On Wednesday, when Congress, following the Constitution, meets in a joint session to count the electoral votes certified by the states in the 2020 presidential election, about a dozen Republican senators, led by Ted Cruz of Texas, will object to counting the votes from several states President Trump lost. According to a public statement, the senators will propose that Congress appoint a commission to “conduct an emergency 10-day audit of the election returns” in those states, which were critical to Joe Biden’s victory. In that special session, these senators will vote to reject those states’ electors and not count their certified votes “unless and until” that audit is completed. The senators’ dissent, along with that of 140 or so House Republicans, will trigger hours of rancorous debate and draw out Congress’s usually perfunctory counting of electoral votes for president and vice-president.
Defending their actions, which have been condemned by members of Congress from both parties, the senators say they are responding to “unprecedented allegations of voter fraud, violations and a lax enforcement of election law, and other voting irregularities.” These allegations have created “a deep distrust of our democratic processes” — a distrust that “poses an ongoing threat to the legitimacy of any subsequent administrations.”
Insisting that they are acting to protect, not thwart, the democratic process, the senators confidently assert that “a fair and credible audit – conducted expeditiously and completed well before January 20 – would dramatically improve Americans’ faith in our electoral process and would significantly enhance the legitimacy of whoever becomes our next president.”
Now, Congress’s refusing to count a state’s certified electoral votes would require a majority vote in both chambers, and because Democrats control the House of Representatives, the senators’ efforts to block Biden’s election as president are doomed to fail. Of course, the senators know this, a fact that entitles other legislators and fellow citizens to demand that they justify dangerously disruptive actions that patently cannot succeed.
Certainly, pointed questions could be posed about the propriety and feasibility of the “audit” the senators call for. For example, why should we think that this hasty investigation would produce evidence of widespread election fraud when none has been found by state election officials, dozens of state and federal courts or the Justice Department?
Moreover, if the commission found no evidence of extensive illegal voting or ballot tabulation, does anyone seriously believe President Trump and his election-doubting supporters would accept this result? And, if the commission claimed to find such evidence, what then? Could Congress compel states to change their electoral votes? Wouldn’t Democrats file lawsuits to resist overturning any certifications, landing the issue back in court yet again? Such questions, however, are irrelevant because, as everyone understands, there is no chance Congress will authorize such an investigation.
The crucial point – the one critics should emphasize in the floor debates – is whether Cruz and his GOP colleagues are justified in actions that many legislators and constitutional experts fear could inflict long-term harms on the electoral process. Given that rational government entails making sure that momentous actions in the public interest have at least a reasonable expectation of achieving their aims, there is one question, above all others, that the refractory senators should be pressed to answer directly and in detail:
How does your forcing votes in which you know Congress will defeat your objections and dismiss your proposal in any way serve your express goals of “supporting election integrity” and “restoring faith in our democracy,” which you grant are necessary to protect the legitimacy of future administrations?
Thus, their Senate colleagues should not allow Cruz, Hawley (R-Mo.) and the other recusants to make the focus of Wednesday’s debate the supposed virtues of yet another investigation of Trump’s baseless claims that the election was stolen from him. Rather, they must be made to defend at length their imposing on Congress and the nation a shameful politicization of the constitutionally mandated ceremony of counting the electoral votes certified by each of the states. In that event, although Cruz is a gifted litigator, it will be evident that he has no case — and that, whomever he and his associates intend their actions to benefit, it is not the American people.
Dana Radcliffe teaches ethics at Cornell’s SC Johnson College of Business and Syracuse University’s Maxwell School of Citizenship and Public Affairs.