The Washington PostDemocracy Dies in Darkness

Two Republican lawyer-senators look for loopholes in democracy

Sen. Josh Hawley (R-Mo.) speaks to the press at the U.S. Capitol on Friday. (Amanda Voisard/for The Washington Post)

Even in the face of a jarring effort to subvert the will of the American electorate, Senate political maneuvering remains a rock of constancy.

After scores of House Republicans made clear their willingness to side with President Trump’s efforts to seize a second consecutive term despite losing the 2020 election, Senate Majority Leader Mitch McConnell (R-Ky.) tried to lock down his own caucus to prevent similar endorsements. But given that Trump and conservative media were still roiling the waters with rampant misinformation and lies about the security of the election, it was only a matter of time before a senator would see more benefit in appealing to Trump’s base than adhering to McConnell’s edicts.

The first to step out forcefully to embrace a futile objection to the election’s electoral vote tally was Sen. Josh Hawley (R-Mo.). In a statement, his office announced he would oppose certifying the result on Wednesday to “highlight the failure of some states, including notably Pennsylvania, to follow their own election laws as well as the unprecedented interference of Big Tech monopolies in the election.” That latter point is a hobbyhorse of Hawley’s, appliquéing another plotline in conservative media onto the issue of the moment.

But Sen. Ted Cruz (R-Tex.) has been in the Senate longer and is intimately familiar with attempts to convert conservative fervor into attention. So he one-upped Hawley in a very Senate-y way, assembling a collection of nearly a dozen senators and senators-elect who issued a joint statement focused on the “unprecedented allegations of voter fraud, violations and lax enforcement of election law, and other voting irregularities.” Nearly 4 in 10 Americans think the election was “rigged,” they noted — a “tragic” development that demanded they intervene.

That development, of course, is a function of those “unprecedented allegations,” allegations entirely uncoupled from reality. Trump and allies, including Hawley and Cruz, have elevated the baseless claim of election fraud specifically to cast a pall over Trump’s loss. That about 40 percent of Americans believe these allegations despite the utter lack of evidence should be seen as proof of a failure of honest discourse, not of the election.

Cruz and crew offered a very institutional remedy for their purported concerns: a 10-day audit of the vote by a newly formed congressional committee in “disputed” states (read: states that Trump lost). It’s an odd request, given that many of those states have already conducted recounts or audits by their nonpartisan state offices.

Cruz’s effort to own the Trump-defender lane among his caucus, though, was hobbled a bit when Sen. Patrick J. Toomey (R-Pa.) condemned both Cruz’s letter and Hawley’s stated objection.

“The senators justify their intent by observing that there have been many allegations of fraud. But allegations of fraud by a losing campaign cannot justify overturning an election,” the Toomey statement read in part. “They fail to acknowledge that these allegations have been adjudicated in courtrooms across America and were found to be unsupported by evidence.”

Pennsylvania, of course, is one of the states at the center of Trump’s allegations, given that its slow vote-counting — itself a function of Republican opposition to counting mail-in ballots earlier than Election Day — was what put President-elect Joe Biden over the top nearly two months ago.

Hawley responded to Toomey’s opposition by again alleging questionable activity in his colleague’s state of the sort that necessitated the raising of eyebrows.

“[I]n Pennsylvania: since the nineteenth century, the Pennsylvania Constitution has required all votes to be cast in person, with narrowly defined exceptions. This fact is widely acknowledged. Pennsylvania courts have ruled on this question multiple times. But last year, the state legislature enacted a new law purporting to permit voting by mail for any reason, directly contradicting the state constitution. This November, state officials put the new law into effect. More than 2.5 million Pennsylvanians voted by mail on November 6 (or after), in numbers far exceeding the margin of difference between Donald Trump and Joe Biden.”

This is a remarkably and presumably willfully dishonest explanation for why the votes of millions of Pennsylvanians should be thrown in the trash.

One will notice, first, that there’s no allegation that those votes don’t accurately reflect the will of Pennsylvania voters, simply that maybe they were cast following a change to the law that Hawley suggests was invalid. Those mail-in ballots overwhelmingly favored Biden, which is why the extended process of counting them slowly but inexorably made clear that Trump had lost the state. Toss out those ballots on the sort of technicality that Hawley alleges and suddenly Trump wins Pennsylvania.

But Hawley’s presentation of what happened with the law is also misleading and inaccurate. He claims that a law passed “last year,” titled Act 77, was put into effect for the November election, suggesting some murky attempt to reshape the electorate. But, in fact, the legislation expanding mail-in balloting was passed in October 2019 — largely thanks to Republican votes — and signed into law that same month. It went into effect immediately, but there weren’t any elections to which it applied until the 2020 primaries.

Among the changes was an implementation of no-excuse mail-in voting, something that was used in the state’s June primaries without issue. But, then, Trump won that contest.

The core of Hawley’s assertion, of course, is that there is an alleged conflict between the law passed in 2019 and the state’s constitution, a conflict that he claims had escaped any court’s consideration.

But that is also misleading, specifically in the situation at hand. In late November, the Pennsylvania Supreme Court rejected a lawsuit that included the constitutionality question, with the court’s chief justice, Thomas Saylor, specifically stating that the state’s vote tally should stand despite any such questions.

“[T]here has been too much good-faith reliance, by the electorate, on the no-excuse mail-in voting regime created by Act 77,” Saylor wrote, “to warrant judicial consideration of the extreme and untenable remedies proposed by appellees” — that is, to throw out those 2.6 million votes.

As noted by University of Kentucky election-law professor Josh Douglas, the decision itself approved of allowing mail-in ballot drop boxes, given that “the clear legislative intent underlying Act 77, which animates much of this case, [was] to provide electors with options to vote outside of traditional polling places.” That intent was upheld in the decision.

Again, this ostensible problem with Pennsylvania’s voting laws is the central claim Hawley has repeatedly raised to rationalize his objection to certifying the results of the election. He argues that the objection is simply an effort to make his concerns heard, but that claim collapses when considering the substance of those concerns. It is also undermined by Hawley waving his hands about “some states” beside Pennsylvania having failed to follow existing election laws, an effort to exaggerate the problem given that even a rejection of Pennsylvania’s results wouldn’t affect the election’s outcome.

To a not insignificant extent, both Hawley’s and Cruz’s objections to the 2020 results are an attempt to placate a Republican base that has consistently been misled about what occurred by finding clever loopholes in the democratic process. The two senators are lawyers, and their assertions are lawyerly in the most pejorative sense of the word. The effect is to amplify an unprecedented effort to undermine confidence in the American system.