay, or dismiss a case brought under the DJA.

5

In 1980, Congress amended §1331 to its current form, Pub. L. No. 96-486, §2(a), 94 Stat.
2369 (1980), without repealing the 1976 amendment relied on by Sanders and its progeny. H.R.
REP. NO. 96-1461, at 3-4, reprinted in 1980 U.S.C.C.A.N. 5063, 5065; Bowen v. Massachusetts,
487 U.S. 879, 891 n.16 (1988); U.S. v. Mitchell, 463 U.S. 206, 227 & n.32 (1983); cf. Morton v.
Mancari, 417 U.S. 535, 550 (1974) (repeal by implication is disfavored). Indeed, “‘repeals by
implication are disfavored,’ and this canon of construction applies with particular force when the
asserted repealer would remove a remedy otherwise available.” Schlesinger v. Councilman, 420
U.S. 738, 752 (1975).
CASE NO. 6:20-CV-00660- JDK – REPLY IN SUPPORT OF MOTION FOR EXPEDITED
DECLARATORY JUDGMENT AND EMERGENCY INJUNCTIVE RELIEF

23

Case 6:20-cv-00660-JDK Document 30 Filed 01/01/21 Page 24 of 43 PageID #: 358

(1) whether there is a pending state action in which all of the matters
in controversy may be fully litigated; (2) whether the plaintiff filed
suit in anticipation of a lawsuit filed by the defendant; (3) whether
the plaintiff engaged in forum shopping in bringing the suit; (4)
whether possible inequities in allowing the declaratory plaintiff to
gain precedence in time or to change forums exist; (5) whether the
federal court is a convenient forum for the parties and witnesses; (6)
whether retaining the lawsuit would serve the purposes of judicial
economy; and (7) whether the federal court is being called on to
construe a state judicial decree involving the same parties and
entered by the court before whom the parallel state suit between the
same parties is pending.
Sherwin-Williams Co. v. Holmes Cty., 343 F.3d 383, 388 (5th Cir. 2003); see also Frye v. Anadarko
Petroleum Corp., 953 F.3d 285, 293-94 (5th Cir. 2019) (requiring actual controversy, the court’s
authority for declaratory relief, and the court’s discretion).
Under the Sherwin-Williams factors, this Court should grant the requested declaratory
relief:
•

Pending state action. There is no pending state action.

•

Anticipatory suit. The declaratory-judgment Plaintiffs did not race the Defendant to the
courthouse; Defendant did not plan to sue Plaintiffs.

•

Forum shopping. Rep. Gohmert is the lead plaintiff and has brought suit in his home
district as Title 28 allows federal plaintiffs to do. Plaintiff Arizona Electors have no other
ties to this forum, but their claims do not materially change the claims before this Court.

•

Possible inequities on timing and forum. Rep. Gohmert is the lead plaintiff and has
brought suit in his home district as Title 28 allows federal plaintiffs to do.

•

Federal court’s convenience. Given that Plaintiffs have sued the Vice President of the
United States on a question of federal law, a state forum would not be an option.

•

Judicial economy. There are no concerns about judicial economy because this is the only
action .between the parties.

CASE NO. 6:20-CV-00660- JDK – REPLY IN SUPPORT OF MOTION FOR EXPEDITED
DECLARATORY JUDGMENT AND EMERGENCY INJUNCTIVE RELIEF

24

Case 6:20-cv-00660-JDK Document 30 Filed 01/01/21 Page 25 of 43 PageID #: 359

•

Federalism concerns from parallel actions. There are no parallel state-court actions for
Rep. Gohmert, and—although the Arizona Elector Plaintiffs have engaged in state-court
litigation—the issues here are purely federal.

This Circuit’s primary concern with declaratory-judgment actions is whether, under that the
standard of Brillhart v. Excess Ins. Co. of Am., 316 U.S. 491 (1942), “the questions in controversy
between the parties to the federal suit … can be better settled in the proceeding pending in the state
court.” Sherwin-Williams, 343 F.3d at 389 (quoting Brillhart v. Excess Ins. Co. of Am., 316 U.S.
at 494). As indicated, this is an entirely federal action that does not raise that concern.
Under the parallel Anadarko Petroleum standards, declaratory relief is also appropriate
under the exigent circumstances here:
•

An actual controversy is imminent. The concern with that an actual controversy exists
is easily met by the exigent circumstances of a contested election potentially being decided
under an unconstitutional process as early as January 6. See Section II, supra. That does
not trigger the Fifth Circuit’s concern that the dispute is “not sufficiently definite and
immediate to be justiciable.” Anadarko Petro. Corp., 953 F.3d at 293.

•

Jurisdiction. This Court has jurisdiction for this dispute, see Section II.C, supra, and none
of the concerns about superior state-court jurisdiction or burdens of factual proof for
diversity jurisdiction enter into the analysis. See id.

•

Discretion. Plaintiffs respectfully submit that this Court must address the constitutional
concerns presented here: “ flores
3.

The action is not barred by laches.

Amicus BLAG cites laches—namely, an “unreasonable, prejudicial delay in commencing
suit,” Petrella v. MGM, 572 U.S. 663, 667 (2014)—as a basis to dismiss this action or deny relief.

