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The Spokesman-Review Newspaper
Spokane, Washington  Est. May 19, 1883


By Edward B. Foley Special to the Washington Post

Sen. Ted Cruz’s 11th-hour effort to derail certification of Joe Biden’s election victory is the wrong solution to a nonproblem at the wrong time. Fortunately, it also won’t succeed, but it nonetheless provides one more alarming sign of the perilous state of our democracy.

Cruz, R-Texas, and 10 colleagues announced Saturday that they will vote to challenge electoral college votes in “disputed states” when Congress meets Jan. 6, though it was unclear how many states that will be. In practical effect, the move adds nothing but numbers to the process that Sen. Josh Hawley, R-Mo., had already vowed to set into motion: two hours of debate, in both the House and Senate, on each state the Republicans challenge.

This will greatly slow what should be a straightforward process, but the bottom line is clear: Unless Vice President Mike Pence, in his presiding role as president of the Senate, were to unexpectedly deviate from the procedures established by Congress in 1887 – a truly lawless move that would be swiftly resisted by senators and representatives of both parties – the outcome remains inevitable.

Nonetheless, the fact that a dozen senators and senators-elect, along with apparently more than 100 House members, want to disrupt congressional ratification of the electoral college result is one more horrendous sign of the severity of the disease afflicting the United States’ democratic system. It will make it even harder for Biden to heal this pathology of partisan polarization, as he has promised to do.

Specifically, Cruz’s group proposes a commission, modeled on the one used for the disputed Hayes-Tilden election of 1876, to investigate baseless allegations of election fraud raised by President Donald Trump and his allies since Nov. 3. The senators would have the commission conduct a “10-day audit” with “full investigatory and fact-finding authority,” and afterward “individual states would evaluate the Commission’s findings and could convene a special legislative session to certify a change in their vote, if needed.”

Five problems with this idea:

First, the analogy to the Hayes-Tilden dispute is altogether inappropriate. In 1876 there was a genuine basis for contestation. Republican supporters of Rutherford B. Hayes were correct to claim that Democrats in the South had terrorized and disenfranchised Black voters; Hayes clearly would have won if the equal right to vote, as guaranteed by the 15th Amendment, had been enforced. Democrats, in turn, defended Samuel J. Tilden’s claim to victory in the disputed states by correctly observing that Republican canvassing boards had carried out vote-counting fraud to yield higher totals for Hayes.

Nothing remotely approaching those circumstances occurred in any state this year; just because Trump keeps tweeting false allegations does not mean there is something to investigate. And as for the group’s contention that the U.S. Supreme Court didn’t consider Trump’s fraud claims, well, that’s irrelevant: State courts were the proper venue for those claims, and they all dismissed them as baseless, as Sen. Pat Toomey, R-Pa., observed in his own condemnation of the Cruz-led move Saturday.

Second, Congress needed a commission for the Hayes- Tilden election because Congress itself was deadlocked: The Senate backed Hayes; the House, Tilden. There is no such deadlock now: Majorities in both the Senate and House are sure to uphold Biden’s victory. Cruz’s call for a commission is just a ruse to prolong Trump’s attempt to sow doubt on the result when there should be none.

Third, Cruz is incorrect to suggest that the Hayes-Tilden commission had “full investigatory and fact-finding authority.” The Congress that created that commission was careful to avoid doing that, because it was hotly contested whether Congress itself had the constitutional power “to go behind the returns” of a state’s electoral college votes, and Congress did not want to give the commission any powers that Congress itself did not have. The commission itself resolved the dispute in favor of Hayes by scrupulously avoiding fact-finding.

Fourth, Congress cannot create a new commission in the context of the proceedings planned for Jan. 6. The existing 1887 statute rejected the commission model, and instead wanted Congress itself to handle any issues that might arise concerning a state’s electoral votes – based on a set of rules that make “conclusive” whatever “final determination” a state’s own courts reach. Congress would need to repeal and replace the existing statute, which obviously won’t happen before Wednesday.

Fifth, Cruz’s belief that a state legislature could change its electoral votes based on a commission’s work is especially unconstitutional – and also ironic given his reliance on the Hayes-Tilden precedent. That commission ruled for Hayes in part because Article II of the Constitution requires electors in all states to vote on the same day, and thus a state cannot change the appointment of its electors after they have voted. The electors voted on Dec. 14, and it’s too late for a change according to Cruz’s own example.

Cruz’s statement purports to pay lip service to the values of democracy. But in fact it brazenly seeks to subvert those values.

Edward B. Foley writes on matters relating to election law and administration.