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I have just found that another lawsuit have been filed in Texas, aimed at overturning the presidential election result and seeking for the courts to invalidate the Electoral Count Act as unconstitutional.

My question: Assuming that the judge rules on the eve of counting the electoral votes in Congress that the law is unconstitutional, would this give the president of the Senate (Mike Pence) the power to throw out the votes of some electoral slates from contested states and replace them with votes of alternate slates which claim to be appointed by the state legislatures? The constitution requires him to open the certificates, but does not say which certificates are to be opened if there are several of them.

This is not a duplicate of a previous question, because the possibility of invalidation of the Electoral Count Act by a court decision was not considered before.

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    Just a little point not worth a whole answer; constitutionality isn't binary. SCOTUS can invalidate all of the ECA, none of the ECA, or anywhere in-between. – Ryan_L Dec 30 '20 at 22:52
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    @Ryan_L This is not SCOTUS but a Texas federal Court. Is not its ruling obligatory for Mr. Pence (especially if he agrees)? – user Dec 30 '20 at 22:56
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    @jamesqf the ruling is subject to appeal, and apparently the government argued that the complaint should have been filed against congress, so maybe someone will try that at some point. – phoog Jan 3 at 2:45
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    @phoog Appeals court dismisses Gohmert's election suit against Pence – user Jan 3 at 7:50
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Assume that the judge rules on the eve of counting the electoral votes in Congress that the law is unconstitutional (I know this sounds crazy). Does it really gives the president of Senate (M. Pence) the power to throw out the votes of some electoral slates from contested states and replace them with votes of alternate slates which claim to be appointed by the state legislatures?

Well, Gohmert is specifically asking the court to declare both things, I.E. that the law is unconstitutional AND that Pence can pick and chose which votes to count. See page 25 of the complaint, in the Prayer for Relief section:

C. Declares that Vice-President Pence, in his capacity as President of Senate and Presiding Officer of the January 6, 2021 Joint Session of Congress,is subject solely to the requirements of the Twelfth Amendment and may exercise the exclusive authority and sole discretion in determining which electoral votes to count for a given State

D. Enjoins reliance on any provisions of the Electoral Count Act that would limit Defendant’sexclusive authority and his sole discretion to determine which of two or more competing slates of electors’ votes are to be counted for President;

E. Declares that, with respect to competing slates of electors from the State of Arizona or other Contested States, or with respect to objection to any single slate of electors, the Twelfth Amendment contains the exclusive dispute resolution mechanisms, namely, that (i) Vice-President Pence determines which slate of electors’ votes shall be counted, or if none be counted, for that State

So yeah, Gohmert's suit is specifically trying to get a ruling that Pence can choose which votes to keep and which to toss.

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    @user one suspects the answer is currently undefined, but also that it would be instantly appealed. Normally orders that are appealed are ineffective until the appeal is somehow disposed of, so I think (and as I say, the answer is really "who knows?") that the likeliest outcome in that scenario is that the order has no effect. This is moot though; of all the post-election lawsuits, this one is literally the craziest. And I include in that the Sydney Powell craziness – Dan Scally Dec 30 '20 at 23:35
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    Thank you. The reference you gave says that a party can intervene only before the final judgement. Let us see if there will be such timely intervention. – user Dec 31 '20 at 8:31
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    @Fizz but in the event that the Judge in this case weirdly made the ruling that Pence had sole authority to decide which votes to count, what power over that process would a Senator's objection have? – Dan Scally Dec 31 '20 at 13:53
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    @Fizz well sure; that's what I mean by "I expect the answer is actually 'undefined'". I kinda disagree that there's no need for anyone to intervene in the lawsuit though; as unlikely as it is that any judge will rule in Grohmert's favour (for the reasons you outlined), it makes it easier to argue that this particular judge's nonsense needs to be overruled if you've followed the rules up to that point yourself (I.E. in the highly unlikely event the judge goes rogue, an intervenor-defendant's appeal is obviously legit whereas a political opponent's objection will be more easily muddied) – Dan Scally Dec 31 '20 at 14:21
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    The federal courts themselves have deemed non-justiciable "resolution of disputes between parties who are not truly adverse". Suing Pence in order to increase his powers is basically laughable. They might as well sue Trump at SCOTUS and ask the latter to appoint him president. – Fizz Dec 31 '20 at 14:38
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As I said in some comments, suing Pence in this case was obviously silly, as Pence attorneys themselves actually argued (and the suit was dismissed for lack of standing):

