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It's two days after January 6th, Wednesday, when everybody saw what happened. So. I'm going to give you my take on it where I was, what it was like being up here, and we're going to get into the vote what originally this day was about and maybe more importantly, what it wasn't about and all the lies that were told leading up to it. We're going to get into the constitutional arguments on either side. And I'll bring on some friends of mine who can who can speak some lawyer as well, but we're going to go through it all.
So bear with me first. I want to tell you what this was like. We show up to the Capitol from where I have a small apartment, just not too far from the Capitol and on my way in.
We can't actually get into the garage under under our office building cannon because it turns out there's a bomb or something that looks like a bomb near the RNC or the Capitol Hill Club, which is just across the street cattycorner to Cannon.
So that's my that's my first introduction to the day. And I think to myself, this is going really well. We're able to still get into the office, grab some things after parking somewhere else, and then we get word that we're being completely evacuated from Cannon and need to go find someplace to hole up for the day in Longworth. I have not made it to the to the House floor yet. We know that by this time, everybody's making their way to the Capitol.
The president's speech had occurred sometime that morning and of course, the marching orders were to go march on the Capitol and that's exactly what everybody did. And we're watching the debate start, the objections to Arizona occur as expected, and then we start to get word that some of the outer barriers are being trampled over. And we think, well, this is this is concerning, to say the least. And what I'm seeing again, because at this point.
Given what's going on, I'm not about to walk over there, I can't get in any way, the what we're seeing is basically what you were seeing on TV. You're seeing some videos on the Internet that start to get streamed. You're seeing some news reports and you're seeing how this escalates.
You're seeing that some of my friends are on the House floor now across the news, barricading doors on the House floor, moving furniture right there, trying to talk down these people, trying to get in and do what? I don't know. Well, you saw some of it. Perhaps designate some offices, take some selfies, some people thought this was a big joke, it was not a big joke. A woman was shot.
A police officer has now died after being struck with a head injury, many others were injured so total there's five dead, three others aside from the woman shot near the House floor and the police officer shot or the police officer injured and died in the hospital. And where that woman was shot. The reason the reason they held the line there was because the members who were on the House floor were barricaded in the floor and that was the final entrance to get in.
I'm not sure those protesters now, now. Rioters now. Vandal's. Previously, protesters. I'm not sure they even knew that, but. They did it anyway. Engaging in the frenzy of the mob, engaging in complete anarchy, engaging in what is deeply, deeply un-American with pained me to see was the American flags being flown through the Capitol as people destroyed it.
You know, when you take an American flag into battle, and I doubt a lot of those people ever have you do it against your nation's enemies, you don't do it against your own capital. For those people who said, well, this is the people's house, and so we're taking it back. You are just you are not the people. You took it from the people. That's what just happened. A few people desecrated the rest of the people's house.
That's actually what happened. Do not claim patriotism, do not drape the flag around you. Those of you who did this. And frankly, ruined the good name of the many people who, right or wrong, disagree with them, came for peaceful means to D.C. on Wednesday. There's a lot of people I know who came up here. Who were horrified by what happened, and I'm willing to bet I bet 99 percent of the people even went in, never planned on doing it.
But you did it anyway. And there's nothing to be proud of there, there is no patriotism to be had. Do not call yourselves a patriot once you've done something like that. It's wrong, you got people killed. And accomplished nothing. Let that sink in, you accomplished nothing. So the next question is, how do we get to this point, how do we get to a point where people believe that they must storm the Capitol? What to make change?
To accomplish something, to accomplish nothing. How do we get there? I know it's a bit of a long story, but but it's a simple one. People were misled. People were lied to about what January 6th really was. They were lied to about what was and what it wasn't. They were told that this would be your last stand. This would be the place where you could finally make a difference. This is the final certification of of the election, they were told.
And if you just object to it and provide the evidence, we can make our case and Donald Trump would be president. That's what people were told, you were told this by the people you trust in media, you were told this by commentators, you were told this by elected officials.
The president himself told you this and they lied to you. They lied to you, they felt the energy, the anger bubbling up. And they took hold of it, they engaged in what I call reflective leadership, if you feel something that I'll just reflect it back on you.
