Representative Liz Cheney of Wyoming, the House GOP conference chair, sent a 21-page memo to fellow House Republicans on Sunday making the case that there’s “no appropriate basis” for Congress to object to slates of Electoral College votes on January 6.
“Such objections,” Cheney writes in her memo, “set an exceptionally dangerous precedent, threatening to steal states’ explicit constitutional responsibility for choosing the President and bestowing it instead on Congress. This is directly at odds with the Constitution’s clear text and our core beliefs as Republicans.”
The proposal made by a dozen Senate Republicans on Saturday to reject Electoral College votes until a ten-day audit is conducted is “even more problematic,” Cheney adds.
Here’s an excerpt of Cheney’s memo:
[T]here is substantial reason for concern about the precedent Congressional objections will set here. By objecting to electoral slates, members are unavoidably asserting that Congress has the authority to overturn elections and overrule state and federal courts. Such objections set an exceptionally dangerous precedent, threatening to steal states’ explicit constitutional responsibility for choosing the President and bestowing it instead on Congress. This is directly at odds with the Constitution’s clear text and our core beliefs as Republicans. Democrats have long attempted, unconstitutionally, to federalize every element of our nation—including elections. Republicans should not embrace Democrats’ unconstitutional position on these issues.
The recent proposal for a new “Commission” is even more problematic. It is not reasonable to anticipate that any commission so formed could wrap up its work in 10 days; indeed, the subsequent debate at both the state and federal level would likely require months. Did those proposing a new commission realize that they were in essence proposing to delay the inaugural? Did they mean to set up a new future precedent where the inaugural is delayed and we have an “Acting President?” For how long? Who decides when that process is over? Will that require another Act of Congress? Could the Acting President veto any such future Congressional action? If Congress has authority to create such a commission now, are state elections, recounts and state law legal challenges just “make-work” until Congress gets around to investigating and deciding who should be President? Members who support the new commission proposal may need to answer each of these questions. And in particular, Members should be prepared to answer how such a commission would be justified by the actual text of our founding documents.
Cheney goes on to note that the Framers “specifically rejected” proposals to give Congress the power to select a president and chose instead to give the power to the states:
Nothing in Article II, the 12th Amendment or any other Constitutional text provides for any debate, objection or discretionary judgments by Congress in performing the ministerial task of counting the votes. Nothing in the Constitution remotely says that Congress is the court of last resort, with the authority to second-guess and invalidate state and federal court judicial rulings in election challenges. Indeed, the Constitutional text reads: “The person having the greatest Number of [Electoral College] votes for President, shall be the President.” It does not say: “The person having the greatest Number of [Electoral College] votes for President, shall be the President, unless Congress objects or Congress wants to investigate.” The Constitution identifies specifically the only occasions when Congress can take any non-ministerial action when no Presidential candidate has a majority of the electoral votes: “[I]f no person have such majority [of the electoral votes counted], then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President…..” Thus, the Constitutional text tells us very clearly what Congress’ role is and is not.
For most of our nation’s history, the Framers’ straight-forward instructions regarding selection of the President prevailed. In the aftermath of our nation’s Civil War, officials in certain Reconstruction Era state governments submitted competing slates of electors. In 1887, Congress sought to resolve those issues by enacting the Electoral Count Act. A principal provision of that Act instructs that a certificate identifying the Electoral College electors and their votes received from the Governor of a state shall be regarded as “conclusive.” 3. U.S.C. § 5. 6. Although the Constitutionality of that Act has been the subject of substantial debate, here there is no dispute that each Governor of the six states at issue submitted an official certification of the election, and those electors’ votes have been transmitted to this Congress. Thus, under the Electoral Count Act, those certificates are conclusive and must be counted. There is no discretion to do otherwise under that Act. Accordingly, both the clear text of the Constitution and the Electoral Count Act compel the same conclusion – there is no appropriate basis to object to the electors from any of the six states at issue.
The rest of Cheney’s 21-page memo goes through the legal cases challenging the election results in Arizona, Georgia, Nevada, Michigan, Pennsylvania, and Wisconsin.