Mon. Mar 8th, 2021

Sen. Ted Cruz (R., Texas) speaks with Sen. Ben Sasse (R., Neb.) before the Senate Judiciary Committee convenes in Washington, D.C., October 15, 2020.
(Bill O’Leary/Reuters)

At the beginning of today’s joint session, there was some effort to make generalized objections about the election. But Vice President Pence, presiding in his capacity as president of the Senate, shot that down under Section 18 of federal election law, which empowers him to shut down debate. That meant the only way objections could be heard would be in the context of an objection to the counting of individual states’ electoral votes.

The roll call of states then began. After the registering of Alabama and Alaska’s votes for President Trump and Vice President Biden, the registering of Arizona’s eleven votes was objected to by one of its own representatives, Congressman Paul Gosar, who was joined by Senator Ted Cruz (R., Texas). The form of that objection is proper in that a member of both congressional chambers must sign a written objection, under Section 15. Nevertheless, I believe the form of the objection is improper.

Cruz and Gosar claim that Arizona’s votes “were not regularly given.” Evidently, this ambiguously worded objection is intended to open the field for broad-based objections centered on alleged fraud (notwithstanding the failure of the Trump campaign to prove it in court) and departures by state election officials from the procedures prescribed by their own legislatures (notwithstanding the repeated rejection of these claims by state and federal courts).

As elaborated in my column today, this is not a proper objection. As a matter of constitutional law, Congress has no oversight authority over the states’ conduct of elections. And as a matter of statutory law (mainly Section 15, which along with the Twelfth Amendment governs today’s proceedings), no objection is legitimate if the state has certified its votes and a single slate of electors under the laws of the state. As a number of us on this site have noted, under the so-called safe-harbor provision (Section 5), the federal government must accept as conclusive a state’s certification under its own laws as long as it has been executed six days prior to the Electoral College vote.

One last observation: A number of the objectors, led by Senator Cruz, are urging that it would be irresponsible not to consider claims of election fraud and impropriety, particularly the abuses (real and potential) attendant to mail-in voting. They are right. But there is nothing preventing Congress from conducting extensive hearings and proposing legislation to address these important issues. The Constitution empowers Congress to prescribe procedures for federal elections (although Republicans have traditionally resisted efforts to federalize elections, a traditional realm of state sovereignty). Nevertheless, it is improper to condition the counting of the states’ electoral votes on an assessment of the states’ election procedures. It is an unconstitutional incursion on the states’ power over their own electoral votes.

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