Gohmert et al v. Pence

Filing 7

MOTION to Expedite Shorten Time for Response to Plaintiffs' Emergency Motion for Expedited Declaratory Judgment and Emergency Injunctive Relief and Request for Expedited Scheduling Order by Tyler Bowyer, Nancy Cottle, Louie Gohmert, Jake Hoffman, Anthony Kern, James R. Lamon, Robert Montgomery, Sam Moorhead, Loraine Pellegrino, Greg Safsten, Kelli Ward, Michael Ward. (Attachments: # 1 Text of Proposed Order Proposed Order Granting Motion to Shorten Time)(Sessions, William)

Case 6:20-cv-00660-JDK Document 7 Filed 12/29/20 Page 1 of 9 PageID #: 86

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.
THE HONORABLE MICHAEL R. PENCE, VICE
PRESIDENT OF THE UNITED STATES, in his
official capacity,
Defendant.
PLAINTIFFS' MOTION TO SHORTEN TIME FOR RESPONSE TO
PLAINTIFF'S EMERGENCY MOTION FOR EXPEDITED
DECLARATORY JUDGMENT AND EMERGENCY INJUNCTIVE RELIEF
AND REQUEST FOR EXPEDITED SCHEDULING ORDER

Plaintiffs U.S. Representative Louie Gohmett Jr. (TX-1), Tyler Bowyer, Nancy Cottle,
Jake Hoffman, Anthony Kern, James R. Lamon, Sam Moorhead, Robert Montgomety, Loraine
Pellegrino, Greg Safsten, Kelli Ward, and Michael Ward, by and through their undersigned
counsel, file this Motion to Shott en Time for Response to Plaintiffs Emergency Motion for
Expedited Declaratory Judgment and Emergency

I~unctive

Relief and Request for Expedited

Scheduling Order, pursuant to Local Rule CV-7(e). In support of this Motion, Plaintiffs would
show the following:
Reasons For Requesting Expedited Bl'iefing

As set forth in in the Complaint and Plaintiff's Emergency Motion for Expedited
Declaratoty Judgment and Emergency Injunctive ("Plaintiff's Motion"), Plaintiffs seek an
expedited declaratory judgment declaring that Sections 5 and I 5 of the Electoral Count Act, 3
U.S.C. §§ 5 and 15, are unconstitutional because these provisions violate the Electors Clause and

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the Twelfth Amendment of the U.S. Constitution. U.S. CONST. mi. II,§ I, cl. 1 & Amend. XII.
The Complaint and this Motion address a matter of urgent national concern, that involves only
issues oflaw-namely, a determination that Section 5 and 15 of the Electoral Count Act violate
the Electors Clause and the Twelfth Amendment of the U.S. Constitution-where the relevant facts
concerning the Plaintiffs' standing, the justiciability of Plaintiffs' claims by this Court, and this
Court's ability to grant the relief requested are not in dispute
The requested declaratory judgment will terminate the controversy arising from the
conflict between the Twelfth Amendment and the Electoral Count Act. It is appropriate for this
Court to grant this relief in a summary proceeding without an evidentimy hearing or discove1y.
See FED. R. CIV. P. 57, Advisory Committee Notes. For this reason, Plaintiffs have requested an
expedited summmy proceeding under Rule 57 of the Federal Rules of Civil Procedure to grant the
relief requested herein no later than Thursday, December 31, 2020, and for emergency injunctive
relief under FED. R. CIV. P. 65 consistent with the declaratory judgment requested herein on that
same date.
Plaintiffs have requested an opportunity for timely oral argument on Plaintiffs Motion. A
joint session of Congress will convene on Wednesday, Janumy 6, 2021 at 1:00 p.m. Eastern Time
for purposes of voting on selection of the President of the United States. As Vice President of the
United States and President of the Senate, Defendant Michael R. Pence will preside over the
proceedings. Accordingly, a ruling of this Court is required by Monday, Janumy 4, 2021 in order
for Plaintiffs to obtain a timely ruling on the relief they have sought, and for any party challenging
the Comi's ruling to have a meaningful opportunity for appellate review of the Court's decision.

