Texas Rep. Louie Gohmert’s lawsuit against Vice President Mike Pence, which was designed to overturn President-elect Joe Biden’s victory, has been dismissed.
Federal judge Jeremy Kernodle ruled on Friday that Gohmert, who was joined by a group of Arizona Republicans who would have been electors for President Trump, don’t “have standing,” a critical element determining jurisdiction.
The ruling is 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 Gohmert and his allies should have sued Congress, not the vice president.
“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. “The other Plaintiffs, the slate of Republican Presidential Electors for the State of Arizona (the ‘Nominee-Electors’), allege an injury that is not fairly traceable to the Defendant, the Vice President of the United States, and is unlikely to be redressed by the requested relief.”
“Accordingly … the Court lacks subject matter jurisdiction over this case and must dismiss the action,” he added.
Kernodle made his ruling without prejudice, meaning Gohmert and the Arizona Republicans could file suit again.
Instead, in a late-night interview on Newsmax, the Republican congressman announced that his legal team was “preparing” to appeal the judge’s decision to the Fifth Circuit Court of Appeals. Around the time a notice was filed, Gohmert said it was his “hope and prayer” that appeal would be taken up before Wednesday when Pence will preside over the joint session of Congress meant to certify the winner of the presidential contest.
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 lawsuit also claimed there was election fraud.
The 14-page response, signed by Deputy Assistant Attorney General John Coghlan, argues that if Gohmert was to file a lawsuit against anybody, it should be Congress.
“To the extent any of these particular plaintiffs have a judicially cognizable claim, it would be against the Senate and the House of Representatives,” the DOJ filing said. “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.”
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.” Alan Kennedy, a Colorado elector for Biden, also moved to intervene in the case that he called an “Electoral College fantasy” that must be thrown out.
Gohmert’s team argued in a follow-up filing on Friday that the Justice Department lawyers were hiding “behind procedural arguments” that are “easily disposed.”
Kernodle, who was nominated by Trump in January 2018 and confirmed by the Senate in October 2018, said he could not address the challenge against the constitutionality of the Electoral Count Act of 1887 without ensuring that it has jurisdiction.
“One crucial component of jurisdiction is that the plaintiffs have standing. This requires the plaintiffs to show a personal injury that is fairly traceable to the defendant’s allegedly unlawful conduct and is likely to be redressed by the requested relief … Requiring plaintiffs to make this showing helps enforce the limited role of federal courts in our constitutional system. The problem for Plaintiffs here is that they lack standing. 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,” he wrote.
“The other Plaintiffs, the slate of Republican Presidential Electors for the State of Arizona, allege an injury that is not fairly traceable to the Defendant, the Vice President of the United States, and is unlikely to be redressed by the requested relief. Accordingly … the Court lacks subject matter jurisdiction over this case and must dismiss the action,” Kernodle said.
The judge also took particular aim at Gohmert.
“Congressman Gohmert’s argument is foreclosed by [Supreme Court decision] Raines v. Byrd, which squarely held that Members of Congress lack standing to bring a claim for an injury suffered ‘solely because they are Members of Congress.’ … And that is all Congressman Gohmert is alleging here. He does not identify any injury to himself as an individual, but rather a ‘wholly abstract and widely dispersed’ institutional injury to the House of Representatives,” Kernodle said.
“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.”
The litigation was one vestige of a long-shot effort to stop Congress from certifying Biden’s Electoral College victory on Wednesday. A group of House Republicans, joined by Sen. Josh Hawley, plan to object to the results from some states where they claim there was fraud and failure to follow state election laws.
Federal and state officials have defended the integrity of the election and stress there is no evidence of widespread fraud. Still, Trump refuses to concede the contest nearly two months after Election Day. The inauguration is set for Jan. 20.
Trump flew back to the White House from his Mar-a-Lago resort in Florida on Thursday, earlier than expected, with his focus set on challenging and overturning the election certification process in Congress on Wednesday.
Mike Brest contributed to this report.
