Breaking: Judge tosses Gohmert suit against Pence for lack of standing

Consider this a polite, if firm and comprehensive, rebuke to the idea that Louie Gohmert could force Mike Pence to ignore certified electors in a presidential-election count. Imagine what Judge Jeremy Kernodle might have written if he’d decided to weigh in on the actual merits of Gohmert et al‘s complaint. Instead, the Trump judicial appointee tossed out the suit for lack of standing, which Kernodle spent several pages establishing:

In his ruling, Texas-based U.S. District Judge Jeremy Kernodle, a Trump appointee, said the GOP plaintiffs lacked standing. The judge found that Gohmert suffered no legally recognizable injury.

The other plaintiffs, a group of Arizona Republicans who self-identify as an alternate “slate” of pro-Trump electors, could not link their supposed injury to Pence, he reasoned.

“Because neither Congressman Gohmert nor the nominee-electors have standing here, the court is without subject matter jurisdiction to address” their lawsuit, Kernodle wrote in his ruling. “The court therefore dismisses the case without prejudice.”

The suit’s dismissal had been expected: The consensus among election law experts was that the judge would toss the case without reaching the core substantive claims alleged by the Republican plaintiffs.

The Hill calls Gohmert’s suit “far-fetched,” which itself might be on the gentle side. Gohmert wanted to throw out the 113-year-old Electoral Count Act (ECA) in order to make the Vice President the arbiter of which slates of electors would be counted on January 6th. Even Mike Pence opposed the idea, as did the Department of Justice in their response to the court. That interpretation would mean that the sitting VP could simply ignore as many electors as needed to ensure his own party won the presidency, even when the sitting VP is on one of the tickets competing in the election — as is this case this year. That would make elections superfluous and would essentially grant one party the power of the executive in perpetuity.

Kernodle wrote that before he could even address those implications, Gohmert et al had to establish standing. Not only did they fail to do that, they also failed to explain why they were suing Mike Pence rather than the House and Senate:

Congressman Gohmert’s argument is foreclosed by 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.” 521 U.S. at 821. 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. Id. at 829. Congressman Gohmert does not allege that he was “singled out for specially unfavorable treatment as opposed to other Members of their respective bodies,” does not claim that he has “been deprived of something to which [he] personally [is] entitled,” and does not allege a “loss of any private right, which would make the injury more concrete.” Id. at 821 (emphasis in original). Congressman Gohmert’s alleged injury is “a type of institutional injury (the diminution of legislative power), which necessarily damages all Members of Congress.” Id. Under these circumstances, the Supreme Court held in Raines, a Member of Congress does not have “a sufficient ‘personal stake’” in the dispute and lacks “a sufficiently concrete injury to have established Article III standing.” Id. at 830.

This was as predictable as the sun coming up in the east. The Raines precedent is on point, but there’s a more basic problem to Gohmert’s complaint that Kernodle implies. Gohmert has the ability to raise this question in Congress specifically by the mechanism in the ECA by challenging the electors from specific states. Gohmert’s real complaint here is that he knows he’ll lose that argument, and so he’s trying to force Pence to short-circuit it. As Kernodle writes, that doesn’t make Pence a valid target for his complaint, as Pence isn’t the source of his issue. Nor is Pence the source of the problem that the supposed “nominee electors” who want the court to intervene:

This alleged injury, however, is not fairly traceable to any act of the Vice President. Nor is it an injury likely to be redressed by a favorable decision here. See Friends of the Earth, 528 U.S. at 180–81.1 Plaintiffs do not allege that the Vice President had any involvement in the “certification and transmission of a competing slate of Biden electors.” Docket No. 2 at 7. Nor could they. See 3 U.S.C. § 6. That act is performed solely by the Arizona Governor, who is a “third party not before the court.” Lujan, 504 U.S. at 560–61 (quoting Simon v. Eastern Ky. Welfare Rts. Org., 426 U.S. 26, 41–42 (1976)). Indeed, Plaintiffs acknowledge that their injury was caused by Arizona officials in Arizona, the “Vice President did not cause [their] injury,” and their “unlawful injuries [were] suffered in Arizona.” Docket No. 2 at 7. …

The Vice President’s anticipated actions on January 6 will not affect the decision of Governor Ducey regarding the certification of presidential electors—which occurred more than two weeks ago on December 14. Even “ratifying” or “making lawful” the Governor’s decision, as Plaintiffs argue will occur here, will not have any “coercive effect” on Arizona’s certification of electoral votes.

In other words, they’re suing the wrong guy. The proper target of Gohmert’s complaint is Congress; the proper target of the “nominee electors” from Arizona is Doug Ducey. The proper venue for the latter would have been an election challenge, which did take place — and which their side lost. As we have noted repeatedly, that means the “nominee electors” have no legitimate standing at all in any further action, either in court or in Congress. They aren’t electors, they aren’t an “alternate slate of electors” certified by any competent authority; they are only the losing elector candidates. Even if the court was inclined to grant Pence the authority to recognize alternate slates of electors, legally they don’t exist at all. And while Kernodle studiously avoids reaching a decision on the merits, the chances are nil that he would have ruled that Pence has that authority rather than Congress itself.

Is that the end of the matter? Probably not; Gohmert and his allies will likely apply for an emergency appeal and injunction either at the appellate court or directly to the Supreme Court. It won’t change the outcome, and the best these plaintiffs can hope for is that the higher courts follow Kernodle’s lead and stick to standing. A ruling on the merits would be far more embarrassing, as Kernodle’s opinion hints.