Thread by @AkivaMCohen

Oh come on, guys, give me some time off!

Note: This is a new litigation seeking a declaratory judgment that the Electoral Count Act is unconstitutional in that it conflicts with the 12th Amendment.

It doesn't

https://twitter.com/JJGass/status/1343588780347953154

Here's the entire 12th Amendment. Pay attention to the highlighting and follow along

Here's the 12A process

1) "The Electors" meet, vote, and transmit their lists of votes to the President of the Senate
2) The PoS SHALL open the certificates and count the votes
3) Whoever has a majority wins
4) If nobody has a majority after counting, the House delegations vote

You'll note that it has exactly NO procedures for determining *who* "the Electors" are; "the Electors" are simply the electors appointed as provided for in Article 2, as to which there should be no controversy.

It does NOT say "the President of the Senate first determines who the Electors are, in his awesome plenary power, and then counts the votes he wants to count"

It just says he MUST (no discretion) open the certificates sent by "the Electors"

The 12th Amendment, then, addresses "what do we do with the Electors' votes"

That's it.

The Electoral Count Act, in contrast, addresses a *completely different question*: How do we resolve disputes about who "the Electors" are, if there are any such disputes, so we can count their votes using the 12A process?

Because they answer different questions, it is, as far as I can tell & before reading what I expect will be a lame argument from Louie Gohmert and the rest of the neoconfederate treasonweasels, entirely and completely impossible for the 12A and the Electoral Count Act to conflict

Oh come on

Here's their summary of the case. Can you spot the issue?

There is exactly zero chance that Louie Gohmert and his assorted co-plaintiffs have standing here. He is alleging that the Electoral Count Act: (1) compels Mike Pence to do something unconstitutional; (2) limit's Mike Pence's authority; and (3) limits the House's rights

Slight problem, there, Louie. You, it turns out, are not Mike Pence. Also, oddly enough, you aren't the House of Representatives. Neither are any of your co-treasonweasels

So you don't have any standing at all to run into court and complain about the alleged violation of Pence's rights or duties, or the House's

That's before we get to the substance, which is - as noted above - completely and totally wrong. But let's continue

Oh, Gohmert and crew also think they're a State legislature, apparently.

Plus they figured "outright lying to a federal court" was a good way to start a complaint.

No, "the State of Arizona" hasn't "appointed two competing slates of electors"

Though I guess I can understand why the distinction between "appointed by the State of Arizona" and "we declare we were appointed by the State of Arizona" would confuse a group of plaintiffs who think they are Mike Pence

Man have they ever packed a lot of obvious wrong into one tight paragraph

First of all,

Seriously - what the hell is a "Representative for Texas' First Congressional District" doing joined as plaintiff in a lawsuit with "the entire slate of Republican nominees for elector in Arizona"?

As crossovers go ...

Second, "with the permission and endorsement of the Arizona legislature" - what? The Arizona legislature was not in session. It did not vote to appoint republican electors. 22 Republican members of the AZ House and Senate (plus assorted "rep/sen elects") signed a

"joint resolution" supporting the fake electors.

The Arizona House has *60* members. The Arizona Senate has 30. They couldn't even get a majority of the House signed on.

azcentral.com/story/opinion/…

They got (by my count of the names on the list in the article) 14 AZ House members and 8 AZ Senate members. Basically 25% of each chamber.

If that's "the Arizona State Legislature appointing electors" then the Democrat minority in the AZ legislature should start getting together in someone's house and passing whatever laws they want, and overriding the governor's veto of them, too. Why not?!

Seriously, this isn't even flat-eartherism. This is "the earth is made out of cheese and look, I'll prove it by eating a handful of dirt .... mmmm, delicious"-ism.

