Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Saturday, January 2, 2021

We should all be disturbed by GOP senators' call to revisit election results

Those who know my politics know that I can hardly be described as a left-wing radical. I believe that a strong, healthy, and principled Republican party is good for our country. That’s why I’m so discouraged by Ted Cruz’s announcement today that he and a group of GOP senators will object to the certification of electors this week and ask for the appointment of an Electoral Commission to conduct a 10-day audit of votes, after which “individual states would evaluate the Commission's findings and could convene a special legislative session to certify a change in their vote, if needed.” This should disturb anyone who believes that facts and respect for process should matter in a democracy. A few comments:
First, the senators’ reasoning is circular. Senator Cruz’s statement indicates that the results should be contested because many Americans doubt the election’s integrity. In other words, the primary rationale offered by a group of GOP leaders for behaving as though the election was stolen is the fact that many Americans believe the election was stolen, which is a result of GOP leaders spending the last two months behaving as though the election was stolen.
Second, the senators know that this is not going to work. As my friend and election law expert Derek Muller points out, a 10-day audit would require Congress to pass a new statute to amend the Electoral Act before January 6. That’s just not going to happen. I knew Ted Cruz in law school and worked with him on the law review – he’s a very smart guy. He knows this is not going to work, and he knows the election wasn’t stolen. This is simply a political performance to curry favor with the President’s core supporters, who have been whipped into a frenzy by a constant stream of irresponsible claims.
Third, the election was not stolen. The Trump campaign has lost at least 60 lawsuits at this point, with judges from across the ideological spectrum uniformly agreeing that the claims lack merit. Senator Ben Sasse – as conservative as they come – concluded that there is “little evidence of fraud, and what evidence we do have does not come anywhere close to adding up to a different winner of the presidential election.” Instead, according to Sen. Sasse, what we have is a President and his allied organizations having raised, since Election Day, “well over half a billion (billion!) dollars from supporters who have been led to believe that they’re contributing to a ferocious legal defense.”
Fourth, if you think the election was stolen through a massive global conspiracy, please step back and reflect for a moment. Conspiracy theorists never admit to being wrong – data points that seem to undercut their theory are simply taken as evidence that the conspiracy is even bigger than they imagined. Lin Wood – one of the lawyers leading the charge on “stolen election” claims – now says that Chief Justice Roberts adopted his children through a pedophile ring and Vice-President Pence will be executed by a firing squad for his complicity in the plot to steal the election. Is this really the company you want to keep?
Finally, would I be speaking out if Democrats were pulling these stunts against a Republican candidate who had prevailed? Absolutely. And unfortunately, you may have a chance to see if I’m true to my word because the precedent has now been set. Our norms for the peaceful transfer of power – both written and unwritten – have been turned upside-down, so the path is wide open for the Democrats to do the same thing when it suits them. If you’re applauding the wild claims from President Trump, Senator Cruz, and other GOP politicians who should know better, will you still be applauding if the Democrats try this strategy in 2024 and it works?


Vischer, Rob | Permalink