A point of law
Gohmert sues to prevent objections
Louie Gohmert, R-TX, has filed suit against Mike Pence, Republican Vice President of the United States in a filing that boggles the mind.
Let me try to keep it as free of legal jargon as possible.
The U.S. Constitution is the founding legal document of our nation, but even the Founding Fathers knew-right away-it was far from perfect. They built in the ability to amend the Constitution, and it has been amended twenty-seven times. Additionally, a great deal of legal mumbo-jumbo has been added to confuse even the brightest legal scholars. There are those, however, that believe the original document was near perfection, and should not be amended or messed with in any fashion. (Try telling that to Blacks, Women, and so many others who did not have legal protection under the original law.)
Part of the original Constitution addresses elections, including the election of the President of the United States. Article II of the Constitution addressed it originally, and that was quickly modified by the Twelfth Amendment (AXII); the language is similar, but still not quite clear. In the following years, states wrote their own laws concerning elections, including how Presidential Electors would be selected, and of course some of these laws presented difficulties working in union with AXII.
AMENDMENT XII
Passed by Congress December 9, 1803. Ratified June 15, 1804.
Note: A portion of Article II, section 1 of the Constitution was superseded by the 12th amendment. The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate; — 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 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. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. [And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in case of the death or other constitutional disability of the President. — ]* The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States. *Superseded by section 3 of the 20th amendment.
While this is a little wordy, it basically tells us that the Vice-President, serving as the President of the Senate, shall — in a joint session of Congress — open up all the presidential electoral ballots, count them, and if one of the persons named on the ballots for President has a majority, that person is named the President.
(In the presidential election held November 3, 2020, a majority is 270 electoral votes. Joe Biden received 306 Electoral College votes.)
Did you see the part where a member of the House of Representatives can dispute electoral ballots? No? Probably because objecting to ballots is not in the Constitution or AXII.
While the language of AXII is cumbersome, it is also a bit simplistic, and that caused a number of difficulties in early presidential elections. To address the matter, Congress passed the Electoral Count Act (ECA) of 1887, amended in 1948, now codified in Title 3 of the United States Code. One of the sections of the ECA, Section 15 to be exact, gives each member of the House of Representatives the legal right to object to a state’s slate of presidential electors.
This is critical, because nowhere in the Constitution or in AXII does the legal right to object to a state’s electors exist: only Section 15 of the ECA grants a member of the House of Representatives the legal right to object:
Upon such reading of any such certificate or paper, the President of the Senate shall call for objections, if any. Every objection shall be made in writing, and shall state clearly and concisely, and without argument, the ground thereof, and shall be signed by at least one Senator and one Member of the House of Representatives before the same shall be received. 3 U.S. Code § 15 — Counting electoral votes in Congress.
To be clear, the Constitution and the Twelfth Amendment of the United States provide no legal standing for any member of Congress to object to any state’s electors. The only law — the only section of any law — that provides that legal standing is the Electoral Count Act of 1887, Section 15.
Now, to Representative Gohmert’s lawsuit.
Gohmert’s lawsuit asks the court to declare unconstitutional the one and only section of the law that gives a member of Congress the legal right to challenge presidential electoral votes in Congress.
Wait…WHAT?
This directly from Gohmert’s brief:
Therefore, the remedy sought by Plaintiffs is easily crafted. The Court should declare that:
ECA sections 5 and 15 are unconstitutional.
To be clear, Louie Gohmert, a member of the House of Representatives, has asked the court to declare Section 15 of the ECA unconstitutional, thus removing any legal capability for any member of the House of Representatives to object to the electors of any state.
What is so mind-numbing about this argument isn’t just that Gohmert is asking the court to declare Section 15 unconstitutional; in the very next sentence, Gohmert’s brief suggests to the court what might then occur:
When a member of the House objects to a slate of electors or between two slates of competing electors presented for any single state, the Vice President, as President of the Senate, shall determine the dispute as he sees fit. He may choose between competing elector slates or he may choose to disregard electors altogether from any state.
Louie Gohmert has asked the court to abolish the law that gives him the right to object; then he wants to object, and let Mike Pence determine “as he sees fit” who should be president.
Only two conclusions can be drawn from this brief:
- Louie Gohmert has filed suit in federal court without first reading his own brief, failing to recognize that if he wins — and Section 15 of the ECA is declared unconstitutional — no one in the House of Representatives will have any legal right to object to the electors, or
- Louie Gohmert is simply the world’s biggest legal moron (well, since Rudy Giuliani, anyway).
Louie Gohmert is no legal scholar, for sure; in fact, after looking at this brief, one might wonder how Louie Gohmert got elected to Congress in the first place.
References
U.S. Constitution, Amendment XII.
Counting the Votes: An Overview of Procedures at the Joint Session, Including Objections by Members of Congress. The rules used for the Electoral Count Act of 1887.
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©Timothy J. Sabo