I've spent a lot of time saying no sanctions will come out of this nonsense. But every single person involved in this filing deserves to be sanctioned into oblivion for this. It's literally impossible to have a good-faith belief that "14 AZ Reps and 8 AZ Senators" = Legislature

Also, did you notice that they alleged the "alternate slate" was appointed in the manner required by the Electoral Count Act? (The one they're seeking to have declared unconstitutional, yes)

Last, it's a super-bold choice to argue that the Arizona election is tainted by clearly evidenced fraud and wrong-doing despite, you know, multiple court decisions in AZ saying the exact opposite

Oh

This ... this is not the path to standing, guys

There's no Constitutional right to "object" to the counting of electoral votes, so there can't be any Constitutional right to have that "objection" resolved by any particular procedures

Also, the "Twelve" Amendment doesn't lay out any procedures for addressing objections, so there's that, too

Speaking of my prior "saying it loudly does not make it so, guys" tweet, enjoy

Yeah, no facts in dispute about standing. Everyone agrees that the Arizona Legislature appointed an alternate slate.

Also, Louie, bubbie, baby, what are you doing?

That whole "well, will a senator object, too" thing?

Those are the procedures under the Electoral Count Act.

Which you're specifically arguing is unconstitutional.

So why should the Court care?

This is a lovely try, and also incredibly stupid, and maybe you should have thought about NOT waiting until a week before the congressional count to file your stupid bullshit claims? Maybe?

Ohhhh, that's why Gohmert is in the case. Forum shopping

Twitter is acting weird and ate a tweet. BRB

OK, let's try from here. Is Mike Pence the right defendant in a suit to declare the ECA unconstitutional? I don't know. Frankly, I don't know who would be, beyond "the United States"

OK, for whatever reason, Twitter is NOT processing my tweets that have screenshots attached. Gonna take a break from this thread and come back to it

Compare what they're telling the Court with what their source document says. Notice anything missing from the Washington Times piece?

Still not working. Gonna have to go do actual work for a bit, too. In the meantime, follow Mike's thread on this. Also, enjoy Exhibit A, the "Joint Resolution" of the "Arizona State Legislature" signed by a grand total of 20 (of the 90) state legislators courtlistener.com/recap/gov.usco…

That's right - no reference to the State appointing the "alternate electors"

None. Nada. Zilch. Nein. Zippo. Negatory. And so on and so forth

Coincidentally, that's ALSO how many "procedural differences" there are between the 12th Amendment and the Electoral Count Act, because the 12th Amendment has no procedure for resolving objections

The number of House delegations, if you'll recall back to the screenshot of the 12th Amendment from earlier in the thread, comes into play only if no candidate gets the majority of the votes from the appointed Electors.

In other words, if the Electors split 269-269, or if more than 2 candidates get votes and no single candidate gets 270 or more.

None of that has ANYTHING AT ALL to do with how you resolve "who is an Elector whose vote matters to figuring out if anyone got a majority"

Next we have our ritualistic invocation of Bush v. Gore and McPherson for the proposition that State Legislatures have awesome cosmic power in the realm of appointing Electors.

Louie and Co. still seem to be having difficulty with the idea that "the State Legislature" and "2/9ths of the elected legislature, acting on their own in a meeting not in legislative session in their respective houses" might, just might, be two different things

(Sadly for them, the Court will have no such trouble)

No. No. Nothing here provides "procedures for resolving disputes" and the language about what Pence must do is mandatory: he SHALL open the certificates and the votes SHALL be counted

Also, the language here makes clear that Pence is NOT the one doing the counting, it shifted from active voice (Pence shall open the certificates) to passive voice (the votes shall be counted) midsentence, indicating a change in who is doing the acting

If it was all one actor, it would have just read "shall open all the certificates and count the votes"

And, of course, client work calls. I'll be back

I know you guys want to keep pretending there's a conflict here, but:

Nothing in the 12th Amendment gives the President of the Senate any discretion at all (he SHALL open the certificates and the votes SHALL be counted) and the House, under the Electoral Count Act...

is NOT voting "for President". The House under the Electoral Count Act is voting only on which slate of electors to accept and count if (and when) there's an objection that some slate of electors aren't really "electors"

Basically, it's there to address the absolutely insane and impossible situation where some group of cosplayers declare themselves "electors" and submit a "certificate" despite not being appointed in the manner the state legislature directed.

