“Congressman Gohmert’s alleged injury requires a series of hypothetical events, but by no means certain,” wrote the judge in its 13-page decision issued on Friday night. “The plaintiffs assume what the vice president will do on January 6, what electoral votes the vice president will count or reject from the contested states, whether a deputy and a senator will object under section 15 of the electoral counting law, as each member of the House and the Senate will vote on such objections, and how each state delegation in the House would potentially vote under the Twelfth Amendment in the absence of a majority electoral vote. “
“All of this makes Congressman Gohmert’s alleged injury too uncertain to support the position under the Constitution,” added Kernodle.
Kernodle’s decision did not completely rule out the possibility that Gohmert or candidate voters would be able to get some relief in court. The judge closed the case without prejudice, which means that Gohmert’s lawyers could try to reformulate the case so that it passes the legal analysis. Gohmert, who filed the lawsuit on Sunday, called for a final decision by Kernodle by Jan. 4 in order to allow time for potential appeals.
Gohmert’s lawyers have already indicated that they can seek to nominate the United States government, the House and Senate or the parliamentarians of those bodies as defendants. But it is not clear whether these changes would satisfy the judge and time is running out for relief before the January 6 count.
Kernodle said Gohmert had no legitimacy under a 1997 Supreme Court ruling that individual lawmakers had no legitimacy to challenge a veto law passed by Congress a year earlier. The New Year’s Day judge’s decision said that voter candidates also lacked legitimacy because the damage they claimed was not really attributable to Pence, but to Governor Doug Ducey (R-Ariz.), Who certified Biden voters. as winners in your state. These voters cast their formal votes on December 14.
Although the Twelfth Amendment to the Constitution requires Pence, as vice president, to preside over the January 6 session, his specific powers are detailed in the Electoral Counting Act of 1887. Requires Pence to introduce voters in alphabetical order by state, and establishes a process for deputies and senators to contest disputed voters.
According to the Electoral Counting Law, this challenge would be solved by separate votes from the House and Senate – and, in the case of the 2020 election, these challenges would be effectively condemned. The Democratic majority in the House would certainly oppose them and many Senate Republicans acknowledged that Biden was the clear winner in the race.
According to Gohmert’s theory, if Pence refused to accept enough electoral votes to place any candidate above the 270 vote limit, the election would be handed over to the House under a process also set out in the Twelfth Amendment, which gives state delegations a single vote . Such a formulation would favor Republicans, who are a minority in the House, but control more state delegations than Democrats.
Pence, represented by prosecutors from the Ministry of Justice, on Thursday asked the court reject Gohmert’s lawsuit against him, arguing that his fight is with the House and the Senate, not with the vice president. Pence did not indicate his own view of his power as president on January 6, and did not indicate whether he intends to present the unofficial election slates that Trump’s allies claim to have launched to compete with certified slates presented in states like Arizona, Michigan, Wisconsin and Georgia.
The Chamber presented its own petition, more exhaustive, dismantling Gohmert’s effort as an unconstitutional and veiled effort to nullify the democratic outcome of the 2020 elections. The creators would never have envisaged a process that would allow an acting vice president – often, as in this case, a real candidate in electoral college ballot – having unilateral authority to choose which voters to count, argued the Chamber.