Democracy & Government

The Abominable No-Men

The Abominable No-Men

(Photo by Kim Davies / flickr CC 4.0)

At least a dozen United States Senators, led by hard right Republican Ted Cruz of Texas, and over 140 Representatives in Congress, have said they will provisionally object to the count of the presidential electors when it is considered in a joint session of Congress on January 6. All are Republicans, and all of the objecting representatives, and six of the senators were elected in the same election that they now seek to undermine. Their absurd objection will delay certification by at most two hours. It is unlikely to get anywhere. Oscar Wilde said,: “I could deny it if I liked. I could deny anything if I liked.”

Trump has lost. He lost the election by seven million in the popular vote. He lost the electoral college 306-232. He lost in court. Roughly 60 state and federal courts, Trump-appointed judges, including three on the Supreme Court, rejected his frivolous claims of massive fraud and conspiracy. He has alleged no credible facts in any state that would change the outcome.

Biden’s victory has been affirmed and reaffirmed by election officials of both parties, by Bill Barr’s Department of Justice, by Christopher Krebs, Trump’s ousted Director of Cybersecurity and Infrastructure. Krebs found “no evidence that any voting system deleted or lost votes, changed votes or was in any way compromised.” In Georgia, the vote was counted and recounted three times before being certified by the Republican governor and secretary of state.

But, as Yogi Berra put it: “It ain’t over till it’s over.”

By law, the legislators are required to accept the electoral vote certified by the states if it is “regularly given” and “lawfully certified.” Certification at the joint session of Congress has long been regarded as a formality — the mechanism whereby the electoral results in the several states become federalized. But in an act of political Kabuki, the Cruz group states that they will not accept the vote unless and until Congress appoints a commission to conduct an emergency 10-day audit. Once the audit is completed, says the joint statement of the senators, individual states would evaluate the Commission’s findings and could convene a special legislative session to certify a change in their vote, if needed. The states most likely in question, Pennsylvania, Wisconsin, Michigan and Georgia, all have Republican majority legislatures.

Vice President Mike Pence, who will preside over the joint session, said he “welcomes” the objection, and in a series of tweets Saturday evening, Trump praised the senators’ actions and falsely claimed he won by a “landslide.” George Orwell said in 1984: “Reality exists in the human mind, and nowhere else.”Is it madness? Are Trump’s Republican cohorts beguiled by the charm of his outrageousness, his reckless disregard of the truth? The objecting members of Congress, like Trump, have produced no more than accusation, what Shakespeare called a “weak-hinged fancy, something savors of tyranny.” Trump has offered no proof — only emphatic insistence. As Mike Pence said in the vice presidential debates (quoting without attribution Senator Daniel Patrick Moynihan) “You are entitled to your own opinions, but not your own facts.”

When I was growing up, I thought the president was elected by the people. After a course in high school civics, I became aware of the electoral college. Someone in the 18th century thought it was a good idea to place a filter between the government and the people. No other government on the planet has this institution. It is uniquely American, and the antiquated idea has stayed with us.

Only after studying the Constitution in law school did I learn of the added requirement that the Congress, sitting in joint session, must “certify” the count in the electoral college. Not so bad. It seemed like no more than a ceremonial or formal procedure. I never dreamed that a cadre of senators led by Ted Cruz might be able to abuse the certification formality in an attempt to undermine the will of the people. But we live in interesting times.

Eighty-one million Americans voted for Joe Biden, 74 million Americans for Donald Trump, and the minority may be disappointed in the outcome, but in a democracy, many things happen that the minority disagree with. As Churchill famously said, “Democracy is the worst form of government, except for all the others.”

Trump and his cult do not regard elections as an expression of the will of the people, but as a contest to be won. If they lose, they shout, “We were robbed.” If the decision goes against them, they want to “kill the umpire.” No joke. Trump partisans have threatened the lives of election officials in Georgia, Michigan and Pennsylvania because they did their jobs. Losing is out of the question. As Roy Cohn advised Trump early in his career when they were about to go to court: “F*** the law, who’s the judge?” The system is there to be beaten. If you can’t win the game, change the rules.

Not all Republicans are like that. Senator Pat Toomey of Pennsylvania says that the objection “‘undermines’ the ability of people to elect their own leaders.” Senator Mitt Romney of Utah regards the objection as an “egregious ploy.” He declared: “I could never imagine seeing these things in the greatest democracy in the world. Has ambition so eclipsed principle?” Other Republicans will also oppose the objection. Senator John Thune of South Dakota has said: “I think the thing they got to remember is, it’s just not going anywhere…it would go down like a shot dog.”

But the wily Senate Majority leader Mitch McConnell, who congratulated Biden and said on the floor of the Senate that the electoral college had spoken, seemed to waffle. While weakly encouraging his conference not to join in the objections, he appeared to take them very seriously. He told Senate Republicans that the vote on objections would be “the most consequential vote” of his career.

How dare they attempt to disenfranchise millions of voters in their pursuit of raw power? What an unseemly example for the world! Putin must be dancing in the Kremlin as the New Year begins. In America, we can no longer have a peaceful transfer of power.Are we to replace the ballot box and the rule of law with a political coup? The conduct of Trump and his enablers gives comfort to the cynic and weakens democracy in America. No one has said it better than Senator Ben Sasse, Republican of Nebraska, who warned of a “dangerous ploy”: “[The president and his allies] have unsuccessfully called on judges and are now calling on federal officeholders to invalidate millions and millions of votes. If you make big claims, you had better have the evidence. But the president doesn’t and neither do the institutional arsonist members of Congress who will object to the Electoral College vote.” The objection will go nowhere.

James D. Zirin

James D. Zirin, a lawyer, is the author of the recently published book, “Plaintiff in Chief, -A Portrait of Donald Trump in 3500 Lawsuits.”