According to President Trump’s most vocal supporters, the election was fraudulent and it is the duty of Congress to overturn the election results for the swing states that voted for Joe Biden. Unfortunately for anyone who cares about democracy, the proposed cure to the alleged election-fraud is far worse than if there has actually been an election-fraud.
Presume for a second that Biden won all of his electors legitimately. If Congress allows Biden to keep all of his electoral votes then it is following the will of the people, and acting in a way the Framers intended. If Congress removes the electors from Biden’s corner because of the mere suspicion of fraud then it is overriding the will of the people and inserting its own will instead.
Now presume that Biden did commit fraud and the election was stolen from Trump. If Congress allows Biden to keep his fraudulent win then the true will of the people will be subverted, but the process for determining the winner will have been carried out the way that it was intended to.
Trump and his allies have had every opportunity to take his complaints to the courts, and the courts – both Democratic and Republican – have made rulings against him in nearly every case. Whether the courts were right or wrong in their rulings, Trump did have his multitude of days in court, and that is all that our legal system guarantees. After all, Justice Antonin Scalia argued, “This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.” If we can deny life to an innocent man who lost their trial then we can surely deny public office to someone who lost dozens of lawsuits questioning the validity of the election results.
Now what if Trump and his allies get their wish? What if Congress overthrows the electoral delegations for the swing states, and it ultimately pushes the election to a 12th Amendment remedy where the Republicans use their delegation majority to call the election for Trump? What happens then?
On the one hand, it would follow the will of the people if the unproven allegations of fraud are to be believed. On the other hand, it undermines democracy as we know it, and it places fascism as a likely result at some time in the future. Republicans will tell you that America came close to having a fascist government with President Obama. Democrats will tell you America came close to having a fascist government with President Trump. Both sides do appear to be seriously afraid of living under a fascist government of the opposing political party.
If Trump gets his wish that Vice-President Pence obtains the power to overturn the election then any future vice-president could overturn the election in the future. No Congress, in modern times, has subverted the electoral will of the people. If Congress does so now then it will give the authority of future congresses to overturn future elections when it benefits the majority party of both chambers. Does anyone seriously trust Speaker Pelosi or Majority Leader McConnell with that much power?
The electoral college was originally designed to keep the presidency out of the hands of Congress. The Constitution forbids Members of Congress from being electors for good reason. As Alexander Hamilton argued in Federalist no. 68, “No senator, representative, or other person holding a place of trust or profit under the United States, can be of the numbers of the electors. Thus without corrupting the body of the people, the immediate agents in the election will at least enter upon the task free from any sinister bias.”
While the 12th Amendment does give some authority to the Congress to determine the election in rare instances, the Framers wanted the president chosen by people other than those with partisan biases. The Framers felt Congress should have a limited role in choosing who should be president, and they were right. Having Congress decide this election comes with far greater consequences for democracy than if we take a chance that fraud could have possibly happened in a method so ingenious that no one can actually prove it.
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