The Other Side of the Coin on the Electors Debate

As the first anniversary of the 1/6 capitol storming approaches us, I was curious to read not what the mainstream media was saying, which by and large echoed the Democratic position quite frankly, but what was being said in Congressional debates by the supporters of the objections. This is a bit of an unusual venture for me as it is very recent history and one might say its even ongoing given the existence of the 1/6 commission. I will focus only on the allegations surrounding Arizona and Pennsylvania as those were the only states in which objections were voted on, even though several legislators expressed that their objections on these were also statements against practices in other swing states that Biden won.

Full disclosure here, I did not support the challenges at the time for five reasons: I considered them hopeless, a grandiose way to express displeasure with how the mainstream media covered Biden as opposed to Trump, unsupported by evidence, politically unwise, and to stroke the galaxy-sized ego of Trump. I never personally liked him even though I found myself in agreement with many of his policies (deregulation, judicial nominations, lower taxes, opposition to “woke” politics, opposition to policies that are “open borders” in all but name) as they were mostly adoptions of conservative policies. Although my mind hasn’t changed on the wisdom of the challenges after reading these and conducting background research on claims made, especially considering what happened on January 6th, I have reached the conclusion that most arguments that came from most Republican legislators were based on charges of constitutional violations in the election process and not a charge of “systemic voter fraud” as former President Trump and a few other outspoken folks on the right alleged. Most of the grounds for objection were far more reasonable than presented by the bulk of the media, but because Trump focused on the systemic voter fraud allegation that was the one that got the most press and attention from Democrats, and it happened to be the very worst argument against certifying. This, along with the Capitol raid, served to irreparably damage any case he might have had based on process. I grant that any extra time taken to review or delay the process in these states based on rejections would almost certainly have not changed the outcome and that for Trump specifically anything other than him winning wouldn’t have been acceptable. If nothing else, his call to Georgia’s Secretary of State Brad Raffensberger proved it. I also found some facts I did not previously know. Some background information that is relevant to what is presented:

The Arizona Voting Registration Deadline Case

A little over a week before the Arizona voter registration deadline, progressive organizations Arizona Coalition for Change and Mi Familia Vota file a lawsuit against Secretary of State Katie Hobbs, alleging that their voter registration efforts being shut down due to COVID-19 mandated shutdowns without an extension of the deadline was unconstitutional per the First and Fourteenth Amendments. Hobbs, a Democrat, did not extend the October 5th deadline. However, District Court Judge Steven Logan (an Obama appointee) ruled in favor of the plaintiffs, extending until October 23rd. However, this ruling was undone by the 9th Circuit U.S. Court of Appeals, which found the extension to be illegal yet gave prospective voters a two-day grace period to register, making the deadline October 15th. In this ten-day period over 35,000 people registered to vote. Biden won Arizona by 10,457 votes. However, this resulted in 10,922 voters registering as Republicans, 8,292 registering as Democrats, 498 as Libertarians, and 15,422 voters registering with neither party (Oxford, 10/16). Biden was estimated by Washington Post to have won 53% of independents as opposed to Trump’s 44% and won Democrats 96-3%, with Trump winning Republicans 90-9%.

Controversies Surrounding Changes in Pennsylvania Voting Law in 2020

In 2019, the Republican-led state legislature passed and Democratic Governor Tom Wolf signed Act 77, which allowed for voting by mail up to 50 days before an election and permitted people to sign up to vote by mail permanently, expanded time for voter registration by fifteen days, and gave financial aid to counties for new voting machines. This law was passed overwhelmingly with less than a handful of GOP legislators in opposition. In March 2020 the COVID-19 pandemic hit the United States and lockdowns were put in place by the states. This also served to impact voting and voter registration policies. The changes instituted by both the governor and the state Supreme Court (which has a 5-2 Democratic majority) included a unanimous ruling that ballots cannot be rejected because of a failure for signature matching alone. The state of Pennsylvania also authorized the use of unsecured drop boxes outside of legislative authority, which the Trump campaign tried to stop but lost an October 2020 lawsuit. The practice has apparently been in use in other states before this. In addition, the Pennsylvania Supreme Court extended the deadline for mail ballots by three days, thus the deadline became 5 p.m. on November 6th, rather than 8 p.m. on Election Day. Another matter of controversy in Pennsylvania regarded the uneven application of “ballot curing” in counties, with the state issuing a guidance on the matter. Many Democratic counties got voters notified about faulty ballots to be fixed while numerous Republican counties did not, however the practice was not uniformly done by Democrats or Republicans.  

The House

The following Republican representatives spoke for rejecting electors on the grounds of unconstitutional election procedure:

Mo Brooks, Ala.

Paul Gosar, Ariz.

