by Paul Engel
- Gohmert’s lawsuit falsely claims the Constitution grants powers to the Vice-President to decide which Presidential Elector’s votes to count.
- Gohmert’s lawsuit falsely claims that the Constitution grants the House of Representatives the power to resolve disputes about the appointment and voting of the Presidential Electors.
- Gohmert’s lawsuit asked the Supreme Court to violate the Constitution, remove the state legislatures as the sole body that can determine the manner of appointing electors, and replace it will the will of the Vice-President and the House of Representatives.
There has been a lot of news about Rep. Gohmert’s lawsuit against Vice-President Pence regarding the counting of the votes of the Presidential Electors. Much of the reporting is wrong, but then, so is much of what I found in the actual suit. Rather than reviewing all of the misinformation coming out of the news media, I went right to the lawsuit, and found plenty of misinformation for this article.
Who Counts the Votes?
- These provisions of Section 15 of the Electoral Count Act are unconstitutional insofar as they establish procedures for determining which of two or more competing slates of Presidential Electors for a given State are to be counted in the Electoral College, or how objections to a proffered slate are adjudicated, that violate the Twelfth Amendment. This violation occurs because the Electoral Count Act directs the Defendant, Vice President Michael R. Pence, in his capacity as President of the Senate and Presiding Officer over the January 6, 2021 Joint Session of Congress: (1) to count the electoral votes for a State that have been appointed in violation of the Electors Clause; (2) limits or eliminates his exclusive authority and sole discretion under the Twelfth Amendment to determine which slates of electors for a State, or neither, may be counted; and (3) replacesthe Twelfth Amendment’s dispute resolution procedure – under which the House of Representatives has sole authority to choose the President.
First, the good news is yes, many provisions of 3 USC §15 are unconstitutional, and therefore illegal. The bad news is, Mr. Gohmert is claiming the Vice-President has powers the Constitution does not delegate to him.
(1) to count the electoral votes for a State that have been appointed in violation of the Electors Clause;
Does 3 USC §15 direct the President of the Senate to count votes of electors that have been appointed in violation of the Constitution’s Electors Clause?
Two tellers shall be previously appointed on the part of the Senate and two on the part of the House of Representatives, to whom shall be handed, as they are opened by the President of the Senate, all the certificates and papers purporting to be certificates of the electoral votes, which certificates and papers shall be opened, presented, and acted upon in the alphabetical order of the States, beginning with the letter A; and said tellers, having then read the same in the presence and hearing of the two Houses, shall make a list of the votes as they shall appear from the said certificates; and the votes having been ascertained and counted according to the rules in this subchapter provided, the result of the same shall be delivered to the President of the Senate, who shall thereupon announce the state of the vote, which announcement shall be deemed a sufficient declaration of the persons, if any, elected President and Vice President of the United States, and, together with a list of the votes, be entered on the Journals of the two Houses.
First of all, 3 USC §15 does not direct the President of the Senate to count ballots. Two tellers from each house count the ballots. Does this violate the Constituiton?
— the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;
The Twelfth Amendment states that the President of the Senate is to open the certificates from the states, and that the votes shall be counted. It does not state who counts those votes, or how those votes are counted. Since this is being done in a joint session of Congress, and the law that Congress has passed does not violate the requirement that the President of the Senate open the certificates, I don’t see a constitutional violation here.
Does 3 USC §15 direct the Vice-President to count the votes of electors appointed in violation of the Electors Clause? Nothing in the Constitution gives the federal government any authority to question the decisions of the states regarding the appointment of Presidential Electors.
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress:
If a state’s legislature is, as the Electors Clause states, the sole decider for determining the manner of appointing electors, then where is anyone in the federal government granted the authority to question the appointments? The answer is, nowhere in the Constituiton. We’ll talk more about that when we discuss dispute resolution. Since 3 USC §15 does not give any direction to the Vice-President regarding which votes to count, that’s strike one for Mr. Gohmert.
