Appearing on the Maria Bartiromo show this morning, U.S. Senator Ted Cruz, who assembled a group of 11 GOP senators to object to the certification of the Nov. 3 election and propose a ten-day audit of the election, supports withholding certification of the electors from half a dozen states, until such an audit is completed. Responding to polls showing a large portion of U.S. voters who believe there was fraud during the election, Cruz expressed his disappointment that the Supreme Court declined to take cases from Pennsylvania and Texas, denying that forum as a way of resolving the issues presented. Therefore, he reasoned, the Congress has a responsibility to determine whether the election was properly conducted.
Cruz pointed to the problems in two approaches: One being simply to allow the process to play out on Wednesday, Jan. 6 without objecting to the injustice, and the second being attempts to decide, on Jan.6, that Donald Trump won the election. Declaring both proposals unprincipled, Cruz explained that he looked back to the 1876 Hayes-Tilden election, and the creation at that time of an electoral commission—comprising House members, Senators, and Supreme Court Justices—to look into vote fraud and come to a determination.
Responding to calls from other Senators, including Majority Leader Mitch McConnell, to refrain from objecting, Cruz pointed to the responsibility to determine the truth, given that 39% of Americans consider the election to have been rigged. Failing to resolve the accusations would be a grave failure to defend American democracy. As the investigation unfolds, the states may be called upon to appoint electors as they deem fit.
Regarding the right of Congress to intervene into the counting of electoral votes, Cruz pointed to the Electoral Count Act of 1887, established in the wake of the 1876 election. (Although this Act, being legislation, could be challenged to the extent that it conflicts with the U.S. Constitution and its Amendments.)
Representatives Jim Jordan and Mo Brooks then joined the program. Rep. Jordan explained his understanding of the basic mechanics he expects to operate on Wednesday: Pence will count states one at a time, Members of Congress and Senators have an opportunity to object to each state’s Electors, in which case the two houses of Congress will separately debate for up to two hours and vote on whether to accept them. If, at the end of the process, neither candidate has received the votes of 270 Electors (although it is unclear whether rejected Electors count towards the total number of votes from which a majority is required to avoid the next step), the House will vote state-by-state, which would result in the re-election of President Donald Trump.
The main basis of the objection is the non-legislative manner of changing the electoral process in the states in question, thereby violating the constitutional provision that state legislatures choose the means of appointing electors—in this case, through elections whose conduct they determined by legislation.
Rep. Brooks identified six states whose electoral slates he intended to object to: Wisconsin, Michigan, Pennsylvania, George, Arizona, and Nevada. He expressed his commitment to standing up against the violation of the Constitution in the conduct of the election. Asked to detail the electoral irregularities that concerned him, Brooks referred to tens of thousands of improper votes—dead people voting, people voting twice, ballots being pulled out from underneath tables, ballots counted after observers were removed from the room, non-residents voting, non-legislated extensions of access to mail-in ballots, and more.
While the mechanics of challenging the electoral slates from individual states is clearly spelled out in the 1887 Act, the means of creating a commission on Wednesday are less clear. And if the House and Senate disagree on whether to accept a state’s Electors, the 1887 Act calls for accepting the Electors sent by the respective states’ governors.
Even if the challenges do not succeed, they are definitely the right thing to do, and they will set the stage for continuing the fight.
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