I will I will absorb your emotions and express them so that you trust me. It's a form of manipulation. You need to learn to recognize it because a lot of politicians like to do it. Transformational leadership is real leadership. It basically just means telling you the truth, nobody wanted to say the truth. The truth was January six was never going to fix anything. January six has always been a ceremonial process. Where the electoral counts are counted by the vice president in the presence of the Congress as.
Written in Article two of the Constitution. And then they're counted and the next president is declared. The Constitution has never laid out any process for objections or debate or voting unless nobody reaches a majority. It's the only contingency laid out by the Constitution. The Constitution doesn't allow for this process, period, and yet people told you it did. People told you more than that, they said this is our 1776, this is our time to stand and fight finally not against those traitors who won't do it with us.
You know, the easiest thing in the world for many Republicans would be to simply agree with it and keep the keep your base happy. It would be the politically expedient thing to do and a lot of members did that. Many others went much, much further. Much further, they lie to you, they told you this was your time to stand, this is your last chance, and if you didn't show up in D.C. and make them do what you wanted, what you want them to do.
Then all would be lost. The republic would be lost. They said they were protecting the Constitution. Now they knew full well they were actually shredding it. They knew full well that that this action's turn our system of government, our Congress, into a parliament in which the president is all of a sudden elected by the Congress instead of the state's electors as prescribed by the Constitution. They know of this, but they lie to you.
Because it was good for fundraising and because it was good for retreat's some people who usually don't get rich, it's got a lot recently in the last few weeks, and it's very exciting. It's very exciting to hear the cheers of the crowd. But they were lying and they knew they were lying the whole time. And millions and millions of people were manipulated into believing that this is a valid process, that this process has precedent. And that it's constitutional, not only is it constitutional, they said, but you're protecting the Constitution by doing this, we'll lay out for you why that's so wrong.
More importantly, why was so wrong for them to lie to so many people because people took those words seriously. When when when they were told to go fight, well, they did, and now a Capitol Police officer is dead because that's who they fought. A woman is dead because that's who fought. You know, where all those members of Congress were told them to fight? Well, they were nowhere to be found. There was a few brave members of Congress who were staying behind.
And actually helping others get out. My friend Markwayne Mullin. Tony Gonzalez of Troy Nel's. Jason Crowe, maybe a couple others missing anybody, but they did a great job, some of them voted, I think, wrong. But none of them were amping up. January six. None of them were telling people to come and fight and stand, this is your revolution. People I just mentioned actually know what a fight really looks like. The people who did hype everybody up and you know who you are and all of you know who they are.
They were nowhere to be found, these cowards who have never been in a fight themselves, who created one and then ran because as it turns out, fights are actually scary. When the bullets start flying, the glass is breaking and the mob is angry. That's a real fight. Capitol Police actually had to engage in a real fight, not those members of Congress, but they got three tweets. That's really what happened. That's really what happened. Mass manipulation.
That's what happened. Everybody needs to know that, so. Now, let's go into the nerd stuff.
All right, let's actually talk about the Constitution here, what it says, what it doesn't, and why this entire thing was was always doomed to fail, destined to fail and unconstitutional on its face. This process itself is unconstitutional. Now, it's unconstitutional when the Democrats objected in twenty sixteen, unconstitutional when the Democrats objected and got a senator to do it and cause debate in 2005.
Unconstitutional every single time. Um, but. A lot of people say, well, the Democrats did it before, so, you know, what's the big deal? Well, first of all, I do not take my constitutional lessons from the Democrats and nor should you.
I don't take my interpretation of law from Democrats, nor should you.
I don't take my interpretation of federalism and basic governing principles from the Democrats, and neither should you.
So when they did this in 2005, they set a precedent. Yes, but let's be clear.
One senator voted for it, 30 Democrat House members voted for it. And even in their opening statements, they said, we absolutely do not want to overturn any electoral votes. Now, again, that's a bit of having it both ways, because by nature of the objection and the vote, you are automatically overturning electoral votes. That is a fact. And you cannot escape it. A lot of people on our side this time also tried to have it both ways and say this isn't about it's not about overturning the election.
They said it's not about overturning electoral votes or infringing on the state's rights to deliver those votes unimpeded by the Congress. It's not about that. It's about finally drawing attention to election integrity.
That's what they keep saying. But it's not true.