Case No. 6:20-cv-00660- JDK- Motion to Shorten Time for Response- 2

Case 6:20-cv-00660-JDK Document 7 Filed 12/29/20 Page 3 of 9 PageID #: 88

Efforts to Resolve Issues Without Litigation

Prior to filing of this lawsuit, Plaintiffs' counsel presented a written statement of the
specific relief requested and summary of Plaintiffs legal arguments by e-mail to the Office of the
Counsel for the Vice President. Prior to moving for emergency relief, Plaintiffs' counsel conferred
via telephone with the Counsel to the Vice President and provided an as-filed copy of the
Complaint and an unsigned final copy of Plaintiffs Motion via email. In the teleconference,
Plaintiffs' counsel made a meaningful attempt to resolve the underlying legal issues by agreement,
including advising the Vice President's counsel that Plaintiffs intended to seek immediate
injunctive relief in the event the parties did not agree. Those discussions were not successful in
reaching an agreement and this lawsuit was filed. Counsel for the Vice President was promptly
furnished a copy of the Complaint and Plaintiffs Motion.
In an effort to expedite matters, Plaintiffs' counsel sought an agreement with Defendant's
counsel to effect service by agreement upon electronic transmission means (e-mail) or a waiver.
This effort was unsuccessful and Plaintiffs' counsel promptly sought issuance of a Summons and
initiated efforts to have formal service effected promptly. In the meantime, Plaintiffs' counsel
delivered copies of the Complaint and Plaintiffs Motion to Counsel for the Vice President and the
United States District Attorney for the Eastern District of Texas by email.
On the morning of Tuesday, December 29, 2020, the United States District Attorney for
the Eastern District of Texas was formally served with a Summons and copy of Plaintiffs Motion.
See ECF #5. Contemporaneously, Plaintiffs counsel were contacted by Mr. Christopher Healy

from the Civil Division of the United States Department of Justice in Washington, D.C. and a
conference call of the parties' counsel was scheduled for late morning of Tuesday, December 29,
2020.

Undersigned counsel was informed that Mr. Healy and other representatives of the

Case No. 6:20-cv-00660- JDK- Motion to Shorten Time for Response- 3

Case 6:20-cv-00660-JDK Document 7 Filed 12/29/20 Page 4 of 9 PageID #: 89

Government who may represent Defendant have received copies of the Complaint and Plaintiffs
Motion.
Attempts to Reach Agt·eement on Scheduling of Briefing and Hearing

A conference of counsel for the parties was attended by three of Plaintiffs' counsel and five
attorneys from governmental departments representing Defendant Pence. In that conference, the
patiies' counsel discussed scheduling of Defendants' response to Plaintiffs Motion, Plaintiffs
Reply, and hearing on the merits of the motion before the Co mi. Defendants' counsel requested
additional time to confer with their client and agreed upon reconvening at 1 :30 p.m. of the same
day to have fmiher discussion.
A second conference of the parties' counsel did not take place. Instead, Plaintiffs counsel
received an e-mail from Mr. Healy seeking a delay. A true copy of the email exchange between
counsel, labeled as "Exhibit I", is attached.
Requested Relief

Plaintiffs request that the Court enter an order requiring that Defendant file any response
to Plaintiffs' Motion by the Court's close of business hours (5:00 p.m. Central) on Wednesday,
December 30, 2020, and that Plaintiffs file their reply by 9:00 a.m. the following moming.
Plaintiffs further request an in-person hearing before the Court on the aftemoon of Thursday,
December 31, 2020.
Conclusion

Therefore, Plaintiffs respectfully request that the Comi grant the relief sought in this
motion and set a scheduling of briefing and argument of Plaintiffs Motion as requested.

Case No. 6:20-cv-00660- JDK- Motion to Shorten Time for Response- 4

Case 6:20-cv-00660-JDK Document 7 Filed 12/29/20 Page 5 of 9 PageID #: 90

Dated: December 29, 2020

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]

Is/William L. Sessions
William Lewis Sessions
Texas Bar No. 18041500
Sessions & Associates, PLLC
14591 Nmih 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 Cmmecticut 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:
Email: [e-mail]
Email: [e-mail]
COUNSEL FOR PLAINTIFFS

Case No. 6:20-cv-00660- JDK- Motion to Shorten Time for Response- 5

Case 6:20-cv-00660-JDK Document 7 Filed 12/29/20 Page 6 of 9 PageID #: 91

CERTIFICATE OF CONFERENCE
I hereby certify that as counsel for Plaintiffs, I have complied with the meet and confer
requirement in Local Rule CV -7(h) in the following respects: I have personally contacted and
spoken with Mr. Christopher Healy from the Civil Division of the United States Department of
Justice in Washington, D.C. and other Govenunent counsel whom I understand will be
representing the Defendant. The contents of the foregoing Motion and the Defendant's position on
same were discussed in a meaningful mmmer. Defendant's counsel have indicated they could not
make any conunitments to scheduling of briefing and a hearing on PlaintitT's Motion. Defendant' s
counsel insisted upon formal service of the Vice President and Attorney General of the United
States. The parties' counsel could not agree on the merits of the motion or upon times for
scheduling of a response from Defendant, or hearing on the merits, of Plaintiffs Motion.
Undersigned counsel has concluded that the parties are presently at an impasse, leaving an open
issue for the Comi to resolve. Undersigned counsel will inunediately advise the Comi of any
change in the parties' positions.
Dated: December 29, 2020
William Lewis Sessions
Counsel for Plaintiffs