Andy Biggs, Ariz.

Lauren Boebert, Colo.

Kat Cammack, Fla.

Brian Mast, Fla.

Steve Scalise, La.

Clay Higgins, La.

Mike Johnson, La.

Andy Harris, Md.

Yvette Herrell, N.M.

Lee Zeldin, N.Y.

Elise Stefanik, N.Y. – Voted against Arizona objection, for Pennsylvania.

Dan Bishop, N.C.

Madison Cawthorn, N.C.

Ted Budd, N.C.

Jim Jordan, Ohio

Bill Johnson, Ohio

Warren Davidson, Ohio

Glenn Thompson, Penn. – Voted against Arizona objection, for Pennsylvania.

Lloyd Smucker, Penn. – Voted against Arizona objection, for Pennsylvania.

Jeff Duncan, S.C.

Jodey Arrington, Tex.

Roger Williams, Tex.

Representatives who voiced support for the “systemic voter fraud” argument were:

Mo Brooks, Ala. – If you count his charge that massive numbers of illegal immigrants voted and voted 80% Democrat (H89).

Paul Gosar, Ariz.

Matt Gaetz, Fla.

Marjorie Taylor Greene, Ga.

Brian Babin, Tex.

Arizona Objections (Gosar-Cruz)

Some notable arguments were in Jim Jordan’s speech; he regarded as suspicious Trump’s crowds vs. Biden’s crowds, estimating an event for Biden being 50 people while Trump had 5,000, stating incredulously, “But somehow the guy who never left his house wins the election?” (Congressional Record, H79) He goes on to state that 80 million Americans had doubts and 60 million believed it was stolen. Jordan also states, “We asked for an investigation. We asked Chairman Nadler, Chairwoman Maloney for an investigation. They said no. They wouldn’t want to investigate something that half the electorate has doubts about. It is just the Presidency of the United States” (Congressional Record, H79). He gets to the meat of his case afterwards, stating that the elections were conducted improperly because the state legislature didn’t decide in Arizona and Pennsylvania election procedures that went into use. He objected to voter registration being extended 18 days past October 5th in Arizona (its date for ending voter registration) because of an Obama-appointed judge despite Arizona law. Jordan regards this decision as contrary to the U.S. Constitution. He protests the Supreme Court of Pennsylvania extending the date mail-in ballots could arrive from 8 pm election day to Friday, and that ballots were processed before election day contrary to Pennsylvania state law Pennsylvania law. Jordan also alleges that Democratic counties permitted ballots to be “cured and fixed” before election day. He goes beyond this and charges that Democrats perpetrated violations of State Constitutions in Arizona, Georgia, Michigan, Nevada, Pennsylvania, and Wisconsin.  

Andy Biggs (R-Ariz.) joined the objection, citing Article II, Section I of the Constitution. He held that States are required to determine electors and states that Arizona’s voter deadline, which had been in place for 30 years, was extended from October 5 to October 23 in response to a lawsuit from a group demanding an extension and permitting registrations after that date to stick, despite a finding that that the state’s deadline, in place for 30 years, was constitutional (Congressional Record, H80). He complained of biased media coverage of the debate surrounding the certification of the electoral college. Biggs also charged that 32,000 people voted in violation of Arizona law. Included in his statement were about 1,000 affidavits and declarations regarding potential voter fraud in Arizona.

Lauren Boebert (R-Colo.) argued that Article II, Section I, Clause 2 of the U.S. Constitution was violated, which states, “Each State shall appoint, in such manner as the legislature thereof may direct, a number of electors” as well as the election clause giving state legislatures the authority to dictate “the times, places, and manner of holding elections” (Congressional Record, H82). She holds that all votes cast from voters who registered after the October 5th deadline were unconstitutional.

Paul Gosar (R-Ariz.) charged that the audit of the Arizona election was stopped after a court found a 3% error rate against Trump and a 0.03% error rate against Biden and alleges 400,000 mail-in ballots altered, switched, or erased from Trump’s totals (Congressional Record, H85). He also alleged that over 30,000 illegal aliens voted in Arizona. (Note: this is probably a botched interpretation of the voters registered between 10/6 and 10/15) Gosar also claims that over a thousand residences were visited for proof of residency and address, with 456 failing, with the Recorder’s office used as an address (Congressional Record, H85). Although he makes some out there claims, his stance is not to flip the election for Trump, it is to “Remand the slate back to the secretary of state, back to the Governor, with the following instructions: Until a full, complete electoral forensic audit is allowed by the secretary of state, the electors currently certified will not be counted” (Congressional Record, H85).

It was after this speech that the attack on the Capitol occurred.

