The Pending Electoral Vote Challenge
It will be symbolic, but the symbol will be an anti-democratic one.
This week it has been reported that Senator Josh Hawley (R-MO) will participate in the process to challenge at least one slate of electors, although maybe more (at least the Pennsylvania EVs). The process in question (which I discussed here a few weeks ago) is found in an 1887 law that allows a state’s slate to be challenged if at least one member of the House and one member of the Senate object in writing. Hawley is the first Senate to state that he will join with members of the House in this process.
The filing of this objection will trigger two hours of debate and a floor vote in both chambers. Amber Phillips has a thorough run-down of the process in WaPo: How Trump allies in Congress will launch one more challenge to Biden’s win in January.
A given slate could be rejected if both chambers agree via majority vote, but that is not going to happen. Under sane conditions, I would make that claim because normally we accept the outcomes of elections when there is no evidence of fraud. This year, alas, are not sane times so my claim is based on the fact that Democrats control the House.
There are also indications that the motion would fail in the Senate. Clearly, Democratic Senators would vote to oppose and several GOP Senators have already signaled that they accept the results of the elections. Indeed, the whole thing is a bit of a potential trap for Republicans, and leadership has been trying to tamp down the scenario that Hawley and his allies are cooking up (via WaPo).
Hawley has been mentioned as a potential 2024 presidential candidate, and his move is certain to appeal to Trump supporters and parts of the Republican base.
But other Republicans have argued that it would be politically harmful to force their members to decide whether to back Trump out of loyalty in a vote bound to fail and appear to be bucking the will of the voters. McConnell counseled against the move in a call with fellow Republicans earlier this month. Sen. John Thune (R-S.D.), the Senate’s No. 2 Republican, told reporters last week that he did not think it made sense to put the chamber through the process “when you know what the ultimate outcome is going to be.”
“I mean, in the Senate, it would go down like a shot dog,” he said.
Indeed, Majority Leader McConnell tried to get an explanation out of Hawley, as per CNN: McConnell called Hawley out over objecting to Electoral College vote during conference call Hawley wasn’t on.
Senate Majority Leader Mitch McConnell on Thursday held a conference call with the Senate GOP conference in which he pressed Missouri Sen. Josh Hawley to explain the rationale behind his plans to object to the Electoral College vote, according to a source directly familiar with the call.
Hawley did not respond to multiple questions from McConnell, including when asked to lay out his plan to object to the Electoral College vote — and senators soon recognized he wasn’t actually on the call. Politico was the first to report the news of the call that an official told CNN occurred earlier Thursday.
A second source familiar with the call told CNN that McConnell made it clear to his members on Thursday that he is giving them room to vote their conscience on such objections.
Despite the following,
McConnell privately warned Republicans weeks ago that going down the path of objecting would put colleagues in the position of having to vote against President Donald Trump, or against the clear winner of the election with no basis for doing so. Given Trump’s pull with the party, it would create an untenable position, particularly for those GOP senators soon to face reelection.
Have I ever mentioned that US parties are weak in a comparative sense and that legislative leadership has limited control of their members? And that the key component is how party elites can, or cannot, influence re-nomination and re-election? Put another way, this illustrates that individual Senators are going to be far more concerned with how these votes will influence their primaries than they will be about McConnell’s wrath. And Hawley is clearly thinking about 2024. (McConnell has precious little influence over primary voters, in MO or nationally).
Meanwhile, over in the House, Jake Tapper tweeted out the following yesterday:
If this is true, and I suspect that it is is, then we are about to see a huge chunk of one our two major parties, blatantly vote against a democratic election and doing so in a way that will reinforce anti-democratic beliefs in their voter bases and, moreover, to endorse the rejection of reality and the embrace of fantasy. It is “alternative facts” coming full circle.
Not to wax poetic nor to delve too deeply into the esoteric language of my profession, but this is bad. It is very bad.
Let me talk a bit more about Hawley, about the history of the process.
In regards to Hawley, I would recommend Peter Wehner’s piece in The Atlantic: The Unbearable Weakness of Trump’s Minions and start with the following:
A longtime acquaintance of the Missouri senator explained to me Hawley’s actions this way: “Hawley never wants to talk down to his voters. He wants to speak for them, and at the moment, they are saying the election was stolen.”
