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.
