The Mad Rush To Be on the Stupid Side of History

Imagine believing that the Founders intended for the vice president to be able to select the next president.

A lot of stupid things are said about history. 

For example, there is no “right side” of history, if by that you mean events are destined to play out in some sort of preordained way. 

But there is such a thing as being on the stupid side of history—and there’s a mad rush to be on it. 

President Donald Trump’s lawyers failed to convince a single judge, Trump-appointed or otherwise, that there was systemic fraud in the 2020 election, never mind sufficiently outrageous fraud to warrant literally disenfranchising millions of voters. So Rep. Louie Gohmert is suing Vice President Mike Pence to force him to do exactly that. 

The lawsuit is premised on an idea very popular in the more feverish corners of the right. It holds that because the vice president has a ceremonial role in receiving the certified votes from the states, he actually has the authority to reject any votes he doesn’t like. There are people who want Pence on January 6 to take the official, certified, and approved electoral votes and say, in effect, “Nope, these don’t count. Send me electoral votes for my boss, Donald Trump.”

I’m reluctant to take this argument too seriously, lest some people get the impression that it’s a serious argument. But here’s what you need to know.

First, voters don’t directly elect the president; the states do. Each state holds its own presidential election. The winner in each state gets that state’s Electoral College votes. Each state has final say on which candidate its electors go to. The winner of the most votes in the Electoral College wins the presidency. This system is the bedrock of our federalist structure. 

The Constitution says: “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 president of the Senate is the vice president of the United States.

Putting everything else aside, how profoundly stupid do you have to be to believe that the Founders intended for the vice president to be able to select the next president regardless of official election results? Why is former Vice President John Nance Garner’s verdict that the job isn’t worth a “bucket of warm spit” (or in some versions, a more noxious form of bodily effluvia) the only thing for which anyone remembers Garner? 

According to this theory, then-Vice President Dick Cheney could have rejected Barack Obama’s electors and installed John McCain as president in early 2009. Heck, Al Gore, who was vice president in 2000, could have rejected George W. Bush’s Florida electoral votes and named himself president. According to Gohmert & Co. this would have been perfectly legal and constitutional. 

I should note that if you take this idea seriously, not only would the vice president be massively more powerful than anybody ever thought, but the very idea of federal elections and federalism itself would be rendered null and void. A single highly partisan politician could simply override the will of the states, and the electorate generally, and pick the winner. Why not just have the debates in the vice president’s living room from now on?

Now, Gohmert is nobody’s idea of a legal scholar. But Sen. Josh Hawley fancies himself one. A former Missouri attorney general and law professor, Hawley hasn’t endorsed Gohmert’s lawsuit, but he’s lending aid and comfort to the idiotic idea behind it. He will object to the official election results, citing the manufactured allegation of voter fraud as well as some word clouds about Facebook. 

I’ll be blunt and state the obvious: Hawley doesn’t believe any of it. But he does believe that embracing a stupid lie about the election being stolen is in his political interest. Odds are he’ll stop well short of actually calling on Pence to steal the election the way Gohmert wants. But Hawley will make a lot of noise that people like Gohmert want to hear. The same goes for a large number of GOP House members who will also contest the election results next week, not because they believe what they’re saying, but because they think it’s more important to pass yet another Trump loyalty test. 

And this is what I mean about the stupid side of history. There is zero chance that future generations will remember this as anything other than an idiotic and unpatriotic gambit. But for Gohmert and Hawley, it’s apparently better to be on the stupid side of history than to be on the right side of anything.