Debunking the Frivolous and Dangerous Last-Gasp Effort to Overturn the Election

It’s New Year’s, and I really don’t want to write about the election. I truly don’t. But, well, I’ll just let Michael Corleone express how I feel:

The election contests just won’t stop, and forgive me readers, I must respond.

One of the most dispiriting aspects of a dispiriting year has been watching the supremely cynical post-election contest by conservative lawyers and conservative politicians who know exactly what they’re doing. Intimidated by Trump and desperate for the approval of Trump’s base, they have lent their own gravitas to utterly frivolous arguments, used their platforms to falsely whip up public concerns about election integrity, and then used the concerns they helped create as the justification for continuing a fruitless fight.

I could point to any number of public figures, but let’s focus for a moment on two—Sen. Josh Hawley and talk radio host Mark Levin. Yesterday Hawley announced that he will raise an objection during the counting of the electoral votes in Congress on January 6. After noting that Democrats had previously raised frivolous objections to George W. Bush’s and Donald Trump’s elections, Hawley said this:

I cannot vote to certify the electoral college results on January 6 without raising the fact that some states, particularly Pennsylvania, failed to follow their own state election laws. And I cannot vote to certify without pointing out the unprecedented effort of mega corporations, including Facebook and Twitter, to interfere in this election, in support of Joe Biden. At the very least, Congress should investigate allegations of voter fraud and adopt measures to secure the integrity of our elections. But Congress has so far failed to act.

At the same time, a Mark Levin essay in The Blaze was making the rounds. Levin made the same argument as Hawley—that states failed to follow their own election laws—and amplified it at length. The argument has a certain deceptive simplicity. Since the so-called Electors Clause in Article II of the Constitution declares that electors are appointed “in such Manner as the legislature” of the state “may direct,” then only legislatures can make changes to election procedures.

If a state court orders a change, that violates Article II. If a state election official orders a change, that violates Article II. And since, for example, state courts and state election officials ordered changes in election procedures in Wisconsin, the Wisconsin election is unconstitutional. Again, here’s Levin:

In Wisconsin, the Elections Commission and local Democrat officials in the state’s largest cities, including Milwaukee and Madison, changed the state’s election laws. Among other things, they placed hundreds of unmanned drop boxes in strategic locations in direct violation of state law. Not surprisingly, the locations were intended to be most convenient to Democrat voters. In addition, they told would-be voters how to avoid security measures like signature verification and photo ID requirements. These bureaucrats and local officials bypassed the Republican legislature in altering state election procedures.

Sounds compelling, right? Who are these bureaucrats and state judges, and who told them they could contradict the state legislature?

Well, it turns out that this very issue has been litigated. It turns out that Trump-appointed judges have rejected this argument, and done so in terms that conservatives should understand—using the text and original public meaning of the constitutional provision to demonstrate that the Hawley/Levin argument is utter nonsense.

After the election, Donald Trump sued the Wisconsin Election Commission in federal court under the exact legal theory Hawley and Levin both advance. On December 12, recent Trump appointee Brett Ludwig dismissed the lawsuit, and his decision and order was a master class in the meaning of the Electors Clause.

To give the reader a sense of Trump’s attempted legal overreach, here are two sentences from the introduction of Ludwig’s opinion:

This is an extraordinary case.

Plaintiff’s requests for relief are even more extraordinary.

His characterization was not meant to be complimentary. The Trump campaign, as Ludwig explains, confuses the “manner” of the appointment of electors with the “method” of the appointment—in this case, the administration of the election. Here’s Ludwig:

As used in the Electors Clause, the word “Manner” refers to the “[f]orm” or “method” of selection of the Presidential Electors. It “requires state legislatures merely to set the approach for selecting Presidential electors.” Put another way, it refers simply to “the mode of appointing electors—consistent with the plain meaning of the term.”

The Wisconsin legislature could have chosen to appoint electors directly, by congressional district, or by delegating the appointment to the governor. In this case, Wisconsin chose to conduct a statewide popular vote:

The approach, form, method, or mode the Wisconsin Legislature has set for appointing Presidential electors is by “general ballot at the general election.” There is no dispute that this is precisely how Wisconsin election officials, including all the defendants, determined the appointment of Wisconsin’s Presidential Electors in the latest election. (Internal citations omitted.)

But what about the alleged deviations from state election laws that Levin outlines above? They “are not challenges to the ‘Manner’ of Wisconsin’s appointment of Presidential Electors; they are disagreements over election administration.”

But issues of mere administration of a general election do not mean there has not been a “general ballot” at a “general election.” Plaintiff’s conflation of these potential nonconformities with Constitutional violations is contrary to the plain meaning of the Electors Clause. If plaintiff’s reading of “Manner” was correct, any disappointed loser in a Presidential election, able to hire a team of clever lawyers, could flag claimed deviations from the election rules and cast doubt on the election results. This would risk turning every Presidential election into a federal court lawsuit over the Electors Clause. (Internal citations omitted.)