CASE NO. 6:20-CV-00660- JDK – REPLY IN SUPPORT OF MOTION FOR EXPEDITED
DECLARATORY JUDGMENT AND EMERGENCY INJUNCTIVE RELIEF

25

Case 6:20-cv-00660-JDK Document 30 Filed 01/01/21 Page 26 of 43 PageID #: 360

BLAG Br. at 14-19. Because Plaintiffs did not have a ripe claim until December 14, 2020 and
filed this action on December 27, 2020, laches presents no question of unreasonable delay.
Plaintiffs’ timing is measured from their claims’ arising, not from the enactment of the Electoral
Count Act in 1887:
It is axiomatic that a claim that has not yet accrued is not ripe for
adjudication.
Sid Richardson Carbon & Gasoline Co. v. Interenergy Res., 99 F.3d 746, 756 (5th Cir. 1996). For
that reason, Justice Blackmun aptly called laches “precisely the opposite argument” from ripeness.
Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 915 n.16 (1990) (Blackmun, J., dissenting); accord
What-A-Burger of Va., Inc. v. Whataburger, Inc., 357 F.3d 441, 449-50 (4th Cir. 2004) (“‘One
cannot be guilty of laches until his right ripens into one entitled to protection. For only then can
his torpor be deemed inexcusable’”) (quoting 5 J. Thomas McCarthy, MCCARTHY

ON

TRADEMARKS AND UNFAIR COMPETITION § 31: 19 (4th ed. 2003); Gasser Chair Co. v. Infanti
Chair Mfg. Corp., 60 F.3d 770, 777 (Fed. Cir. 1995) (same); Profitness Physical Therapy Ctr. v.
Pro-Fit Orthopedic & Sports Physical Therapy P.C., 314 F.3d 62, 70 (2d Cir. 2002) (same).
Because Plaintiffs could not have brought this action before the electoral college vote on December
14, 2020., this Court should reject any suggestion of unreasonable delay.6

6

In support of its timing argument, BLAG cites a raft of extra-Circuit district court decisions
and one unreported decision from this Court. See BLAG Br. at 15 n.5. In Collins v. W. Digital
Techs., Inc., 2011 WL 3849310, 2011 U.S. Dist. LEXIS 96663, at *14 (E.D. Tex. Aug. 29, 2011)
(No. 2:09-cv-219-TJW), the plaintiff waited 13 years to file suit. By contrast, Plaintiffs waited 13
days to file their Complaint. Specifically, Plaintiffs’ claims arose on December 14, 2020, and
Plaintiffs filed their complaint on December 27, 2020. Comparing 13 years to 13 days is absurd.
Although BLAG’s citation to Day v. McDonough, 547 U.S. 198, 209 (2006), has higher pedigree
than the other citations in BLAG’s footnote, Day is simply inapposite to this case: “In sum, we
hold that district courts are permitted, but not obliged, to consider, sua sponte, the timeliness of a
state prisoner's habeas petition.” Id.
CASE NO. 6:20-CV-00660- JDK – REPLY IN SUPPORT OF MOTION FOR EXPEDITED
DECLARATORY JUDGMENT AND EMERGENCY INJUNCTIVE RELIEF

26

Case 6:20-cv-00660-JDK Document 30 Filed 01/01/21 Page 27 of 43 PageID #: 361

Even if Plaintiffs had delayed bringing suit, the Defendant still would need to show
prejudice as a prerequisite to obtaining dismissal for laches. Envtl. Def. Fund, Inc. v. Alexander,
614 F.2d 474, 479 (5th Cir. 1980). The test for prejudice requires balancing the equities:
“Measuring prejudice entails balancing equities.” Id. The Vice Presidency has not acquired a
vested right to violate the Constitution because 133 have passed since Congress enacted the
Electoral Count Act in 1887. The passage of time does not bar fresh challenges to the application
of unconstitutional or ultra vires laws or regulations. Texas v. United States, 749 F.2d 1144, 1146
(5th Cir. 1985). “Arbitrary [governmental] action becomes no less so by simple dint of repetition.”
Judulang v. Holder, 565 U.S. 42, 61 (2011). In truth, however, the Electoral Count Act has laid
dormant since its enactment in 1887, and the only prior elects in which it might have mattered
occurred prior to 1887 (e.g., 1800 or 1876). The Defendant cannot claim “prejudice” from a suit
that challenges the Electoral Count Act in the first election since that statute’s enactment in 1887
where the statute could unconstitutionally affect the outcome.
4.

Transfer would be inappropriate.

BLAG suggests that Rep. Gohmert lacks standing and that he should therefore be dismissed
and the case transferred to a venue suitable to the Arizona Electors. BLAG Br. at 12. Courts do
not generally dismiss plaintiffs piecemeal, and Rep. Gohmert—a Tyler resident with his principal
home-state office here—satisfies the venue rules and statutes. Since only one plaintiff needs to
have standing, it would be entirely possible that an out-of-state plaintiff would provide standing
while an in-state resident provides venue. But that is a mere hypothetical because Rep. Gohmert
has standing. See Section I.C.1, infra.
5.

No absent third parties are necessary parties.

An amicus has suggested that the rival state of Arizona electors are necessary parties that
must be joined under FED. R. CIV. P. 19. Dowling Br. at 6-8. While amicus arguments should be
CASE NO. 6:20-CV-00660- JDK – REPLY IN SUPPORT OF MOTION FOR EXPEDITED
DECLARATORY JUDGMENT AND EMERGENCY INJUNCTIVE RELIEF

