Many people I love, trust, and represent in Wisconsin believe the 2020 presidential election was stolen. This is a serious claim that deserves serious consideration. It is doubly serious when the desired remedy amounts to Congress overturning the outcome of the election. That is exactly what successfully objecting to the certification of key Electoral College electors for Joe Biden would do. Many of my House and Senate colleagues are prepared to take this step. I am not.
I endorsed and campaigned hard for President Trump. I have also spent the last two months investigating claims of election fraud. I have found real deficiencies in our voting processes in Wisconsin that must be fixed. Nonetheless, Joe Biden won Wisconsin by more than 20,000 votes, and that margin has survived multiple court challenges.
Contesting the certified electors also raises a larger question: Can Congress retroactively overrule the states when it comes to certifying their elections? The answer is no. The Framers of the Constitution did not trust the federal government with that power.
The objectors disagree. They point to the Electors Clause in Article II, Section 1, Clause 2 of the Constitution. It specifies that each state shall appoint electors “in such Manner as the Legislature thereof may direct.” Therefore, the reasoning goes, if courts or election commissions fail to follow a state’s election laws to the letter, then Congress can rule an election unconstitutional and overturn it.
Trump-appointed federal judges in Wisconsin, and on the 7th Circuit Court of Appeals, have convincingly argued that this is a distortion of the Electors Clause, one that would also require us to reject Republican elector slates in states like Texas where governors changed voting processes amidst the pandemic. It would also require members of Congress to reject our own elections, since we were on the same ballots, even after we have taken the oath of office. That creates a real dilemma: How can Congress vote to decertify the results of the very election that created it? The argument from the objectors renders the entire federal government inert. Like a snake eating its own tail, would we even exist as a Congress in this paradoxical scenario?
If state legislatures have been injured or ignored by renegade governors, election commissions, and courts, they could contest their respective states’ slates of electors. Yet not a single legislative chamber, including those controlled by Republicans, has done so. Many of my fellow Republicans have had informal meetings in hallways and Holiday Inns to discuss objecting. But not a single chamber in any of the 50 states has been willing to override the will of its voters based on evidence of fraud. Their silence consents to the Electoral College count.
Moreover, the idea that Congress — not the people in the states — gets to choose the president and the vice president would surprise the Framers. It would stun millions of Americans, as well as all of the American citizens who have voted in federal elections since the beginning of this Republic. The Constitution lays out a single circumstance in which Congress gets to pick the president: If no candidate receives a majority of the duly certified Electoral College vote, then the House picks the president based on state delegations. Selectively decertifying states to throw the election into the House is not a clever workaround. I have scoured The Federalist Papers, the history of the Electoral Count Act, and Madison’s notes on the Constitutional Convention. I cannot find any evidence to support the objectors’ approach as a legitimate means of presidential selection. It is constitutional nihilism.
The objectors are going down a dangerous path of vast federal overreach. By even forcing debate today, they are endorsing the pernicious idea that Congress, not the states, is the right forum for litigating — or even worse, relitigating — an election. This is an extremely progressive interpretation of the Constitution. It gives the federal government enormous new powers to regulate how states conduct elections, something the Left has sought for half a century. Until now, conservatives have rightly fought back against this line of legal reasoning. Yet the objectors would throw it all away for a few hours of primetime debate that they concede is unlikely to change the outcome.
The objectors also point out that the Democrats objected first, and so turnabout is fair play. It is true that Democrats bootlessly objected to certified Electoral College counts in 1969, 2001, 2005, and 2017. Their conduct was disgraceful, and Republicans rightfully shamed them for normalizing end-runs around the Constitution. But just because Democrats violated norms does not mean that Republicans should follow suit, especially when it will achieve nothing other than endorsing unlimited congressional supervision over election outcomes. Allowing a handful of people working in the federal government to choose a president borrows from the cynical playbook of the Left, and it is a recipe for Republican defeat in future elections.
Still, the objectors say we must “fight” today, lest we lose the country forever to tyranny. But what are conservatives sent to Washington to fight in the first place, if not the tyranny of the federal government? How do you fight illiberalism with illiberalism? What are conservatives fighting for, if not the idea that the states and the people get to govern themselves? This is the core of what conservatives are trying to conserve. But it is precisely this idea to which the objectors object.