Dec 27, 2020 — President and Vice-President, Plaintiff Representative Gohmert will /wp-content/uploads/2020/12/The-Immaculate-Deception-12.15.20-1.pdf.
99 KB – 28 Pages
PAGE – 1 ============
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS TYLER DIVISION LOUI E GOHMERT, TYLER BOWYER, NANCY COTTLE, JAKE HOFFMAN, ANTHONY KERN, JAMES R. LAMON, SAM MOORHEAD, ROBERT MONTGOMERY, LORAINE PELLEGRINO, GREG SAFSTEN, KELLI WARD and MICHAEL WARD, Plaintiffs, v. THE HONORABLE MICHAEL R. PENCE, VICE PRESIDENT OF THE UNITED STATES , in his official capacity. Defendant. Case No. COMPLAINT FOR EXPEDITED DECLARATORY AND EMERGENCY INJUNCTIVE RELIEF (Election Matter) NATURE OF THE ACTION 1. This civil action seeks a n expedited declaratory judgment finding that the elector dispute resolution provisions in Section 15 of the Electoral Count Act, 3 U.S.C. § § 5 and 15, are unconstitutional because these provisions violate the Electors Clause and the Twelfth Amendment of the U.S. Con stitution . U.S. C ONST . a rt. II, § 1, cl. 1 & Amend. XII . Plaintiffs also request emergency injunctive relief required to effectuate the requested declaratory judgment . 2. 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 Amend ment . This violation occurs because the Electoral Count Act direct s 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 Case 6:20-cv-00660 Document 1 Filed 12/27/20 Page 1 of 28 PageID #: 1
PAGE – 2 ============
2 of Congress: (1) to count the elect oral 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 ) replace s under which the House of Representatives has sole authority to ch oose the President . 3. Section 15 of the Electoral Count Act unconstitutionally violates the Electors Clause by usurping the exclusive and plenary authority of State Legislature s to determine the manner of appointing Presidential Electors, and instead give 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 . 4. under Article III that is ripe for a declaratory judgment arising from the events of December 14, 2020, where the State of Arizona (and several others) have appointed two competing slates of electors. 5. Plaintiffs include the United States Repres District and the entire slate of Republican Presidential Electors for the State of Arizona . The Arizona Electors have cast votes for President Donald J. Trump on December 14, 2020, at the Arizona State Capitol with the permission and endorsement of the Arizona Legislature, i.e. , at the time, place, and manner required under Arizona state law and the Electoral Count Act. ate and – President Joseph R. Biden, despite the evidence of massive multi – that changed electoral results in Arizona and in other states such as Georgia, Michigan, Case 6:20-cv-00660 Document 1 Filed 12/27/20 Page 2 of 28 PageID #: 2
PAGE – 3 ============
3 Pennsylvania and Wisconsin that have also put forward competing slates of electors (collectively, . C ollectively, these Contested States have enough electoral votes in controversy to determine the outcome of the 2020 General Election. 6. On January 6, 2021, when Congress c on venes to count the electoral votes for President and Vice – President, Plaintiff Representative Gohmer t will object to the counting of the Arizona slate of electors voting for Biden a n d to the Biden slates from the remaining Contested States. Rep. Gohmert is entitled to have his objection determined under the Twelve Amendment, and not through the unconstitutional impositions of a prior C ongress by 3 U.S.C. §§ 5 and 15 . 7. Senators have also stated that they may object to the Biden slate of electors from the Contested States . 1 8. This Complaint addresse s a matter of urgent national concern that involves only issues of law namely, a determina tion that Section s 5 and 15 of the Electoral Count Act violate the Electors Clause and /or the Twelfth Amendment of the U.S. Constitution . T he relevant facts are not in dispute concerning the existence of a live case or controversy between Plaintiffs and Defendant, ripeness, standing, . 2 1 See https://www.forbes.com/sites/jackbrewster/2020/12/17/here – are – the – gop – senators – who have – hinted – at – defying – mcconnell – by – challenging – election/?sh=506395c34ce3. 