The Electoral Count Act Violates the 12th Amendment
As I wrote on these pages on Dec. 31, the Gohmert suit challenges the Electoral Count Act of 1887 (ECA) because it unconstitutionally varies the dispute resolution procedure set forth in the 12th Amendment, which applies when Congress is faced, as it now is, with dueling presidential electors.Under the 12th Amendment, when neither candidate reaches the requisite majority of electoral votes (today 270) because, for example, the votes from states that sent dueling electors aren’t “counted” by the vice president, in his capacity as president of the Senate, at the joint session of Congress (this year, on Jan. 6), the race is decided by a “contingent election” held in the House of Representatives, with each state getting only one vote.
Dueling Electors
In the 2020 election, competing slates of electors appeared and voted at the Dec. 14 Electoral College in New Mexico and six swing states: Michigan, Wisconsin, Pennsylvania, Georgia, Arizona, and Nevada. If Pence were to decline to rule on which slate should be counted—indeed, the Democrats contend he has no power to decide which slate should be counted—and instead decided not to count either slate, the matter would, under the 12th Amendment, go to the House for a contingent election, because neither candidate would, in that case, reach the 270 vote majority of all 538 electoral votes (though Trump, at 232, would have more of the counted electoral votes than Biden, at 227).Gohmert Sued Pence, but DOJ Says He Should’ve Sued the Senate and House
As noted above, Gohmert sued Pence and named no other defendants. The vice president—who, being sued in his official capacity—is represented by the DOJ and had to respond in some way or default. That is, the DOJ, as counsel for the vice president, was confronted with three options: a response agreeing with Gohmert, no response (a default), or some other response.The DOJ Brief
The vice president and his DOJ lawyers chose the third option. The DOJ brief is only seven pages long, and its principal point is that the vice president is the wrong defendant. (pdf) Instead, the DOJ brief claims the correct defendants are the Senate and House of Representatives in that the members of those chambers would be deprived of the right to vote on “objections” under the ECA were Gohmert successful in his suit to strike down the ECA.Indeed, as the DOJ brief notes, the House of Representatives (which is controlled by Democrats) intends to appear in the Gohmert suit and file an opposing brief (on the merits). The DOJ brief says it will “defer” to the legal arguments on the merits made by the correct party defendants (presumably the Democrat-controlled House). And, indeed, the House thereafter filed a brief seeking to dismiss the Gohmert suit, contending it lacks merit.
Thus, the DOJ brief takes no position on the merits of Gohmert’s constitutional argument (that the ECA is unconstitutional), instead stating simply that Gohmert named the wrong party as defendant—he named solely the vice president, when, according to the DOJ, he should have named the House of Representatives and Senate.
No Case or Controversy?
The DOJ brief makes two additional related points. First, it argues that there’s no ripe “case or controversy”—the Article III jurisdictional predicate for any federal court action—because the vice president has never said he'll follow the ECA (or not follow it), so there’s no way for Gohmert and the Arizona Trump-pledged electors to know, at this juncture, that they need a judgment against Pence. That is, Gohmert and the other plaintiffs don’t now know what Pence will do on Jan. 6.DOJ’s Interesting Mention of the Speech or Debate Clause
Interestingly—and augmenting its point that coercive relief isn’t in order—the DOJ tersely contends that the Gohmert suit doesn’t take into consideration the Constitution’s speech or debate clause. The speech or debate clause protects senators and representatives (along with the vice president in capacity as president of the Senate) from liability for what’s said in a congressional debate and other legislative acts undertaken in the chambers of Congress. Although this is a bit of an oversimplification, I think it’s fair to say that the speech or debate clause is an incident of our separation of powers principle, and was crafted by the Founding Fathers to preclude excessive intervention by the courts into the inner workings of Congress.But why would the DOJ mention the speech or debate clause in the short brief responding to the Gohmert suit? Again, though the mention of this clause of the Constitution is briefly made, the only sense I can make of its being mentioned at all, is that the vice president is saying he would be within his rights—under the speech or debate clause—to speak his mind about the dueling slates and electoral fraud on Jan. 6, and should be able to to do so, without fear of reprisal or judicial interference.
Coupling this mention of the speech or debate clause with the overarching point of the DOJ brief that Gohmert’s suing the vice president doesn’t give rise to an Article III case or controversy because the vice president hasn’t yet taken a position in favor of the ECA, a very different picture emerges of the essential nature of the vice president’s filing.
While most media outlets latched on to the single expression in the DOJ brief that the Gohmert suit is a “walking legal contradiction,” and the DOJ’s opposition to expedited scheduling of the case, as proof that Pence opposes Trump’s plans, I'd suggest exactly the opposite conclusion is warranted.
Pence, by the DOJ filing, seems to be saying: I got sued by Gohmert and I’m not going to ignore the suit. I’m not the right defendant, the Democrat-controlled House is, and they'll file papers opposing Gohmert’s arguments on the merits (as indeed they just have). However, I’m not going to take any position, one way or the other, on the merits, right now, but I note that whatever I do on Jan. 6 is protected by the speech or debate clause—the courts shouldn’t intrude—and certainly have no business considering a coercive injunction against me, the vice president, which is both offensive and violates (or comes close to violating) our separation of powers principle.
