House Republican Conference Chairwoman Liz Cheney (R-WY), the third highest-ranking Republican in the House, argued in a memo that members of Congress objecting to the Electoral College certification on January 6, 2021, would present an “exceptionally dangerous precedent” for the role of Congress in future elections.
“By objecting to electoral slates, members are unavoidably asserting that Congress has the authority to overturn elections and overrule state and federal courts,” wrote Cheney in a 21-page memo, according to National Review. “Such objections set an exceptionally dangerous precedent, threatening to steal states’ explicit constitutional responsibility for choosing the President and bestowing it instead on Congress.”
Cheney also argued that Congress taking up such a role would be at odds with the Constitution, and would play into the Democratic Party’s attempts “to federalize every element of our nation,” including federalizing presidential elections. “Republicans should not embrace Democrats’ unconstitutional position on this issue,” wrote Cheney.
Over the weekend, a group of eleven Republicans senators, led by Texas Senator Ted Cruz (R-TX), revealed that they planned to vote “to reject the electors from disputed states,” calling them not “regularly given” or “lawfully certified,” unless Congress appointed a commission to conduct a “10-day audit of the election returns” of “disputed states.” (The states were not named in the statement.)
The group of senators said Congress should “follow the precedent” set in 1877, when it “appointed an Electoral Commission-consisting of five Senators, five House Members, and five Supreme Court Justices-to consider and resolve the disputed returns.”
Cheney, however, seemed to suggest that the issues surrounding this precedent — multiple states sending votes from more than one slate of electors to Congress, instead of from just one slate of electors — were resolved with the Electoral Count Act in 1887. Although Cheney says the constitutionality of the act has been the subject of debate among experts, she notes that there hasn’t been a dispute that governors “submitted an official certification of the election,” and that the votes of those electors were then transmitted to Congress. “Thus, under the Electoral Count Act, those certificates are conclusive and must be counted,” she wrote.
Cheney also pushed back against the idea of an emergency 10-day election commission.
It is not reasonable to anticipate that any commission so formed could wrap up its work in 10 days; indeed, the subsequent debate at both the state and federal level would likely require months. Did those proposing a new commission realize that they were in essence proposing to delay the inaugural? Did they mean to set up a new future precedent where the inaugural is delayed and we have an “Acting President?” For how long? Who decides when that process is over? Will that require another Act of Congress? Could the Acting President veto any such future Congressional action? If Congress has authority to create such a commission now, are state elections, recounts and state law legal challenges just “make-work” until Congress gets around to investigating and deciding who should be President? Members who support the new commission proposal may need to answer each of these questions. And in particular, Members should be prepared to answer how such a commission would be justified by the actual text of our founding documents.
According to The Washington Examiner, Cheney’s memo also summarizes the conclusions of challenges to election results in six swing states: Georgia, Michigan, Pennsylvania, Wisconsin, Arizona, and Nevada.