It is doomed to fail but would still set a destructive precedent.
The U.S. Capitol in Washington Photo: eric baradat/Agence France-Presse/Getty Images
By The Editorial Board WSJ
President Trump’s last and worst shot at overturning the 2020 election will come on Jan. 6, as the new Congress meets in joint session to tally the votes from the Electoral College. Mr. Trump wants Republican lawmakers to lodge formal objections to Joe Biden’s electors, and this kamikaze mission already has a few volunteers.
Here’s what would happen next, at least according to the Electoral Count Act: If a state’s electors are challenged by both a Senator and a Representative, then each chamber is supposed to retire to consider it. If they rejected the electors of enough states to deny Mr. Biden 270 electoral votes, then the House would choose the President.
But how could lawmakers justify throwing out electors for Mr. Biden? Although Mr. Trump keeps tweeting claims of massive vote fraud, his lawsuits have been rejected in court, sometimes by his own conservative appointees.
Any challenge to Mr. Biden’s electors appears doomed, since upholding the objection takes a majority in both chambers. The Democratic House would use the opportunity to excoriate Mr. Trump a final time on his way out the door, and grown-ups in the Republican Senate are unlikely to play along. Hence the Trump crowd’s latest argument: that the power to invalidate electors rests with the joint session’s presiding officer—Vice President Mike Pence.
A nub of truth here is that the Electoral Count Act might be unconstitutional. Originally passed after the contested-election mess of 1876, it purports to let a simple majority of Congress decide which presidential electors are valid, a power that’s hard to justify under the
Constitution or separation-of-power principles.
Reverting to the Constitution’s text, however, would be small help to Mr. Trump. The workings of the Electoral College were refined by the 12th Amendment, which says that the Vice President shall “open all the certificates and the votes shall then be counted.” Where does that language give Mr. Pence unilateral authority to set aside electors? This can’t be what the Founders wanted.
In 1876, at least, there were competing electors that each claimed official imprimatur. In Oregon the Governor and the Secretary of State certified different slates. Florida’s outgoing Governor signed off on a group of electors, only to be reversed by the incoming Governor.
None of that ambiguity exists now. Self-styled Republican shadow electors held their own gatherings this month in some states that Mr. Biden won. But it was a purely extracurricular exercise. In Georgia the GOP chairman said it was intended to preserve Mr. Trump’s legal options, even as the state’s Republican leaders officially certified electors for Mr. Biden.
If Democrats tried a similar Electoral College stunt, Republicans would hoot it down. The closest recent analogue was after the 2004 race, when Democrats challenged Ohio’s electors, claiming they wanted to force a debate on voting reforms. Sen. Barbara Boxer joined them, delaying the ratification for hours as the House and Senate considered the objections.
Rep. Nancy Pelosi defended the exercise, saying that the discussion “should not be considered frivolous.” Rep. Jerrold Nadler thundered that “the right to vote has been stolen from qualified voters,” while allowing that irregularities “have not been proved to have changed the outcome.” Rep. Maxine Waters charged that Ohio’s “partisan Secretary of State, Mr. Kenneth Blackwell, I’m ashamed to say an African-American man,” failed to pursue voter intimidation.
What was the GOP’s rejoinder? “Some Democrats only want to gripe about counts, recounts, and recounts of recounts,” said Rep. Deborah Pryce. Then- Rep. Roy Blunt pointed to the substantial Ohio margin. “If we were taking this important time today to talk about a difference of 118 votes,” he said, “that might be justifiable,” but Mr. Bush won by 118,000. Then- Rep. Rob Portman dismissed “irresponsible conspiracy theories about what happened in Ohio,” adding: “I was there. It didn’t happen.”
Counts, recounts, and recounts of recounts—that’s a description of Georgia this year. The difference is that in 2004 Democratic candidate John Kerry conceded. “I will not be taking part in a formal protest of the Ohio electors,” he said. Despite reports of irregularities, “our legal teams on the ground have found no evidence that would change the outcome.” Does Mr. Trump want to depart by making people pine for the statesmanship of John Kerry?
Republicans should be embarrassed by Mr. Trump’s Electoral College hustle. Mr. Trump is putting his loyal VP in a terrible spot, and what do Republicans think would happen if Mr. Pence pulled the trigger, Mr. Biden was denied 270 electoral votes, and the House chose Mr. Trump as President? Riots in the streets would be the least of it.
Mr. Pence is too much of a patriot to go along, but the scramble to overturn the will of the voters tarnishes Mr. Trump’s legacy and undermines any designs he has on running in 2024. Republicans who humor him will be giving Democrats license to do the same in the future, and then it might matter.
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