Gohmert et al v. Pence

Filing 41

EMERGENCY MOTION on 39 Notice of Appeal, 40 Notice of Appeal. (ksd )

No. 21-40001

United States Court of Appeals for the Fifth Circuit
LOUIE GOHMERT, TYLER BOWYER, NANCY COTTLE, JAKE HOFFMAN,
ANTHONY KERN, JAMES R. LAMON, SAM MOORHEAD, ROBERT
MONTGOMERY, LORAINE PELLEGRINO, GREG SAFSTEN, KELLI WARD
AND MICHAEL WARD,
Plaintiffs-Appellants,
v.
THE HONORABLE MICHAEL R. PENCE, VICE PRESIDENT OF THE
UNITED STATES, IN HIS OFFICIAL CAPACITY,
Defendant-Appellee.
ON APPEAL FROM U.S. DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS, TYLER DIVISION,
CIVIL NO. 6:20-CV-00660-JDK, HON. JEREMY D. KERNODLE
EMERGENCY MOTION FOR EXPEDITED APPEAL

Lawrence J. Joseph
DC Bar #464777
Law Office of Lawrence J. Joseph
1250 Connecticut Av NW, Ste 700
Washington, DC 20036
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]
Email: [e-mail]
Counsel for Plainitfs-Appellants

CERTIFICATE OF INTERESTED PERSONS
The case number is No. 21-40001. The case is styled as Gohmert v. Pence.
The undersigned counsel of record certifies that the following listed persons and
entities as described in the fourth sentence of Rule 28.2.1 have an interest in the
outcome of this case. These presentations are made in order that the judges of this
court may evaluate possible disqualification or recusal.
Plaintiffs

Counsel for Plaintiffs

Louie Gohmert
Tyler Bowyer
Nancy Cottle
Jake Hoffman
Anthony Kern
James R. Lamon
Sam Moorhead
Robert Montgomery
Loraine Pellegrino
Greg Safsten
Kelli Ward
Michael Ward

William Lewis Sessions
Sessions & Associates, PLLC
Howard Kleinhendler
Howard Kleinhendler Esquire
Lawrence J. Joseph
Law Office of Lawrence J. Joseph
Julia Z. Haller
Brandon Johnson
Defending the Republic

Defendant

Counsel for Defendant

Vice President Michael R. Pence

Jeffrey Bossert Clark
Acting Assistant Attorney General
Jennifer B. Dickey
Deputy Assistant Attorney General
John V. Coghlan
Deputy Assistant Attorney General
Federal Programs Branch, U.S. Dep’t of
Justice, Civil Division

i

Movants for Intervention

Counsel Movants for Intervention

Marian Sheridan
Meshawn Maddock
Mari-Ann Henry
Amy Facchinello
Michele Lundgren

Wm. Charles Bundren
Wm. Charles Bundren & Associates

Pro Se Movants for Intervention

Counsel Movants for Intervention

Timothy P Dowling
Alan Hamilton Kennedy

Timothy P. Dowling
Alan Hamilton Kennedy

Amicus Curiae

Counsel for Amicus Curiae

Bilateral Advisory Legal Group of the
U.S. House of Representatives

Caitlin Halligan
Samuel Breidbart
Adam K. Hersh
Max H. Siegel
Selendy & Gay PLLC
Michael R. Dreeben
Douglas N. Letter
Todd B. Tatelman
Megan Barbero
Josephine Morse
William E. Havemann
Eric R. Columbus
Lisa K. Helvin
Jonathan B. Schwartz
Office of General Counsel, U.S. House
of Representatives

ii

Dated: January 2, 2021

Respectfully submitted,

/s/ Lawrence J. Joseph
________________________________
Lawrence J. Joseph
William Lewis Sessions
DC Bar #464777
Texas Bar No. 18041500
Law Office of Lawrence J. Joseph
Sessions & Associates, PLLC
14591 North Dallas Parkway, Suite 400 1250 Connecticut Av NW, Ste 700
Dallas, TX 75254
Washington, DC 20036
Tel: [phone]
Tel: [phone]
Fax: [phone]
Fax: [phone]
Email: [e-mail]
Email: [e-mail]