Judge Ludwig is correct. In fact, if Sen. Hawley is consistent, he should object to the counting of Texas’s 38 electoral votes for Trump. Why? Because Texas Gov. Greg Abbott invoked emergency powers to modify statutory restrictions regarding the delivery of mail-in ballots. Thus the administration of the November election in Texas did not precisely match the statute. So toss the Texas vote, right?

Wrong. Trump appealed Judge Ludwig’s ruling to the 7th Circuit Court of Appeals, and the 7th Circuit affirmed the judge’s decision. Trump appointee Michael Scudder authored the unanimous opinion. The appeals court found that the Trump campaign sued too late, and even if the suit was timely, it was still without merit.

First, the time to challenge election procedures is well before the election, not after. In fact, this is a matter of basic election precedent. “Before a court can contemplate entering a judgment that would void election results,” Judge Scudder wrote, “it ‘must consider whether the plaintiffs filed a timely pre-election request for relief.’”

Scudder continued:

The President had a full opportunity before the election to press the very challenges to Wisconsin law underlying his present claims. Having foregone that opportunity, he cannot now—after the election results have been certified as final— seek to bring those challenges. All of this is especially so given that the Commission announced well in advance of the election the guidance he now challenges. Indeed, the witness address guidance came four years ago, before the 2016 election. The Commission issued its guidance on indefinitely confined voters in March 2020 and endorsed the use of drop boxes in August. (Emphasis added.)

Regarding the merits of the Electors Clause argument, the court said Trump would fail even under a “broad construction” of the Electors Clause. Why? Because the election procedures were still “substantially consistent with the legislative scheme” for appointing electors. And, besides, disputes over compliance with state law should be resolved in state courts:

We are not the ultimate authority on Wisconsin law. That responsibility rests with the State’s Supreme Court. Put another way, the errors that the President alleges occurred in the Commission’s exercise of its authority are in the main matters of state law. They belong, then, in the state courts, where the President had an opportunity to raise his concerns. Indeed, the Wisconsin Supreme Court rejected his claims regarding the guidance on indefinitely confined voters . . . and declined to reach the rest of his arguments on grounds of laches. (Internal citations omitted.)

If the 7th Circuit Court of Appeals isn’t the ultimate authority on Wisconsin law, then neither is the junior senator from Missouri. But he knows this. So does Mark Levin. It must be emphasized that both of these men are smart, capable lawyers. And while they may be drinking so much of their own Kool-Aid that they’re now believing their own nonsense, I doubt it. And if they do believe their own nonsense, their lapse in judgment is inexcusable.

Last night Sen.Ben Sasse posted a lengthy statement opposing Hawley’s efforts. Two segments are worth highlighting. First, members of Congress admit privately there is no real basis for challenging the election outcome:

When we talk in private, I haven’t heard a single Congressional Republican allege that the election results were fraudulent – not one. Instead, I hear them talk about their worries about how they will “look” to President Trump’s most ardent supporters.

Second, the motivations for contesting the election are both transparent and dangerous:

Let’s be clear what is happening here: We have a bunch of ambitious politicians who think there’s a quick way to tap into the president’s populist base without doing any real, long-term damage. But they’re wrong – and this issue is bigger than anyone’s personal ambitions. Adults don’t point a loaded gun at the heart of legitimate self-government.

Yes, I know that in 2005 Sen. Barbara Boxer joined with a Democratic colleague in the House to object to counting George W. Bush’s Electoral College votes. That was an absurd moment. It never had a ghost of a chance of succeeding, and the effort came weeks after John Kerry clearly and unequivocally conceded defeat.

I also know that in 2017 seven House Democrats objected to counting Trump’s electoral votes. I also know that no Democratic senators joined the objection and that Joe Biden gaveled down the House Democratic objections decisively. Here’s the video:

It was another absurd moment. Yet now the absurdity metastasizes. It’s egged on by the president of the United States, it’s likely to be joined by dozens of House Republicans and at least one Republican senator. The argument that this nonsense could (or should) overturn the election is spreading like wildfire through Trump’s base.

Trump is calling his supporters to D.C. on January 6, and while I hope and pray that the multiple Trump rallies remain peaceful, I know that even if peace reigns, the likes of Sen. Hawley and Mark Levin have done serious harm. They’ve used their platforms to advance frivolous arguments to stoke public rage and to discredit a lawful election. There is no excuse.

One last thing …

The holiday season is drawing to a close, and tens of millions of us have missed the extended-family gatherings that have long marked the season. Some of us (in the Southeast) even lost the ability to telephone or video conference with family in the aftermath of the Nashville bombing. At the risk of triggering further sadness, this touching video reminds us of what we’ve missed. Happy New Year!