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The Twelfth Amendment details how Congress is to oversee the counting of electoral votes.
But the power to appoint electors is given to the states. Congress or the vice president don’t have the power to substitute their preference or judgment.
After a lengthy string of court defeats and a formal Electoral College vote, backers of President Donald Trump have pinned their hopes on the Jan. 6 Congressional review of the vote to overturn the president’s defeat.
Election officials, many of them Republicans, and officials from Trump’s U.S. Department of Justice have confirmed there is no proof that voter fraud affected the outcome of the 2020 election. And federal and state courts have dismissed Trump’s claims of voter fraud nearly 60 times. But Trump and many allies have continued to claim without evidence that fraud influenced the election.
Though a dozen U.S. senators, including Wisconsin’s Ron Johnson, have pledged to object to the electoral results and seek an audit of the returns, another Wisconsin congressman says that is beyond lawmakers’ power.
"Congress has one job here: to count electoral votes that have in fact been cast by any state, as designated by those authorized to do so under state law," U.S. Rep. Mike Gallagher, R-Green Bay, said in a Jan. 3, 2020, statement signed by several other members of the House. "To take action otherwise — that is, to unconstitutionally insert Congress into the center of the presidential election process — would amount to stealing power from the people and the states."
He’s exactly right about Congress’s job. Here’s why.
Gallagher and some other Republicans have spoken to clarify the role of Congress after U.S. Sen. Ted Cruz of Texas announced plans — joined by Johnson and nine other Republican senators — to object to the certification of the Electoral College results. (Sen. Josh Hawley, R-Missouri has separately promised to object to the results.)
A release from the group said they are seeking an emergency 10-day audit of the election returns in "disputed states" and intend to vote to reject electors from those states until that is complete. They said this is necessary because of "unprecedented allegations of voter fraud, violations and lax enforcement of election law, and other voting irregularities."
The effort is all but guaranteed to fail given that objections must be backed by the Republican-led Senate and Democrat-led House in order to pass.
But Gallagher’s assertion is that the effort is not just hopeless, it’s unconstitutional.
The statement noted no states have overturned their own election results, though Republicans control the Legislature in Wisconsin and other disputed states.
"There is no authority for Congress to make value judgments in the abstract regarding any state’s election laws or the manner in which they have been implemented," the statement from Gallagher and the others said. "The text of the Constitution is clear. States select electors. Congress does not. Accordingly, our path forward is also clear. We must respect the states’ authority here. Though doing so may frustrate our immediate political objectives, we have sworn an oath to promote the Constitution above our policy goals. We must count the electoral votes submitted by the states."
The group’s statement also noted that setting a precedent where Congress could overturn the Electoral College would delegitimize the very system Republicans have relied on for their recent success, having won the national popular vote in the presidential race only once in the last 32 years.
"I just don’t think we want to endorse the principle (that) Jan. 6 is a legitimate forum for Congress to overturn the will of the states and the people," Gallagher said Jan. 4, 2020 on WTMJ radio. "If you’ve endorsed that principle, then you’ve already destroyed the idea of American government. Right? At least you’ve destroyed the conservative idea of American government."
The process involved comes from the 12th Amendment to the Constitution, which says electors for each state should deliver their presidential and vice presidential votes to the U.S. government. That happened Dec. 14, with those votes confirming a 306 to 232 victory for former Vice President Joe Biden, the Democrat.
Here’s what the happens next, as spelled out in the amendment:
"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; -- The person having the greatest number of votes for President, shall be the President."
On Jan. 6, Vice President Mike Pence will open the sealed certificates from each state and hand them to tellers to read aloud. During that process he will call for objections to each state’s votes. The resulting process for those objections comes from the Electoral Count Act of 1887.
Objections must be made in writing by at least one member of both the House and Senate. They can be debated for a maximum of two hours before a vote, which requires a majority vote from both houses in order to pass and throw out that state’s votes.
Objections can fall in two possible categories: That the vote was not "regularly given" by an elector or that the elector was not "lawfully certified" according to state statutory procedures, according to the nonpartisan Congressional Research Service.
But that’s not to say Congress is vested with the power to substitute its preference or judgment for that of the states. In fact, federal law explicitly says the power to appoint electors belongs to the states.
It says if electors are appointed by the states at least six days before the electors meet — a criteria met by all the so-called disputed states — those votes "shall be conclusive and shall govern in the counting of the electoral votes."
Johnson himself acknowledged this in an interview in December with the Milwaukee Journal Sentinel.
"The Electoral College met. They voted. That’s our process. That process has played out," Johnson said when asked if he accepted Biden as president-elect.
On a related note, Federal law delineates the vice president’s role as simply "to preserve order" during that proceeding. He has no authority on his own to weigh in on whether those votes are valid, contrary to what many have claimed.
Larry Sabato, director of the University of Virginia’s Center for Politics, told the Associated Press there is "zero chance such a maneuver by Pence or the Republicans will succeed" if they object or otherwise seek to overturn the results.
The expected objections won’t pass (Democrats control the House), and Republican Senate Majority Leader Mitch McConnell had urged his party privately in mid-December not to object to the count.
Gallagher said, "Congress has one job here: to count electoral votes that have in fact been cast by any state."
He said this in making the broader point that Congress is not tasked in this case with making "value judgements" about the legitimacy of those votes. That is a power left to the states. The role of Congress, as laid out in the Constitution and federal law, is effectively to observe the electors sent in by the states.
And that’s how the process has been carried out throughout American history.
We rate this claim True.
Mike Gallagher, Gallagher, Colleagues Release Statement Concerning January 6 Vote, Jan. 3, 2021
U.S. Constitution, Twelfth Amendment, ratified June 15, 1804
U.S. Code, Title 3, Chapter 1, Section 5
U.S. Code, Title 3, Chapter 1, Section 15
U.S. Code, Title 3, Chapter 1, Section 18
Congressional Research Service, Counting Electoral Votes: An Overview of Procedures at the Joint Session, Including Objections by Members of Congress, Dec. 8, 2020
Craig Gilbert, tweet, Jan. 4, 2021
Craig Gilbert, tweet, Jan. 4, 2021
Craig Gilbert, tweet, Jan. 4, 2021
Email exchange with Jordan Dunn, spokesman for U.S. Rep. Mike Gallagher, Jan. 4, 2021
National Review, Trump’s Allies Become the Swamp: The ‘Electoral Commission’ Gambit, Jan. 3, 2021
Milwaukee Journal Sentinel, U.S. Sen. Ron Johnson from Wisconsin to join 10 others from GOP in refusing to certify Electoral College results, Jan. 2, 2021
The Associated Press, Electoral College makes it official: Biden won, Trump lost, Dec. 14, 2020
The Associated Press, Alternate’ electors won’t change presidential outcome, Dec. 17, 2020
USA TODAY, Congress is set to certify Biden's election win Jan. 6. Here's what to expect., Jan. 4, 2021
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