When Trump turned up the volume on that latter crusade before last year’s election, the rest of his party generally sort of nodded along. When the period after the election turned into an all-out effort to overturn the results, centered on unfounded and often fantastical fraud claims, many Republicans were forced into an awkward position. Should they tramp along behind Trump, elevating the nonsense he was spouting? Should they stay silent despite the outrage expressed by so many Republican voters? Or was there … another way?
Then-Senate Majority Leader Mitch McConnell (R-Ky.) tried to keep members of his caucus from joining in the effort to contest Joe Biden’s electoral victory on Jan. 6, but the lure of appealing to Trump’s base proved too strong. So two Republican senators, Josh Hawley (Mo.) and Ted Cruz (Tex.) cobbled together rationales for doing so that sidestepped Trump’s obviously false claims about rampant fraud. Hawley’s was focused on one specific claim: Pennsylvania had changed its voting laws in a way that contravened the state’s constitution.
Over time, this compromise position became the establishment’s default. They could shout along with the base that the election was wildly tainted while turning to cable-news hosts and quietly explaining that this claim was simply about how states had changed their voting processes in the face of the coronavirus pandemic. When attorney John Eastman was trying to sell Vice President Mike Pence on simply throwing out the election results on Jan. 6, he created two memos making his case. The first, shorter and more direct, simply outlined Pence’s path to stealing a second term in office. The second was longer and clearly meant to seem like a reasoned delineation of how the election’s endgame could unfold. To demonstrate to readers the need for undercutting the election results, Eastman began that second memo with a lengthy list of ways in which states made voting easier in 2020 — as though that itself was a rationale for rejecting the votes that were cast under those expanded systems.
On Sunday, House Minority Whip Steve Scalise (R-La.) appeared on “Fox News Sunday” where host Chris Wallace pressed him on the question Republicans hate to answer: Was Biden legitimately elected?
“If you look at a number of states, they didn't follow their state-passed laws that govern the election for president,” Scalise replied. “That is what the United States Constitution says. They don't say the states determine what the rules are. They say the state legislatures determine the rules.”
Wallace pressed him on the point. Was the election stolen?
“What I said is there are states that didn't follow their legislatively set rules. That's what the United States Constitution says,” Scalise replied. “And I think there are a lot of people that want us to get back to what the Constitution says we should be doing. Not just with elections, but a lot of other things, too.”
Over and over, Wallace asked for a straight answer and, over and over, Scalise offered the same evasive one.
Consider what Scalise is doing. He’s intentionally trying not to say that Biden won fairly because that position is anathema to the loudest part of his party’s base. And to avoid saying that, he’s seizing not upon unproven claims of fraud but a similarly inflated assertion that states made it too easy to vote. He doesn’t allege that this led to more fraud or anything along those lines, though others have; he’s simply claiming that because states made it easier to vote, that was the equivalent of an illegitimate Biden win or an election being stolen.
Because legal voters cast votes in a manner that their states have authorized.
In case Scalise wasn't sufficiently obvious in suggesting that the election was stolen not through fraud but through votes he didn't like, he made it more clear. He wanted to try to loop criticism of Georgia's new voter law into his argument, drawing Fox News viewers to his side by condemning those who'd attacked Georgia's law. After all, he said, the law was simply “cleaning up some of the mess” from the election.
Which mess was that? Georgia officials rejected Trump’s claims about fraud and multiple audits demonstrated that the results were reliable. It’s a state with a Republican governor and a Republican secretary of state. In Eastman’s longer memo, one of the criticisms of how the state operated its election was that there were “Portable ‘polling places’ targeted to heavily democrat” areas. That, obviously, is the sort of “mess” that Scalise and his party would like to clean up.
Hawley’s effort to subvert the election on Jan. 6 pointed specifically to the way the election was conducted in Pennsylvania. He alleged that it had made voting easier in contravention of its constitution — something that had actually made its way in front of a judge by the time he offered his objection.
In late November, the state supreme court rejected an effort to throw out votes cast under Pennsylvania’s expanded mail-in voting rules — an expansion passed by the Republican-led legislature before the pandemic. Even while taking no position on the law’s constitutionality, Chief Justice Thomas G. Saylor made a critically important point.
“[T]here has been too much good-faith reliance, by the electorate, on the no-excuse mail-in voting regime created by Act 77,” he wrote in a concurring opinion, “to warrant judicial consideration of the extreme and untenable remedies proposed by appellees.” One of those extreme and untenable remedies was rejecting the cast ballots. In other words, even if the law was unconstitutional, that didn’t and shouldn’t make the ballots invalid.
Scalise’s argument equating rules that may (may!) have helped more people vote with something suspicious or nefarious is simply a reinforcement of a common post-election claim: elections in which Democrats vote more heavily should necessarily be treated as suspect. It’s obviously toxic and dangerous (and, of course, dishonest) to claim that the 2020 election was riddled with illegally cast votes. It wasn’t. But it’s toxic and dangerous in a different way to suggest that the election was tainted by legally cast votes for the candidate you hoped would lose.