It’s no surprise to hear a be careful what you wish for argument, but it’s a bit surprising to hear it coming from inside the MAGA tent. Tom Cotton has been one of the more fervent backers of Donald Trump in the US Senate, and has rumored aspirations to compete for Trump’s base in 2024. Even so, Cotton has declared himself opposed to the attempt by congressional Republicans to challenge the Electoral College results, both on principle and on precedential grounds.
After paying some lip service to “concerns of many Arkansans” about election results, Cotton gets down to business:
Nevertheless, the Founders entrusted our elections chiefly to the states—not Congress. They entrusted the election of our president to the people, acting through the Electoral College—not Congress. And they entrusted the adjudication of election disputes to the courts—not Congress. Under the Constitution and federal law, Congress’s power is limited to counting electoral votes submitted by the states.
If Congress purported to overturn the results of the Electoral College, it would not only exceed that power, but also establish unwise precedents. First, Congress would take away the power to choose the president from the people, which would essentially end presidential elections and place that power in the hands of whichever party controls Congress. Second, Congress would imperil the Electoral College, which gives small states like Arkansas a voice in presidential elections. Democrats could achieve their longstanding goal of eliminating the Electoral College in effect by refusing to count electoral votes in the future for a Republican president-elect. Third, Congress would take another big step toward federalizing election law, another longstanding Democratic priority that Republicans have consistently opposed.
Thus, I will not oppose the counting of certified electoral votes on January 6. I’m grateful for what the president accomplished over the past four years, which is why I campaigned vigorously for his reelection. But objecting to certified electoral votes won’t give him a second term—it will only embolden those Democrats who want to erode further our system of constitutional government.
Agreed on all points, of course, especially about the threat to federalism that Republicans are currently mounting in both chambers. If anything, Cotton might be underestimating the poisonous precedent that this sets. Cotton warns that this will threaten to turn our federal system into a parliamentary one, which might at least have some benefits along with its obvious trade-offs. He misses the part where undermining presidential elections also undermines the legitimacy of Congress itself, which gets elected in precisely the same manner and on the same ballot as presidents do. That’s the point Rep. Chip Roy (R-TX) plans to make in challenging the seating of colleagues in any state Republicans plan to challenge. If Cotton really wanted to connect that last dot, he might consider challenging the seating of Republicans from those states who won in November. (Were there any?)
Yesterday, House Republican Liz Cheney sent out a similar warning to her GOP colleagues. Guy Benson got an exclusive look at that message, which pulls no punches on the extra-constitutionality of the proposed actions by the GOP on Wednesday:
Memo runs through relevant constitutional & statutory provisions & includes a summary of Team Trump's myriad failed legal challenges in (supposedly) contested states. Her conclusion: "There is no appropriate basis to object to the electors from any of the six states at issue." pic.twitter.com/8NLLWSg5df
— Guy Benson (@guypbenson) January 3, 2021
In fact, Cheney asserts, Congress has no role at all other than counting the ballots, unless no majority is achieved or states have certified competing slates of electors:
Indeed, the Constitutional text reads: “The person having the greatest Number of [Electoral College] votes for President, shall be President.” It does not say: “The person having the greatest Number of [Electoral College] votes for President, shall be 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[.]
Cheney also opposes any “commission” to review the vote that precludes the normal process of counting Electoral College votes as a usurpation of state authority. She dismisses as absurd the idea that such a commission could possibly deal with the issues being raised in ten days, let alone get state legislatures to send alternate electors for a renewed Electoral College fight on the basis of whatever they produce. Trump’s legal team hasn’t won a substantial case despite nearly 60 attempts, and haven’t yet even produced claims of widespread fraud in court, let alone evidence of such.
Andrew McCarthy reminds everyone of that track record, and the large gap between Team Trump’s PR and their presentations in court where it matters:
Publicly, the Trump campaign has been claiming there was extensive vote fraud and law-breaking. Specifically with respect to Wisconsin, President Trump tweeted on November 28: “The Wisconsin recount is not about finding mistakes in the count, it is about finding people who have voted illegally . . . We have found many illegal votes. Stay tuned!” The campaign further maintained that the recount it demanded would “show somewhere around 100,000 illegal ballots in the two counties that Biden carried” (i.e., Milwaukee and Dane). This is in addition to the innumerable times the president and his surrogates have asserted that they were being systematically prevented from proving massive fraud and illegality. The courts and state officials, we’ve been told, have invoked legal technicalities, such as the supposed lack of standing to sue, in order to stop the campaign from calling witnesses and introducing voluminous documentary evidence. So what happened in Wisconsin? Judge Ludwig denied the state’s claims that the campaign lacked standing. Instead, he gave the campaign the hearing they asked for — the opportunity to call witnesses and submit damning exhibits.
Yet, when it got down to brass tacks, the morning of the hearing, it turned out there was no actual disagreement between the Trump team and Wisconsin officials about the pertinent facts of the case. The president’s counsel basically said: Never mind, we don’t need to present all our proof . . . we’ll just stipulate to all the relevant facts and argue legal principles. In the end, after all the heated rhetoric, what did they tell the court the case was really about? Just three differences over the manner in which the election was administered — to all of which, as Ludwig pointed out, the campaign could have objected before the election if these matters had actually been of great moment. There was no there there. Despite telling the country for weeks that this was the most rigged election in history, the campaign didn’t think it was worth calling a single witness. Despite having the opportunity of a hearing before a Trump appointee who was willing to give the campaign ample opportunity to prove its case, the campaign said, “Never mind.” The legal arguments were not much more weighty than the vacant factual presentation.
What’s the “commission” supposed to do? Find widespread fraud when Trump’s legal team keeps backing away from that claim in court, despite repeated opportunities to present such evidence?
This is nothing more than a burn-it-all-down impulse from Trump and his loyal base, who can’t accept defeat even in a cycle where Republicans made gains all the way down the rest of the ballot. The only person who benefits from this is the man who lost the election. Cotton and Cheney are smart enough to figure that much out. Too bad a few of his colleagues are too busy pandering to the mob to do the math for themselves.
Meanwhile, of course …
If they had different numbers and the evidence to back those up, why not present those in court? Why save them up for a speech on January 4th? This is absolute nonsense, that’s why, especially in Georgia where two recounts have already confirmed the first full count.
Update: Mike Lee now concurs with Cotton and Cheney:
LEE: "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."
— Alex Isenstadt (@politicoalex) January 4, 2021
It’s getting pretty thin in Senate MAGA-Land if Cotton and Lee are both opposed to this.