A US federal judge dismissed a lawsuit on Friday filed by Republican Congressman Louie Gohmert and 11 presidential electors from Arizona challenging the constitutionality of the Electoral Count Act. The plaintiffs alleged that the elector dispute resolution provisions under Section 15 of the Act violated the Elector’s Clause and Twelveth Amendment of the US Constitution. Specifically, the complaint stated that the Election Count Act was unconstitutional because it directed the vice president to count “electoral votes for a State that have been appointed in violation of the Electors Clause” and thereby restricted his “exclusive authority” under the Twelveth Amendment to determine which states’ electoral college votes should be counted.

In the response filed by Vice President Pence as the sole defendant, he sought denial of the relief requested by the plaintiffs as they had sued the wrong person and “ironically” sought to promote his interests. Thus, the suit was not the “proper vehicle” for addressing “weighty” legal issues that were raised on the manner of counting electoral votes for the President.

Judge Jeremy Kernodle dismissed the case for lack of subject matter jurisdiction without prejudice. He held that the plaintiffs had failed to show personal injury “fairly traceable” to the alleged unlawful conduct of the defendant and in any case, the relief sought was unlikely to redress such injury.

On the claim by Gohmert, the judge specifically held that members of Congress cannot bring claims for injuries suffered solely on account of their membership to the Congress and must establish an injury to themselves as individuals rather than an “abstract” institutional injury to the House of Representatives or the Senate which damages all members of the body.

He also reiterated the strict necessity of establishing subject matter jurisdiction before courts can address the merits of the case, especially since the jurisdiction of US federal courts is limited to deciding only “cases” or controversies” under Article III of the Constitution.

On January 6, 2021, Vice President Pence will oversee the Congressional session for counting votes cast by the electoral college. Since the suit has been dismissed without prejudice, Gohmert has the option to reframe the legal arguments. However, there is little time left to seek relief before counting begins next week.