“He surely knows this isn’t true,” this acquaintance continued, “and that the legal arguments don’t hold water. And yet clearly the incentives he confronts—as someone who wants to speak for those voters, and as someone with ambitions beyond the Senate—lead him to conclude he should pretend the lie is true. This is obviously a very bad sign about the direction of the GOP in the coming years.”
Think about this statement for a moment: The incentives Josh Hawley and many of his fellow Republicans officeholders confront lead them to conclude that they should pretend the lie is true.
First, this is the opposite of leadership and, moreover, a weird way not to “talk down to his voters” since he is clearly willing to patronize them and foster falsehoods instead of reinforcing the truth.
Second, this fits my point about about the structure of incentive in our parties: the goal is to please likely primary voters, as they hold the keys to renomination (or, to a presidential nomination in 2024).
Third, Wehner is correct: if the incentives within the party are to foster falsehoods over truth as a means of staying power, then the party is heading in a decidedly anti-democratic direction and the country is in trouble.
The single most worrisome political fact in America right now is that a significant portion of the Republican Party lives in a fantasy world, a place where facts and truth don’t hold sway, where “owning the libs” is an end in itself, and where seceding from reality is a symbol of tribal loyalty, rather than a sign of mental illness. This is leading the party, and America itself, to places we’ve never been before, including the spectacle of a defeated president and his supporters engaging in a sustained effort to steal an election.
The tactics of Hawley and his many partisan confreres, if they aren’t checked and challenged, will put at risk what the scholar Stephen L. Carter calls “the entire project of Enlightenment democracy.” This doesn’t seem to bother Hawley and many in his party. But what he should know—and, one hopes, does know, somewhere in the recesses of his heart—is that he has moved very far away from conservatism.
Hawley has to capacity to know better (and to know that there is no case cases of fraud on PA and that his chances of overturning the slate are zero).
A former state attorney general, Hawley has litigated before the Supreme Court. He graduated from Stanford University in 2002 and Yale Law School in 2006. He has clerked for Chief Justice John Roberts; he taught at one of London’s elite private schools, St. Paul’s; and he served as an appellate litigator at one of the world’s biggest law firms.
It is one thing for Hawley to position himself as a populist, something he had done even before he was elected in 2018; it is quite another for him to knowingly engage in civic vandalism and, in ostentatiously unpatriotic ways, undermine established norms and safeguards. This is precisely what Senator Hawley is now doing—and he is doing so in the aftermath of Trump’s loss, when some political observers might have hoped that the conspiracy mindset and general insanity of the Trump modus operandi would begin to lose their salience.
It is hard to maintain democracy if powerful politicians are willing to use that power to undercut institutions and to flagrantly support false narratives. The more Americans live in different realities, the worse off we will be.
Dare I say, a republic if you can keep it, indeed.
But, some will say, the Democrats have done this before, and there are objections all the time in the House!
Indeed, WaPo reported the following earlier in December: “[House] Members of the party that lost the presidential election have raised objections after nearly every election since 2000.” And, more relevantly,
In 2005, Sen. Barbara Boxer (D-Calif.) joined a group House Democrats to protest George W. Bush’s reelection, citing concerns with voting machines in Ohio. That prompted a two-hour debate before both chambers voted to reject the challenge. Only Boxer in the Senate and 31 of 199 House Democrats voted to support the challenge.
My general view on the House objections over the last two decades has been that they have been largely harmless (due to the lack of Senate support) and a bit on the crank side of the ledger. I understand, in the abstract, frustration with the 2000 and 2016 elections, for example, because of the popular vote/electoral vote inversion. Still, I did not see at those are legitimate objections because there was no question as the validity of the outcomes (although one can argue about Florida 2000, I have no wish to relitigate that here).
I am not going to defend Boxer’s objection in 2005 insofar as, again, there was no reason to think there was anything wrong with the election outcomes. But, I will say that it was a wholly different scenario.
As Boxer herself noted in an interview:
“There’s no comparison to what Congresswoman Stephanie Tubbs-Jones and I did in ’05,” Boxer told CNN. “Number one, John Kerry had conceded the race. We have a president here who’s orchestrating kind of an overthrow of the election. Secondly, we said up front we had no interest in overturning the election. All we wanted was to focus on voter suppression that we saw in Ohio.”