iii

INTRODUCTION
By and through the undersigned counsel, movants 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—plaintiffs
below and appellants in this Court—respectfully file this emergency
motion pursuant to Circuit Rule 27.3 to expedite their appeal.
Pursuant to Rule 27.3, the undersigned counsel conferred by
telephone with the Office of the Clerk and with the counsel for the
defendant, Vice President Michael R. Pence. In addition to serving Vice
President Pence’s counsel via the ECF system and Federal Express, the
undersigned counsel also provided a copy of this motion via email to his
counsel from both the Federal Program Branch if the Department of
Justice’s Civil Division (i.e., his trial counsel) and the Office of the Vice
President.
NATURE OF THE EMERGENCY
Plaintiffs-Appellants seek to declare the Electoral Count Act of 1887, PUB. L.
NO. 49–90, 24 Stat. 373 (codified at 3 U.S.C. §§ 5, 15) unconstitutional and to
prevent the joint session of Congress set for January 6, 2021, from invoking that
statute as part of the 2020 presidential election. Although the statute has been in the
1

United States Code for more than 130 years, it has not affected any presidential
election, but threatens to do so now. Moreover, Plaintiffs-Appellants’ claims did not
arise until after the electoral college voted on December 14, 2020, so the emergency
could not have been avoided.
Specifically, the nature of the emergency is that rival slates of presidential
electors, representing an outcome-determinative number of electoral votes will be
presented to the joint session on January 6, 2021. Neither the Electors Clause nor the
Twelfth Amendment includes a dispute-resolution provision for addressing the rival
slates or the election anomalies related to the various non-legislative eviscerations
of ballot-integrity measures (e.g., signature verification or witness requirements)
based on the COVID-19 pandemic:
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.
J. Story, 3 COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 1464
(Boston, Hilliard, Gray, & Co. 1833). The dispute-resolution process in 3 U.S.C. §
15 is blatantly unconstitutional for the reasons that Plaintiffs-Appellants briefed in
the district court, without significant dispute from the Vice President or his principal

2

amicus curiae from the U.S. House of Representatives. The irreparable harm is that,
once the election completes under the constitutional procedures under § 15, it could
require impeachment to set it aside. In place of § 15, Plaintiffs-Appellants seek to
have Congress follow the procedures laid out in the Twelfth Amendment.
The issues were fully briefed below, and the district court dismissed for lack
of standing. Upon the reversal of such dismissals, the ordinarily course would be to
remand for merits proceedings, Montano v. Texas, 867 F.3d 540, 546 (5th Cir. 2017)
(“a court of appeals sits as a court of review, not of first view"), but “[t]he matter of
what questions may be taken up and resolved for the first time on appeal is one left
primarily to the discretion of the courts of appeals.” Singleton v. Wulff, 428 U.S. 106,
121 (1976). Here, the facts are not in dispute, the defendant and its principal amicus
curiae below largely ignored the merits issues, thus essentially waiving the merits
issues. See, e.g., 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”); 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);

3

Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 126 (2014). In
short, the only questions presented are essentially the jurisdictional ones that this
Court would need to consider in any event. Steel Co. v. Citizens for a Better Env’t.,
523 U.S. 83, 95 (1998). Under the circumstances, if the Court finds jurisdiction, the
Court could enter the requested declaratory judgment for the Plaintiffs-Appellants
because a remand for waived merits issues would make little sense.
RELIEF REQUESTED
In order to complete the appeal before the joint session schedule for January
6, 2021, Plaintiffs-Appellants respectfully request that the Court immediately enter
an expedited briefing schedule to set the following timeline for the appeal:
Opening brief & supporting amici briefs

Midnight (Central), January 2, 2021

Response brief & supporting amici briefs

6:00 p.m. (Central), January 3, 2021

Reply brief

10:00 a.m. (Central), January 4, 2021

Entry of judgment

Midnight (Central), January 5, 2021

Although Plaintiffs-Appellants sought to resolve the matter in district court via an
emergency declaratory ruling as a final matter, Plaintiffs-Appellants did seek style
their filings as requests for interim relief. Accordingly, as an alternative to resolving
the full appeal before January 6, 2021, the Court could, alternatively, enter an interim
order in the nature of a preliminary injunction.

4

CONCLUSION
WHEREFORE, for the foregoing reasons, Plaintiffs-Appellants respectfully
request that the Court set the expedited briefing schedule above and resolve this
appeal by Tuesday, January 5, 2021.
Dated: January 2, 2021

Respectfully submitted,

/s/ Lawrence J. Joseph
________________________________
Lawrence J. Joseph
William Lewis Sessions
DC Bar #464777
Texas Bar No. 18041500
Law Office of Lawrence J. Joseph
Sessions & Associates, PLLC
14591 North Dallas Parkway, Suite 400 1250 Connecticut Av NW, Ste 700
Washington, DC 20036
Dallas, TX 75254
Tel: [phone]
Tel: [phone]
Fax: [phone]
Fax: [phone]
Email: [e-mail]
Email: [e-mail]

5

COMBINED CERTIFICATE OF COMPLIANCE
1.

