Trump’s Allies Become the Swamp: The ‘Electoral Commission’ Gambit

Hawley and Cruz are engaged in a flagrant Washington power grab.

S o … what part of the word “conclusive” is unclear?

Josh Hawley and Ted Cruz are erudite constitutional law scholars. They are former Supreme Court clerks, each becoming a top government lawyer in his state: Hawley as Missouri’s attorney general, Cruz as Texas’s solicitor general. Yet they are leading a cabal of Republican senators in a farce that, if Democrats tried it, would be decried by conservative constitutionalists as the ultimate Swamp usurpation of state sovereignty.

They propose an “Electoral Commission” that would audit the election results in select states, chosen out of careful partisan calculation. It is a lawless gambit, blithely flouting an unambiguous command of federal election law: specifically, the so-called safe-harbor provision.

That statute, Section 5 (of Title 3, U.S. Code), controls whenever any state, under its laws, makes a “final determination of any controversy or contest concerning the appointment of … electors … by judicial or other methods or procedures.” As long as “such determination” by the state is made at least six days before the time fixed for the Electoral College vote, then it “shall be conclusive” as far as the federal government is concerned. Case closed.

This year, December 14 was the date fixed under the federal statutory formula for the Electoral College vote in each state. Ergo, if the states, under their laws, determined any disputes by December 8, that determination is conclusive as a matter of federal law. Under Section 5, the state’s resolution “shall govern in the counting of electoral votes” by Congress on January 6 — this coming Wednesday.

The states certified their election results under their laws prior to December 8. These include Pennsylvania, Michigan, Wisconsin, Georgia, and Arizona — states whose popular-election results have been targeted by President Trump and his supporters. Some of the claimed irregularities have been colorable, some spurious, but there is no proof that any of them would have changed the result of the election in any single state, much less President-elect Biden’s overall victory. Neither Senator Hawley nor Senator Cruz claims otherwise. Moreover, the states resolved disputes raised by Team Trump under their own laws. The states’ duly elected officials certified the results under the states’ duly enacted procedures.

As far as the federal government is concerned, that is the end of the matter. Those state certifications are conclusive. It is not a matter of whether it is the result we would have preferred, or even whether it is a result we find suspect. It is the law. This undeniable fact has been recognized by several federal judges, including judges appointed by Trump, who have examined the Trump claims, rejected them, and disclaimed any authority under the circumstances to disturb the states’ determinations.

If, despite all that, Democrats were trying to orchestrate a congressional do-over, Republicans would be pointing out, with due indignation, that the Constitution makes the election of a president, like the ratification of the Constitution itself, a matter of state sovereignty. Under our foundational law, it is the states, not the people and certainly not Congress, that determine for which candidate their electoral votes are cast.

As long as one candidate has received a majority of the state-certified electoral votes, Congress’s role is solemn but strictly ministerial: to witness the counting of the votes. The Twelfth Amendment requires that to be done in the presence of lawmakers at a joint session of Congress, over which the vice president presides — because of his largely ceremonial role as president of the Senate and because the Twelfth Amendment mandates that, after the states have cast their electoral votes, they transmit those votes “to the President of the Senate” in Washington.

The power-grab here, the kind that Republicans who purport to be constitutional conservatives would ordinarily be fighting tooth and nail, is the notion that the federal government, and Congress in particular, has authority to countermand a state’s sovereign determination regarding the disposition of its electoral votes. This would be antithetical to federalism principles, which is no doubt why nothing in the Constitution suggests that Congress has such power.

What the Constitution says is that, when the votes are counted, if no presidential candidate has received a majority of the states’ electoral votes, then Congress determines the winner under the procedure spelled out in the Twelfth Amendment. That substantive congressional role, however, is activated only if the states have collectively failed to certify a winner of the Electoral College majority.

Obviously, that is not our situation. The states have collectively certified 306 electoral votes for Biden, well in excess of the 270 votes needed for a majority. Congress, therefore, has nothing to do but watch the votes get counted.

Yet Hawley last week announced that he will protest. And this weekend, in a letter written by Cruz, eleven Republican senators propose to create an “Electoral Commission” to conduct “an emergency 10-day audit of the election returns in the disputed states.” They claim as their precedent the disputed presidential election of 1876. That claim is as risible as their proposal is lawless.

Reconstruction was the context of the 1876 election, with southern states still being overseen by the federal government, and South Carolina and Louisiana still occupied by U.S. troops. The election was wracked by fraud and hardball tactics that, among other things, suppressed the black vote (which supported Republicans back then).

The dubious election returns indicated that Democratic candidate Samuel Tilden won the popular vote in Florida, Louisiana, and South Carolina. But Republican-controlled election boards and Reconstruction governments certified Rutherford B. Hayes, the Republican, as the winner. To refute this, Democratic state officials in Florida certified Tilden the winner, a Democratic gubernatorial candidate in Louisiana purported to do the same, and the South Carolina slate of Tilden electors took it on themselves to claim legitimacy. Meanwhile in Oregon, the Democratic governor claimed that one of the GOP electors was disqualified and replaced him with a Democrat, an action disputed by the Republican secretary of state. (The contested elector had been postmaster, though he’d retired; under the Constitution, federal officials may not serve as electors.)

