The embarrassing confusion of Trump’s electoral college

***

But how could lawmakers justify expelling voters to Biden? Although Trump continues to tweet allegations of mass fraud, his lawsuits were dismissed in court, sometimes by his own conservative nominees.

Any objection to Biden’s voters appears doomed, as defending the objection requires a majority in both chambers. The Democratic House would use the opportunity to criticize Trump for the last time on his way out the door, and adults in the Republican Senate are unlikely to participate. Hence the last argument from the Trump crowd: that the power to invalidate voters is in the hands of the president of the joint session – Vice President Mike Pence.

The heart of the truth here is that the Electoral Counting Law can be unconstitutional. Originally approved after the mess of contested elections in 1876, it aims to let a simple majority in Congress decide which presidential voters are valid, a power that is difficult to justify under the constitution or principles of separation of power.

Reverting to the text of the Constitution, however, would be of little help to Trump. The functioning of the Electoral College has been refined by the 12th Amendment, which says that the Vice President should “open all certificates and votes will then be counted”. Where does this language give Mr. Pence unilateral authority to separate voters? This cannot be what the Founders wanted.

In 1876, at least, there were competing voters who claimed the official imprimatur. In Oregon, the governor and the secretary of state certified different lists. The outgoing Florida governor approved a group of voters, only to be reversed by the incoming governor.

None of that ambiguity exists now. Self-proclaimed Republican parallel voters held their own meetings this month in some Biden-defeated states. But it was a purely extracurricular exercise. In Georgia, the Republican Party chairman said the intention was to preserve Trump’s legal options, although the state’s Republican leaders officially certified voters for Biden.

If Democrats tried a feat similar to the Electoral College, Republicans would reject it. The closest recent analogue came after the 2004 race, when Democrats challenged Ohio voters, claiming they wanted to force a debate over voting reforms. Senator Barbara Boxer joined them, delaying ratification for hours while the House and Senate considered the objections.

Deputy Nancy Pelosi defended the exercise, saying that the discussion “should not be considered frivolous”. Congressman Jerrold Nadler thundered that “the right to vote has been stolen from qualified voters”, allowing irregularities “not to be proven to alter the outcome”. Congresswoman Maxine Waters accused the “Ohio party secretary of state, Mr. Kenneth Blackwell, I am ashamed to say that he is an African American”, failed to pursue voter intimidation.

What was the GOP replica? “Some Democrats just want to complain about counts, recounts and recounts of recounts,” said MP Deborah Pryce. So … Rep. Roy Blunt pointed to the substantial Ohio margin. “If we were taking this important moment today to talk about a difference of 118 votes,” he said, “that could be justified,” but Bush won by 118,000. Then, Rep. Rob Portman rejected “irresponsible conspiracy theories about what happened in Ohio,” adding: “I was there. Did not happen. “

Counts, recounts and recount recounts – this is a description of Georgia this year. The difference is that in 2004 Democratic candidate John Kerry relented. “I will not participate in a formal protest from Ohio voters,” he said. Despite reports of irregularities, “our legal teams on the ground found no evidence to change the outcome.” Does Mr. Trump want to leave by making people yearn for John Kerry’s statesmanship?

***

Republicans should be embarrassed by the turmoil of Trump’s Electoral College. Mr. Trump is putting his loyal VP in a terrible position, and what Republicans think would happen if Mr. Pence pulled the trigger, Mr. Biden had denied 270 electoral votes and the House chose Mr. Trump as President ? The riots on the streets would be the least important.

Pence is too patriotic to agree, but the struggle to overthrow voters’ will taint Trump’s legacy and undermine any project he has to run in 2024. Republicans who please him will give Democrats the license to do the same in the future, and then it can matter.