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Trump and Republicans' Electoral College election objections betray conservative legal thought

The events of the past few weeks suggest the principles animating modern conservative constitutionalism are merely arguments of convenience.
President Trump Holds Rally In Columbia, Missouri
President Donald Trump listens then-Senate candidate Josh Hawley speaks at a rally in Columbia, Mo., on Nov. 1, 2018.Scott Olson / Getty Images file

UPDATE (Jan. 7, 2021, 10:30 a.m. ET): This piece has been updated throughout to reflect the fact that after pausing its official count of the Electoral College votes for several hours following rioters in the Capitol, both the Senate and House finally confirmed Biden's win in the early morning hours on Thursday.

There are any number of reasons to criticize the dozens of congressional Republicans who vowed to object to duly certified slates of presidential electors Wednesday and early Thursday, when Congress met to ratify President-Elect Joe Biden's Electoral College victory. The vote was postponed due to the extraordinary riots that broke out on the Capitol grounds, but resumed Wednesday night. The reason for the violence? Trump's ongoing insistence that his second term was stolen from him.

And yet, there remains no substantiated evidence that the results in any states were inaccurate. Nor is that for lack of trying; in some states (including Georgia) there have been multiple audits of the final tallies using paper receipts, each of which has confirmed the results. As with any election, there have been infinitesimal discrepancies at the margins, but none of them come close to overcoming Biden's margins of victories in the tipping-point states — Arizona, Georgia, Michigan, Nevada, Pennsylvania and Wisconsin — and some have only increased his margins.

Wednesday's antics are not just dangerous political theater; they are also a betrayal of two of the foundational legal principles conservative Republicans have pushed for decades.

Rather, the goal of GOP lawmakers seems to have been to try to appease and appeal to the president's supporters — to whom no amount of contrary evidence and/or rejections of these claims in court have sufficiently established that 81 million Americans voted for the other guy. In the process, these objections serve only to perpetuate conspiracy theories and delegitimize the clearly legitimate election of our country's 46th president. Worse still, they could set the stage for similar machinations four years from now — when they might be sufficient to overturn narrower election results.

Wednesday's antics were never just dangerous political theater; they were also a betrayal of two of the foundational legal principles conservative Republicans have pushed for decades: The first of these is "originalism" — the theory that any debate over the meaning of specific constitutional provisions should be conclusively resolved by how those provisions would have been understood when they were adopted. The second, related principle is a particular understanding of "federalism" — the division of power between state and federal governments — through which our founding charter preserves the regulatory primacy of states over most topics, including federal elections.

Simply put, Republican objectors unintentionally but necessarily drive home the central criticism of the conservative legal movement: that the putative principles animating modern conservative constitutionalism aren't actually inexorable constitutional mandates but rather arguments of convenience to be brushed aside whenever they prove inexpedient.

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Consider, for instance, the principal objection held out by Sen. Josh Hawley, R-Mo., for why he had planned to contest Pennsylvania's slate of presidential electors. As Hawley explained in an e-mail to his Senate colleagues, he believes that the (Republican-led) Pennsylvania Legislature violated the Pennsylvania Constitution in 2019 when it dramatically expanded mail-in voting.

Leaving aside that this objection has nothing to do with allegations of fraud or other misconduct by voters, the flaw in the argument is simple enough: Whether a state law violates a state constitution is, in all circumstances, up to the state's supreme court. And although the Pennsylvania Supreme Court hasn't expressly upheld the law at issue, when faced with a challenge to it brought by Republican Rep. Mike Kelly shortly after the November election, it refused to reach to the merits — and instead threw out the lawsuit on the ground that Kelly had waited too long to challenge the law. That decision, right or wrong, was Pennsylvania's to make. Indeed, since Congress established the Supreme Court in 1789, it has limited its jurisdiction in appeals from state courts to cases that turn on some question of federal law.

More fundamentally, as seven Republican members of the House said in a joint statement issued Sunday criticizing colleagues who are planning to object:

The text of the United States Constitution, and the Twelfth Amendment in particular, is clear. With respect to presidential elections, there is no authority for Congress to make value judgments in the abstract regarding any state’s election laws or the manner in which they have been implemented. Nor does Congress have discretion to disqualify electors based on its own finding that fraud occurred in that state’s election. Congress has one job here: to count electoral votes that have in fact been cast by any state, as designated by those authorized to do so under state law.

They're right. Article I, Section 4 of the Constitution expressly provides that the "Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof," and Article II, Section 1 likewise provides that each state "shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress."

In other words, states set the rules for their elections, and states — not members of Congress — appoint electors. Indeed, federal elections are one of the few areas in which the Constitution expressly gives states a leading role in an area of primarily federal concern. And while the Constitution does allow Congress to override state laws with uniform federal rules to govern federal elections, Congress hasn't done that in any way that matters here — and none of the putative objectors have proposed any legislation to that effect.

It would be one thing if, as has happened in several previous elections, a state failed to appoint a slate of electors or somehow certified multiple slates of electors (as happened in Hawaii in 1960). In those circumstances, the Constitution — and the Electoral Count Act of 1887 — clearly assign a role to Congress as the arbiter of any disputes. (And, to be clear, the "dueling" slates of Trump electors from the tipping-point states don't count, because they weren't authorized by their state legislatures or recognized by their governors.)

But the members of Congress now insisting that they know better than the states in question — when those states have expressly declared the election results final and undisputed — usurp both the unambiguous understanding of the Constitution when it was ratified and the central role of states in presidential elections ever since.

That would be a troubling enough defect in the objectors' arguments in the abstract. It is all the more galling in context — in which many of the same congressional Republicans have harped on the propriety of "originalism" in constitutional interpretation. With the Founding Fathers wary of ceding too much power to a centralized federal government, the suggestion that a state supreme court wasn't the final word on state law or that Congress was in no way bound by a state's certification of presidential electors wouldn't just have been met with derision; it might well have prevented the Constitution's ratification. (The final tally was indeed a close enough call — New York, for instance, voted to ratify by only 30-27.)

Therefore, as inappropriate as it is for any member of Congress to dispute a state's results in this manner (including Democrats), for representatives and senators who claim to be committed to originalism and federalism to object in this ways calls their fidelity to those principles into serious question. More fundamentally, it suggests, and not for the first time, that these officials use those principles the way the Scottish writer Andrew Lang suggested that a drunk uses a lamppost — for support rather than illumination.