27

Case 6:20-cv-00660-JDK Document 30 Filed 01/01/21 Page 28 of 43 PageID #: 362

deemed waived unless raised by a party, Christopher M. v. Corpus Christi Indep. Sch. Dist., 933
F.2d 1285, 1293 (5th Cir. 1991) (“an issue waived by appellant cannot be raised by amicus
curiae”), the Rule 19 necessary-party argument is meritless.
Leaving aside whether Arizona citizens are “subject to service of process” in Texas, FED.
R. CIV. P. 19(a)(1) so as even to be relevant here, this Court can “accord complete relief among
existing parties” with respect to declaratory and injunctive relief regarding the Electoral Count Act
and the Constitution’s alternate procedures. Id. 19(a)(1)(A). More importantly, the rival electors
cannot claim an “interest” in an unconstitutional statute:
It is undoubtedly true that even expectancies characterized as
"vested rights" under state law must fall before a court adjudication
that [federal law] mandates that the expectancies not be fulfilled.
United States v. City of Miami, 614 F.2d 1322, 1341-42 (5th Cir. 1980) (subjective expectations
on the continued adherence to past practice are not a sufficient interest). Here, as in Miami, “the
crucial point here, to wit, that the [proposed relief] orders no relief against the [absent party].” Id.
at 1329, Simply put, the relief requested has no legally prejudicial effect on any absent party:
Unless the [absent party] can demonstrate that it has been ordered to
take some action by the decree, or ordered not to take some action,
or that its rights or legitimate interests have otherwise been affected,
it has no right to prevent the other parties and the Court from signing
the decree.
Id. (emphasis added). As indicated with respect to laches, see Section I.B.3, supra, there is no
vested right in anyone to the continued following of the blatantly unconstitutional Electoral Count
Act.
6.

28 U.S.C.§ 2403(a) does not require pausing relief.

Mr. Dowling argues that this Court should defer reaching the merits until Plaintiffs serve
the U.S. Attorney General pursuant to 28 U.S.C.§ 2403(a). See Dowling Br. at 8-9. That section
provides as follows:
CASE NO. 6:20-CV-00660- JDK – REPLY IN SUPPORT OF MOTION FOR EXPEDITED
DECLARATORY JUDGMENT AND EMERGENCY INJUNCTIVE RELIEF

28

Case 6:20-cv-00660-JDK Document 30 Filed 01/01/21 Page 29 of 43 PageID #: 363

In any action, suit or proceeding in a court of the United States to
which the United States or any agency, officer or employee thereof
is not a party, wherein the constitutionality of any Act of Congress
affecting the public interest is drawn in question, the court shall
certify such fact to the Attorney General, and shall permit the United
States to intervene for presentation of evidence, if evidence is
otherwise admissible in the case, and for argument on the question
of constitutionality. The United States shall, subject to the
applicable provisions of law, have all the rights of a party and be
subject to all liabilities of a party as to court costs to the extent
necessary for a proper presentation of the facts and law relating to
the question of constitutionality.
28 U.S.C.§ 2403(a) (emphasis added). As signaled by the emphasized text, Defendant here is an
officer of the United States. Moreover, Plaintiffs have served the United States Attorney for the
Eastern District of Texas (ECF #5) and the United States Attorney General (ECF #10). This
argument is meritless.7
C.

This Court has constitutional and prudential jurisdiction over Plaintiffs’
claims.

Although jurisdiction and the merits are “independent,” Howard v. Dretke, 157 F.App'x
667, 670 (5th Cir. 2005), a plaintiff needs to be right on both issues to obtain interim relief: “Absent
an adequate jurisdictional basis for the Court’s consideration of the merits, there is no likelihood
that the Plaintiff will prevail on the merits.” Herwald v. Schweiker, 658 F.2d 359, 363 (5th Cir.
1981) (emphasis added). In this section, Plaintiffs establish this Court’s jurisdiction.

The remaining arguments in Mr. Dowling’s motion to dismiss are similarly meritless (e.g.,
Plaintiffs do not plead a fraud count and so need not plead with particularity under FED. R. CIV. P.
9(b) and no party has requested discovery). Moreover, to the extent he raises bases for dismissal
that differ from those raised by Defendant, Mr. Dowling would need to prove—and has not—his
own standing: “For all relief sought, there must be a litigant with standing, whether that litigant
joins the lawsuit as a plaintiff, a coplaintiff, or an intervenor of right. Thus, … an intervenor of
right must demonstrate Article III standing when it seeks additional relief beyond that which the
plaintiff requests.” Town of Chester v. Laroe Estates, Inc., 137 S.Ct. 1645, 1651 (2017).
7

CASE NO. 6:20-CV-00660- JDK – REPLY IN SUPPORT OF MOTION FOR EXPEDITED
DECLARATORY JUDGMENT AND EMERGENCY INJUNCTIVE RELIEF

29

Case 6:20-cv-00660-JDK Document 30 Filed 01/01/21 Page 30 of 43 PageID #: 364

1.

This case presents an Article III case or controversy.

In a case where Plaintiffs ask an Article III court to hear a case against a federal defendant
who is simultaneously a part of the Article I legislature and the Article II executive, Plaintiffs
acknowledge that the jurisdictional scope of the federal judicial power under Article III is
“important[t] … in maintaining separation of powers among the branches of the federal
government.” In re Frazin, 732 F.3d 313, 319 (5th Cir. 2013). It is also important for courts to
“protect[] litigants,” id., and ultimately the judiciary’s role to interpret the Constitution in properly
presented cases and controversies: “The power to interpret the Constitution in a case or controversy
remains in the Judiciary.” City of Boerne v. Flores, 521 U.S. 507, 524 (1997). By bringing a proper
case or controversy under Article III, Plaintiffs present this Court not only the opportunity but also
the duty8 to resolve issues that other courts have not decided because those courts found those
cases, by those parties, to fall outside their Article III jurisdiction under the law of those other
circuits. In some respects, this Court’s opportunity and duty arise because these Plaintiffs press
different claims that are justiciable, whereas other plaintiffs did not; in other respects, the law of
this Circuit simply differs from the law of other circuits. Compare, e.g., Donald J. Trump for
President, Inc. v. Sec'y Pa., No. 20-3371, 2020 U.S. App. LEXIS 37346, at *20 (3d Cir. Nov. 27,
2020) (candidate suffers generalized grievance from Elections Clause violations) with LULAC v.
City of Boerne, 659 F.3d 421, 430 (5th Cir. 2011) (Rep. Gohmert has standing to vote for President
under the Twelfth Amendment if the contested states’ voters are constitutionally compromised);
cf. Heckler v. Mathews, 465 U.S. 728, 739-40 (1984) (Plaintiff Arizona Electors have standing