As the Cruz letter recounts, Congress (controlled by Republicans) tried to sort out this mess prior to Inauguration Day in 1877 by appointing a 15-member Electoral Commission — five members each from the Senate, the House, and the Supreme Court. It was a constitutionally dubious venture, not least for involving five justices in a brute political exercise. The GOP’s 8–7 commission majority scandalously threw the election to Hayes, in exchange for which the South received some federal goodies and the end of military occupation.

Quite apart from the fact that the 1877 Electoral Commission was hardly a model solution, the situation in 2020 is night-and-day different.

To begin with, there are no “disputed states.” In this context, the technical meaning of “disputed states” is states as to which there is an actual legal dispute as to which slate of electors has been certified by the state government. No state fits that definition. Demagogic claims of election-rigging and fraud by the president and his supporters do not count — especially when the Trump team not only lost all of its court challenges but expressly declined to claim and try to prove fraud when invited to do so by federal judges in Pennsylvania and Wisconsin (to say nothing of the case the campaign simply dropped in Michigan).

Nor is any state’s official certification, under its laws, in any way undermined by unofficial demonstrations, such as meetings by the Trump electoral slates purporting to designate themselves as the rightful electors. These sessions have no legitimacy under state law, which, of course, is why the would-be slates are not certified. Tellingly, neither Hawley’s statement nor the Cruz letter suggests these partisan exhibitions carry any legal weight.

While all elections have improprieties, the lack of concrete fraud proof on a scale that could alter the 2020 outcome should come as no surprise. The states the president claims to dispute were chosen not because their election procedures were dissimilar to the other 45 states — they weren’t. The states were strategically mined: They are the handful of states with Republican-majority legislatures where the popular election went to Biden — narrowly so in Georgia, Arizona, and Wisconsin; more decisively in Pennsylvania and Michigan … but these bigger states must be included to make the fantasy math work. Republican-majority legislatures were targeted precisely because Team Trump knew that the only hope of reversing the election result was at the state level. Only the state legislatures, not the national legislature, had such power.

Trump and his loyalists are “disputing” those five states only in the sense of not being able to come to terms with having lost them. That does not make them disputed in a legally cognizable sense. The claim of Hawley, Cruz, and their colleagues that their Electoral Commission is an effort to protect elections, not undermine them, is specious. If, as they say, a high percentage of Trump supporters suspect fraud, it is because the president incessantly posits fraud claims publicly while unable to prove them legally, and because prominent Republicans remain mum rather than challenging him.

Each of the states Trump challenges certified Biden under Section 5 as the winner under their lawful procedures. Section 5 is the inconvenience that goes studiously unmentioned in the Cruz letter: The safe-harbor provision in federal law is a key part of the election laws enacted by Congress in 1887, for the very purpose of avoiding a repetition of the 1876 debacle. (As noted above, the safe-harbor provision is codified as Section 5 in today’s election law; it was Section 2 in the 1887 legislation.)

With a decade to think about it, Congress prudently did not revive 1877’s experiment: an ad hoc federal Electoral Commission claiming the unconstitutional authority to substitute its will for state sovereignty. Instead, Congress mandated deference to the states’ resolution of any election disputes under their own laws. To repeat what should be palpable (but apparently is not), as long as any state’s determination is made six days prior to the date fixed for the Electoral College vote, it is conclusive.

I supported Trump, but he lost. It’s a shame he can’t find it within himself to accept that and appreciate — as, for example, Richard Nixon did in 1960 — how threatening to national cohesion a protracted post-election crusade could be. But how much more damage are his diehard supporters willing to do to the Republican Party and the conservative cause it purports to serve?

They have labored to delegitimize an election in which Republicans, while narrowly losing the presidency, did spectacularly well down-ballot. This effectively bids Democrats to challenge critical GOP wins in the House, the Senate, and the state governments. They have positioned Republicans as favoring the disenfranchisement of voters in battleground states that Republicans must win if they are to win the presidency in the future — a stance that could be justifiable if pervasive fraud had been proved but is suicidal when it has not.

They have unfathomably abetted the Left’s project to eradicate the Electoral College. They have laid the groundwork for Democrats to argue in 2024 that Vice President Kamala Harris, a fierce partisan, has the power to negate the electoral votes in states won by the Republican candidate. They have invited Democrats, in future elections, to convene illegitimate Democratic electoral slates to undermine Republican slates duly certified to cast Electoral College votes in states Republicans have won.

And now, in one fell swoop, a faction of the GOP — the party of limited government — urges that the Swamp has the power to invalidate every state’s sovereign determination, under its laws, of its presidential electors. Not just invalidate such determinations in defiance of federalist principles, and not just in defiance of the Twelfth Amendment, under which Congress’s role in electoral-vote counting is strictly ministerial. They further urge defiance of an unambiguous statute that Congress has never even tried to repeal since it was enacted 134 years ago.

If these are the Republicans, who needs Democrats?