Editor’s Note: Joshua A. Douglas is a law professor at the University of Kentucky J. David Rosenberg College of Law. He is the author of Vote for US: How to Take Back Our Elections and Change the Future of Voting. Follow him on Twitter. The opinions expressed in this commentary are his own. View more opinion on CNN.
Don’t be too nervous about Republican Sen. Josh Hawley’s announcement that he will object to the certification of Joe Biden as President when Congress meets on Jan. 6. His ploy won’t stop Biden from taking the oath of office on Jan. 20. But it should make everyone concerned about the long-term health of our democracy.
According to federal law, if at least one senator and one House member submit written objections to a state’s Electoral College votes, the House and the Senate must retire to their separate chambers for two hours of debate. Each chamber then votes on whether to count that state’s votes. The 1887 law that dictates this process – the Electoral Count Act – is confusing and convoluted, but the bottom line is that Congress must count a state’s Electoral College votes unless both the House and the Senate vote to reject them.
Hawley’s objection – which will join a planned objection from Alabama Representative Mo Brooks in the House – has zero chance of succeeding. The Democrats who control the House surely will not go along, and it is likely that a number of Senate Republicans, such as Mitt Romney, will also reject this blatant attempt at overruling the will of the voters.
What is more concerning is that the delusional Republican gambit is happening at all. There has been zero evidence of meaningful voter fraud or a compromised presidential election. Elections officials from both parties have said that the 2020 election was one of the most secure ever. Senator Hawley opined on Twitter that “millions of voters” are concerned about election integrity, but that’s only because President Donald Trump and his followers keep making baseless assertions. Just saying there was voter fraud does not make it real.
In a statement posted on social media, Hawley claimed that states such as Pennsylvania “failed to follow their own state election laws.” This is false: the Pennsylvania Supreme Court, which is the authority on Pennsylvania law, rejected numerous Republican-backed lawsuits both before and after the election. The US Supreme Court also refused to consider a challenge from Pennsylvania Republicans to block the certification of the results.
Hawley’s and Brooks’ objections could set a disturbing precedent that the losing party should simply object and claim phantom election integrity concerns in an effort to overturn the result. After all, if Trump-loyal Republicans controlled both chambers, this scheme to steal the election might actually work.
This situation is less like 2005 than Hawley claims, when California Senator Barbara Boxer and Ohio Representative Stephanie Tubbs Jones objected to George W. Bush’s win in Ohio solely to shed light on voter suppression in that state: they explicitly said they were not trying to overturn the election result. The big differences: not only have several Republicans refused to acknowledge Biden’s win in 2020 and some are seeking to change the result, but there was actual evidence of voter suppression in Ohio in the 2004 election (especially in the form of extremely long lines) while there is zero evidence of voter fraud in 2020. And perhaps Boxer and Tubbs were wrong to object in 2005. That does not mean that Hawley and other Republicans should follow suit in a continued breakdown of democratic norms.
American democracy cannot survive the losing party refusing to accept defeat. A peaceful transfer of power demands that we all accept the legitimacy of the election, with the losing candidates recognizing their losses and trying to win in the next election.
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In the long term, our democratic institutions are ill-served to withstand attempts to overturn the election simply because the losing side is unhappy with the result. We need to think critically about bolder changes to thwart these anti-democracy tendencies, such as fixing gerrymandering, abolishing the Electoral College, revising the outdated Electoral Count Act that opens the door to these objections, and reaffirming our commitment to the fundamental right to vote.
Without serious reforms, we will continue to witness the undermining of our elections from those who care more about their own political power than about American democracy.
