Senator Josh Hawley’s Outrage

Unless you are familiar with this corner of the law, it’s not obvious just how outrageous Senator Josh Hawley’s stunt in Congress was. Until Hawley announced he was going to object, the Majority Leader had kept a tight lid on the process. Once Hawley opened the door, 12 others followed in the Senate. No doubt, orchestrating that challenge was not the cause of the riot. But that challenge gave comfort to those who rioted, as did the clenched fist Hawley flashed to the (soon to be) rioters as he entered the Senate. As former-Senator John Danforth put it (a man who once viewed Hawley as a “once-in-a-generation” talent, but who now believes his support of Hawley was “the worst mistake I ever made in my life”):

“But for him it wouldn’t have happened. [He made the certification vote] a way to express the view that the election was stolen. He was responsible.”

To see just why, I offer, with commentary, his speech on the floor of the Senate. In these five minutes, given after the insurrection had occurred, Hawley tries to explain why even then, he was not backing down. (The indented portion is a transcript of Hawley’s comments. You can watch the speech on CNN here.)

Mr. President, Thank you.

I want to begin this evening by saying thank you To the men and women of the Capitol Hill Police, the National Guardsman, the Metropolitan police and others who came to this Capitol, who put their lives on the line, to protect everyone here working inside of it.

To the extent Hawley had a role in triggering this riot — caused most directly by the President, no doubt, but the stunt of his objections gave credence to the President’s claims — this thanks should have been prefaced by an apology. Hawley’s behavior put these “men and women” at risk—for no good or legitimate reason. One officer has died.

And I want to thank law enforcement all across this country — in my home state of Missouri and everywhere else — who do that day in and day out. And I just want to acknowledge that when it comes to violence, this has been a terrible year in America, this last year. We’ve seen a lot of violence against law enforcement. And today, we saw it here, in the Capitol of the United States.

It’s not completely clear what other cases he means to include. If it is the small proportion of BLM-related protests that saw violence, this is false equivalence: BLM-harms are real, the alleged election-flipping fraud here was not real.

And in this country, in the United States of America, we cannot say emphatically enough: Violence is not how you achieve change. Violence is not how you achieve something better.

This is no doubt true. Is it meaningful?

These rioters had been led to believe — by people who should know better—that their election was stolen. But if you really were led to believe that an election was stolen, what is the appropriate response? The behavior here is understandable — if you assume they actually believed this election was stolen. And if that’s true, then again, the people (especially the media) that led ordinary people to these false beliefs must bear some responsibility for this behavior.

Our Constitution was built and put into place so that there would be, in the words of Abraham Lincoln, no appeal from ballots to bullets — which is what we saw unfortunately attempted tonight. There is no place for that in the United States of America.

Lincoln wasn’t quite thinking of what happened on January 6. He was thinking of secession: when the bullets were the substitute for a loss at the ballots. But on January 6th, the protesters believed the ballots had been stolen. Wrongly did they believe that, but they had been led by the likes of Hawley and others to that mistaken judgment. I certainly condemn what they did. But I don’t know what I would have done if I had thought that an election was stolen. What is the appropriate response to democracy denied?

And that’s why I submit to my colleagues that what we’re doing here tonight is actually very important.

It was important, no doubt — in lending credibility to the completely baseless claim that there was any question about who the 46th President should be.

Because for those who have concerns about the integrity of our elections, those who have concerns about what happened in November, this is the appropriate means.

No, Senator Hawley, as you well know, this is absolutely not the appropriate means.

The Electoral Count Act does not give Congress the power to review the ballots, once a state certifies its appointment of electors 6 days before the College votes. Congress may have the power to determine that the votes of electors were not “regularly given.” But nothing in Hawley’s complaints has anything to do with the votes of electors. Given that, and the non-appearance of alternate slates (explained though not completely here), there was literally nothing for Congress to consider on January 6th beyond the formality of opening the certificates and counting the votes evinced by those certificates.

This is the lawful place where those objections and concerns should be heard. This is the forum that the law provides for — our laws provide for — for those concerns to be registered. Not through violence, not by appealing from ballots to bullets, but here in this lawful process.

Again, it is absolutely not. The “lawful place where those objections and concerns should be heard” is the states. And that’s precisely where those “objections and concerns” had been heard: The state executives had heard them, and had answered them; scores of lawsuits led judges to hear them and resolve them. After being “heard,” they were disposed of. And under our system of federalism, their resolution in the states —again, at least if done 6 days before the College votes (see the Safe Harbor provision of the ECA)—means that Congress is not the “lawful place where those objections and concerns should be heard.” At least not during the procedure when the votes are being counted.

