Is the “Electoral Commission” a dodge?
On the eve of a constitutionally mandated joint session of Congress to count the states’ electoral votes and certify a winner of the 2020 presidential election, that question is pressing. Sen. Ted Cruz (R-Texas) has proposed such a commission. Under his plan, the congressional certification would be suspended while the commission — not yet authorized and with no commissioners yet named — commences and completes within just 10 days a full “audit” of the election results.
This, of course, is implausible. Yet, the proposal is supported by at least 11 Republican senators. A likely 12th is Georgia’s Sen. Kelly Loeffler. During Monday night’s rambling rally — ostensibly for the run-off election in which she is a candidate, but more for President Trump to continue airing his grievances — Loeffler demonstrated gratitude for Trump’s support by pledging to object to President-elect Biden’s certification at Wednesday’s joint session. She did not explicitly say she’d be joining the Cruz effort.
In addition, there is Sen. Josh Hawley (R-Mo.), the first out of the gate to vow to object. Having beat Cruz to the punch, he has not joined his colleague’s commission proposal. Although he has mentioned electoral improprieties, to what exactly he plans to object remains unclear. He says his aim is to “raise critical issues” about the failure of “some states,” prominently including Pennsylvania, to follow their own election laws. His abiding complaint, however, appears to be that “mega corporations, including Facebook and Twitter” (a.k.a., Big Tech) “interfered” in the election in a way that was “unprecedented.”
Hawley is a smart guy. Like Cruz, he’s a former Supreme Court clerk and accomplished lawyer. So it’s telling that he said “unprecedented.” That’s because he can’t say “unlawful.” He long has been agitating (as has Cruz) for Big Tech’s legal privileges to be stripped. Implicit in that, of course, is that Big Tech does have these privileges. Ergo, when Big Tech puts its thumb on the scale in support of Democrats, it is not breaking current law. As a good populist, Hawley is invoking the loaded word “interfere,” but these private American companies are not “interfering” in the same way that, say, foreign actors can be said to interfere in our elections. (And if you thought complaining about “mega corporations” that “interfere” in elections was a Democratic political narrative, welcome to populism — hopefully, you’ve brought along plenty of Dramamine!)
While he has a real case to make on changing the law prospectively, Hawley knows Big Tech’s influence, however one quantifies it, is not a valid rationale for objecting to Biden’s certification. Similarly, he knows that the Pennsylvania government’s arguable violation of Pennsylvania’s constitution by adopting mail-in voting is not a reasonable basis for a senator from Missouri to object. I don’t like mail-in voting either, but it is permissible under the U.S. Constitution, and it does not, in principle, favor any candidate or either major political party.
The Pennsylvania Supreme Court has ruled that mail-in voting was validly used in 2020, or at least that any objections to it were not timely raised. As Hawley surely knows, the U.S. Supreme Court is not going to second-guess the highest state court on that question of state law. In fact, if the justices reasoned along the lines of Trump campaign arguments, they would conclude that, if there’s any infirmity at all, it lies in Pennsylvania’s constitution, not in the mail-in statute. (The Trump campaign incessantly argues that, since the U.S. Constitution makes state legislatures supreme in prescribing election procedures, nothing may countermand or interfere with them. Presumably, that would include a state constitutional provision that arguably interferes with the state legislature’s adoption of a voting method that federal law permits.)
So Hawley may complain about Pennsylvania, and he surely will do his now-familiar riff against Big Tech. But will he actually object to the counting of Pennsylvania’s electoral votes? With presidential ambitions, does he want to be the 2024 Republican candidate who called for disenfranchising nearly 7 million voters in a swing state that Republicans must have?
Count me skeptical. And on the Electoral Commission, count me as cynical as the proposal itself.
The commission would currently violate federal law, under which the state’s certification of electoral votes is dispositive. It would violate federalism principles, under which the states are sovereign in the determination of which candidate gets their electoral votes — the federal government has no say in the matter. It would violate the 12th Amendment, which, in deference to federalism, reduces Congress to the ministerial task of counting the electoral votes (as long as one candidate has a majority of all electoral votes certified by the states, which Biden does).
Cruz knows all this. So why propose an Electoral Commission? Because Republicans are torn between a) not wanting to be seen as disenfranchising voters of states they need to win in future elections, and b) not wanting to endure the wrath of President Trump and his devoted base — voters they also need in order to win future elections.
The Electoral Commission is a dodge. It is the caprice these Republicans hope to make the vehicle for lodging all their objections, based on fraud that they know they cannot prove and other improprieties — some colorable, some trivial — that they know are insufficient to alter the outcome of the election. They fully realize the proposal is futile: There will not be enough votes even in the GOP-majority Senate, much less the Democratic-controlled House, to approve an Electoral Commission. But in arguing for it, these Republicans hope to be able to satisfy the president’s base that they satisfied their “Fight for Trump” obligation, while not infuriating the rest of the country.
It’ll make for an interesting Wednesday matinee.
Former federal prosecutor Andrew C. McCarthy is a senior fellow at National Review Institute, a contributing editor at National Review, and a Fox News contributor. His latest book is “Ball of Collusion.” Follow him on Twitter @AndrewCMcCarthy.