I am not a fan of making the counting of the EVs more important or dramatic than it already is, so I don’t like using it as a means for grandstanding, even if I support the general notion that we need to bring attention to voter suppression in the US.
Regardless, Boxer’s actions were radically different. They were not in support of overturning a slate of electors. They were not in support of reinforcing lies. And they were not engaged in an atmosphere in which the sitting president was contesting the results of the election.
From the CNN write-up of the action almsot exactly 16 years ago:
Alleging widespread “irregularities” on Election Day, a group of Democrats in Congress objected Thursday to the counting of Ohio’s 20 electoral votes, delaying the official certification of the 2004 presidential election results.
The move was not designed to overturn the re-election of President Bush, said Ohio Rep. Stephanie Tubbs Jones and California Sen. Barbara Boxer, who filed the objection.
The objecting Democrats, most of whom are House members, said they wanted to draw attention to the need for aggressive election reform in the wake of what they said were widespread voter problems.
She was engaging in a political stunt to try and bring attention to an issue she valued, while Hawley and company are willing to vote against democracy and in favor of false narratives that will further poison our politics. Nevertheless, like small children, expect many GOP member of Congress (and their media enablers) to whine, “the Dems did it first!”
This post has already gotten too long, and I haven’t even addressed the supposed basis of Hawley’s objection, which amounts, as best as I can tell, that PA made voting too easy (he does not appear to be alleging actual fraud). But let me conclude with this: if one of two parties is not committed to democratic processes nor to some semblance of a shared agreement on reality, our system cannot persist.
As such, all of this is more than just a stunt or one politician’s ambitions on display. This is very much about the health and progression of our already ailing democracy.
If vast swaths of voters don’t believe in the validity of electoral outcomes, it is hard to base a system of government on said elections. And it is truly disturbing when those who seek to govern are willing to exploit lies that undermine the system to further their own ends,
The center can not hold.
David Frum had it right:
“If conservatives become convinced that they can not win democratically, they will not abandon conservatism. They will reject democracy.”
David French has a post up that destroys not only Hawley’s legal argument, but the Dems also did trope with video proof. French also points out that using Hawley’s reasoning, Dems could question the Texas EV, as Abbot used emergency authority to make changes to election procedures. I believe you can also lump North Carolina in that group as well.
Collins, Sasse and Toomey have already questioned Hawley’s motives and I expect Romney and Murkowski agree with them, so this is going nowhere. But the damage to our democracy will live on. A large part of the R party is no longer conservative but is now authoritarian with a trend toward Fascism.
@Moosebreath: He did, mostly, but he’s not entirely accurate, because his statement assumes that hadn’t already happened. In reality, American conservatives have never accepted democracy. Recent events have simply brought their rejection out into the open.
You thought birtherism was bad. You ain’t seen nothin’ yet. The “Stolen Election of 2020” narrative isn’t just a short-term political ploy, or an inept attempt at a coup–though of course it is both. It’s about to become their new origin story, their nakba. Keep in mind that many Trumpists are still living under the belief he will succeed in overturning the election and be sworn in to a second term. Trump’s current efforts are simply delaying the moment when these individuals truly flip out.
After this is over, the narrative of the stolen election–the conspiracy to bring down the Lord Savior Himself–will thereafter become a central dogma in right-wing media, constantly being referenced or at least flirted with. (Even some of those who have tried to tell Trump it’s over haven’t actually acknowledged that Biden’s victory is legitimate, only that it’s inevitable.) It will filter up to Republican office-holders: at some point they’ll all have to address the question, do you believe Biden is legitimately the president? And just like with birtherism, there will be many who adopt the mealy-mouthed approach, trying to have it both ways. They’ll be forced to for political survival.
What’s frustrating to me is that at some level I feel they’re seizing on an opportunity we passed up when the shoe was on the other foot. We had an actual stolen election back in 2000. Yet we reacted to it like the weenies we always are. We quickly shoved the ordeal under the carpet and moved on. Despite being accused of “Bush Derangement Syndrome,” we in fact bent over backwards to give him a chance, contributing to his astronomical popularity for the singular achievement of being president while our country was attacked. (At the time he had an 80% approval rating among Democrats.) Then we proceeded to roll over as he exploited this event to execute the most disastrous and misguided war in our nation’s history.