A Justice Department lawyer representing Pence on Thursday urged [judge] Kernodle to dismiss the lawsuit saying they had sued the wrong person as they raised “a host of weighty legal issues about the manner in which the electoral votes for president are to be counted”. “The Senate and the House, not the Vice President, have legal interests that are sufficiently adverse to plaintiffs to ground a case or controversy,” Pence’s filing said.

In general, the federal courts have deemed non-justiciable "resolution of disputes between parties who are not truly adverse".


As it was suggested by Dan Scally in comments might happen, there was an (unopposed) motion to intervene in the suit... but it was from Trump's electors from Michigan. There was actually one very late motion to intervene from a Biden elector from Colorado. I think there wasn't even any ruling on this motion before the lawsuit was dismissed. (Well, it was denied as moot, without specific reference to it, in the final judgment that dismissed the case [and thus all pending motions].)

Note that the plaintiffs filed a notice that they are appealing to the 5th circuit, so this isn't quite over yet.


As explained in Politico, the dismissal was mainly due to the uncertanty of the alleged injury:

A judge said Rep. Louie 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.

“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.

Although they are filing an appeal, the plaintiffs don't seem too convinced it could succeed...

"Bottom line is, the court is saying, ‘we’re not going to touch this, you have no remedy,’" Gohmert said. "Basically, in effect, the ruling would be that you’ve got to go to the streets and be as violent as antifa and BLM."

The judgement actually detailed the issue of standing in re judicial intervention in the actions of other branches of government, citing from the Raines v. Byrd extensively on that basically to show that this is a strict standard. And after a couple of pages of that, it says:

[Gohmert] asserts that under the Electoral Count Act, “he will not be able to vote as a Congressional Representative in accordance with the Twelfth Amendment.” Docket No. 2 at 4 (emphasis added). Because Congressman Gohmert is asserting an injury in his role as a Member of Congress rather than as an individual voter, Raines controls. [...]

Congressman Gohmert’s alleged injury is “a type of institutional injury (the diminution of legislative power), which necessarily damages all Members of Congress.” Id. Under these circumstances, the Supreme Court held in Raines, a Member of Congress does not have “a sufficient ‘personal stake’” in the dispute and lacks “a sufficiently concrete injury to have established Article III standing.” Id. at 830.

The judgement then also cited Clapper v. Amnesty International USA that the scenario laid out by Gohmert is too speculative to clear that bar:

Congressman Gohmert’s alleged injury requires a series of hypothetical—but by no means certain—events. 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 Article III. Id. at 414 (“We decline to abandon our usual reluctance to endorse standing theories that rest on speculation about the decisions of independent actors.”).

So basically it was a "double whammy" against Gohmert's claim (no personal standing (Raines) and scenario too speculative (Clapper)).

Trump electors' standing was basically denied because they didn't explicitly ask for Pence to count their votes as a remedy, only that he'd be given the latitude to do so. So again, they were speculating on his behavior. That still leaves open that they can/may sue Pence after he does his thing (and if the lawsuit explicitly asks for Pence to act differently). Of some interest here, something like that did happen with Raines, as it was followed by Clinton v. City of New York. In contrast to Clinton though, it would be much more difficult to show that Pence acts/acted illegally or unconstitutionally if he decides to open/"count" only Biden's electors' submission from Arizona. Which is basically (probably) why this Gohmert lawsuit was brought in this form that it was.

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