Because even though they’re not explicitly favoring Trump over the Constitution, none of them is exactly saying Trump is wrong, or a liar. And all are saying this is far from over.
Yes, as far as this week goes? They are so far doing the right thing. And as most of them explain, that’s going by what the Constitution says, because otherwise there might not ever be a fair election in this country again.
We’ll quote South Carolina Republican Tim Scott at length (if you want even more, his full statement is here):
“The President’s legal team exercised its right to access the courts by initiating suits in state and federal courts in numerous states. Some of these lawsuits have even been presided over and adjudicated by conservative judges nominated by President Trump. Thus far, no justice, judge or fact finder has found evidence indicating the election results in those states should be overturned.
Republican governors and Republican controlled state legislatures across the country have upheld the results of their individual states’ elections. States have initiated recounts and audits with no significant change to the election results. The Electoral College has certified itsresults and still other judges, including judges and justices nominated by President Trump, have ended or declined to assert jurisdiction over these legal challenges.
As I read the Constitution, there is no constitutionally viable means for the Congress to overturn an election wherein the states have certified and sent their Electors.”
Right. Great. But then, in the next paragraph:
“I believe the first legislative action the 117th Congress should undertake is the debate and passage of an election security and voter protection package.”
And this isn’t turning out to be unusual. In fact, in all the statements we’ve seen from Republican Senators so far saying they’re not going to go along with Trump’s plot, they at the same time agree that there is a major problem, or multiple, or even “unprecedented” problems with this election. Even though there hasn’t been any proof of that. Unless you count Trump saying over and over again that there is.
Now, could be they’re just saying that to placate the President and his base by way of saying while they take the President’s conspiracy theories seriously, just procedurally, the Constitution does not allow them to do anything significant about it at the time the Electoral votes are read. That’s because it’s up to states, not the federal government to certify election results in individual states, and those votes have already all been certified and sent in with seals and signatures, many of Republican governors. Including all those states Trump says are still in dispute, but they’re not. (The applicable amendments here are the 12th and the 25th.)
But, though Arkansas Republican Senator Tom Cotton writes:
“Under the Constitution and federal law, Congress’ power is limited to counting electoral votes submitted by the states. Congress doesn’t have to agree with the election practices of every state, nor dismiss the possibility of voter fraud.”
He also calls for both: “a commission to examine the last election”, and the Senate to “hold more hearings on these matters.”
Which means should Republicans win one or both seats in the Tuesday Georgia runoff that’s still being counted, the Senate is going to be log jammed for the next couple of years with all kinds of hearings and legislation on “election integrity”. Proceeding along just as if Trump was right, only without Trump, or with him participating from the sidelines. That’s because winning one or both those Senate seats means Republicans get to chair Senate committees, and set the agenda for those committees. If they end up not winning the Senate, they still probably see it as a “winning” political issue for them; fodder for future campaign runs. Although at the state level, where legislatures are still disproportionately led by Republicans, we’re likely to see a lot of action anyway. Especially stuff that makes it harder to vote and easier to remove people from voter rolls.
Look, the fact that these outcomes happen without Trump as President is a blessing for this country, and perhaps for the future of Democracy.
But maybe not even, if Republicans decide that in Trump’s wake, the federal government’s job #1 is suddenly to start messing with election rules, which are generally left up to individual states, in ways that make it generally harder for people to vote. Which they will. Or try too.
With Joe Biden as President, there’s very little headway they’ll actually be able to make—at least over the next 4 years—because he’ll almost certainly veto any legislation they’ll come up with. And at least over the next 2 years, it wouldn’t pass the Democratically-controlled House anyway. And Republicans won’t have the vote to override even after that. Yet, there will be myriad parallel court challenges, which will likely have an impact and change things up. And that’ll happen even if Democrats win both Georgia seats.
See, it’s not that the Supreme Court won’t get involved, it’s that they won’t get involved now. They’re not going to change the results just because the loser didn’t like them. But they are absolutely going to hear cases that will result in chanting rules for future elections, as they did prior to Election Day last year. And they were pretty consistent about upholding changes made by state legislatures, while reversing those made by election officials or judges.
And Republicans will “sell” any Biden veto of their election legislation as “evidence” it’s Democrats who want to harm Democracy, and maybe even “proof” Trump was right, and Democrats don’t want to have the power taken away from them to do again what they didn’t actually do, but what Trump said they did. As George Will points out in the Washington Post, in the absence of any evidence whatsoever, conspiracy theories can still be highly successful because they use that absence of evidence as evidence of the conspiracy’s “sophistication” by its “perpetrators”.
At very least, what these Republicans are suggesting they’ll do slows Biden’s legislative agenda to the pace of molasses. Because while some Republicans may even agree with some of Biden’s priority items, “restoring election integrity” will suddenly be oh-so-much-more important.
Hell, I don’t see it, but maybe there even is room for a compromise down the road, especially if the Democratically controlled Senate tries to re-up the Voting Rights Act, after the Supreme Court struck large parts of it down, which they are likely to do. But I won’t be holding my breath on that.
What Democrats should prioritize, especially if Republicans start pulling the nonsense we’ve outlined above at the price of not getting very much else done, is holding hearings of their own on establishing President Trump’s criminality, with a view to blocking him from ever being able to run again, even if he wants to. I’ve said before that I don’t think he will actually run in 2024 anyway, because he’s not the kind of person who bides his time well. But who knows?
Still, if a Republican controlled Senate’s going to bury the U.S. under hearing after hearing on election “irregularities” and “reform”, planting themselves squarely as both consumers and validators of Trump’s wacky theories, then the House better be equally forceful in its efforts to prove again and again and again just how far Trump wandered into corruption and criminal behavior. Trump is the swamp.
And then they need to pass reforms of their own to block that from ever happening again. Because much of what Trump’s done, and many of the loopholes Trump’s exploited, even when he hasn’t explicitly stepped over the line, come from the fact that the people who wrote the Constitution never imagined anyone would ever attempt to abuse the Constitution in the way he has. And while they did lay out certain protections, other scenarios that Trump’s played out over the last 4 years, are either so far-fetched they could not possibly have envisioned anyone trying to pull, or they figured some things could go without saying because no sane person would ever try to do them. We now know that’s not true.