I’m not saying we should have reacted to Bush v. Gore doing exactly what Republicans are doing now, making fruitless attempts at EC shenanigans, let alone try to encourage violence. I’ve just always felt that we (and Al Gore in particular) should have made a bigger deal about it after the SCOTUS handed down a decision that was, in point of fact, the closest thing to a coup that has happened in modern American history. Even if we couldn’t have changed the outcome, we could have kept the issue alive and helped weaken the perception that Bush had a strong mandate. Of course they would have called us sore losers–didn’t they already?–but we would have made a more effective opposition by making clear to them that we didn’t forget. Instead, we treated him like a normal president from the other party, and the fact that he got there illegitimately faded away.
It’s always the same pattern with us Dems: in our commitment to our own principles–maintaining the peaceful transfer of power, not allowing the country to be ripped apart–we let Republicans get away with their crimes. We act this way even though they never return the favor when they falsely claim to be in the very situation we were actually in. Who cares that their claims are made up out of whole cloth? They make it real by saying it’s real–by screaming it from the rooftops, by getting everyone on the R team to bring it up at every opportunity, by shouting over interviewers when challenged, by playing to an audience that thinks volume, rapid-fire speech, and exaggerated display of emotion trump actual evidence. Let there be voter fraud, and there was voter fraud. Why shouldn’t they fall back on the power of mass delusion? It’s worked for them for so long already. And it won’t cost them anything. We’ll make sure of that, as we always do, by trying to behave as gentlemen to the terrorists.
@Moosebreath: More accurately, they appear to have abandoned both conservativism and democracy in pursuit simply of power.
@Steven L. Taylor:
A fair point.
Another worthwhile difference that I’ve heard about is that the Kerry campaign was quite explicit about not having anything to do with the Tubbs/Boxer challenge.
I will be interested to see how many cases there are where the objectors include at least one Representative and one Senator from the state in question.
@Steven L. Taylor:
I would argue that anti-democracy is inherent in conservatism, in fact about the only constant. I would cite Corey Robin, The Reactionary Mind, and the sentiment expressed in the nonsensical, but nonetheless deeply held, belief that we are a republic, not a democracy. The current New Yorker has a lead The Talk of the Town piece which makes the point that trying to explain the appeal of authoritarianism has the issue backwards.
It’s the occasional forays into democracy that require analysis and explanation.
Josh Hawley is taking dishonest positions to advance his personal ambition? Color me shocked.
You mean the son of a banker who followed up on his time at Rockhurst (a Kansas City prep school) by getting an undergraduate degree from Stanford, attending Yale law school and clerking at the United States Supreme Court before running as a horny-handed man of the soil against that damn elitist Claire McCaskill (proud alum of that bastion of elitism, Mizzou) is not scrupulously honest?
A fella who criticized Claire for not spending enough time in the Show-Me state, but does not own a house here himself (apparently preferring his $1.3 million home in the suburbs of DC) is flexible with the facts?
A guy who ran for attorney general with ads emphasizing that Missouri voters deserved an AG who wasn’t interested in using the office as a political ladder to a higher office and the promise that he wouldn’t do that, before trashing that promise in his very first year as attorney general so he could use the AG’s office as a ladder to the Senate is more interested in advancing his career than advancing the truth?
A man who ran for the Senate claiming that he supported requiring health insurance companies to provide coverage for pre-existing conditions at the same time he was pressing a lawsuit that would eliminate the requirement that insurance companies provide coverage for pre-existing conditions plays fast and lose with the facts to bamboozle the rubes?
A man who took over a professionally-run AG office and turned it over to campaign consultants is politicizing the counting of votes?
Say it ain’t so. Who could have seen this coming?
@gVOR08: Masha Gessen wrote that I think.
I don’t think 2000 was stolen, per say. Close enough in a single state that the outcome was in doubt, and then each campaign pursued narrow legal strategies that they thought would benefit them, with the confines of the law. The result wasn’t democratic — no one was trying to determine who won, so much as they were trying to tip the ball that was wobbling precariously on a knife’s edge.
The Supreme Court did no favors to democratic institutions by favoring certainty over accuracy, and handing the election to their preferred candidate.
