I’ve written four extensive essays (here and here and here and here) about the illegality in Cruz and Hawley’s objections to the count of the electoral vote on January 6. But as I’ve gotten a bunch of emails asking essentially the same question, it’s clear one part of my argument is not sufficiently clear.
These emails essentially ask:
Why isn’t it ok to have a debate and discussion; what harm could come from spending two hours discussing whether in fact the votes in key states — Pennsylvania, Arizona, Georgia, Wisconsin, Michigan—were proper?
If Cruz and Hawley had simply triggered a debate, that would simply have evinced their own ignorance about the question presented by the January 6 vote.
But Cruz and Hawley didn’t just trigger a debate. Cruz and Hawley voted against counting those electors’ votes.
So the proper question is, on what basis?
The law says that the selection of Biden electors from those states “shall be conclusive” IF the states:
- “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” [they did]
- “and such determination shall have been made at least six days before the time fixed for the meeting of the electors” [it was].
(1) plus (2) means that Cruz and Hawley were required by law to consider these electors as the properly selected electors from these states.
These properly selected electors then had cast their ballots. Their votes were certified by the states and sent to Congress. The law directs how Congress is to count such certified votes.
While the law that so directs is famously complex, there are some absolutely easy cases under the law — namely, when only one slate of electors is presented, and when that slate had been chosen by a process that was resolved 6 days before the electors’ vote.
That absolutely easy case was the case in every contested state in this election.
So when the law calls for the counting of the vote, and gives each member a right to “object,” the law still requires the objector state “the ground thereof.” If there is no possible ground relating to the selection of the elector (and again, as shown above, there was not), then the only possible basis for rejecting the votes of those properly certified electors is if their vote was not “regularly given”:
“and no 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” (3 USC §15).
Ok, but here’s the critical point: “votes … regularly given” refers to the votes of the presidential electors. The only possible ground for objecting to the votes in these cases was the belief that the votes of these electors were not regularly given.
Yet clearly, as each of these electors was a Biden elector, and each of these electors voted for Biden, there was no possible basis for saying their votes were not “regularly given.” (By contrast, if, say, a Biden voter had mysteriously switched sides, and Congress believed s/he had been bribed, then possibly Congress could believe the vote had not been “regularly given.”)
So all this means exactly one thing: There was no legal basis for objecting to the counting of any of these electoral votes. Yet Hawley and Cruz (and a bunch of others) objected nonetheless and voted against counting those votes. Their objection was, therefore, literally lawless: It had no basis in law; its only basis was ego and opportunism.
If all that’s not clear, here’s a comparable hypothetical: Imagine Josh Hawley runs for President in 2024, and imagine he is his party’s nominee; and imagine the states he’s won give him 306 electoral votes. But imagine on the day Congress is to vote, a bunch of Democrats object. And imagine their objection is simply this: That they don’t believe that anyone under the age of 50 should be elected President, so they won’t vote to count the electoral votes for Hawley.
Obviously — obviously—that objection would be without legal basis. The Constitution requires only 35 years, not 50. The objectors may have a different preference, but their personal preference is not the law. The only right they have to raise an objection relates to a “ground” that is grounded in the constitution or the law. Not being 50 is not an objection grounded in any law.
Cruz and Hawley have no stronger defense of their objection on January 6. None of the legitimate reasons for Congress to object to an elector or her or his vote were present or true. Not one. Yet they objected nonetheless and voted against counting these votes.
That was either ignorance or lawlessness. Sneers notwithstanding, neither Hawley nor Cruz is ignorant.
If you’re from Missouri (as my partner and inlaws are) or Texas (as many friends are), you need to hold these Senators to account. Mysteriously (’cause I can’t imagine why), neither Cruz nor Hawley have accepted my invitation to defend their actions on our podcast.
So make them defend those actions to you. Attend their town meetings. Ask a question, respectfully and without anger or emotion:
Senator, on what legal basis did you vote not to count the electoral votes for Joe Biden and Kamala Harris?
If you do, record it, and I’ll do everything I can to help spread their defense.
They crossed a line. Hold them to account.