Scott Gurvey

(January 3)

Two months since the election and only today do I write about the outcome. That is because, unbelievably, the outcome is still not 100% certain. I had prepared the graphic within days of November 3, 2020. Joe Biden and Kamala Harris, two leaders-elect. And an empty room representing the loser, Donald Trump, who refused to concede and sulked off into retreat. The two leaders are the unquestionable victors receiving 81 million votes. The most of any presidential ticket in history. And 306 electoral college votes, the same number as Trump received in 2016.

In all this time, Trump has refused to admit defeat. Trump and his acolytes continue to maintain a fantasy that he really won, and won it “bigly.” They have fought the battle to validate their alternate reality by whatever means available. Trump got 74 million votes, they argue. More than he got in 2016. How could he have lost? Easy. Biden got 7 million votes more. And flipped five states Trump won in his 2016 campaign against Hillary Clinton.

Still the Trump loyalists have fought with a series of false claims and ridiculous, totally unsubstantiated charges which have only gotten more off the wall as the days since November have passed. There have been counts and recounts and audits and not a single one has turned up evidence of election improprieties that would change the outcome. In state after state, election officials, secretaries of state and governors, many of them Republicans, have certified the results.

The Trumpies have taken to the courts in which they have filed some sixty lawsuits. Not a single judge, state or federal, has found any merit in their arguments. Each case seems to be more absurd than those filed before it. Trump’s judicial defeats include the Supreme Court of the United States, which was asked by Texas to invalidate the election held by Pennsylvania. There was no support on the Court for Texas’s argument. Even former Attorney General William P. Barr has also said there is no evidence of widespread fraud in this election.

In the most recent bit of nonsense, Texas Congressman Louis Gohmert, who stands out as particularly challenged even from the shockingly large group of Republicans in Congress who exhibit a wide range of deranged behaviors, sued Vice-President Mike Pence. Gohmert argued that the Electoral Count Act, the 1887 law governing the manner in which Electoral College votes are counted, is unconstitutional because it violates the 12th Amendment. Gohmert argued that the Vice-President, acting in his role as President of the State, has the power to toss out Electoral College votes if he wishes.

That macabre theory would eliminate the need for elections altogether. At the end of the four-year term, the outgoing Vice-President would simply be able to choose, all by himself, the next President and Vice-President. The District Court dismissed the case. The judge had been appointed by Donald Trump. The Fifth Circuit Court of Appeals in a one paragraph order rejected Gohmert’s appeal one day later.

This does not mean we are home free. Gohmert popped up on Newsmax after losing in the courts to suggest Trump’s legions take to the streets:

“Bottom line is, the court is saying, ‘We’re not going to touch this, you have no remedy,’” Gohmert said. “Basically, in effect, the ruling would be that you’ve got to go to the streets and be as violent as Antifa and BLM.“

This garbage has to stop. Just to be clear here, this is a member of the United States Congress encouraging violence. This is sedition. This is certainly conduct that renders Gohmert unfit to serve in the House of Representatives.

Trump himself has called for a rally in the nation’s capitol on January 6th starting at 11am, just before Congress is to meet and tabulate the Electoral College votes. What exactly do Trump and Gohmert and their cohorts expect to happen on the streets of Washington, D.C?

As explained above, the 12th Amendment and the Electoral College Act of 1887 specify with considerable precision the procedure to be followed on January 6th. The substantive challenges to the election are over. The Electoral College, love it or hate it, makes the selection of electors a state matter. The challenges have been made at the state level over and over again. They have all found to be without merit. So have sixty lawsuits in state and federal courts. The official certificates attesting to the elector’s votes have been signed by the officials designated by the state legislatures. All Congress does now is add them up. All the Vice-President does now is read the total.

There is a procedure for challenging the votes. And this has been done before by members of both parties. It only requires one representative and one senator to trigger such a challenge, which will result in a two hour debate in each house, followed by a vote to accept or reject the electoral college certificates in question. Both must agree. There are many Republicans in each house ready and willing to fall in line with their Führer and trigger this theatrical. But with the Democrats holding the majority in the House of Representatives, it is unlikely both houses of Congress will, when the final vote is taken, reject the elector’s decision.

Of all the preposterous proposals floating around the one which stands out from the crowd is the plan put forth by Ted Cruz, Senator from Texas and a graduate of Princeton and Harvard Law. I point that out to demonstrate that not all people who hold degrees from these great universities are left wing liberals. Nor are they all intelligent. And, as a graduate of Princeton, I apologize for Cruz. Cruz is expected to be joined in his quest by a dozen Republican senators. Over on the House side, more than 140 Republican Congressmen are expected to protest the electoral college results.

Trump accused Cruz’s father of having something to do with the assassination of President Kennedy. Trump also called Cruz’s wife Heidi ugly. Yet Cruz has become one of Trump’s leading defenders. Go figure.

Cruz claims to be an expert on the Constitution. But it does not appear he has read it, or the statutes which have been enacted by Congress to implement it’s provisions. Cruz says he will not not vote to certify the Electoral College ballots until a special commission is appointed to investigate allegations of election fraud. He expects that commission to report within ten days and then wants the state legislatures to be given an opportunity to review the report and, if they wish, replace their slate of electors. Separately, Trump’s advisor Peter Navarro says the January 20th date for the inauguration of Joe Biden can be delayed.

For the record, Congress is free to set up whatever commissions it wishes. If anyone thinks such a commission will be able to make a meaningful inquiry into the election (or anything else) in ten days they have no experience with Congressional commissions. But Congress still cannot empower state legislatures to change the rules of their elections after the votes are cast. Nor can they toss aside the safe harbor provisions of the Electoral College Act. The votes were locked in on December 8th. And as to Mr. Navarro, the inauguration of Joe Biden will take place at noon on January 20th. See the 20th Amendment. After that date Donald Trump will either have left the White House on his own, or he will be thrown out.

Then, maybe, we will be able to breathe again.

For your entertainment and enjoyment, all that transpires should be watchable on CSPAN. Enjoy.

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