8

"The existence of the jurisdiction creates an implication of duty to exercise it." Howlett v.
Rose, 496 U.S. 356, 369-70 (1990) (interior quotations omitted).
CASE NO. 6:20-CV-00660- JDK – REPLY IN SUPPORT OF MOTION FOR EXPEDITED
DECLARATORY JUDGMENT AND EMERGENCY INJUNCTIVE RELIEF

30

Case 6:20-cv-00660-JDK Document 30 Filed 01/01/21 Page 31 of 43 PageID #: 365

either to void the rival Arizona electors’ votes or to count the Plaintiff Arizona Electors’ votes in
their place because the latter’s votes are constitutionally compromised under the Elections Clause).
While Article III jurisdiction most often involves standing—i.e., a plaintiff’s injury in fact,
the defendant’s causation or traceability, and the court’s power to redress, Lujan v. Defenders of
Wildlife, 504 U.S. 555, 561-62 (1992)—the scope of Article III extends to other overlapping
issues:
“All of the doctrines that cluster about Article III—not only standing
but mootness, ripeness, political question, and the like—relate in
part, and in different though overlapping ways, to … the
constitutional and prudential limits to the powers of an unelected,
unrepresentative judiciary in our kind of government.”
Allen v. Wright, 468 U.S. 737, 750 (1984) (quoting Vander Jagt v. O’Neill, 699 F.2d 1166, 117879 (D.C. Cir. 1983) (Bork, J., concurring)). As explained in the following eight subsections, all of
these Article III gate-keeping tests are met here.
a)

The parties seek different relief.

The Defendant argues that “Plaintiffs’ suit seeks to empower the Vice President to
unilaterally and unreviewably decide objections to the validity of electoral votes” such that
“Plaintiffs are … not sufficiently adverse to the legal interests of the Vice President.” Def’s Opp’n
at 3. But the Defendant seeks dismissal, whereas Plaintiffs seek declaratory and injunctive relief.
Moreover, Plaintiffs express no opinion on whether Defendant’s actions would be unreviewable,
Instead, Plaintiffs merely seek declaratory and injunctive relief against an unconstitutional statute.
This is not an instance where “the parties desire precisely the same result” so that there is
no Article III case or controversy. GTE Sylvania, Inc. v. Consumers Union of the United States,
Inc., 445 U.S. 375, 383 (1980) (interior quotations omitted); Moore v. Charlotte-Mecklenburg Bd.
of Educ., 402 U.S. 47, 47-48 (1971) (per curiam). The Defendant seeks the dismissal of this action,
and Plaintiffs ask this Court to enter a judgment in their favor. Even if one Plaintiff and the
CASE NO. 6:20-CV-00660- JDK – REPLY IN SUPPORT OF MOTION FOR EXPEDITED
DECLARATORY JUDGMENT AND EMERGENCY INJUNCTIVE RELIEF

31

Case 6:20-cv-00660-JDK Document 30 Filed 01/01/21 Page 32 of 43 PageID #: 366

Defendant were “friendly” in the sense of wanting the same thing, “[o]nly one plaintiff is needed
to establish standing for each form of requested relief.” Pool v. City of Houston, 978 F.3d 307, 312
n.7 (5th Cir. 2020) (citing Town of Chester v. Laroe Estates, Inc., 137 S.Ct. 1645, 1651 (2017)).
Whatever public statement one plaintiff made is not binding on the other plaintiffs, especially not
a statement by one of the Arizona Electors on Rep. Gohmert.
b)

This Court must assume Plaintiffs’ merits views to assess
Plaintiffs’ standing to sue.

All of the briefs opposed to Plaintiffs’ claims make the mistake of disputing Plaintiffs on
the merits to attack Plaintiffs’ standing. If that were how it works, every losing plaintiff would lose
for lack of standing.
Put simply, that “confuses standing with the merits.” Initiative & Referendum Institute v.
Walker, 450 F.3d 1082, 1092 (10th Cir. 2006); Adar v. Smith, 639 F.3d 146, 150 (5th Cir. 2011)
(“standing does not depend upon ultimate success on the merits”); accord Lac du Flambeau Band
of Lake Superior Chippewa Indians v. Norton, 422 F.3d 490, 501 (7th Cir. 2005); In re Columbia
Gas Systems Inc., 33 F.3d 294, 298 (3d Cir. 1994); cf. Cantrell v. City of Long Beach, 241 F.3d
674, 682 (9th Cir. 2001). Instead, federal courts have jurisdiction over a case if “the right of
[plaintiffs] to recover under [their] complaint will be sustained if the ... laws of the United States
are given one construction,” even if the plaintiffs’ rights “will be defeated if [those federal laws]
are given another.” Wheeldin v. Wheeler, 373 U.S. 647, 649 (1963) (interior quotations omitted).
Accordingly, federal courts should assume the plaintiff’s merits views in evaluating their
jurisdiction to hear the plaintiff’s claims: “standing in no way depends on the merits of the
plaintiff’s contention that particular conduct is illegal.” Warth v. Seldin, 422 U.S. 490, 500 (1975);
City of Waukesha v. EPA, 320 F.3d 228, 235 (D.C. Cir. 2003) (“one must assume the validity of a
plaintiff’s substantive claim at the standing inquiry”); Adar v. Smith, supra (en banc).
CASE NO. 6:20-CV-00660- JDK – REPLY IN SUPPORT OF MOTION FOR EXPEDITED
DECLARATORY JUDGMENT AND EMERGENCY INJUNCTIVE RELIEF