2 The facts relevant to th are laid out below and demonstrate the certainty or near certainty that the unconstitutional provisions in Section 15 of the Electoral Count Act will be invoked at the January 6, 2021 Joint Session of Congress to choose the next President, namely: (1) there are competing slates of electors for Arizona and the other Contested States that have been or will be submitted to the Ele ctoral College; (2) the Contested States collectively have sufficient (contested) electoral votes to determine the winner of the 2020 General Election President Trump or former Vice President Biden; (3) legislators in Arizona and other Contested States h substantial evidence of election fraud that is the subject of ongoing litigation and investigations; and (4) Senators and Members of the House of Representatives h ave expressed their intent to challenge the electors and electoral votes certified by State executives in the Contested States. Case 6:20-cv-00660 Document 1 Filed 12/27/20 Page 3 of 28 PageID #: 3
PAGE – 4 ============
4 9. Because the requested declaratory judgment will termi nate the controversy arising from the conflict between the Twelfth Amendment and the Electoral Count Act, and the facts are not in dispute, it is appropriate for this Court to grant this relief in a summary proceeding without an evidentiary hearing or disc overy. See Notes of Advisory Committee on Federal Rules of Civil Procedure, Fed. R. Civ. P. 57. 10. Accordingly, Plaintiffs have concurrently submitted a motion for a speedy o grant the relief requested herein as soon as possible , and for emergency injunctive relief under Rule 65 thereof consistent with the declaratory judgment requested herein on that same date. 11. Accordingly, Plaintiffs respectfully request this Court to issue a declaratory judgment finding that : A. Section s 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. C ONST . a rt. II, § 1, cl. 1 & a mend. XII on the face of it; and further violate the Electors Clause ; B. T hat Vice – President Pence, in his capacity as President of Senate and Presiding Officer of the January 6, 202 1 Joint Session of Congress under the Twelfth Amendment, is subject solely to the req uirements 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 c ould include votes from the s lates of Republican electors from the Co ntested States ; Case 6:20-cv-00660 Document 1 Filed 12/27/20 Page 4 of 28 PageID #: 4
PAGE – 5 ============
5 C. That , with respect to competing slates of electors from the State of Arizona or other Conte sted States, the Twelfth Amendment contains the exclusive dispute resolution mechanisms, namely, that (i) Vice – President Pence determines which count , or neither, for that State ; (ii) how obj e ction s from members of Congress to any proffered slate of electors is adjudicated ; and ( i ii) if no candidate has a majority of 270 elector votes , then the House of Representatives (and only the House of Representatives) shall cho o votes [in the House of Representatives] shall be taken by states, the representation from each state having one vote , U.S. CONST. amend. XII; D. That with respect to the counting of competing slates of electors, the alternative dispute resolution procedure or pri ority 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 ; and E. Issue any other declaratory judgments or findings or injunctive relief necessary to support or effectuate the foregoing declaratory judgment s . JURISDICTION AND VENUE 12. This Court has subject matter jurisdiction under 28 U.S.C. § 1331 which provides, 13. This Court also has subject matter jurisdiction under 28 U.S.C. § 13 43 because this action involves a federal election for President of the United States. the legislative scheme for appointing Presidential electors presents a federal constitutional Case 6:20-cv-00660 Document 1 Filed 12/27/20 Page 5 of 28 PageID #: 5
PAGE – 6 ============