Pennsylvania Objections (Hawley-Perry)

Elise Stefanik (R-N.Y.) held that the Pennsylvania State Supreme Court and secretary of state “unilaterally and unconstitutionally rewrote election law eliminating signature matching requirements” (Congressional Record, H88).

Glenn Thompson (R-Penn.) stated that although systemic voter fraud was unproven, he alleged a “systemic failure in the application of Pennsylvania’s voting law when it comes to the 2020 general election” (Congressional Record, H101). He also stated the following irregularities, “Uneven application of the law; ballot curing; ignoring signature validation requirements; using unsecured drop boxes; accepting ballots beyond the deadlines; and interfering with certified poll watcher access, among others” (Congressional Record, H101). Thompson held that these actions were taken by Governor Wolf, Pennsylvania’s Secretary of State, and by the Pennsylvania Supreme Court. As a side note, the U.S. Supreme Court also permitted the acceptance of absentee ballots in North Carolina and Pennsylvania past Election Day on October 28, 2020.

Andy Harris (R-Md.) cited the Democratic secretary dismissing signature authentication for ballots (Congressional Record, H101).

Dan Bishop (R-N.C.) held that Marc Elias, the Democratic Party’s chief election lawyer, had planned to inundate State and Federal courts with hundreds of election lawsuits to undermine State legislative control over elections (Congressional Record, H91). On a side note, Elias would in March 2021 be hit with an ethics sanction over a lawsuit against Texas over straight-ticket voting (Larsen).

Ted Budd (R-N.C.) most succinctly put forth the case of Republican objectors, “To sum it up, Pennsylvania officials illegally did three critical things: One, they radically expanded vote by mail for virtually any reason. Two, they removed restrictions when a ballot can be sent in. Three, they removed signature verification on those very ballots” (Congressional Record, H106).

On the widespread voter fraud arguments:

Marjorie Taylor Greene (R-Ga.) argued, “I would like to point out that all the cases that have been thrown out have been thrown out on standing, not the evidence of voter fraud…By objecting today, we are telling the thousands of witnesses who signed affidavits that we have their back, and we will not allow local officials who violate their own election laws to steal this election from those who lawfully voted” (Congressional Record, H102).

Brian Babin (R-Tex.) stated, “I have no doubt that there was widespread election fraud this past November, and I am not alone. I stand here today speaking for 75 million Americans whose voice was unconstitutionally silenced” (Congressional Record, H105).

The Senate

The objections began with Senator Josh Hawley (R-Mo.) announcing that he would object to election certification. Senator Ted Cruz (R-Tex.) and ten others followed suit, with him calling for an election commission to investigate election charges, based on the 1877 commission (I wrote about that one last year).

Ted Cruz official 116th portrait.jpg
Ted Cruz (R-Tex.), who sponsored the Arizona objection.

Ted Cruz (R-Tex.) held that 39% of Americans believed that the election “was rigged”. He contends that such a longstanding belief among so many people constitutes a threat to legitimacy in the future and states that “I am not arguing for setting aside the result of this election. All of us are faced with two choices, both of which are lousy. One choice is to vote against the objection, and tens of millions of Americans will see a vote against the objection as a statement that voter fraud doesn’t matter, isn’t real, and shouldn’t be taken seriously. And a great many of us don’t believe that. On the other hand, most, if not all, of us believe we should not set aside the results of an election just because our candidate may not have prevailed. So I endeavored to look for door No. 3, a third option, and for that I looked to history to the precedent of the 1876 election, the Hayes-Tilden election, where this Congress appointed an electoral commission to examine claims of voter fraud” (Congressional Record, S15).

Roger Marshall (R-Kan.) stated, “There is no question our U.S. Constitution empowers State legislatures to execute free, legal, and fair elections. Unfortunately, in several States, the clear authority of those State legislatures to determine the rules for voting was usurped by Governors, secretaries of state, and activist courts. Our laws and Constitution should always be followed, especially in a time of crisis. I don’t rise to undo a State’s legally obtained electoral college votes; rather, I rise in hopes of improving the integrity of the ballot to hold States accountable to the time-proven constitutional system of the electoral college” (Congressional Record, S23). Marshall also cites support for the commission.

Josh Hawley (R-Mo.) argued, “I say to Pennsylvania, quite apart from allegations of any fraud, you have a State constitution that has been interpreted for over a century to say that there is no mail-in balloting permitted except for in very narrow circumstances, which is also provided for in the law. Yet, last year, Pennsylvania’s elected officials passed a whole new law that allowed for universal mail-in balloting, and they did it, irregardless of what the Pennsylvania Constitution said” (Congressional Record, S25).

Josh Hawley, official portrait, 116th congress.jpg
Josh Hawley (R-Mo.), who sponsored the Pennsylvania objection.