But, can you really steal something that hasn’t been decided?
This is a hundred times worse. This is trying to overturn certified results, and the popular vote.
I’ve long thought that 2004 was the real missed opportunity. IIRC, if Kerry had gotten 115,000 more votes in Ohio in 2004, the Buckeye State’s electoral votes would have given him the Presidency. Given that W had about 3 million more popular votes nationwide, there could have been a real chance to eliminate the EC once and for all.
Though I agree with the patterns you describe for both parties, I don’t believe I’d have it any other way. Standing on principle often has costs – it wouldn’t be honored behavior if it didn’t.
So, yes, it is a fact that Trump, Hawley and many other Republicans officeholders are currently finding success by “pretending the lie is true.” (Though frankly I’m appalled by the degree to which they’ve been successful and for how long they’ve managed to get it to work for them.) But, I still believe living the lie must eventually fail. Reality is relentless that way. The Wall doesn’t get built, the small town factories don’t come back, the demographic trends don’t reverse, and COVID ends up killing people they care about.
Truth will out if we are relentless on our principles and if we are patient. (Which is not meant in any way to diminish the damage caused and pain inflicted while we wait.)
It most certainly was. To begin with, despite decades of misinformation on this point, the evidence strongly suggests Gore would have prevailed in a full statewide recount (and that’s without getting into the Palm Beach County “butterfly ballot” fiasco). As Jonathan Chait explained:
So by all available evidence, Gore was the rightful winner in Florida–and hence the rightful winner in the presidential election of 2000.
But you know what? In a certain sense it doesn’t matter. What matters is that the Republican-dominated Court short-circuited the process of finding out who the true winner was. Nobody can seriously argue that the 537-vote gap separating Gore from Bush in the final official tally accurately represented how Florida voters actually voted. It was based on a count that was literally stopped in the middle, by justices with a vested interest in making sure the count wasn’t completed.
And make no mistake, the justices knew exactly what they were doing:
Sandra Day O’Connor, whose vote proved decisive in the 5-4 decision*, deliberately abused her position as justice to shut down the democratic process and install the candidate she favored.
So yes, it was a stolen election. We know Gore won, but even before we knew that, we knew it was a massive abuse of power by the Court. The fact that to this day, even liberals have attempted to normalize it, is truly sad. Of course what the Trump team tried to do this year was different, but it flows from a party that has spent decades exerting its power to trash American democracy. When Trump appointed Barrett and talked about how she would help him prevail in a post-election fight, it wasn’t just a Trumpian loyalty test–he may appear to have the memory of a goldfish but make no mistake, he had Bush v. Gore specifically in mind. It established that the Court could do basically whatever the hell it wanted without suffering any consequences. It doesn’t mean they’ll always choose to exercise this power–but there’s no question they have it, and know they have it. And we, Democrats, are complicit if we allow this fact to fall down the memory hole.
*This is another point of confusion I often see. The Court initially ruled 7-2 to stop the recount. However, Breyer and Souter only agreed to that ruling under the condition that the case would be sent back to Florida to complete the recount using a uniform statewide standard.
@Teve: The New Yorker piece was Adam Gopnik.
Which is not what Gore was perusing. He was trying to game the system, by recounting only where he would gain votes. Everyone was trying to get victory rather than the right answer.
It was a shitty and wrong resolution of a close election, but that doesn’t mean it was stolen. You can’t have theft without some concept of ownership, and no one had established that until long after.
There was no plan to thwart the will of the people ahead of the voting, to deny the voters the choice (unless you’re willing to call all elections stolen, with the system disenfranchisement campaigns, which is a reasonable argument, but does not make 2000 uniquely stolen), just reacting after the fact with both parties acting in bad faith. And then the Supreme Court capping off a bad, partisan process with a bad, partisan decision.
2000 was a failure of America as a whole, rather than a stolen election.
But we might just be arguing semantics. I’m going to go play with the cats.
Completely irrelevant. I wasn’t arguing the Gore team were choirboys. They were a political campaign acting politically. And believe me, I have no shortage of criticisms for how they conducted themselves in this fight.
Now, if a hypothetical liberal-dominated SCOTUS had invented out of a whole cloth some completely bogus ruling giving the Gore team carte blanche to recount wherever they wanted until they got the results they favored, that might be a comparable situation. But that’s simply not what happened, and it’s not what the liberal justices were arguing for.