Indeed, tellingly, the DOJ brief, not only opposes injunctive relief but also opposes expedited treatment of the suit by the Texas district court (here, Judge Jeremy Kernodle, who is a Trump appointee).
In short, reading the tea leaves, so to speak, I don’t see Pence’s filing as one opposing the Gohmert position on the merits—except that my gut feeling is that Pence doesn’t contend that he has the power, as Gohmert says he does, to choose which slate to count, but Pence might end up agreeing he has the power to decide not to count either set of electors in these unusual circumstances.
Pence’s Strategy Worked Perfectly
In a carefully worded and scholarly 13-page opinion (pdf), dated Jan. 1, Kernodle dismissed the Gohmert suit. Kernodle ruled that neither Gohmert nor the Arizona Trump-pledged electors had standing. As for Gohmert, Kernodle found that he only alleged an “institutional” injury common to the House at large, and that under settled law that type of institutional (nonpersonal) injury was insufficient to confer Article III standing.As for the Arizona Trump-pledged electors, Kernodle noted that the injury they allege was brought about by Arizona Gov. Doug Ducey (not Pence), who, they contend, improperly certified the Biden-pledged electors based on an allegedly fraudulent election and against the wishes of the Arizona legislature (in contravention of Article II, the electors clause, of the Constitution, which grants “plenary” power to the state legislatures to decide the manner of choosing presidential electors).
As a result, Kernodle determined that the court lacked “subject matter” jurisdiction. Because the court lacked jurisdiction, Kernodle dismissed the case—and this is crucial—“without prejudice.”
“Here, 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 the contested states, whether a Representative or 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 to uncertain to support standing under Article III [of the Constitution].”In short, in carefully addressing Gohmert’s lack of standing, Kernodle identified some of the possible paths that could be pursued by Pence and the federal lawmakers on Jan. 6, ruling that because no one could say today what would then happen, Gohmert lacked Article III standing.
What Should Pence Do on Jan. 6?
Though I think the DOJ response tactically preserved the vice president’s options, I can’t tell you what Pence will do. What I can tell you is what I think he should do. If I were the vice president, I would, in my capacity as president of the Senate, “open” and read both of the dueling electors slates from the six disputed swing states (and New Mexico)—and not just read the governor-certified Biden slates. I would then make a statement along these lines:“I preside over these proceedings under the 12th Amendment acting in my capacity as president of the Senate. The senators and representatives are at this stage mere observers. I do agree with my Democratic colleagues who have said the 12th Amendment does not empower me to decide which set of disputed electors to count and which not to count. That said, I cannot in good conscience simply rubber stamp the Biden-pledged electors because the governors have certified them. Yes, I am aware that the Electoral Count Act of 1887 provides, in general, for the governor-certified slates to take precedence. However, that is nowhere provided in the 12th Amendment, and here, on this record, my oath of office commands that I not do so.
“Putting aside evidence of election fraud itself, which is massive and well documented, there is no question that the executive and judicial branches of state governments have overruled the state lawmakers in these seven states, and that in and of itself—without regard to any underlying election fraud—is a wanton violation of Article II, the electors clause, which vests “plenary” power over the manner of choosing electors with the state legislatures. The U.S. Supreme Court has held that that power can be exercised at any time and may never be taken away or abdicated. Therefore, the lawmakers were free to send the Trump-pledged electors to the Electoral College on Dec. 14 as they did, after they heard the compelling evidence of widespread fraud.
“That said, because I adjudge myself as not being empowered to decide which set of electors to count—yet the gubernatorial certifications brazenly flout the state lawmakers’ plenary Article II power—I am not counting either set, as the Constitution, and in consequence, my solemn oath of office permits no other result.
“In consequence, and because neither set of electors from these contested states is being counted, no objections will be taken to either set of electors in either chamber, so there will be no debate on objections. That leaves the electoral vote count at 232 for President Donald Trump and 227 for former Vice President Joe Biden. Neither candidate having achieved the requisite 270 electoral vote majority, I am sending the matter to the House for an immediate contingent election as the 12th Amendment unambiguously commands. The House must now immediately decide the dispute by a contingent election in accordance with the 12th Amendment. [gavel slams] This joint session of Congress is now concluded, and a contingent election in the House is hereby convened.”
That of course would draw immediate legal action from Biden and the Democrats. I have a feeling the DOJ’s response to that suit against the vice president will more heavily focus on the Speech or Debate Clause. The question will then become whether the Supreme Court cites the separation of powers principle and speech or debate clause to decline further judicial intervention, or whether the Supreme Court tackles the issue of the constitutionality of the ECA—and Pence’s actions on Jan. 6—head on, and overturns the contingent election in the House. I suspect the court will consider overturning the contingent election an egregious violation of the separation of powers principle.
In short, while I don’t know what the vice president will do on Jan. 6, I see Pence’s filing as strategic and thoughtful—very far from raising a white flag and abandoning Trump. Indeed, Pence’s position led to a well-reasoned decision from Kernodle that preserves all the vice president’s options.
And that’s a good thing, both for the Republic and Pence’s future career, as I can’t see any of the 74 million people who voted for the president as supporting Pence were he to slavishly follow the corrupt, and unconstitutional, certifications by the governors.
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