Case No. 6:20-cv-00660- JDK- Motion for Expedited Declaratmy Judgment and Emergency Injunctive Relief

28

Case 6:20-cv-00660-JDK Document 7 Filed 12/29/20 Page 7 of 9 PageID #: 92

CERTIFICATE OF SERVICE
I hereby certif)r 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 CMIECF
system. In addition, because counsel for the defendant has not yet filed an appearance, I served on
the following person at the indicated addresses, with a courtesy copy via facsimile and/or email to
the addresses specified:
Gregory F. Jacob
Counsel to the Vice President
Office of the Vice President
Eisenhower Executive Office Building
Washington, DC 20501
E-mail: gregory [e-mail]

Stephen J. Cox
United States Attorney
350 Magnolia Ave., Suite 150
Beaumont, Texas 77701
Fax: [phone]
E-mail: [e-mail]

Cluistopher Healy
U.S. Department of Justice, Civil Division,
Federal Programs Branch
1100 L St. NW I Washington, DC 20005
Tel [phone] fax [phone]
E-mail: Clu·istopher. Heal y@usdoj. gov

Dated: December 29, 2020

~~~
William Lewis Sessions
Counsel for Plaint([fs

Case 6:20-cv-00660-JDK Document 7 Filed 12/29/20 Page 8 of 9 PageID #: 93

From:
To:
Cc:
Subject:
Date:

Healy. Christopher CCIV)
Lewis Sessions: Senanayake. Tanya C
CIV)
Howard Klelnhendlec Larrv Joseph
RE: Activity In Case 6:20·cv·00660·JDK Gohmert et al v. Pence Notice of Attorney Appearance- Pro Hac Vice
Tuesday, December 29, 2020 1:38:40 PM

Lewis, we are still conferring with our client, and at this point have nothing to report. We hope to
have an update for you today, and we're happy to set another call (say 5:00 east ern tim e) and will
try to have a confirmed position for you by then.
--Christopher

From : Lewis Sessions <[e-mail]>

Sent: Tuesday, December 29, 2020 2:36 PM
To: Healy, Christopher {CIV) <[e-mail]>; Senanayake, Tanya {CIV)
<[e-mail]>

Cc: Howard Kleinhendler <[e-mail]>; Larry Joseph <[e-mail]>

Subject: RE: Activity in Case 6:20-cv-00660-JDK Gohmert et al v. Pence Notice of Attorney
Appearance- Pro Hac Vice

Christopher and Tanya,
We are on the conference call waiting for you. Call in: [phone], Access Code
9728812#. I sent an Outlook calendar entry to you earlier.
Lewis Sessions
Attorney at law
Board Certified - Civil Trial Law
Texas Board of Legal Specialization
SESSIONS

&

AssOCIATES, PLLC

14951 North Dallas Parkway, Suite 400
Dallas, Texas 75254
Direct Tel: [phone]
General Tel: [phone]
Direct Fax: [phone]
Email: lsessions@sessionsJaw,net

From: Lewis Sessions

Sent: Tuesday, December 29, 2020 1:04 PM
To: Chrjstopher.H [e-mail]; Senanayake, Tanya {CIV <Tanya.Senanayake@usdoLgoy>
Cc: Howard Kleinhendler <[e-mail]>; Larry Joseph <ljoseph@larryjosepb ,com>

Subject: FW: Activity in Case 6:20-cv-00660-JDK Gohmert et al v. Pence Notice of Attorney
Appearance- Pro Hac Vice

Counsel,
Per our agreement, I am forwarding notice received from the Clerk of the Court.

EXHIBIT 1

Case 6:20-cv-00660-JDK Document 7 Filed 12/29/20 Page 9 of 9 PageID #: 94

Lewis Sessions
Attorney at Law
Boa rei Certified - Civil Trial Law
Texas Board of Legal Specialization

SESsioNs & AssociATES, PLLC
14951 North Dallas Parkway, Suite 400
Dallas, Texas 75254
Direct Tel: [phone]
General Tel: [phone]
Direct Fax: [phone]
Email: [e-mail]

From: [e-mail] <[e-mail]>
Sent: Tuesday, December 29, 2020 1:00PM
To: [e-mail]
Subject : Activity in Case 6:20-cv-00660-JDK Gohmert et al v. Pence Notice of Attorney AppearancePro Hac Vice

This is an automatic e-mail message generated by the CM/ECF system . Please DO NOT
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U.S. District Court
Eastern District of TEXAS [LIVE)

Notice of Electronic Filing
The following transaction was entered by Joseph, Lawrence on 12/29/2020 at 12:59 PM CST and
filed on 12/29/2020
Case Name:

Gohmert et al v. Pence

Case Number:

6:20-cy-00660-JOK

Filer:

Tyler Bowyer
Nancy Cottle
Louie Gohmert
Jake Hoffman
Anthony Kern
James R. Lamon
Robert Montgomery