The accompanying motion complies with the type-volume limitation of

FED. R. APP. P. 27(d)(2)(A) and Circuit Rule 27-1(1)(d) because the motion contains
959 words, including footnotes, but excluding the parts of the motion exempted by
FED. R. APP. P. 32(a)(7)(B)(iii).
2.

The motion complies with the typeface and type style requirements of

FED. R. APP. P. 27(d)(1)(E) because the motion has been prepared in a proportionally
spaced typeface using Microsoft Word 365 in Times New Roman 14-point font.
3.

Pursuant to Circuit Rule 27.3, copies of the relevant order and judgment

of the district court, as well as all relevant pleadings, briefs, memoranda, and other
papers filed by all parties in the district court, will be filed as exhibits within an hour
of the filing of this motion.
4.

Pursuant to Circuit Rule 27.3, the undersigned counsel certifies that the

facts supporting emergency consideration of the motion are true and complete.
Dated: January 2, 2021

Respectfully submitted,

/s/ Lawrence J. Joseph
________________________________
William Lewis Sessions
Lawrence J. Joseph
Texas Bar No. 18041500
DC Bar #464777
Sessions & Associates, PLLC
Law Office of Lawrence J. Joseph
14591 North Dallas Parkway, Suite 400 1250 Connecticut Av NW, Ste 700
Dallas, TX 75254
Washington, DC 20036
Tel: [phone]
Tel: [phone]
Fax: [phone]
Fax: [phone]
Email: [e-mail]
Email: [e-mail]

CERTIFICATE OF CONFERENCE
On January 2, 2021, the undersigned counsel called the Counsel for the Vice
President and the trial counsel for the Vice President to confer regarding this motion,
speaking to the former and leaving a voicemail for the latter circa 10:45 a.m.
(Central). In addition, at 10:49 a.m. (Central), counsel emailed the Vice President’s
trial counsel—to whom the Counsel for the Vice President referred us—as well as
the General Counsel for the U.S. House of Representatives to confer regarding this
motion and requested a response. Although the Vice President’s trial counsel read
the email at 10:53 a.m. (Central) according to an email return receipt, he has not
responded. Counsel for House indicated that his client would meet the Vice
President’s deadline; counsel for the Vice President indicated that his client took no
position on this motion.
Dated: January 2, 2021

Respectfully submitted,

/s/ Lawrence J. Joseph
________________________________
William Lewis Sessions
Lawrence J. Joseph
Texas Bar No. 18041500
DC Bar #464777
Sessions & Associates, PLLC
Law Office of Lawrence J. Joseph
14591 North Dallas Parkway, Suite 400 1250 Connecticut Av NW, Ste 700
Dallas, TX 75254
Washington, DC 20036
Tel: [phone]
Tel: [phone]
Fax: [phone]
Fax: [phone]
Email: [e-mail]
Email: [e-mail]

CERTIFICATE OF SERVICE
I hereby certify that on the day specified below, I electronically filed the
foregoing document with the Clerk of the Court for the U.S. Court of Appeals for
the Fifth Circuit by using the appellate CM/ECF system. I further certify that I
provided a served a true and correct copy of the foregoing document on the following
counsel for the parties and the principal amicus curiae in district court via Priority
U.S. Mail, postage prepaid:
John V. Coghlan
Deputy Assistant Attorney General
Federal Programs Branch
U.S. Dep’t of Justice, Civil Division
950 Pennsylvania Avenue N.W.
Washington, DC 20530
Tel: [phone]
Email: [e-mail]

Douglas N. Letter
General Counsel
Office of General Counsel
U.S. House of Representatives
219 Cannon House Office Building
Washington, DC 20515
Tel: [phone]
Email: [e-mail]

I further certify that I provided a courtesy copy of the foregoing document via email
to those counsel for the parties and the principal amicus curiae in district court.
Dated: January 2, 2021

Respectfully submitted,
/s/ Lawrence J. Joseph
________________________________
Lawrence J. Joseph
DC Bar #464777
Law Office of Lawrence J. Joseph
1250 Connecticut Av NW, Ste 700
Washington, DC 20036
Tel: [phone]
Fax: [phone]
Email: [e-mail]