A lot of the objection to counting was based on court cases of varying validity in the run-up to the 2020 election that Republicans lost and the bypassing of State legislatures. It was by and large a protest over court decisions they lost, decisions made without State legislatures, and the beneficial effect they had on Democratic voter turnout (the degree to which I think this is true is overall minor). I also regard as an open question whether objection to the electoral vote count was an appropriate way to protest irregular election practices in the context of COVID-19, but two things are clear to me based on this research: the Republicans as a group were far more reasonable than portrayed in the press in their objections, with only five of them actually giving backing to Trump’s “systemic voter fraud” charges, and that Democrats mostly responded just to the low-hanging fruit among charges. I completely and utterly reject the charges that these actions were “seditious” or based upon a wish to undermine the will of the people. Sometimes the words of politicians get unfairly judged on what extremists do with them, as was the case with Rep. Clare Hoffman (R-Mich.), who I covered recently, for his “Judases” speech before Congress in January 1942. And in this case, it isn’t at all clear to me that the people who stormed the Capitol were reacting to claims of unconstitutional uses of authority in response to COVID-19 issued by most Republican members of Congress, rather the “systemic voter fraud” charge made by Trump and among his loudest and proudest supporters.

A few observations:

I realized I didn’t know the best arguments the GOP representatives were making. It was the worst arguments that got the most publicity, from Trump, the Democrats, and the MSM.

Lauren Boebert (R-Colo.) comes off as one of the most effective and sensible of the dissenters in arguments, and you wouldn’t know it if you didn’t check out the Congressional Record (and how many people do, honestly?). I suspect there are greater things in this woman’s future.

The “size of crowds” argument is a popular one among Trump partisans but annoys me as it completely fails. The reasons are, first, because Biden supporters were more likely to stay out of crowds given their higher fear of COVID-19. This also hindered their voter turnout operations as there was less door-to-door campaigning. As someone who has worked on campaigns before, I know damn well how much more effective door-to-door is than phone calls. Second, it is entirely possible to have higher base commitment but lower popularity overall, and this was precisely the case with Trump. The people who show up at his rallies are NOT representative of the American public, as much as they’d like to think they are. It’s like the “which candidate has more yard signs” metric to predict who wins elections.

The argument surrounding judicial fiats and bypassing State legislatures NEVER GETS ADDRESSED directly by the Democrats, only lumped in with the numerous outlandish charges of voter fraud.

The group among the protestors that stormed the capitol really gave the Democrats political ammunition. Senator Amy Klobuchar (D-Minn.) called this effort a “coup” before the attack happened (S16).

References

Exit poll results and analysis from Arizona. The Washington Post.

Retrieved

https://www.washingtonpost.com/elections/interactive/2020/exit-polls/arizona-exit-polls/

Farley, R. (2020, November 13). Ballot ‘Curing’ in Pennsylvania. FactCheck.org.

Retrieved from

Gringlas, S. (2020, September 17). Pennsylvania Supreme Court Extends Vote By Mail Deadline, Allows Drop Boxes. NPR.

Retrieved

https://www.npr.org/2020/09/17/914160122/pennsylvania-supreme-court-extends-vote-by-mail-deadline-allows-drop-boxes

Larsen, E. (2021, March 12). Top Democratic Election Lawyer Sanctioned in Suit Against Texas. Bloomberg.

Retrieved from

https://www.bloomberg.com/news/articles/2021-03-12/top-democratic-election-lawyer-sanctioned-in-suit-against-texas

Martinez, J. & Garcia, N. (2020, October 14). Final push to register voters as Oct. 15 registration deadline nears for Arizona. Fox 10 Phoenix.

Retrieved from

https://www.fox10phoenix.com/news/final-push-to-register-voters-as-oct-15-registration-deadline-nears-for-arizona

Montellaro, Z. (2020, October 23). Pennsylvania Supreme Court says ballots can’t be rejected based on signature comparisons. Politico.

Retrieved from

https://www.politico.com/news/2020/10/23/pennsylvania-court-ballot-signatures-431794

Oxford, A. (2020, October 16). Extension of registration deadline nets more than 35,000 new voters in Arizona. Arizona Republic.

Retrieved from

https://www.azcentral.com/story/news/politics/elections/2020/10/17/arizona-voter-registration-deadline-extension-adds-35000/3682316001/

Oxford, A. (2020, October 5). Federal judge orders Arizona to extend voter registration deadline until Oct. 23. Arizona Republic.

Retrieved from

https://www.azcentral.com/story/news/politics/elections/2020/10/05/arizona-voter-registration-deadline-extended-oct-23-judge-rules/3633974001/

Proceedings and Debates of the 117th Congress, First Session. (2021, January 6). Congressional Record.

Retrieved from

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