And so to those who say that this is just a formality today, an antique ceremony that we’ve engaged in for a couple of hundred years, I can’t say that I agree. I can’t say that our precedents suggest that.

Really? What “precedent” is there? In 1969, there was a debate about a faithless elector. That was a debate about whether that “vote” was “regularly given.” In 1877, there was a debate about the multiple slates that had been presented. No such thing happened this year. So where is the “precedent” of Congress deliberating on the “manner” by which the states had selected their electors?

I actually think it’s very vital what we do — the opportunity to be heard to register objections is very vital, because this is the place where those objections are to be heard and dealt with, debated and finally resolved.

Again, wrong, wrong, wrong. The Constitution and the ECA say they are “heard and dealt with, debated and finally resolved” in the states. Congress is not the states.

In this lawful means, peacefully — without violence, without attacks, without bullets.

No doubt, Hawley had hoped “without violence, without attacks, without bullets.” His hope was dashed, along with the life of some.

And yet, even that hope was completely reckless. Ted Cruz—in his persistent effort to seem like the peacemaker when he is only ever waging war—suggested his commission could convince either side, whatever its result. But there’s no way he could possibly have actually believed that. If the commission had concluded as every court and state executive had concluded — that Biden had won—then the very same people would have been back. If it had concluded to the contrary, resolving that Trump should be reelected, does anyone believe that result would have been accepted peacefully? No good could have come from this stunt, even if it were legally authorized, which it absolutely was not.

And so, Mr. President, let me just say now briefly, in lieu of speaking about it later, a word about Pennsylvania, which is a state that I have been focused on, objected to, as an example of why people are concerned, millions of Americans concerned about our election integrity.

This is an important transition. Hawley—a lawyer, and former law professor—is telling you that he’s about to explain the legal problem presented by the Pennsylvania results and why it entitles Congress to intervene. Listen up!

To say that Pennsylvania — quite apart from allegations of any fraud — you have a state constitution that has been interpreted for over a century to say that there is no mail-in balloting permitted, except for in very narrow circumstances that’s also provided for in the law.

Senator Casey made a powerful case that there was no constitutional problem with Act 77, the act that created the mail-in ballot regime. His argument certainly seems plausible. Nothing in the Pennsylvania Constitution expressly says as Hawley represents. (The Election Clause states “All elections by the citizens shall be by ballot or by such other method as may be prescribed by law: Provided, That secrecy in voting be preserved.” PA. CONST. art. VII, § 4. The mail-in provision was interpreted in light of this provision to require a secrecy envelope to assure “secrecy” was “preserved.” Pennsylvania Democratic Party v. Boockvar, 238 A.3d 345, 380 (Pa. 2020). Pennsylvania had represented that the earlier cases raising a question had been addressing “absentee voting” rather than mail-in voting. Regardless, the statute at issue was enacted in 2019; it required any challenge to it be raised within 180 days; Trump’s team waited until two elections had passed before raising any challenge — giving rise to the completely fair and accurate conclusion of the court that the question was late.

But even if there were an issue—even if you believe that the Pennsylvania Supreme Court would have ruled against the mail-in regime had the question been presented in a timely fashion—the argument that conclusion is relevant to the Pennsylvania legislature’s power is flatly contradictory to the argument made by the Trump campaign in almost every other constitutional case.

Throughout the post-election litigation — indeed, even in Pennsylvania—the Trump team had been insisting that state legislatures, in effect, have superpowers. Based on dicta in Bush v. Gore, they had insisted that state legislatures can’t be constrained either by their own law or by their own constitution. That view has support in the 19th century cases. As I explained at length, it is the one aspect of the Bush v. Gore dicta that has support. Article II of the Constitution gives state legislatures the power to set the manner by which electors are selected. That power cannot be constrained by state law, constitutions or referenda. Yet now Hawley reverses that argument to suggest that the power the state legislatures have under Article II is indeed constrained by something other than the federal constitution.

And yet last year, Pennsylvania elected officials passed a whole new law that allows universal mail-in balloting.

That was 2019, and to avoid precisely this sort of problem (an election which then motivated interested parties to challenge the election law) required that any challenge be made within 180 days of the election. No challenge was made within that period. The law was then used in the April 2020 primary. No challenge was made then. It then was used again in the general election. Only then was it challenged.

And it did it irregardless [sic] of what the Pennsylvania Constitution said.