32

Case 6:20-cv-00660-JDK Document 30 Filed 01/01/21 Page 33 of 43 PageID #: 367

With the idea in mind that this Court should assume Plaintiffs’ merits views in evaluating
standing, the need to contest this election should become apparent. The Constitution’s Elections
Clause and Electors Clause give state legislatures the plenary power to set election provisions, and
yet—citing the COVID pandemic as either a reason or as an excuse—non-legislative actors in all
the contested states systematically eroded ballot-integrity measures like signature or witness
requirements and registration or mail-in deadlines to the point where Plaintiffs respectfully submit
it is impossible to state who won from the mail-in votes because legal ones have been commingled
with illegal ones.
Moreover, although ostensibly a question of state election law, these questions are federal
the state election laws apply “not only to elections to state offices, but also to the election of
Presidential electors,” meaning that state law operates, in part, “by virtue of a direct grant of
authority made under Art. II, § 1, cl. 2, of the United States Constitution.” Bush v. Palm Beach
Cty. Canvassing Bd., 531 U.S. 70, 76 (2000). Logically, “any state authority to regulate election
to [federal] offices could not precede their very creation by the Constitution,” meaning that any
“such power had to be delegated to, rather than reserved by, the States.” Cook v. Gralike, 531 U.S.
510, 522 (2001) (internal quotations omitted). “It is no original prerogative of State power to
appoint a representative, a senator, or President for the Union.” J. Story, 1 COMMENTARIES ON THE
CONSTITUTION OF THE UNITED STATES § 627 (3d ed. 1858). For these reasons, any “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).
c)

Plaintiffs suffer an injury in fact.

The briefs opposed to Plaintiffs argue that Plaintiffs’ claimed injuries are generalized
grievances insufficient for Article III. As indicated, however, Plaintiffs here assert particularized
injuries under this Circuit’s Article III decisions and these Plaintiffs claims. See Section I.C.1,
CASE NO. 6:20-CV-00660- JDK – REPLY IN SUPPORT OF MOTION FOR EXPEDITED
DECLARATORY JUDGMENT AND EMERGENCY INJUNCTIVE RELIEF

33

Case 6:20-cv-00660-JDK Document 30 Filed 01/01/21 Page 34 of 43 PageID #: 368

supra. First, Rep. Gohmert has standing to challenge unconstitutional elector slates and to vote for
President under the Twelfth Amendment as opposed to voting for objections under the Electoral
Count Act. See LULAC v. City of Boerne, 659 F.3d at 430; League of United Latin Am. Citizens,
Council No. 4434 v. Clements, 999 F.2d 831, 845 (5th Cir. 1993) (en banc).
This voting injury also answers BLAG’s attempt to classify Rep. Gohmert’s injuries under
the rubric of legislative standing under Raines v. Byrd, 521 U.S. 811, 819-20 (1997). Under those
decisions, a legislator or legislative body would only have standing for issues within their power
(e.g., information to be gotten by subpoena) or if they had a working majority of the relevant
number of houses to enact or block legislation. Va. House of Delegates v. Bethune-Hill, 139 S.Ct.
1945, 1955 n.6 (2019); Coleman v. Miller, 307 U. S. 433, 446 (1939). Here, Rep. Gohmert seeks
to vote for President under the Twelfth Amendment rather than in dispute-resolution proceedings
for rival voter slates when the states in question have impossibly commingled the legal and illegal
ballots so that it is impossible to know the result. As indicated in this section, this Circuit’s votingrights cases make clear that that is not a generalized grievance.
d)

Plaintiffs’ injuries are traceable to Defendant.

Defendant cites Common Cause v. Biden, 748 F.3d 1280, 1285 (D.C. Cir. 2014), and
CastaÑon v. United States, 444 F. Supp. 3d 118, 133 (D.D.C. 2020), for the proposition that the
House and the Senate—not the Vice President—caused Plaintiffs’ injuries. See Def.’s Opp’n at 4.
Along the same lines, Defendant deems it “a walking legal contradiction” to sue “the Vice
President [to establish his] discretion over the count.” Id. Defendant’s false contradiction is readily
set right.
First, Common Cause concerned the Senate filibuster rule’s blocking immigration reform
sought by the plaintiffs there (i.e., legislation), and CastaÑon sought voting rights for District of
Columbia residents (i.e., also a legislative issue, as well as a constitutional issue in light of the
CASE NO. 6:20-CV-00660- JDK – REPLY IN SUPPORT OF MOTION FOR EXPEDITED
DECLARATORY JUDGMENT AND EMERGENCY INJUNCTIVE RELIEF

