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Cruz and Hawley’s Illegal Objections

Senators Cruz and Hawley were not just acting badly or cowardly or opportunistically. It is important that people see why they were acting illegally.¹ And obviously, not necessarily just them. But illegality requires intent. Intent requires knowledge. And these two well-trained lawyers (and one former law professor) certainly knew what they were doing was wrong. That knowledge renders their acts illegal.

Why was it wrong?

The proceeding within which Cruz and Hawley raised their objection is governed by the Twelfth Amendment and the Electoral Count Act. The ECA fills in the details of the Twelfth Amendment. It has governed elections for almost 135 years (enacted 1887), and neither Cruz nor Hawley suggested they think the ECA unconstitutional.

The ECA makes a clear promise to the states. Section 5² says that IF the states elect their electors, and IF they have a procedure for adjudicating contests about those elections, and IF those contests in any particular election are exhausted and resolved at least 6 days before the College votes, THEN Congress will recognize those electors as the electors selected from that state. (That determination, the ECA promises, “shall be conclusive.”) And IF the votes of those electors are then “regularly given,”³ THEN their votes will be counted.

Cruz and Hawley broke that promise — expressly and knowingly. There was no doubt that Arizona elected its electors; there was no doubt that Arizona had a procedure for contesting its elections; there was no doubt that any contest about Arizona’s election was exhausted at least 6 days before the College voted. And there was no doubt that the votes of those electors selected were “regularly given” (i.e., they were not under duress, they were not bribed, etc.). There was no doubt, in other words, that there was no basis in law for Cruz and Hawley to object to the counting of Arizona’s votes. Cruz and Hawley objected nonetheless.

Now both of these lawyer-Senators have offered justifications for their objection. Both say that they were responding to the concerns of their constituents. And Cruz said that he was simply following the precedent that Congress had set in 1876 when it resolved an election contest about the 1876 election (and then resolved to condemn African Americans to another 100 years of effective slavery).

Neither justification works.

First, Ted Cruz knows that 2020 was not 1876. In 1876 — an election that happened 11 years before the ECA and that caused Congress to pass the ECA — three states sent Congress multiple slates of electors. Congress had to choose which it would count. That choice was forced upon it by the states. In 2020, Congress was not presented with multiple slates of electors. It was presented in each state with just one slate. So Congress had no need to resolve any contest about any slate of electors. Instead, Congress needed only to do what Congress had promised it would do: respect the actions of the states in selecting their electors, so long as the Safe Harbor provisions had been satisfied. Ted Cruz broke that promise, by ignoring the process the states had established, and the results of that process, and insisting on a commission to relitigate what had already been resolved.

Second, even if the constituents of Cruz and Hawley didn’t believe in the results as Arizona had certified them, that gave Cruz and Hawley no basis for ignoring the procedure outlined in the law.

Consider a parallel: Imagine Josh Hawley runs for President. (Wouldn’t that be a shocker!) And imagine someone says, “Hawley wasn’t born in Arkansas, he was born in Mexico. And that means he is not a ‘natural-born citizen’ as the Constitution requires.” And imagine some news network devotes itself to convincing its viewers that indeed Hawley is not qualified to be President. (This question is easier than the one about Ted Cruz, who was born in Canada and whose parents were not both American. I think Cruz is qualified; Vox has a great analysis here. My hypo is the easier and absolutely clear case about whether where a child of Americans was born matters to the Constitution; it clearly does not (which is why my second child, Lani, born in Berlin, can still be President!). And imagine, as a result of this campaign, 40% of America comes to the view that Hawley cannot be President. Nonetheless, imagine he offers evidence about where he was born; imagine that evidence is reviewed by a court; imagine the court concludes it is 100% certain Hawley was born in Arkansas; imagine the court says, anyway, whether or not he was born in Arkansas, it doesn’t matter to the legal question; imagine that judgment is upheld by the Supreme Court; and imagine finally Hawley earns a minimum of 270 electoral votes in the College. Here’s the question: Does anyone believe that any member of Congress would have any legal basis to object to Hawley’s election being confirmed, simply because the people in their state wrongly believe that he is not qualified?

The views of “the people” are not a get-out-of-jail-free card. They don’t excuse knowingly wrong behavior. Hawley and Cruz knew they had no legal basis for objecting to the certification of the vote for Joe Biden and Kamala Harris. They objected nonetheless. They thought their objections would be harmless to the process (because Biden would be elected (ir)regardless). They thought their objections would be beneficial to them (because they’d be remembered by the Trumpicans as the Senators with the raised fist (one in a tailored suit)). They were wrong about its harmlessness — and they should certainly be taxed with the consequences of the harm their wrongful act produced.

If the President should be impeached because of what he did, Cruz and Hawley should not be seated in the United States Senate because of what they did. Pandering to ignorance for personal political gain is the MO of too many in Congress. At some point, it must cross a line.

[1] To be clear about this word “illegal”: Senators and Representatives are privileged when engaging in legislative action. That means they can’t be held to account in a court of law or elsewhere for their actions while, at the very least, on the Senate or House floor. So I am not saying Cruz or Hawley can be sued or held to account criminally for their action. I am saying, simply, that their actions have no basis in law. Whatever the scope of legitimate “objections” might be, they do not include these objections — just as someone objecting to Barack Obama’s electoral votes because he is African American would be “illegal.” The ECA and 12th Amendment certainly give Representatives and Senators some discretion here. They could fairly object if, for example, they believed an electoral vote was the product of bribery. But just because that would be a fair objection (because the vote was not “regularly given”), my argument is that they are not free to object for any purpose. Both Cruz and Hawley were free to give floor speeches about this election — when it wasn’t part of the 12th Amendment process. That’s not what they sought to do.

[2] 3 USC §5:

If any State shall have provided, by laws enacted prior to the day fixed for the appointment of the electors, for its final determination of any controversy or contest concerning the appointment of all or any of the electors of such State, by judicial or other methods or procedures, and such determination shall have been made at least six days before the time fixed for the meeting of the electors, such determination made pursuant to such law so existing on said day, and made at least six days prior to said time of meeting of the electors, shall be conclusive, and shall govern in the counting of the electoral votes as provided in the Constitution, and as hereinafter regulated, so far as the ascertainment of the electors appointed by such State is concerned.

[3] 3 USC §15

… Upon such reading of any such certificate or paper, the President of the Senate shall call for objections, if any. … [N]o electoral vote or votes from any State which shall have been regularly given by electors whose appointment has been lawfully certified to according to section 6 of this title from which but one return has been received shall be rejected…

There was “but one return” from Arizona; that return had been “lawfully certified”; the votes of those electors had been “regularly given”; those votes therefore could not be “rejected.”

Written by

law professor, activist.

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