WASHINGTON >> Seeking to shame Republicans who are disloyal to him, former President Donald Trump distorted the Constitution’s meaning in asserting widespread voter fraud and insisting that state legislatures could overturn Joe Biden’s presidential win.
He’s wrong on all those fronts.
TRUMP: “Had Mike Pence referred the information on six states (only need two) back to State Legislatures … we would have had a far different Presidential result.” — statement Wednesday urging Republicans to push out Rep. Liz Cheney as the No. 3 House Republican in favor of Rep. Elise Stefanik, who voted to overturn Biden’s victory in key states.
THE FACTS: Trump’s trash talk about his former vice president is fantasy.
Pence had no authority under the Constitution, congressional rules, the law or custom to refer the results back to the states.
On Jan. 6, Pence presided over the congressional tally of Electoral College votes, carrying out his ceremonial duty to announce who has won the majority of votes for president and vice president, when the proceedings were interrupted by a mob of angry Trump supporters whom Trump had exhorted to “fight like hell” earlier that day after falsely claiming election fraud.
Pence had no path for avoiding his pro forma certification of Biden as the next president and Kamala Harris as vice president. After the proceedings were interrupted for several hours by angry protesters, the congressional tally resumed and Pence officially declared Biden the winner early the next morning on Jan. 7.
Nor did state legislatures have recourse in changing the election result. The Constitution gives state legislatures a role in the process of selecting a president by determining the “manner” in which presidential electors are appointed to the Electoral College. States did that, by passing laws specifying how electors would be chosen and then by certifying their election results in early December.
“There was no role for the vice president to refer matters back to state legislatures,” said Richard Hasen, an election law professor at the University of California, Irvine. “This is not a thing.
“Instead, it was up to Congress to count the valid electoral college votes submitted by the states, which it did.”
TRUMP: The election was “corrupt” and “was indeed The Big Lie.” — statement today.
THE FACTS: To be clear, no widespread corruption was found and no election was stolen from Trump.
Biden earned 306 electoral votes to Trump’s 232, the same margin that Trump had when he beat Hillary Clinton in 2016, which he repeatedly described as a “landslide.” (Trump ended up with 304 electoral votes because two electors defected.) Biden achieved victory by prevailing in key states such as Pennsylvania, Michigan, Wisconsin, Arizona and Georgia.
Trump’s former attorney general, William Barr, found no evidence of widespread election fraud. Trump’s allegations of massive voting fraud also have been dismissed by a succession of judges and refuted by state election officials and an arm of his own administration’s Homeland Security Department.
No case has established irregularities of a scale that would have changed the outcome.
TRUMP: “The 2020 Election … didn’t even have Legislative approvals from many States (which is required under the U.S. Constitution).” — statement today.
THE FACTS: Whether the Constitution requires “legislative approvals” is questionable.
Trump appears to be referring to the legal argument, made in several lawsuits he backed before and after the November election, that the Constitution gives the power of election administration exclusively to state lawmakers.
But the Supreme Court opted not to take up any of those cases and rule on the issue.
Had the justices sided with Trump, it would have invalidated a number of pandemic-era accommodations like expanded mail voting that were put in place not by state legislatures, but by governors, state election officials and judges.
At least a third of the justices — Clarence Thomas, Samuel Alito and Neil Gorsuch — dissented when the court in February declined to take up consideration of the lawsuits, indicating they were sympathetic to the argument and saying the case could be a guide for future elections.
States issued a number of rulings and orders to ensure voters could cast ballots while staying safe during a pandemic, including a Pennsylvania Supreme Court opinion that extended the receipt deadline for mail-in ballots in that state by 3 days after the Nov. 3 election.
But there’s no indication in any of the lawsuits that those changes would have altered a state’s election results. On two occasions before the election, in fact, the Supreme Court had declined to intervene in the Pennsylvania case.
TRUMP: “Had gutless and clueless MINORITY Leader Mitch McConnell (he blew two seats in Georgia that should have never been lost) fought to expose all of the corruption that was presented at the time, with more found since, we would have had a far different Presidential result. … Never give up!” — statement Wednesday.
THE FACTS: That’s an empty exhortation. Railing against McConnell, who earlier criticized him for egging protesters on before the Jan. 6 Capitol riots, Trump seemingly suggests it’s not too late to fight to overturn the November election.
But it is.
While legislative Republicans in Arizona are challenging the outcome with an unprecedented effort to audit the election results in Maricopa, the state’s most populous county, the audit’s findings will not affect Biden’s victory in the state or nationwide.
Future elections may be a different matter, though, as Republican-led legislatures push changes to election laws.
“They can’t change the 2020 election, but they can use it as a predicate for new restrictive voting laws,” said Hasen, the election law professor.