34

Case 6:20-cv-00660-JDK Document 30 Filed 01/01/21 Page 35 of 43 PageID #: 369

District’s unique role under the Constitution). In those circumstances, the Vice President was not
the party denying the plaintiffs’ alleged rights. Here, by contrast, Vice President Pence is the
presiding officer who will invoke the constitutional Twelfth Amendment process or the statutory
Electoral Count Act process. As the presiding officer under both alternate paths, Defendant is an
entirely reasonable person to seek to enjoin. See, e.g., Beeman v. Mays, 163 S.W. 358, 358 (Tex.
Civ. App. 1914) (“suit against appellant to enjoin him, as presiding officer, from holding an
election”); 42 U.S.C. § 1988(a) (civil rights actions can incorporate state law that is not inconsistent
with federal law).9
Second, Defendants’ “walking legal contradiction” is no contradiction at all. Through
declaratory and injunctive relief, Plaintiffs ask this Court to prevent Defendant from invoking the
unconstitutional Electoral Count Act. As in OCA-Greater Houston v. Texas, 867 F.3d 604, 61314 (5th Cir. 2017), Defendant cannot rely on this Circuit’s en banc decision in Okpalobi v. Foster
because—unlike in Okpalobi10—Plaintiffs have sued someone who implements the statute that
Plaintiffs challenge. Compare OCA-Greater Houston, 867 F.3d at 613-14 with Okpalobi v. Foster,
244 F.3d 405, 415 (5th Cir. 2001) (en banc). (defendants had no "enforcement connection with the
challenged statute"). Here, Defendant is the presiding officer of the process that Plaintiffs seek to
enjoin and declare unconstitutional. Under that circumstance, Plaintiffs have “met [the] burden
under Lujan to show that [their] injury is fairly traceable to and redressable by the defendant[].”
OCA-Greater Houston, 867 F.3d at 614; see also Pls.’ Mot at 7-9 (discussing traceability).

9

While § 1988(a) most typically imports state-law procedures for survivorship or statutes of
limitations for federal civil-rights claims, see, e.g., Jefferson v. City of Tarrant, 522 U.S. 75, 79
(1997), nothing prevents citing state common-law cases for the proper party to sue to enjoin the
operation of an unconstitutional process.
In Okpalobi, the plaintiffs had sued Louisiana’s Governor and Attorney General to
challenge a statute that empowered private parties and state courts to act. See 244 F.3d at 415.
10

CASE NO. 6:20-CV-00660- JDK – REPLY IN SUPPORT OF MOTION FOR EXPEDITED
DECLARATORY JUDGMENT AND EMERGENCY INJUNCTIVE RELIEF

35

Case 6:20-cv-00660-JDK Document 30 Filed 01/01/21 Page 36 of 43 PageID #: 370

e)

This Court can redress Plaintiffs’ injuries.

As indicated in the prior section, Plaintiffs injuries are traceable to Defendant and thus also
redressable by the Court because Defendant is the presiding officer of the challenged statutory
process. OCA-Greater Houston, 867 F.3d at 613-14; see also Pls.’ Mot at 9-10 (discussing
redressability).
f)

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

Defendant and the amicus briefs do not dispute that the procedural injuries that Plaintiffs
seek to press lower the Article III bar for immediacy of injury and redressability. See Pls.’ Mot. at
11-12.
g)

This action is not moot.

“A case becomes moot only when it is impossible for a court to grant any effectual relief
whatever to the prevailing party.” Knox v. SEIU, Local 1000, 567 U.S. 298, 307 (2012) (internal
quotations omitted, emphasis added). The joint session will not meet until January 6, and Congress
could extend its statutory deadlines, as it did in connection with the only other similarly contested
election. Ch. 37, 19 Stat. 227 (1877). Indeed, even without a new statute, the January 6 joint
session could be extended further into January.
Simply put, “it ain’t over ‘til it’s over.” Jeffrey W. Stempel, Sanctions, Symmetry, and Safe
Harbors: Limiting Misapplication of Rule 11 by Harmonizing It with Pre-Verdict Dismissal
Devices, 60 FORDHAM L. REV. 257, 260 (1991) (quoting Yogi Berra). It remains possible for this
Court to enter a judgment that addresses the constitutionality of the Electoral Count Act and its
application to the 2020 election.

CASE NO. 6:20-CV-00660- JDK – REPLY IN SUPPORT OF MOTION FOR EXPEDITED
DECLARATORY JUDGMENT AND EMERGENCY INJUNCTIVE RELIEF

36

Case 6:20-cv-00660-JDK Document 30 Filed 01/01/21 Page 37 of 43 PageID #: 371

h)

This action is ripe.

It is undisputed that rival slates of electors have been submitted for an outcomedeterminative number of electoral votes. It is indisputable that at least one Representative and one
Senator will, or are likely to, object to the slates from these contested states.11 See Ex. A-B (Sen.
Hawley plans to object); Ex. C (Sen.-Elect Tuberville); Ex. D (140 Republican House Members).
The timing of future events provides no barrier to justiciability: “Where the inevitability of the
operation of a statute against certain individuals is patent, it is irrelevant to the existence of a
justiciable controversy that there will be a time delay before the disputed provisions will come into
effect.” Stolt-Nielsen S.A. v. Animal Feeds Int’l Corp., 559 U.S. 662, 670 n.2 (2010). Indeed, even
without objecting Representatives and Senators, the presence of an outcome-determinative number
of rival slates of electors guarantees the need for the joint session to engage in some form of
dispute-resolution process, which squarely presents the question of whether that process lies under
the Electoral Count Act that Plaintiffs challenge.
2.

Prudential limits on Article III jurisdiction do not apply.