6 Bush v. Gore , 531 U.S. 98, 113 ( 2000) (Rehnquist, C.J., concurring); Smiley v. Holm , 285 U.S. 355, 365 (1932). 14. The jurisdiction of the Court to grant declaratory relief is conferred by 28 U.S.C. §§ 2201 and 2202 and by Rule 57, Fed. R. Civ. P. , and emergency injunctive relief by Rule 65 , Fed. R. Civ. P. 15. Venue is proper because Plaintiff Gohmer t resides in Tyler , Texas , he maintains his primary congressional office in Tyler, and no real property is involved in the action . 28 U.S.C. § 1391( e )( 1 ). THE PARTIES 16. Plaintiff Loui e Gohmert is a duly elected member of the United States House of R epresentatives for the First Congressional District of Texas. On November 3, 2020 he won re – election of this Congressional seat and plans to attend the January 6, 2021 session of Congress. H e resides in the city of Tyler, in Smith County, Texas . 17. Each of the following Plaintiffs is a resident of Arizona, a registered Arizona voter and a Republican Party Presidential Elector on behalf of the State of Arizona , who voted their competing slate f or President and Vice President on December 14, 2020 : a) Tyler Bowyer, a resident of Maricopa County and a Republican National Committeeman; b) Nancy Cottle, a resident of Maricopa County and Second Vice – Chairman of the Maricopa County Republican Committee; c) Jake Hoffman, a resident of Maricopa County and member – elect of the Arizona House of Representatives; d) Anthony Kern, a resident of Marico pa County and a n outgoing member of the Arizona House of Representatives; e) James R. Lamon, a resident of Maricopa County; f) Samuel Moorhead, a resident of Gila County; g) Robert Montgomery, a resident of Cochise County and Republican Party Chairman for Cochise County; h) Loraine Pellegrino, a Case 6:20-cv-00660 Document 1 Filed 12/27/20 Page 6 of 28 PageID #: 6
PAGE – 8 ============
8 Pennsylvania 5 and Wisconsin 6 votes for President Trump and Vice President Pence . 21. M ichigan attempted to vote at their State C apitol on December 14th but were denied entrance by the Michigan State Police. Instead, they met on the grounds of the State Capitol and cast their votes for President T rump and Vice President Pence vote . 7 22. O n December 14, 2020, in Arizona and the other State s listed above, the ir respective State Capitol s to cast their electoral votes for former Vice President Joseph R. Biden and Senator Kamala Harris . On the same day, Arizona Governor Doug Ducey and Arizona Secretary of State Katie Hobbs submitted the Certificate of Ascertainment with the Biden electoral votes pursuant to the National Archivist pursuant to the Electoral Count Act. 8 23. Accordingly, there are no w competing slates of Republican and Democratic ele ctors in five States with Republican majorities in both houses of their State Legislatures Arizona, Georgia, Michigan, Pennsylvania, and Wisconsin ( i.e. , the Contested States) that 5 See id. 6 See Wisconsin GOP Electors Meet to Cast their own Votes Too Just in Case, by Nick Viviani, WMTV, NBC15.com, December 14, 2020, https://www.nbc15.com/2020/12/14/wisconsin – gop – electors – meet – to – cast – their – own – votes – too – just – in – case/ last visited December 14, 2020. 7 See Michigan Police Block GOP Electors from Entering Capitol , by Jacob Palmieri, the Palmieri Report, December 14, 2020, https://thepalmi erireport.com/michigan – state – police – block – gop – electors – from – entering – capitol/ . 8 See Democratic Electors Cast Ballots in Arizona for First Time Since 1996 , by Nicole Valdes, ABC15.com, December 14, 2020, available at : https://www.abc15.com/news/election – 2020/democratic – electors – cast – ballots – in – arizona – for – first – time – since – 1996 . Case 6:20-cv-00660 Document 1 Filed 12/27/20 Page 8 of 28 PageID #: 8
PAGE – 9 ============
9 collectively have 73 electoral votes, which are more than sufficient to determine the winner of the 2020 General Election. 9 24. The Arizona Electors, along with Republican Presidential Electors in Georgia, Michigan, Pennsylvania, and Wisconsin, took this step as a result of the extraordinary events and substantial evidence of election fraud and other illegal conduct before, during and after the 2020 General Election in these States. Th e Arizona Legislature has conducted legislative hearings into these voting fraud allegations, and is actively investigating these matters, inclu ding issuing subpoenas of Maricopa County, Arizona and voters) voting machines for forensic audits . 10 25. On December 14, 2020, m embers of the Arizona Legislature passed a Joint Resolution in which they : (1) found that so significant as to render it highly doubtful whether the certified result accurately represents the ed the Arizo 5 U.S.C. § electors; (3) resolv ed that the Plaintiff Arizona Electors Donald J. Trump or to have all electoral votes nullified completely until a full forensic audit can ed 9 Republican Presidential Electors in the States of Nevada and New Mexico, which have Democrat majority state legislature, also met on December 14, 2020, at their State Capitols to cast their votes for President Trump and Vice President Pence. 