President Trump and his allies have had the right to try to overturn the presidential election results by whatever legal means are available. No doubt Republicans are disappointed that so far their efforts to do so have failed. But the GOP may have dodged a couple of nasty bullets anyway.
Consider, for example, Trump’s attempt to urge Republican-dominated state legislatures to void the election of Democratic electors and replace them with Republican electors, and Texas Attorney General Ken Paxton’s attempt to have the Supreme Court void the presidential elections in four battleground states which this year elected Democratic electors.
The Constitution grants state legislatures the power to select presidential electors by whatever means they choose. State legislatures initially chose presidential electors themselves, but by 1824 the majority of legislatures had passed laws calling for the direct election of electors by We the People. Since the end of the Civil War all states have followed this practice. We the People have accepted the popular election of electors as the correct way to participate in selecting the president. Tactics which void our results could produce popular animosity for those who use them. The GOP could well inspire popular anger if it were to be seen as seeking to throw out election returns.
Moreover, had these tactics succeeded anyway, they would have set dangerous precedents for Democrats seeking revenge. For example, what if Republican legislatures were to heed Trump’s demands? Republican presidential candidates have carried Texas 15 times. But in only 5 of those elections did the GOP have the trifecta—both houses of the state legislature and the governorship as well. In 1 election the GOP had the governorship and the state Senate, with the Democrats holding the state House of Representatives. In 9 elections the Democrats held both houses of the state legislature and in 6 of those 9 the Democrats held the trifecta. Under those circumstances Texas Democrats could have passed legislation overturning Republican presidential victories. Perhaps someday in the future they may once again be in a position to do so. Do Republicans really want that to happen? If not, they should abandon all thought of legislative overthrow of presidential election results. Democrats need not be given ideas by the GOP.
Same with Paxton’s lawsuit. His argument was that the governments of Georgia, Michigan, Pennsylvania, and Wisconsin–all carried narrowly by Biden–permitted so much voter fraud that they deprived the right of Texas and other Trump-supporting states to participate in free and fair elections and enjoy the results of a victorious GOP. Therefore the presidential election results should be voided.
In essence, Paxton was asserting the right of one state to attack and secure the voiding of another state’s election returns. On Friday the Supreme Court rejected his suit. But suppose he had won. This would have opened the way for blue states—California or New York, for example—to sue to have Texas election returns voided. Texas requires photo IDs for voting; blue states could argue that doing so hurts blue states by suppressing minority voting—an especial concern since minorities normally support Democrats. Do we really want California or New York telling Texas how to run its elections? If not, we should abandon efforts for the Supreme Court to set precedents by which they can do so.
With the ongoing failure of Republican efforts to overturn the election, and with the ever-growing probability that Joe Biden will become president come January 20, it is imperative that the Republicans switch their efforts to retaining the Senate in 2021, regaining the House of Representatives in 2022, and regaining the White House in 2024. Given the public’s belief in representative democracy, the best way for the GOP to triumph is to make less effort questioning elections already held, and more effort to win future elections by such great margins that nobody can overturn a Republican victory. How and Why the GOP should do so will be the subject for future columns.
Malcolm L. Cross has lived in Stephenville and taught politics and government at Tarleton since 1987. His political and civic activities include service on the Stephenville City Council (2000-2014) and on the Erath County Republican Executive Committee (1990 to the present). He was Mayor Pro Tem of Stephenville from 2008 to 2014. He is a member of St. Luke’s Episcopal Church and the Stephenville Rotary Club, and does volunteer work for the Boy Scouts of America. Views expressed in this column are his and do not reflect those of The Flash as a whole.