For, hopefully, one last time, let's talk about the election.
For months, President Trump and his allies have been lying to his supporters that the election was stolen. That culminated in a tragic scene yesterday, when a mob of his supporters, incited by the president, overran the Capital building in an act of sedition. There was, to put it lightly, a lot that went on yesterday, and we'll be unpacking it for weeks, but in this post I want to focus on the Republican members of Congress who objected to the counting of electoral votes from Arizona and Pennsylvania.
All told, 145 Republicans in Congress (138 house representatives, 7 senators) voted to object to the counting of the votes. That's about 68% of Republicans in the House. Initially we'd heard that as many as 14 senators would object, but several of them backed out of the charade after the building was overrun by insurrectionists. Even after the appalling events of the afternoon, the president and his lawyer were still trying to persuade senators to object to as many states as possible, not out of any real concern of fraud, but just to stall for time.
So, why were these Republicans objecting to the count of the vote? If you, like me, stayed up until all hours of the night and listened to them debate, you heard their stated reasons. Maybe you found yourself thinking "Hey, maybe they've got a point." If so, please consider the following:
1) The vast majority of their objections had nothing to do with fraud. That's because there is no proof of widespread voter fraud. I wrote about this extensively last month, so if you're concerned about some of the claims you've seen floating around, please check that out. I do want to address one thing that I've seen from many Trump supporters and we heard from several objectors yesterday, and that is the argument that "The court never allowed evidence to be presented, they just denied the cases on 'technical' grounds." That is, to be very blunt, bullshit. Put aside the fact that 'technical' issues like standing, mootness, and laches are actually super-important parts of our legal system. Most of the many, many judges who ruled against the Trump campaign not only ruled against them on grounds like lack of standing, but they also went on to say that even if they had grounds to bring the case, they would've lost on the merits. One example of that is in Costantino v Detroit, where Judge Timothy Kenny found that it wasn't in the court's power to grant the relief that they sought, but he also looked at all the sworn affidavits and testimony that they presented, compared it against the testimony brought by the defense, and found the witnesses not to be credible. He weighed the evidence, and found it wanting. An even more striking example of why this isn't true is the case of Trump v. Wisconsin Elections Commission. In this case, Trump-appointed judge Brett Ludwig very specifically did NOT deny the case on so-called technical grounds. He listened to the case on the merits. There was a hearing where the Trump team could have called any witnesses and presented any exhibits that they wanted. However, instead of doing so, "On the morning of the hearing, the parties reached agreement on a stipulated set of facts." I'll reference Andy McCarthy from the National Review to explain what that means:
A “stipulated set of facts,” in this context, is an agreement between the lawyers for the adversary parties about what testimony witnesses would give, and/or what facts would be established, if the parties went through the process of calling witnesses and offering tangible evidence at a hearing or trial.
In a real controversy, in which one or both of the parties are making hotly disputed factual claims, there are few if any stipulations. For example, a defendant who vehemently denies that he committed stock fraud may be willing to stipulate that 20,000 shares of XYZ Corp’s common stock were sold on December 14; but other than that, the defendant will demand that the adversary call the fact witnesses who claim he defrauded them so he can cross-examine. He will call his own witnesses to show what really happened, and they will be aggressively questioned, too...
...Judge Ludwig denied the state’s claims that the campaign lacked standing. Instead, he gave the campaign the hearing they asked for — the opportunity to call witnesses and submit damning exhibits. Yet, when it got down to brass tacks, the morning of the hearing, it turned out there was no actual disagreement between the Trump team and Wisconsin officials about the pertinent facts of the case. The president’s counsel basically said: Never mind, we don’t need to present all our proof.
There was ample opportunity for the Trump team to present their evidence in court. They didn't, because they didn't have any evidence that would stand up in court, and they knew it.
2) Instead of objecting because of fraud, the vast majority of the objections had to do with “non-legislative entities determining the manner of the election.” See, the US Constitution, in Article I, Section 4, states "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof." So, if an entity other than the legislature changes the way elections are run, for example, Pennsylvania's Supreme Court extending the deadline for mail-in ballots, that violates the Constitution. State legislatures are the ultimate authority in how their own elections are run. Essentially, they’re arguing that states didn’t follow their own election laws, so the election results are invalid. Sounds convincing, right?
