Third, Cruz is incorrect to suggest that the Hayes-Tilden commission had “full investigatory and fact-finding authority.” The Congress that created that commission was careful to avoid doing that, because it was hotly contested whether Congress itself had the constitutional power “to go behind the returns” of a state’s electoral college votes, and Congress did not want to give the commission any powers that Congress itself did not have. The commission itself resolved the dispute in favor of Hayes by scrupulously avoiding fact-finding.
Fourth, Congress cannot create a new commission in the context of the proceedings planned for Jan. 6. The existing 1887 statute rejected the commission model, and instead wanted Congress itself to handle any issues that might arise concerning a state’s electoral votes — based on a set of rules that make “conclusive” whatever “final determination” a state’s own courts reach. Congress would need to repeal and replace the existing statute, which obviously won’t happen before Wednesday.
Fifth, Cruz’s idea that a state legislature could change its electoral votes based on a commission’s work is especially unconstitutional — and also ironic given his reliance on the Hayes-Tilden precedent. That commission ruled for Hayes in part because Article II of the Constitution requires electors in all states to vote on the same day, and thus a state cannot change the appointment of its electors after they have voted. The electors voted on Dec. 14, and it’s too late for a change according to Cruz’s own example.