Elections

The Folly of the Cruz Eleven

Sen. Ted Cruz (R., Texas) speaks during a news conference in Washington, D.C., October 26, 2020. (Graeme Jennings/Reuters Pool)

Josh Hawley is nothing if not a leader.

The Missouri Republican’s announcement last week that he would object to Biden electors from Pennsylvania immediately caused another eleven Republican senators, organized by Ted Cruz, to play catchup and declare they’d object to Biden electors from all the battleground states Trump is contesting.

Like Hawley, the Cruz group cites the precedent of 2005, when Senator Barbara Boxer joined objecting House Democrats to force a debate over whether to count George W. Bush electors from Ohio, the state that provided Bush’s margin of victory.

It has always been axiomatic that Republicans shouldn’t emulate the former progressive senator from California, and never more so in this case. If the Cruz-led objectors somehow actually got their way, they’d trample federal law and state sovereignty and blow a hole in the hull of American democracy.

The Cruz eleven issued a statement justifying their position. Like Hawley’s statement last week, it doesn’t directly say that the election was stolen — the only possible basis for contesting the counting of electors. Presumably written carefully to allow the signatories plenty of wiggle room if their conduct doesn’t wear well, it instead says only that “the allegations of fraud and irregularities in the 2020 election exceed any in our lifetimes.”

Of course, this is true only because the sitting president of the United States is amplifying such allegations every day, without regard to their truthfulness or connection to reality. The allegations themselves aren’t so different from those that fueled Democratic doubts about the outcome in Ohio in 2005 — e.g., voting machines have been used to switch votes. The difference is that back then, the losing candidate wasn’t promoting the outlandish charges, with many officeholders in his own party too frightened or cynical to contradict him.

Cruz et al. must know that nothing can be reasonably done to put the allegations to rest because Trump would keep repeating them until the election was overturned and he was awarded a second term (and even then, he still wouldn’t stop decrying the alleged crimes perpetrated against him on November 3).

The letter from the Cruz eleven states that “ideally, the courts would have heard evidence and resolved these claims of serious election fraud.” In point of fact, federal courts in Wisconsin, Pennsylvania, and Nevada did consider the Trump campaign’s claims on the merits, and they all found them wanting. The letter laments that the Supreme Court didn’t take up the factual questions, but the highest court in the land isn’t a random fact-finding body. The most prominent suit that landed on its desk was an attempt by Texas to throw out the results in key battlegrounds won by Biden. The court declined to hear the suit because it was so flagrantly constitutionally flawed.

The letter cites the contention over the notorious 1876 presidential election between Democrat Samuel Tilden and Republican Rutherford B. Hayes. Trying to draw an analogy to today, it refers to “serious allegations of fraud and illegal conduct” in 1876, but this significantly understates it.

In 1876, there weren’t just allegations; there was honest-to-God evidence of bribery and ballot stuffing on both sides in the chaotic atmosphere of Southern states still under Reconstruction. There were rival slates of electors from Louisiana, Florida, and South Carolina. Black voters were subjected to horrific violence and intimidation to keep them from the polls.

To compare any of this to today is perverse. In Georgia, for instance, machine and hand recounts have confirmed the results, while a signature audit has found no evidence of endemic mismatches. Yet, the president of the United States is still calling the Republican secretary of state of Georgia to try to browbeat him into awarding him victory in the state based on misinformation and conspiracy theories.

The Cruz eleven call for an electoral commission on the model of the one that determined the outcome in 1877. Never mind that this commission was a travesty. The original idea was that the commission of five senators, five representatives, and five Supreme Court justices would be split 7–7 between Republicans and Democrats with Justice David Davis, an independent, providing the decisive vote. As it happened, though, the Illinois legislature elected Davis to the Senate, and his spot on the commission was taken by the Republican justice Joseph Bradley, who reliably voted with his GOP colleagues, giving Hayes an 8–7 victory on every contested question to get him the 20 additional electoral votes he needed to win. Hayes served only one term, which was overshadowed by the odor of the backroom deals that ensured his election.

Trump may like this model, assuming it is stacked in his favor. The problem is that, in reaction to the debacle of 1877, Congress adopted a statute giving states a “safe harbor” for their electors, i.e., assurance that they’d be considered conclusive by the federal government, if appointed six days prior to the Electoral College. All the contested states (except for Wisconsin) met this standard. No competing slate of electors was appointed by any legitimate body of any state government. The Cruz eleven propose to call into doubt the sole slate of state-appointed electors in each state anyway, and to essentially attempt to usurp what is supposed to be the state function of appointing electors. The federalists among the Cruz eleven know all this — at least they do when they aren’t currying favor with Donald Trump.

The Cruz eleven realize that their effort isn’t going anywhere. Both houses of Congress would have to vote to uphold objections to electors. Neither will, and neither should. If all they want to do is signal that they are upset that Biden won, this isn’t the manner or the forum to do it. Nor is this the proper way to examine underhanded electoral practices that did not alter the outcome, or to propose election reforms, however needed.

Barbara Boxer shouldn’t be a conservative role model.

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