Ted Cruz’s lost fight

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The announcement by Republican Senator Josh Hawley of Missouri last week that he would object to Biden voters in some states immediately prompted eleven other Republican senators, organized by Ted Cruz, to join in and declare that they would object to Biden voters of all states. Most of the states in which Trump is contesting the results of the elections on November 3.

Like Hawley, Cruz’s group cites the precedent of 2005, when Senator Barbara Boxer joined House Democrats to force a debate on whether to count George W. Bush’s voters from Ohio, the state that provided Bush’s margin of victory in the election that year.

If Cruz-led objectors somehow got their way, they would be trampling on federal law and state sovereignty and would also be doing enormous damage to American democracy.

Ted Cruz’s group issued a statement justifying its position. Like Hawley’s statement last week, it does not say directly that the election was stolen, which is the only possible basis for contesting the voter count.

Presumably written with care to allow signatories ample room for maneuver should their conduct not look good, instead it only says that “the allegations of fraud and irregularities in the 2020 elections exceed any of the views in our lives.”

Of course, all of this appears to be true only because the incumbent president of the United States amplifies such accusations every day, regardless of their veracity or connection to reality.

The allegations themselves are not that different from those that fueled Democratic doubts about the outcome in Ohio in 2005. On that occasion, for example, Democrats complained that voting machines had been used to change votes.

The difference is that at the time, the losing candidate was not promoting the outlandish accusations, with many officials in his own party too scared or cynical to contradict him. Ted Cruz must know that nothing reasonable can be done to end the accusations because Trump would keep repeating them until the elections are annulled and he is granted a second term.

The letter from Cruz’s group says that “ideally, the courts would have heard evidence and resolved these claims of gross electoral fraud.” In fact, the federal courts in Wisconsin, Pennsylvania and Nevada did consider the merits of Trump’s campaign and all found it deficient.

The letter regrets that the Supreme Court has not dealt with matters of fact, but it is clear that the country’s highest court is not a random investigative body.

The most prominent lawsuit to land on his desk was an attempt by Texas to discount the key battlefield results won by Biden. The court refused to hear the lawsuit because it had grossly flagrant constitutional flaws.

The letter also cites the controversy over the notorious 1876 presidential election between Democrat Samuel Tilden and Republican Rutherford Hayes, trying to make an analogy with today. He refers to “serious charges of fraud and illegal conduct” in 1876, but this significantly understates him.

In 1876, there were not just indictments; there was honest evidence of bribery and ballot fillers on both sides. There were rival lists of voters from Louisiana, Florida, and South Carolina. On the other hand, it must be remembered that black voters at that time were subjected to terrible violence and intimidation to keep them away from the polls.

Comparing any of this with today is really painful. In Georgia, for example, counts have confirmed the results, while a firm audit has found no evidence of endemic mismatches.

However, the President of the United States once again called on the Republican Secretary of State of Georgia to intimidate him into awarding him victory in the state based on misinformation and conspiracy theories. Cruz’s group called an electoral commission following the model of the one that determined the outcome in 1877, regardless of whether this commission was a sham.

The original idea was that the commission of five senators, five representatives and five justices of the Supreme Court would be divided 7-7 between Republicans and Democrats with Judge David Davis, an independent, would provide the decisive vote. However, it so happened that the Illinois legislature elected Davis to the Senate, and his place on the commission was taken by Republican Judge Joseph Bradley, who voted reliably with his Republican colleagues, giving Hayes a victory of 8 to 7 on each contested question to get you the 20 additional electoral votes you needed to win. Hayes served only one term, which was overshadowed by the secret deals that secured his election.

Trump may like this model, assuming it is in his favor. The problem is that, in reaction to the debacle of 1877, Congress adopted a statute that gave the states a “safe harbor” for their constituents, that is, the guarantee that they would be considered conclusive by the federal government, if they were appointed six days before the Electoral College.

All contested states met this standard, and no legitimate body of any state government designated a list of competing voters. To all of this, Cruz’s group proposed to question the only state-appointed voter list in each state anyway, essentially attempting to usurp what is supposed to be the state function of naming voters.

It is more than clear that Cruz’s group knows that their effort is not going anywhere. Both houses of Congress would have to vote to uphold the objections to the voters. Neither will nor should. If all they want to do is point out that they are upset that Biden won, this is not the way or the forum to do it.

Nor is this the appropriate way to examine clandestine electoral practices that did not alter the outcome, or to propose electoral reforms, however necessary they may be.

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