(2) limits or eliminates [The Vice-President’s] exclusive authority and sole discretion under the Twelfth Amendment to determine which slates of electors for a State, or neither, may be counted;
Next, Mr. Gohmert claims that the Vice-President has the “exclusive authority and sole discretion” to determine which slates of electors may be counted. There’s just one problem. Nothing in the Twelfth Amendment grants any discretion to determine which votes are to be counted.
— the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;
That’s it. No one in Congress is given the authority to question, much less decide, which certificates to open or which votes to count. So 3 USC §15 does not violate the Vice-President’s authority to determine which electors to count. It violates the authority of the state legislatures to appoint electors in whatever manner they determine.
Upon such reading of any such certificate or paper, the President of the Senate shall call for objections, if any.
Congress, including the President of the Senate, does not have the authority to object, either to the electors or their votes. Strike two for Mr. Gohmert.
replaces the Twelfth Amendment’s dispute resolution procedure – under which the House of Representatives has sole authority to choose the President
The Twelfth Amendment does not grant any authority to the federal government to resolve any disputes over Presidential Electors or their votes. Since the Constitution does not delegate to the United States the power to dispute electors, that power remains with the states.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
If a state believes another state violated the Constitution in the manner of appointing electors, that state can seek redress from the federal courts, as Texas did. The fact that Texas Attorney General Paxton ruined his argument does not mean the power devolves to the federal government.
Furthermore, the Twelfth Amendment does not grant to the House of Representatives the authority to resolve disputes in the Presidential Elections. The House of Representatives only has the authority to choose the President if none of the persons receives a majority of the votes of the electors appointed.
— The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President.
That makes strike 3 for Mr. Gohmert. However, since this is not a game, we’re not done with Mr. Gohmert’s lawsuit just yet.
Appointing of Electors
Section 15 of the Electoral Count Act unconstitutionally violates the Electors Clause by usurping the exclusive and plenary authority of State Legislatures to determine the manner of appointing Presidential Electors, and instead gives that authority to the State’s Executive. Similarly, 3 USC § 5 makes clear that the Presidential electors of a state and their appointment by the State Executive shall be conclusive.
This argument is a little more difficult to untangle. Let’s start with 3 USC §5:
If any State shall have provided, by laws enacted prior to the day fixed for the appointment of the electors, for its final determination of any controversy or contest concerning the appointment of all or any of the electors of such State, by judicial or other methods or procedures, and such determination shall have been made at least six days before the time fixed for the meeting of the electors, such determination made pursuant to such law so existing on said day, and made at least six days prior to said time of meeting of the electors, shall be conclusive, and shall govern in the counting of the electoral votes as provided in the Constitution, and as hereinafter regulated, so far as the ascertainment of the electors appointed by such State is concerned.
Contrary to Mr. Gohmert’s complaint, 3 USC §5 does not state that a state’s executive has conclusive authority to resolve controversies regarding that state’s Presidential Electors. It states quite clearly that state law is conclusive, as long as that law was passed at least six (6) days prior to the date electors are appointed (Election Day). If the state legislature created a procedure whereby a controversy over the state’s electors is resolved by the state’s executive, that is part of determining the manner of appointing electors. However, that is not a requirement of 3 USC §5.
Now let’s deal with the §15 question. And I apologize, but this gets a little convoluted:
but in case there shall arise the question which of two or more of such State authorities determining what electors have been appointed, as mentioned in section 5 of this title, is the lawful tribunal of such State, the votes regularly given of those electors, and those only, of such State shall be counted whose title as electors the two Houses, acting separately, shall concurrently decide is supported by the decision of such State so authorized by its law;
Here is where things get constitutionally messy. If there’s a situation where two or more state authorities submit certificates of votes for their Presidential Electors, what is Congress to do? What happens when the state laws to resolve controversies mentioned in §5 either don’t exist or are not followed? §15 claims that the power to decide which slate of electors to count devolves to the two Houses. Which two Houses? Based on the context it appears to be the two houses of Congress. But as we’ve already seen, Congress has no legal authority to resolves disputes about Presidential Electors, so this cannot be legal.
But if the two Houses shall disagree in respect of the counting of such votes, then, and in that case, the votes of the electors whose appointment shall have been certified by the executive of the State, under the seal thereof, shall be counted.
