A federal appeals court upheld the dismissal of GOP Rep. Louie Gohmert’s lawsuit against Vice President Mike Pence, which was designed to overturn President-elect Joe Biden’s victory over President Trump.
The three-judge panel for the U.S. Court of Appeals for the Fifth Circuit, comprised of Reagan appointees Patrick Higginbotham and Jerry Smith, as well as Trump appointee Andrew Oldham, issued a two-page ruling affirming a district court’s Friday decision rejecting Gohmert’s arguments over lack of standing.
“This administrative panel is presented with an emergency motion for expedited appeal … We have the benefit of the briefing before the district court and its 13-page opinion styled Order of Dismissal, issued January 1, 2021. That order adopts the position of the Department of Justice, finding that the district court lacks jurisdiction because no plaintiff has the standing demanded by Article III,” the trio wrote Saturday. “We need say no more, and we affirm the judgment essentially for the reasons stated by the district court. We express no view on the underlying merits or on what putative party, if any, might have standing. The motion to expedite is dismissed as moot.”
Gohmert had sought to have the appeals court intervene and take up the case, arguing, “Plaintiffs-Appellants seek to declare the Electoral Count Act of 1887 … 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 United States Code for more than 130 years, it has not affected any presidential election, but threatens to do so now.”
But Judge Jeremy Kernodle, whose ruling was upheld, had said Friday that Gohmert, who was joined by a group of Arizona Republicans attempting to act as electors for Trump, don’t “have standing” — a critical element determining jurisdiction.
The ruling was a victory for Pence, who through Justice Department lawyers argued in a filing with the U.S. District Court for the Eastern District of Texas on Thursday that, if they were going to sue someone, Gohmert and his allies should have sued Congress, not the vice president. Still, Pence said Saturday that he “welcomes the efforts” of other Republican lawmakers to “raise objections and bring forward evidence” of voter fraud to Congress on Jan. 6.
Pence, in his role as president of the Senate, is expected to preside over the proceedings to certify the election results on Wednesday. After meeting with Pence for more than an hour last week, Trump retweeted a message instructing his vice president to “act” to halt the certification of election results.
“Plaintiff Louie Gohmert, the United States Representative for Texas’s First Congressional District, alleges at most an institutional injury to the House of Representatives. Under well-settled Supreme Court authority, that is insufficient to support standing,” Kernodle wrote Friday, adding that “accordingly … the Court lacks subject matter jurisdiction over this case and must dismiss the action.”
Gohmert’s lawsuit, filed on Sunday, aimed to provide Pence with “exclusive authority” to determine which Electoral College votes are certifiable, arguing that the vice president has the “sole discretion” to determine the legitimacy of votes via the 12th Amendment. The crux of their case was that parts of the Electoral Count Act, which establishes the procedures for Congress counting the Electoral College votes, are unconstitutional.
The Justice Department’s 14-page response argued that “to the extent any of these particular plaintiffs have a judicially cognizable claim, it would be against the Senate and the House of Representatives” because “after all, it is the role prescribed for the Senate and the House of Representatives in the Electoral Count Act to which plaintiffs object, not any actions that Vice President Pence has taken.”
Democratic House General Counsel Doug Letter filed an amicus brief in court on Thursday that asked the judge to dismiss the case, dubbing it a “radical departure from our constitutional procedures and consistent legislative practices.”
Kernodle took particular aim at Gohmert.
“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 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,” the judge wrote. “All that makes Congressman Gohmert’s alleged injury far too uncertain to support standing under Article III.”
Federal and state officials have defended the integrity of the election and stress there is no evidence of widespread fraud, and former Attorney General William Barr said DOJ investigators had not unearthed fraud that could have changed the election outcome. Still, Trump refuses to concede the contest nearly two months after Election Day. The inauguration is set for Jan. 20.
On Saturday, a delegation of at least 11 current and incoming Republican senators led by Texas Sen. Ted Cruz said they would vote to challenge Biden’s Electoral College win by determining some states as not “lawfully certified” unless there’s an audit of the Nov. 3 election results. Missouri GOP Sen. Josh Hawley is seeking a separate challenge.
Republican Sen. Mitt Romney of Utah said that “the egregious ploy to reject electors may enhance the political ambition of some, but dangerously threatens our Democratic Republic.”
GOP Sen. Pat Toomey of Pennsylvania similarly criticized the efforts, tweeting, “A fundamental, defining feature of a democratic republic is the right of the people to elect their own leaders. The effort by Sens. Hawley, Cruz, and others to overturn the results of the 2020 presidential election in swing states like Pennsylvania directly undermines this right.”
Biden secured the Electoral College 306-232.