- For now, let’s put aside the fact that this claim has been litigated by courts already, and that multiple Trump-appointed judges have found it to be without merit.
- None of these objectors actually believe their own argument. They do not believe the election results are invalid. How do I know that? Because many of those same members of Congress were elected this election and sworn in earlier this week from the same states which they are now objecting to. Not one of them objected to their state’s election at that point. They think the election was valid for their own election, but they think it was invalid for the president. Again, remember that they are not arguing fraud that might have only helped Joe Biden. They are arguing that the manner in which the entire election was run is invalid. If they genuinely believed that, they would have to believe that their own election was invalid. They did not argue that, though, because they do not actually believe it.
- How else do I know it? Because they didn’t object to the election results in any of the other states whose election administration was changed by non-legislative entities. For example, in Texas the governor unilaterally extended the early voting period by a week past what the legislature had set. Did anyone object to the election results in Texas? Anyone…*crickets* In Florida, the Secretary of State did the same thing. In Arkansas, the governor issued an executive order stating the concerns over Covid were a valid excuse for an absentee ballot. Alabama's Secretary of State did the same. In Alaska, the state Supreme Court ruled to suspend witness requirements on absentee ballots. Here in North Carolina, the state election board issued guidance that if a mail-in ballot was received that had any deficiencies, they should reach out to the voter to cure the ballot. I could go on and on, state by state. Did you hear any of these courageous objectors standing up for these state legislatures? No, because Joe Biden didn't win those states. They didn't care about how the elections were run, they cared about who won them.
3) Remember how the above argument is that legislatures have ultimate power in making election law? The whole argument rests on the idea that according to the US Constitution, the authority of the state legislature to govern elections is absolute.
- You may remember that there was a lawsuit filed at the Supreme Court by the state of Texas against Pennsylvania, Georgia, Michigan, and Wisconsin (the court declined to hear it, because it’s very much not Texas’s business to tell other states how to run their elections). There was an amicus brief filed in support of this lawsuit which nearly all of these objectors signed on to. They all supported the lawsuit.
- In the part of that lawsuit pertaining to Pennsylvania, they argue that Pennsylvania’s Act 77 is unconstitutional (you may have also heard the objectors whining about this). Act 77 was a law passed in Oct 2019 which established no-excuse mail-in voting. Act 77 was a Republican bill that passed the Republican House and Republican Senate in Pennsylvania. Every Republican voted for it.
- Now, at the very same time they are arguing that state legislatures have absolute power to govern elections, these representatives are also arguing that a law passed by the Republican-controlled state legislature also makes the election invalid. It is an absolutely laughable argument.
4) There’s also been a lot of arguing that “The American people deserve transparency. We just want safe, secure elections. We want to bring up the issues of election security. Shouldn’t we have audits of these votes so that we can be certain?” Again, sounds reasonable, right? Sure, but it’s also simply a BS justification. In May of 2019, Democrats introduced two different bills that would have mandated many of the things these objectors say that they want.
- Both the SAFE Act and the PAVE Act would require that for federal elections: 1) You must use paper ballots. 2) The ballot must be available for inspection by the voter before the vote is cast. 3) Voting machines must be manufactured in the US and must meet cybersecurity standards. 4) States must carry out postelection audits.
- The SAFE Act passed the house with 1 Republican vote. It then went to the Senate where Mitch McConnell killed it. The PAVE Act was introduced by Ron Wyden (D) in the Senate, where it got sent to Committee and died. Conservatives complained that the bills were unnecessary federal overreach into something that should be the responsibility of the states, and would cost a lot of money (here's the WSJ making that argument). That's a fine position, and one I largely agree with, actually. However, if that's your position, you don't get to turn around and say "We, the Congress, the federal government, get to tell Arizona and Pennsylvania that they ran their elections wrong." If these objectors actually believed what they're saying and wanted the federal government to address these election issues, they had ample opportunity to do so. They didn’t.
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