The Republicans who plan to challenge the Electoral College’s certification on Wednesday ignore a key constitutional fact: The states alone have the power to nominate and certify electors.
I say “ignore” because several of the GOP senators leading this gambit are constitutional scholars who understand the law and the importance of state sovereignty. Yet Sens. Josh Hawley, a Missouri Republican, and Ted Cruz, a Republican from Texas, both of whom served as top government lawyers in their states, have decided to disregard both in an attempt to subvert the will of the voters and stop Joe Biden from becoming president.
They propose an “Electoral Commission” that would audit the election results in several key swing states, including Pennsylvania and Georgia, and report within 10 days. The plan is to use this investigation to throw the election into the House and/or convince state legislatures to overrule their certifications for Biden. It is a despicable and lawless plan, borne out of the election fraud absurdities that President Trump and his Republican allies spew on a daily basis.
It is also blatantly unconstitutional. The Constitution is clear: State legislatures are responsible for the appointment of electors. Congressmen can raise objections and disputes, but they cannot disregard the states’ chosen electors — especially not after the electors’ votes have been certified. But if Republicans were to have their way, they would cast aside the states’ role entirely and choose for themselves a new, Trump-friendly Electoral College.
Congress’s only role in this case is to witness the counting of the votes, according to the Constitution. This role expands only if no presidential candidate receives a majority of the states’ electoral votes, which obviously did not happen. So the idea that Congress should step in and intervene in a thoroughly legitimate process just because it dislikes the result is, at its core, anti-democratic, unconstitutional, and shameful.
If Democrats proposed such a thing, every single Republican would rightly denounce them as power-hungry autocrats. Yet this is supposedly justified … how? There is no evidence supporting Trump’s claims that widespread voter fraud cost him the election. Many of the alleged voting irregularities cited by Hawley and Cruz have already been investigated and dismissed by the courts, several by Trump-appointed justices. Simply put, even if Congress could go around the states and choose new electors, there would be absolutely no legal basis for doing so.
The states have spoken. Even the Republican-controlled state legislatures in Michigan, Arizona, and Georgia certified Biden’s win despite Trump’s best effort to convince them otherwise. To agree with the Cruz cabal’s reasoning would be to deny these states their constitutional right to participate in the presidential election just because they voted for the “wrong” candidate, thereby stripping the states of their sovereignty and blowing a hole in our electoral system.
One would expect this kind of nonsense from politicians who do not respect the Constitution or its principles. But this time, it’s coming from the party of federalism and limited government, the party that claims to defend the founders’ intent. Which makes this effort all the more shameful.