What you’re arguing is that it can’t be a stolen election if the Dems’ actions weren’t all pure and good–which isn’t semantic, it’s ridiculous. A coup is still a coup even if there were members of the other side trying to do a coup. What matters is the outcome–the GOP-dominated Court handed down an abomination of a decision that wasn’t just “a bad, partisan decision,” it established the SCOTUS as essentially an autocratic body with the power to shut down democracy whenever it wanted–and it would continue to exercise this power (albeit more subtly) in the decades to come.
@Kylopod: Thank you for that. It may be that Bush legitimately won FL by a handful of votes, but the GOP majority on the Court sure grabbed their favored result without taking the risk of waiting to find out. And don’t get me started on the sacred military absentee votes, at least some of which were marked and mailed on the day after the election. We have to assume that future GOPs will regard 2000, 2004 in Ohio, and 2020 as practice.
Remember Ohio in 2012? FOX called Ohio for Obama and Karl Rove went ballistic. He ended up arguing with their analysts. He sure looked and sounded like a man who thought the fix was in. I see no reason to think it wasn’t exactly what it looked like.
@gVOR08: ah. I put a link to that Gopnik article in one of the open threads. It was good.
For anyone who missed it: What We Get Wrong About America’s Crisis of Democracy
No, I’m arguing that if you have a bunch of meth addicts fighting over a bagel of unknown providence, with no one trying to find who the bagel belonged to, you can’t say that the bagel was stolen no matter how dirty the meth addicts (or the bagel) might be.
You certainly can’t say that the bagel was stolen from one of the meth addicts. There is probably someone, somewhere missing a bagel — the voters in this case.
2000 was a failure of democracy, and then a shift to a non-democratic, adversarial system to resolve the failure.
2016 was a failure of democracy, resolved by the undemocratic Electoral College.
There’s a general acceptance that our system works poorly in close cases, but a willingness to accept the results — and a modern, stable democracy is fundamentally not just about voting, but about the losers accepting the results. Consent of the governed.
2020 is an attempt at an antidemocratic coup, and an attempt to destroy what democracy we have left. The erosion of democracy in 2000 and 2016 helps set the stage for 2020, but its only in 2020 that we have the attempt to destroy democracy and our institutions and actually steal the election*.
*: disregarding the usual vote suppression, and 2016’s collusion with a foreign adversary.
Cat got tired of playing and but me. She’s such a good bad cat.
But is it better to have the congress vote, on the record, to signify whether they accept the results, or allow them to claim that “people say there’s a lot of fraud” and undermine our democratic institutions through weaselly insinuations.
(Apologies to weasels, who are adorable, and eat pests or the eggs of endangered birds or something)
I am actually optimistic that a vote against democracy will kneecap the ambitions of a lot of Republicans. Not immediately, but pretty quickly. Once out of office, the stench of over-ripe Trump will not improve. He’s flailing about to try to keep loser stink off him, but that can’t continue when he’s in Mara Lago, fuming about having the election stolen and looking like a sad, pathetic loser. I think it will puncture the bubble, and his support will collapse.
And, in two years, I think only 20% of America will be willing to admit that they voted for him on 2020, and those that are lying will hate anyone reminding them that they were duped, like anyone who votes to overturn the election.
I may be very naive. But I’m going to keep believing this until we (inevitably) see the opposite — whether that’s optimism of a self-preservation delusion, I’m fine with it for the moment.
@Kylopod: There was a movie made after the 2000 election on the subject of the FL recount and Bush-v-Gore; it was called ‘Recount’. Made very clear that the complaint Kylopod made above rests on reality. That movie and ‘the Big Short’ serve as bookends for the Shrub’s administration. With the Iraq ‘war’ sandwiched between. Absolutely one of the two or three most disastrous Presidencies since the Civil War.
And now this administration of course has eclipsed them.
Thanks for the smile, Steven — I needed that this new year.
I see a Federal judge in TX has ruled against Gohmert’s suit, saying has no standing. In a way a shame as I kind of liked Pence being between a rock and a hard place. I imagine Gohmert will appeal. Can’t keep the fundraising going if he drops it.