Of course, that could never happen

I'm going to skip through the various paragraphs of Louie and the treasonweasels (or their lawyers) declaring that they don't know how to read a statute and thinking that there's a conflict between the ECA and the 12A, unless there's some new stupidity

Now this is an interesting argument, except for the fact that it can't go anywhere. It's true that the ECA couldn't bind Congress to follow its procedures if they didn't want to; they could adopt new procedures changing the ECA, even without Presidential signature, and that ...

Would trigger some interesting constitutional wrangling. But to do that, Congress - as in both the House and Senate - would need to agree to junk the ECA procedure. And that's just not going to happen, whether Louie G wants it to or not

Not only is the House simply not going to vote to junk the ECA, neither will the Senate; they're content to play under the existing rules.

Nor is there anything "unconstitutional" in the House and Senate setting their internal rules for how they will conduct the business of "Counting Electoral Votes"; Article I, Section 5 of the Constitution allows each house of Congress to "determine the Rules of its Proceedings"

Simply put, the Electoral Count Act has (at the very least) the force (and Constitutionality) of the House and Senate Rules. If it had a provision purporting to require a supermajority to amend it, or if both Houses wanted to vary from it but the President wouldn't sign a bill...

There might be some interesting constitutional arguments to be had about whether the Electoral Count Act could be departed from without a new law that amended it.

But if at least one House of Congress wants to stick to it? Nothing doing.

Now this is an interesting argument: that because the Electoral Count Act requires a majority of each of the Senate and House to agree to toss a certified slate, that's a "vote to which the concurrence of the Senate and House of Representatives may be necessary" and therefore

it has to be presented to the President for signature under the Presentment Clause before any such vote can have an effect.

But that doesn't help Louie and crew; if that's the case, the ONLY thing in the ECA that requires "the Concurrence of the Senate and House" is to...

toss a slate of electors. If Louie's argument is correct, that means no slate of electors could be successfully objected to without the President's signature (or veto overriden by 2/3 of each house). OK, so what happens then?

Well, then there's a slate of electors Congress wants to toss that either gets counted (if it's the only slate from a state) or falls to the ECA's "tie-breaker" procedure ("count the one certified by the governor") which DOESN'T require any vote (so no need for presentment)

None of this is true. For one thing, as noted above, the ECA requires neither presentment nor a supermajority. For another, the House and Senate retain authority to set their own rules and procedures; unless and until they do so and pick procedures different from the ECA, this is

a purely hypothetical conflict. There's no "delegation" of tie-breaking authority to State executives; *Congress* breaks the tie, it just does so by rules that it adopted ("we're going to pick the one certified in accordance with state law")

Basically, Louie is complaining that he doesn't like the rules Congress has chosen to operate under, not that those rules are per se unconstitutional; that's not going to fly (even aside from the standing problems discussed above)

This standing argument is bananas. Aside from the fact that Carson was decided on a unique feature of Minnesota state law, December 14 has come and gone, the "Republican Electors" were not "appointed by the State" and therefore can't be counted, and none of this helps Louie

This, too, is just bananapants bonkers. No matter how many times you say it, "some members of the legislature wanted to appoint Republican Electors" doesn't make them a state-appointed slate of electors. And no "count these votes" doesn't mean "you get unfettered discretion about

whether or not to count these votes"

Neither of these are remotely close factual calls. Nobody with a functioning brain could think that these Arizona cosplayers are "electors" in any constitutionally relevant sense

And that's it. The rest just repeats the same mistakes and then asks the Court to declare that from here on out, the Vice Presidents of the United States get to pick whoever they damn well please as the next President of the United States, elections (and electors) be damned

Needless to say, this is very much NOT a thing that the Court will do