The part that Mr. Gohmert challenges is the situation where the two houses of Congress cannot agree on which slate of electors they will support in their violation of the Constitution. Mr. Gohmert is correct, that the federal government placing the determination in the hands of the state executive violates the Electors Clause of the Constitution. However, by that point Congress has already violated the Constitution by meddling in controversies in which it has no legal authority. If the members of Congress are willing to violate their oaths to meddle in state business, why would anyone be surprised that they continue to violate their oaths of office if both houses cannot agree?
What should happen if two of more certificates arrive from a single state? Since only the certificate that was created following state law is valid, it is the only one that should be counted, as stated in 3 USC §5. If that cannot be determined, then the state has not submitted a valid certificate, so their electors have not been legally appointed. And since the electors were not legally appointed, the total number of electors appointed would be decreased by that number, thereby changing the number of votes needed for a majority.
— The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed;
What Mr. Gohmert Asked the Court to do
Accordingly, Plaintiffs respectfully request this Court to issue a declaratory judgment finding that:
- Sections 5 and 15 of the Electoral Count Act, 3 U.S.C. §§ 5 and 15, are unconstitutional because they violate the Twelfth Amendment, U.S. CONST. art. II, § 1, cl. 1 & amend. XII on the face of it; and further violate the Electors Clause;
While there are parts of §15 that are unconstitutional, nothing in §5 is. At best the court could find that the objection and dispute mechanism in §15 are unconstitutional, but that doesn’t really help Mr. Gohmert’s apparent cause.
- That Vice-President Pence, in his capacity as President of Senate and Presiding Officer of the January 6, 2021 Joint Session of Congress under the Twelfth Amendment, 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, and must ignore and may not rely on any provisions of the Electoral Count Act that would limit his exclusive authority and his sole discretion to determine the count, which could include votes from the slates of Republican electors from the Contested States;
All members of government are subject to the Constitution, including the Twelfth Amendment. However, the Constitution does not give the President of the Senate the authority or discretion to determine which votes to count. The only thing the Constituiton grants to the President of the Senate is the power to collect and open the certificates.
- That, with respect to competing slates of electors from the State of Arizona or other Contested States, the Twelfth Amendment contains the exclusive dispute resolution mechanisms, namely, that (i) Vice-President Pence determines whichslate of electors’ votescount, or neither, for that State; (ii) how objections from members of Congress to any proffered slate of electors is adjudicated; and (iii) if no candidate has a majority of 270 elector votes, then the House of Representatives (and only the House of Representatives) shall choose the President where “the votes [in the House of Representatives] shall be taken by states, the representation from each state having one vote,” U.S. CONST. amend. XII;
As we’ve already seen, the Constitution does not grant to the Vice-President the authority to determine which votes to count. Neither does it provide any language allowing for members of Congress to object to the electors. And with only two candidates receiving votes, the only way the choice for President would devolve to the House of Representatives is if there is a tie in the electors votes.
- That with respect to the counting of competing slates of electors, the alternative dispute resolution procedure or priority rule in 3 U.S.C. § 15, together with its incorporation of 3 U.S.C. § 5, shall have no force or effect because it nullifies and replaces the Twelfth Amendment rules above with an entirely different procedure;
Because Congress has no authority to dispute the appointment of electors, I agree, sections of 3 USC §15 are void and has no force. However, 3 USC §5, while it is technically redundant, does hold up under constitutional review. Since Mr. Gohmert is incorrect in his claim that 3 USC §5 places the ultimate resolution of controversies in the hands of the state’s executive, his request here is moot.
To me, this appears to be yet another attempt to twist the Constitution to meet one group’s political objectives, specifically the re-election of President Trump. While the Texas lawsuit at least had merit, it was buried beneath an avalanche of political agendas. Mr. Gohmert’s Gambit, to get the federal judiciary to ignore that actual language of the Constitution to get the political outcome he desires, does not even rise to the level of merit. It has justly died the ignoble death it deserved. I only hope the American people and the citizens of Texas see this lawsuit for what it is, a naked violation of the Constitution for political advancement.