10 Maricopa County election officials have refused to comply with these subpoenas or to turn over voting machines or voting records and have sued to quash the subpoena . Plaintiff Arizona Electors have moved to intervene in th is Arizona state proceeding. See generally Maricopa Cty. v. Fann , Case No. CV2020 – 016840 (Az. Sup. Ct. Dec. 18, 2020). Case 6:20-cv-00660 Document 1 Filed 12/27/20 Page 9 of 28 PageID #: 9
PAGE – 10 ============
10 of electors from the State of Arizona until the Legisla ture deems the election to be final and all 11 26. Public reports have also highlighted wide – spread election fraud in th e other Contested States that prompted . 12 27. Republican Senators and Republican Members of the House of Representatives have also expressed their intent to oppose the certified slates of electors from the Contested States due to the substantial evidence of election fraud in the 2020 General Election. Multiple Senators and House Members have stated that they will object to the Biden electors at the January 6, 2021 Joint Session of Congress . 13 Plaintiff Gohmert will object to the counting of the Arizona el e ctors voting for Biden , as well as to the Biden electors from the remaining Contested States. 28. Based on the foregoing facts, Defendant Vice President Pence, in his capacity as President of the Senate and Presiding Officer at the January 6, 2021 Joint Session of Congress to se lect the next President , will be presented with the following circumstances : (1) competing slates of electors from the State of Arizona and the other Contested States (namely, Georgia, Michigan, Pennsylvania, and Wisconsin ) (2) that represent sufficient electoral votes (a) if counted, to determine the winner of the 2020 General Election , or (b) if not counted, to deny either President Trump or former Vice President Biden sufficient votes to win outright; and (3) objections f rom at 11 See Ex. A Resolution of the 54th Legislature, State of Arizona, To The 116th Congress, . 12 See The Immaculate Deception , Six Key Dimensions of Election Irregul arities , The Navarro Report . https://bannonswarroom.com/wp – content/uploads/2020/12/The – Immaculate – Deception – 12.15.20 – 1.pdf 13 See, e.g., Dueling Electors and the Upcoming Joint Session of Congress , by Zachary Steiber, Epoch Times, Dec. 17, 2020, available at: https://www.theepochtimes.com/explainer – dueling – electors – and – the – upcoming – joint – session – of – congress_3622992.html . Case 6:20-cv-00660 Document 1 Filed 12/27/20 Page 10 of 28 PageID #: 10
PAGE – 11 ============
11 least one Senator and at least one Member of the House of Representatives to the counting of electoral votes from one or more of the Contested States. 29. The choice between the Twelfth Amendment and 3 U.S.C. § 15 raises important procedural differenc es. I n the incoming 117th Congress, the Republican Party has a majority in 27 of the House delegations that would vote under the Twelfth Amendment. The Democrat Party has a majority in 20 of those House delegations, and the two parties are evenly divided in three of those delegations. By contrast, under 3 U.S.C. § 15, Democrats have a ten – or eleven – seat majority in the House , depending on the final outcome of the election in 30. Accordingly, it is the foregoing conflict between the Twelfth Amendment of the U.S. Constitution and Section 15 of the Electoral Count Act that establish the urgency for this Court to issue a declaratory judgment that Section 15 of the Electoral Count Act is unconstitutional . RELEVANT CONSTITUTIONAL AND STAT UTORY PROVISIONS 31. Presidential Electors Clause. The U.S. Constitution grants State Legislatures the exclusive authority to appoint 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: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector. U.S. CONST. art. II, § 1 (“Electors Clause”). 32. McPherson v. Blacker , 146 U.S. 1, 11 (1892); this Id. at 10 (c itations omitted). In Bush v. Gore , 531 U.S. 98 (2000), the Supreme Court reaffirmed Case 6:20-cv-00660 Document 1 Filed 12/27/20 Page 11 of 28 PageID #: 11
99 KB – 28 Pages