Screw it up #1: One Senator’s Stunt
Let Josh Hawley put Republicans to the uncomfortable test is an opinion by Ruth Marcus, Deputy editorial page editor at the Washington Post. Sen. Josh Hawley (R-Mo.) — Yale Law School, Supreme Court clerk, Missouri attorney general and, according to the first line of his Twitter bio, “constitutional lawyer” — surely knows better.
His plan to challenge the certification of President-elect Joe Biden’s electoral college victory when Congress convenes for that purpose on Jan. 6 has no basis in the facts or the law. That is putting it too charitably, actually. It is, if anything, anti-constitutional — inconsistent with the Constitution’s vision of the ceremonial role of Congress in ratifying the election results.
It is doomed to fail — except, perhaps, at its scarcely disguised purpose of winning Hawley favor in the eyes of the Trumpian base. Think of it as the first act of Hawley’s all-but-inevitable 2024 presidential campaign. Think of it as what it is: a stunt.
Yet while irresponsible, Hawley’s move is not necessarily a terrible development. It forces a vote that will have the salutary effect of requiring his Republican colleagues to decide — and to put on the record —whether their loyalty is to President Trump or to the Constitution. Better to know than to guess. Better to inflict some accountability rather than to enable dodging.
Put another way: Any vote that Senate Majority Leader Mitch McConnell (R-Ky.) fervently wishes to avoid is one I’m for. Put every member of the House and Senate on the record, and let them reap the consequences, for good and for ill, in the short term of political fallout and in the long view of history. Those who vote against certifying Biden’s victory can explain it to their grandchildren.
To back up, here’s what’s supposed to happen on Jan. 6, as set out in the 12th Amendment and the 1887 Electoral Count Act. Congress convenes in a joint session, presided over by Vice President Pence, in his role as Senate president. According to the Constitution, states submit their electoral votes to Congress. On Jan. 6, the date specified by the Electoral Count Act, “The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.”
The law does set out a mechanism for challenging the certificates. It requires a request by at least one House member — in this case, the endlessly Trump-enabling Mo Brooks (R-Ala.) — and one senator, hence the significance of Hawley’s announcement Wednesday that he would join Brooks’s mad crusade.
“I cannot vote to certify the electoral college results on January 6 without raising the fact that some states, particularly Pennsylvania, failed to follow their own state election laws,” Hawley harrumphed. “And I cannot vote to certify without pointing out the unprecedented effort of mega corporations, including Facebook and Twitter, to interfere in this election, in support of Joe Biden.” Um, Senator, there is no vote requiring you to certify. A vote only happens if someone like you insists on a challenge.
Even if Hawley’s complaints were justified, he’d be raising them in the wrong place. The place to decide whether Pennsylvania complied with Pennsylvania’s election laws is in the courts of Pennsylvania — which, guess what, did just that, at Trump’s behest. He lost. Pennsylvania certified in timely fashion that its electors cast the state’s votes for Biden. Case closed. Hawley’s objection on the ground of alleged corporate interference is even dumber. Hold a hearing, Senator. Draft a bill. In the joint session, your role is to accept the votes of the electors. Period.
In pre-butting criticisms of his conduct, Hawley proffers a fallback excuse: Democrats did it, too. True. In 2005, Rep. Stephanie Tubbs Jones (D-Ohio) and Sen. Barbara Boxer (D-Calif.) objected to certifying Ohio’s electoral votes; their complaints were rejected by a majority of both chambers. In 2001 and again in 2017, Democratic House members lodged complaints but could not find a single senator to join them, as the law requires. Their objections were gaveled down by the sitting vice presidents, Al Gore — the losing presidential candidate — and Joe Biden. “It is over,” Biden announced, as he rejected the challenges to Trump’s election.
As Hawley well knows, it is over for Trump this time. All his intervention will do is to gum up the works, temporarily. If he persists, the House and Senate will debate separately for two hours — and even if Republicans retain their majority, there appear to be well enough Republicans willing to join in rejecting the challenge. This is literally political theater.
There is an argument to be made that Hawley’s move comes with additional costs. The more Republicans are forced to go on the record on Biden’s election, the more they may feel pressured to pledge fealty to Trump. And the more votes against Biden, the more powerful the bogus argument that he is an illegitimate president. And merely insisting on this challenge risks more normalizing of what should be abnormal.
Still, there are upsides in insisting on a vote. Put Republicans to the uncomfortable test. During the four years of Trump’s presidency, they have too often been able to evade accountability. If Hawley wants to put them to the test, let us watch and see if they choose to fail.
Screw it up #2: Louie, Louie
Rep. Louie Gohmert files lawsuit claiming Mike Pence has ability to overturn election results reports Hunter of the Daily Kos Staff.
There is a new Dumbest Lawsuit in the Land, and it should not surprise anyone to know that Republican Rep. Louie Gohmert, a man whose battles with coherency and common sense have become the stuff of congressional legend, is the first name on the sheet. According to the lawsuit—which is filed in Gohmert’s home district and features the names of Arizona’s supposed “alternate” Republican “electors” Kelli Ward, of all people—the manner in which presidential electoral votes have been counted by Congress all these years is completely wrong and unconstitutional.
Instead, Gohmert and the others are filing suit against Vice President Mike Pence. They demand that the District Court for the Eastern District of Texas declare that Pence need not count the electors from the states Donald Trump and his allies do not want counted when Pence presides over the congressional tally of Electoral College votes on Jan. 6. The Constitution, they say, grants Pence the power to throw out votes if he damn well wants to, upon which the election is nullified, the House and Senate meet to pick who the president will be, and in theory that somehow leads to the Democratic-led House somehow agreeing that Donald Murderbuffoon must remain president.
The important thing to know is that lawsuit has roughly zero chance of working, because (1) the Constitution does not say that, (2) the claim that Gohmert has standing because as a congressthing, counting electors he doesn’t want counted will make him officially Sad, and (3) all the rest of it. It’s a broadly dishonest retread of the previous Dumbest Lawsuit in the Land, with some of the most egregious errors removed and new ones added.
The backstory here, though, is mildly more interesting. Exactly a week ago, Gohmert and a host of Republican fascism-peddlers met with both Donald Trump and Mike Pence to plot out strategies for sabotaging the acceptance of the Electoral College results. House Republicans have been strongly pressuring Pence to cause a scene at the Jan. 6 tally, Donald Trump’s pseudolegal bullshitters have been hyping conspiracy theories rallying the base around the same premise, and we can gather that this lawsuit against Pence was either a planned move between House Republicans and Pence to give him plausible deniability for creating a scene or, perhaps more likely, a disgruntled loner move from Gohmert himself after Pence refused to explicitly promise House crackpots that he’d go along with their ridiculous, seditious, and doomed-to-failure plan.
So this is what they came up with. Or, at least, what Rep. Louie Gohmert and Kelli Freaking Ward came up with. We’re going to no doubt see different versions appear in coming days from Jim Jordan and Trump’s other most willing traitors, but all of it is meant mostly as rube fodder. It is meant to rile the far-right Republican base into believing the election was “illegitimate” based on hoaxes peddled by Republican leaders claiming all manner of conspiracy and fraud.
It’s already been made clear that even conservative courts are not going to go along with Republican attempts to stage an outright coup. House Republicans and Trump are instead working to so delegitimize our elections process that the violent far right comes out to do what the courts will not.
Just because it probably won’t work doesn’t make it less dangerous. This is another test of the system’s bounds. They will be tested again, and again, and again.