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“Congressman Gohmert’s alleged injury requires a series of hypothetical—but by no means certain—events,” the judge wrote in his 13-page ruling issued Friday evening. “Plaintiffs presuppose what the Vice President will do on January 6, which electoral votes the Vice President will count or reject from contested states, whether a Representative and a Senator will object under Section 15 of the Electoral Count Act, how each member of the House and Senate will vote on any such objections, and how each state delegation in the House would potentially vote under the Twelfth Amendment absent a majority electoral vote.”
“All that makes Congressman Gohmert’s alleged injury far too uncertain to support standing under” the Constitution, Kernodle added.
Kernodle’s decision did not completely slam the door on the possibility that Gohmert or the would-be electors might be able to get some relief in court. The judge dismissed the case without prejudice, meaning that Gohmert’s lawyers could try to reframe the suit so it will pass legal muster. Gohmert, who filed the suit on Sunday, had asked for a final ruling from Kernodle by Jan. 4 in order to have time for potential appeals.
Gohmert’s attorneys already indicated they might seek to name as defendants the U.S. Government, the House and Senate, or the parliamentarians of those bodies. But it’s unclear whether those changes would satisfy the judge and time is running out to win relief before the counting scheduled for Jan. 6.
Kernodle said Gohmert lacked standing under a 1997 Supreme Court ruling that said individual lawmakers did not have standing to challenge a line-item veto law Congress passed a year earlier. The judge’s New Year’s Day ruling said the would-be electors also lacked standing because the harms they were claiming were not really attributable to Pence, but to Gov. Doug Ducey (R-Ariz.), who certified Biden’s electors as the winners in his state. Those electors cast their formal votes on Dec. 14.
Although the Twelfth Amendment to the Constitution requires Pence, as vice president, to preside over the Jan. 6 session, his specific powers are detailed in the Electoral Count Act of 1887. It requires Pence to introduce electors alphabetically by state, and it sets out a process for House members and senators to challenge disputed electors.
Under the Electoral Count Act, that challenge would be resolved by separate votes of the House and Senate — and in the case of the 2020 election, those challenges would effectively be doomed. The Democratic House majority would certainly oppose them and many Senate Republicans have acknowledged that Biden is the unequivocal winner of the contest.
Under Gohmert’s theory, if Pence refused to accept enough electoral votes to put either candidate over the 270-vote threshold, the election would be thrown to the House under a process also laid out in the Twelfth Amendment, which gives state delegations a single vote. That formulation would favor Republicans, who are in the House minority but control more state delegations than Democrats.
Pence, represented by Justice Department attorneys, on Thursday urged the court to reject Gohmert’s suit against him, arguing that his fight is with the House and Senate, not the vice president. Pence has not indicated his own view of his power as the presiding officer on Jan. 6, and he hasn’t indicated whether he intends to introduce the unofficial elector slates that Trump allies claim to have cast in order to compete with the certified slates submitted in states like Arizona, Michigan, Wisconsin and Georgia.
The House filed its own, more exhaustive brief, dismantling Gohmert’s effort as an unconstitutional and thinly veiled effort to overrule the democratic result of the 2020 election. The framers would never have provided for a process that allowed a sitting vice president — often, as in this case, an actual candidate on the Electoral College ballot — to have unilateral authority to choose which electors to count, the House argued.
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