In addition to Article III’s jurisdictional limits, the judiciary has adopted prudential limits
on standing that bar judicial review even when the plaintiff meets Article III’s minimum criteria.
See, e.g., Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454
U.S. 464, 475 (1982) (zone-of-interests test); Secretary of State of Md. v. Joseph H. Munson Co.,
467 U.S. 947, 955 (1984) (litigants must raise their own rights); Elk Grove Unified School Dist. v.
Newdow, 542 U.S. 1, 12 (2004) (litigants cannot sue over generalized grievances more

11

The Senate.gov press release and the related news reports about objections next week when
Congress convenes in joint session are judicially noticeable. Concerned Citizens for Equal. v.
McDonald, 863 F. Supp. 393, 394 (E.D. Tex. 1994) (newspapers); Kitty Hawk Aircargo, Inc. v.
Chao, 418 F.3d 453, 457 (5th Cir. 2005) (government website).
CASE NO. 6:20-CV-00660- JDK – REPLY IN SUPPORT OF MOTION FOR EXPEDITED
DECLARATORY JUDGMENT AND EMERGENCY INJUNCTIVE RELIEF

37

Case 6:20-cv-00660-JDK Document 30 Filed 01/01/21 Page 38 of 43 PageID #: 372

appropriately addressed in the representative branches). Prudential issues are non-jurisdictional
and can be waived. Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 126
(2014). In any event, none of those prudential limits apply here.12
a)

Plaintiffs are within the relevant zones of interests.

The zone-of-interests test requires that a plaintiffs’ claims be “arguably within the zone of
interests to be protected or regulated by the statute or constitutional guarantee in question.” Ass’n
of Data Processing Serv. Org., Inc. v. Camp, 397 U.S. 150, 153 (1970). Here, Rep. Gohmert will
proceed as a Member of the House of Representatives in the joint session, and he asks this Court
to resolve whether the extant statutory procedure is unconstitutional (i.e., he asks whether the
Electoral Count Act is viable under the Twelfth Amendment and the rest of the Constitution). That
claim is squarely within the zone of the constitutional provisions that he invokes. Similarly, the
Plaintiff Arizona Electors ask to be treated fairly in the joint session, vis-à-vis their relative merits
with the rival slate of Arizona electors. Under the constitutional process that the Plaintiff Arizona
Electors invoke, they have a chance to be counted. Under the Electoral Count Act, the Democrat
majority in the House has made clear it will vote for Mr. Biden, and the Governor of Arizona has
supported that position (i.e., the Plaintiff Arizona Electors will not be counted under the Electoral
Count Act). The Plaintiff Arizona Electors’ claims thus also fall within the zone of interests of the
constitutional provisions that Plaintiffs invoke.

12

Arguments not pressed by an actual party (e.g., if raised solely by an amicus) are waived.
Christopher M. v. Corpus Christi Indep. Sch. Dist., 933 F.2d 1285, 1293 (5th Cir. 1991) (“an issue
waived by appellant cannot be raised by amicus curiae”); cf. Kamen v. Kemper Fin. Servs., 500
U.S. 90, 97 n.4 (1991) (distinguishing jurisdictional arguments raised solely by amicus).]
CASE NO. 6:20-CV-00660- JDK – REPLY IN SUPPORT OF MOTION FOR EXPEDITED
DECLARATORY JUDGMENT AND EMERGENCY INJUNCTIVE RELIEF

38

Case 6:20-cv-00660-JDK Document 30 Filed 01/01/21 Page 39 of 43 PageID #: 373

b)

Rep. Gohmert can press the interests of his constituents and of
himself as a Texas voter.

In addition to his own standing as a Texas voter in the election and as a Member of
Congress in the procedures under the Electoral Count Act and Twelfth Amendment, Rep. Gohmert
has standing to raise his constituents’ rights under the prudential test for third-party standing. See
Kowalski v. Tesmer, 543 U.S. 125, 128-30 (2004) (requiring the plaintiff to have its own Article
III standing, a relationship with the rights holder, and that some hindrance keeps the rights holder
from asserting its own rights). The only constitutional and jurisdictional requirements are the
Article III requirements, with the others being prudential. Caplin & Drysdale v. U.S., 491 U.S.
617, 623 n.3 (1989). Prudential limits are generally waivable by a party, " Bd. of Miss. Levee
Comm'rs v. EPA, 674 F.3d 409, 417-18 (5th Cir. 2012) ("[u]nlike constitutional standing,
prudential standing arguments may be waived"); June Med. Servs. L.L.C. v. Russo, 140 S.Ct. 2103,
2117 (2020) (“the rule that a party cannot ordinarily rest his claim to relief on the legal rights or
interests of third parties … does not involve the Constitution’s case-or-controversy requirement
… [a]nd so … it can be forfeited or waived”) (interior quotations and citations omitted), and the
Defendant has waived all non-jurisdictional arguments not raised in his opposition.
c)

This suit is not prudentially improper as a “friendly” suit.

Citing a public statement by one plaintiff, the Defendant and his amici argue that that this
is a “friendly suit” that the Court should dismiss. Any bar against friendly suits in prudential, not
jurisdictional. New York City Transit Authority v. Beazer, 440 U.S. 568, 583 (1979). As indicated
in Section II.C.1, supra, this action is not “friendly” in the Article III sense. To the extent that the
“friendly” remark refers to personal relationships, it would be irrelevant to this official-capacity
action: “while friendship is a ground for recusal of a Justice where the personal fortune or the
personal freedom of the friend is at issue, it has traditionally not been a ground for recusal where

CASE NO. 6:20-CV-00660- JDK – REPLY IN SUPPORT OF MOTION FOR EXPEDITED
DECLARATORY JUDGMENT AND EMERGENCY INJUNCTIVE RELIEF

39

Case 6:20-cv-00660-JDK Document 30 Filed 01/01/21 Page 40 of 43 PageID #: 374

official action is at issue, no matter how important the official action was to the ambitions or the
reputation of the Government officer.” Cheney v. United States Dist. Court, 541 U.S. 913, 916
(2004) (Scalia, J., in chambers) (emphasis in original). But Plaintiffs seek relief that Defendant
opposes, which is not “friendly” in the prudential sense.
3.

