On Wednesday the Capitol of the most powerful nation the world has ever known was stormed by an angry mob. Americans surely never thought they’d see such a scene: members of Congress barricaded inside the House chamber, Capitol Police trampled, and four Americans dead. A woman was shot near the elevator I use every day to enter the House floor. It was a display not of patriotism but of frenzy and anarchy. The actions of a few overshadowed the decent intentions of many.
Perhaps we should ask our Founders. They were not oracles, but they were borderline prophets. In Federalist No. 68,
lays out the purpose of the Electoral College, arguing that an independent and decentralized body of electors should elect the president. “The choice of several, to form an intermediate body of electors, will be much less apt to convulse the community with any extraordinary or violent movements.” According to Hamilton, the only people in America who should not be allowed to be named an elector would members of the House and Senate and any “other person holding a place of trust or profit under the United States.” Electors would “exclude from eligibility to this trust, all those who from situation might be suspected of too great devotion to the President in office.”
Our Founders thought it crucial to entrust a temporary body with electing the president for the simple reason that a standing body like Congress would face enormous pressure from voters, officeholders and interest groups. That could be, for example, pressure from a president or from 10,000 protesters outside the Capitol. For this reason, the Founders opted to diffuse responsibility to electors from each state.
They sought to avoid the exact situation we saw on Jan. 6. Millions of Americans were falsely led to believe that the final say in the election of our next president lay with a single body, Congress. And so it was no surprise that thousands showed up to make their voices heard. But the belief that Congress has any say whatever in the “certification” of electoral votes has never been true. It has always been unconstitutional and against our Founders’ intent, as it was when Democrats attempted the same stunt in 2005.
Article II of the Constitution lays out a clear role for Congress. “The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.” It does not say “certify.” It does not say “object if you disagree.” It does not say “object and decertify if you feel the state’s certification is wrong.” The only contingency the Constitution provides is in the case of a failure of any candidate to reach an electoral majority.
The right of objection that members of Congress now invoke is derived from a misreading of the Electoral Count Act of 1887. It was passed in the wake of the disastrous presidential election of 1876, in which states certified competing slates of electors and sent both to Congress; a governor might send one slate and the legislature another. The 1887 law was meant to allow members of Congress to object to one of the competing slates of electors. But no state after the 2020 election has approved multiple slates, nor has any state legislature petitioned Congress to consider different electors. In fact, the law clearly states that so long as the final determination of electors is “made at least six days prior to the said time of meeting of the electors,” that slate of electors “shall be conclusive, and shall govern in the counting of the electoral votes as provided in the Constitution.” Thus the objections being considered on Jan. 6 had no legal basis.
The real cause of Wednesday’s unrest was that many officeholders and commentators misled millions of Americans to believe that the vote count was their final chance to have a say, and their last, best chance to fight for election integrity. Millions were lied to and told they had to fight at our Capitol or all would be lost. But Jan. 6 was merely ceremonial—with or without the protesters, the unconstitutional right of objection some lawmakers invoked would have resulted in nothing more than a couple of hours of debate.
The good news for those millions of Americans is this: It wasn’t your final say. It wasn’t your last chance. In our system of government, it never is. The concerns about election integrity are real, and they must be heard. The merits of these objections are real and substantive. There have been countless examples of states engaging in irresponsible and unverifiable election practices, casting doubt on election outcomes. Whether it is unverified signatures on mail-in ballots or lax voter-ID laws, a refusal to update registration rolls or a refusal to allow partisan observers to witness counting, there are many practices that must be changed.
The fight for these changes must be America’s greatest priority, because faith in democracy is our most urgent need. Republicans must champion these changes in the states, which the Constitution invests with primary responsibility for conducting elections. That is where our fight is. That is the hard work. And that must be our priority.
Mr. Crenshaw, a Republican, represents Texas’ Second Congressional District.
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