As the Wednesday electoral vote showdown draws near, offering both houses of Congress the opportunity to hear disapproval of the tallies sent by the states, a flurry of panicked claims fills the air. To hear those narratives, at best, partisan mischief is jostling our system of determining election results. At worst, the Republic teeters on the brink of chaos as our very institutions are dashed against the rocks.
Even in these divisive times, some Republicans are joining Democrats in a burst of messaging that shares the assertion that the electoral vote challenge is not merely something they disagree with; it is a fundamental danger to our democracy.
They spread this fear with somewhat different motivations, but they are equally mistaken, and deserve to be equally called to account for misstating the purpose of the challenges. When people are this dishonest at such a high level, they are rarely misinformed or slow-witted. These people know exactly what they are doing, and they are doing it on purpose.
So for the record, here’s what is happening Wednesday, and what is not.
The members of the House and Senate who will rise to object to the acceptance of the electoral vote from some states are speaking for millions of voters who have absorbed an election fraught with irregularities, rule changes, slipshod security, inadequate scrutiny and laws contorted at the last minute, often with the excuse of COVID-based necessity.
These layers of uncertainty have not been of a type to inspire judges in a variety of courtrooms to find, as a matter of fact and law, that certain states were awarded wrongly to Joe Biden. But this does not mean, as the media culture, Democrats and some triggered Republicans have asserted, that claims of fraud and impropriety are vacant.
Judges may have required some demonstrable, specifically quantifiable level of vote-counting dalliance in order to lend their names and legacies to rulings that could serve to change an election result. That’s a big bridge to cross. Even the Supreme Court balked at a Texas challenge that merely asked for a review of the belief by various states that the election doubts deserved a judicial evaluation.
In what may be a surprise to many, that did not settle the matter. As cries mount that the challenges are some wild departure from the rule of law, a short civics lesson is helpful.
The 12th Amendment requires a joint meeting of Congress to validate the electoral count. Objections are permitted at that time, following the process established by the Electoral Count Act of 1887. f objections are received, the joint session recesses to allow two hours of debate in the respective houses, limited to two hours. An objection must win the approval of a majority of both Houses in order for any contested electoral votes to be excluded.
There is no plausible scenario that features the exclusion of even one Joe Biden electoral vote. In the Senate, Ted Cruz of Texas has garnered some company for his intent to challenge, but there is no evidence of the 51 needed for the challenge to succeed. And the House is, however narrowly, still run by Democrats, creating a mathematical certainty that the challenges will fall short.
This may give rise to questions as to why the challenge is worth it, but there is no corner of the real world which justifies the level of derision and ridicule the effort has drawn. The laws of the United States will be followed. Some members of Congress will rise to speak on the subject of a historically problematic election. Members of the House and Senate will vote. And two weeks from now, Joe Biden will be sworn in as the 46th President of the United States.
So why the weeping and gnashing of teeth?
For Democrats, it is the natural reaction one might expect from a party that has spent the entire Trump era casting his every motive in the most sinister of lights. They can be excused for pouting at the interruption of the desired national celebration of their candidate. But the volume and venom of their objections is instantly recognizable as partisan hackery. Their portrayal of the challenge as just the latest evil plot hatched from Trump World is not supported by any fact, any law or any expectation of how it will likely play out.
So if the president’s opponents are fueled by the latest burst of distaste for him, what of the handful of Republicans who feel the urge to pile on?
In both the House and Senate, GOP objections more closely resemble a case of the vapors, a pearl-clutching moment featuring members of the president’s party who are intimidated by the proceedings.
The challenges were never going to find unanimity in GOP ranks. Some Republicans in both Houses were always going to remain on the sidelines, willing to voice a certain level of election frustration falling short of outright opposition to the electoral count. This is reflective of no small percentage of actual Trump voters. We do not have 74 million citizens ready to take to the streets with flaming pitchforks.
But if Republican voters are a mixture of those who favor a challenge and those who do not, it is natural for their elected representatives to reflect both positions. The resulting contrast will attract some negative attention to those choosing to acquiesce. Many House and Senate Republicans are satisfied to weather these perceived sins of omission, counting on the electorate’s capacity for forgiveness and a short attention span.
But some have couched the challenges as “a dangerous violation of federalism” (Rep. Chip Roy of Texas) and a usurpation of the states’ rights to send electors of their choice (Sen. Tom Cotton of Arkansas, who seems wholly unaware of the law when he falsely states that “Congress’s power is limited to counting electoral votes submitted by the states.”)
Republican motivations may range from the Trump hatred of Mitt Romney and Ben Sasse to the insecurities of those who feel the need to malign their bolder colleagues. Whatever their rationales, they are unforced errors. Most Trump voters will understand that not every Republican will take up the sword of electoral battle. But those who have mysteriously chosen to condemn the effort may be answering for that choice for a long time.