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

Defendant does not dispute that the Speech or Debate Clause provides him no protection.
4.

Sovereign immunity does not bar this action.

Amicus BLAG argues that Plaintiffs have named the wrong defendant and instead should
have named the House and Senate as the parties that injured Plaintiffs. For the reasons set forth in
their motion and not directly disputed by Defendant or his amici, see Pls.’ Mot. at 13-14, Plaintiffs
respectfully submit that they have properly invoked an Ex parte Young officer suit against the Vice
President for the unconstitutional application of the Electoral Count Act. To the extent that this
Court disagrees, however, denial of relief or dismissal would be inappropriate. Instead, the Court
should allow Plaintiffs to amend their complaint to name alternate officers such as the House and
Senate parliamentarians
First, the United States has waived sovereign immunity for
An action in a court of the United States seeking relief other than
money damages and stating a claim that an agency or an officer or
employee thereof acted or failed to act in an official capacity or
under color of legal authority shall not be dismissed nor relief
therein be denied on the ground that it is against the United States
or that the United States is an indispensable party. The United States
may be named as a defendant in any such action, and a judgment or
decree may be entered against the United States[.]
5 U.S.C. § 702.
Second, “[d]efective allegations of jurisdiction may be amended, upon terms, in the trial or
appellate courts.” 28 U.S.C. § 1653. If the Court finds the pleadings inadequate as the Vice

CASE NO. 6:20-CV-00660- JDK – REPLY IN SUPPORT OF MOTION FOR EXPEDITED
DECLARATORY JUDGMENT AND EMERGENCY INJUNCTIVE RELIEF

40

Case 6:20-cv-00660-JDK Document 30 Filed 01/01/21 Page 41 of 43 PageID #: 375

President Pence, Plaintiffs could amend their pleadings to include the United States as a defendant.
See also FED. R. CIV. P. 15(a)(1)(B).
5.

The political-question doctrine does not bar this suit.

Defendant does not dispute that the political question doctrine provides him no protection.
6.

This case presents a federal question.

Defendant does not dispute that this case raises a federal question within this Court’s
original jurisdiction under 28 U.S.C. §§ 1331 and 1343(3).
7.

No abstention principles apply.

Defendant does not dispute that no abstention the political question doctrine provides him
no protection.
III.

PLAINTIFFS ARE ENTITLED TO EMERGENCY INJUNCTIVE RELIEF.
Neither Defendant nor his amici dispute that the remaining Winter factors support the entry

of interim relief.
CONCLUSION
For the reasons set forth in their Motion and this reply, Plaintiffs respectfully request that
the Court grant the requested relief.

CASE NO. 6:20-CV-00660- JDK – REPLY IN SUPPORT OF MOTION FOR EXPEDITED
DECLARATORY JUDGMENT AND EMERGENCY INJUNCTIVE RELIEF

41

Case 6:20-cv-00660-JDK Document 30 Filed 01/01/21 Page 42 of 43 PageID #: 376

Dated: January 1, 2021

Respectfully submitted,

Howard Kleinhendler
Howard Kleinhendler Esquire
NY Bar No. 2657120
369 Lexington Ave., 12th Floor
New York, New York 10017
Tel: [phone]
Fax: [phone]
Email: [e-mail]

/s/ William Lewis Sessions
William Lewis Sessions
Texas Bar No. 18041500
Sessions & Associates, PLLC
14591 North Dallas Parkway, Suite 400
Dallas, TX 75254
Tel: [phone]
Fax: [phone] (fax)
Email: [e-mail]

Lawrence J. Joseph
DC Bar No. 464777
Law Office of Lawrence J. Joseph
1250 Connecticut Ave, NW, Suite 700-1A
Washington, DC 20036
Tel: [phone]
Fax: [phone]
Email: [e-mail]

Julia Z. Haller
DC Bar No. 466921
Brandon Johnson
DC Bar No. 491370
Defending the Republic
601 Pennsylvania Ave., NW
Suite 900
South Building
Washington, DC 20004
Tel: [phone]
Fax: [phone]
Email: [e-mail]
Email: [e-mail]
Counsel for Plaintiffs

CASE NO. 6:20-CV-00660- JDK – REPLY IN SUPPORT OF MOTION FOR EXPEDITED
DECLARATORY JUDGMENT AND EMERGENCY INJUNCTIVE RELIEF

42

Case 6:20-cv-00660-JDK Document 30 Filed 01/01/21 Page 43 of 43 PageID #: 377

CERTIFICATE OF SERVICE
I hereby certify that on the date specified below, I electronically filed the foregoing motion
(together with its accompanying proposed order) with the Clerk of the Court using the CM/ECF
system, which I understand to have caused the service of all parties’ counsel of record.
Dated: January 1, 2021
/s/ William Lewis Sessions
William Lewis Sessions,
Texas Bar No. 18041500
Sessions & Associates, PLLC
14591 North Dallas Parkway, Suite 400
Dallas, TX 75254
Tel: [phone]
Fax: [phone]
Email: [e-mail]
Counsel for Plaintiffs

CASE NO. 6:20-CV-00660- JDK – REPLY IN SUPPORT OF MOTION FOR EXPEDITED
DECLARATORY JUDGMENT AND EMERGENCY INJUNCTIVE RELIEF

43