It is a perfect metaphor for our time that there is now a debate about whether “irregardless” is actually a word. But (ir)regardless, it’s a stupid point to make against Hawley. Greater errors of grammar should be forgiven, given the urgency and passions of the moment.

And then when Pennsylvania citizens tried to go and be heard on this subject before the Pennsylvania Supreme Court, they were dismissed on grounds of procedure — timeliness — in violation of that Supreme Court’s own precedents.

I’m not sure what precedents he is referring to here. But the argument that these complaints were late was pretty overwhelming. The law was passed almost a year in advance. It would have been very simple to challenge it before millions had relied upon it to cast their ballot by mail.

So the merits of the case have never been heard. The constitutionality of the statute actually has never been defended — I’m not aware of any court that has passed on its constitutionality, actually not aware of anybody who’s defended the constitutionality — and this was the statute that governed this last election in which there are over 2.5 million mail-in ballots in Pennsylvania.

No Court has passed on it, since it was not challenged until after the election.

But the law had plainly been defended—by the Commonwealth of Pennsylvania. Hawley speaks as if it is obvious that the law is unconstitutional. It is certainly not obvious. It is not even true.

This is my point: that this is the forum. The Pennsylvania Supreme Court hasn’t heard the case, there’s no other court to go to to hear the case in the state. And so this is the appropriate place for these concerns to be raised. Which is why I have raised them here today.

This is the most extraordinary move in an otherwise extraordinary speech. Because a claim has not been heard in a state court, it must be that Congress has the power to hear the claim.

On what legal planet does such an absurd idea live? A question was not answered, so there must be some forum that can answer it—and that forum is Congress?!

This is a dispute about the “manner” by which the Pennsylvania electors were selected. The Constitution gives to the states the power to determine the “manner” by which their electors are selected. If that “manner” violated the federal constitution, to be sure, there would be a federal question that a federal court could/should address. But violating state law (even if this is a violation) does not create a federal question. And even if it did, Congress is not the place that question gets raised.

More specifically, Congress has expressly addressed the question about where such questions get raised. The ECA says: in the states. The promise of Congress made in the ECA was that if the states resolved any contest at least 6 days before the College voted, Congress would respect their decision. Here Hawley is arguing that even if the state has resolved any contest 6 days before the College voted, still Congress is the proper forum for any crazy “concern” to be raised and determined. No competent lawyer could in good faith read the ECA and reach that conclusion.

And I hope that this body will not miss the opportunity to take affirmative action to address the concerns of so many millions of Americans. To say to millions of Americans tonight that violence is never warranted, the violence will not be tolerated, that those who engage in it will be prosecuted. But that this body will act to address the concerns of all Americans across the country.

Of course Congress must “address the concerns of all Americans.” The question is how. Is blocking the orderly confirmation of the electoral vote the proper way to address the wholly fabricated “concern” that this election was stolen? Does Hawley believe the lies of Fox News will be cured on the Senate floor? That America will tune into C-SPAN and listen carefully as the orators-in-chief give five minute speeches, and then realize that everything Tucker has told them is just wrong?

We do need an investigation into irregularities, fraud.

No sane soul could imagine that Congress could adjudicate questions of “irregularities, fraud” while counting the electoral vote two weeks before a President is to be inaugurated. Whatever “we do need,” we did not need this.

We do need a way forward, together. We need election security reforms. (I bet my friends on the other side of the aisle don’t disagree with that.)

Going forward, of course. Too bad Mitch McConnell blocked all election reform over the past 4 years.

We need to find a way to move forward on that together, so that the American people — from both parties, all walks of life — can have confidence in their elections, and that we can arrange ourselves under the rule of law that we share together

One really effective way to do that would be for ambitious young politicians not to lend credence to an obviously baseless charge that an election was “stolen.” One really effective way would be, as Mitt Romney so eloquently put it, to simply tell them “the truth”: Here is the truth: There is no doubt that Joe Biden was elected President by a substantial majority, and if you believe there is, then you need to change where you get your news.

Thank you, Mr. President.

This was a career-defining speech for Senator Hawley. Not in a good way.

He’s young. No doubt, he could recognize his error. No doubt, he could — and should — apologize. He should stand on the floor of the Senate and explain that he was wrong, legally, and he was wrong to play with fire in an already well-kindled tinderbox.

Yet that is not the way of Washington. And so more likely, he will simply be, as Romney put it, “forever … seen as being complicit in an unprecedented attack against our democracy.”

And an “attack” it was.

Fortunately, it was “unprecedented.”

May its consequences—for the likes of Hawley and Cruz—mean that we never see anything like it again.

Written by

law professor, activist.

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