They're trying to have it both ways. They're trying to say that, look, this is we just want to highlight it, just want to highlight it. Well, by nature of objecting and by forcing a vote and if you vote yes on that objection and if a majority vote yes on that objection. Throws out the votes, you just overturned millions of votes. That's a fact, at least according to this unconstitutional process and. The question then is because of that fact, or at least the process as it's being delivered, is this process even constitutional with consequences like that, with the overturning of an election?
Is this process even constitutional?
And the answer is very, very clearly no. So we're going to go through why it's not constitutional, which is actually really simple, because we'll have to do is read Article two to you. And and if you think that's still vague, we're going to talk about the founders intent, Federalist 68.
Written most likely by Alexander Hamilton. And we'll also talk about the statute itself, the Electoral Count Act from 1887, which is which is what which is where this process itself is derived from and how we're not even following that law correctly.
So Article two is very clear. We're going to read it right now. The electors shall meet in their respective states and vote by ballot for two persons, of whom one at least shall not be an inhabitant of the same state with themselves, and they shall make a list of all the persons voted for and of the number of votes for each which the lists shall sign and certify and transmit seal to the seat of the government of the United States, directed to the President of the Senate, the president of the Senate.
This is the Vice President. Shall and the presence of the Senate and the House of Representatives open all the certificates and the votes shall then be counted. The person having the greatest number of votes shall be the president. Such no be a majority of the whole number of electors appointed, and if there be more than one who have such a majority and have an equal number of votes in the House of Representatives shall immediately choose by ballot one of them for president.
OK, so what are we what are we reading here, this funny 18th century legal language? It's laying out a process, it's saying exactly what you do, this isn't vague, it's not vague at all. The states choose their electors, they certify them, they transmit and seal it to the vice president. The vice president opens it in the presence of the Senate and the House of Representatives. It counts them in the majority shall be president. It does not say if you feel like objecting object, it does not say certify in the Congress.
That's an important one that everybody keeps saying, well, we're certifying no. The Constitution lays out no such process. There is no certification. It is ceremonial. You sit there and you watch it get open. It is a count.
So where did all this come from then, where did these objections come from? Why did why are we even doing this? Let's talk let's talk about the intent of the founders, so if you think what I just read is is vague or could be read into differently, then then maybe we should read Federalist 68 by Alexander Hamilton, some Federalist 68. Hamilton lays out the purpose of the Electoral College. And the purpose, he argues, is to create an independent, decentralized body of electors to elect the president.
There's a reason for this Hamilton wants to avoid. The potential of one single body electing the president, they had many debates on how to elect it should it be a popular vote, and they decided against that because they were they were so afraid of the passions of mob rule. They did not want a popular vote. And they also felt that they probably couldn't get all the states to even certify and sign the Constitution if there was a popular vote because of simply for the obvious reason, some states are more populous than others.
And so they had to come up with something such as the Electoral College that both gave weight to to, say, rural states with less population, but also avoided the problem of having a centralized body elect the president the way, say, a parliament would. So a parliament in Europe gets together and votes for the prime minister. We don't do that. We're not a parliament. The electors, the founders had no intention of us becoming a parliament. So in Federalist 68, he writes.
The choice of several to form an intermediate body of electors will be much less apt to convulse the community with any extraordinary or violent movements. It's important they knew they could foresee what was going to happen. So what I'm going to get at here is that what happened on January six in twenty twenty one was exactly what the founders foresaw.
If we convinced the people that January six was the time we elected the president. He also writes. According to he also writes that the only people in America who should not be allowed to be named an elector would be members of the House and Senate and any other person holding in place of trust or profit under the United States. He said that electors would exclude from eligibility to distrust all those who from situation might be suspected of two great devotion to the president in office.
Does any of this sound familiar? Does any of this sound applicable to what we saw? They were afraid of creating the exact situation that we saw on Wednesday. Where in a single time, in a single place, with a single group of people who can be persuaded because they happen to be elected officials. Or loyal to the president. To vote a certain way, it should come as no surprise if that if this was truly how our system was intended to work, that every single time on a January six, every four years, some kind of mob would descend upon the capital.
Interest groups would be having their say, stakeholders, commentators, everybody, everything would be on this group of people. Does this seem like a good idea to anybody? I mean, after this last Wednesday, I don't see how it could. It would always turn out this way. This idea that a simple majority in Congress can can can simply object and overturn votes coming from the states that have been certified. Is absurd and unconstitutional. It's against the very nature of a republic and it's very, very clear from their writings that the founders were deeply, deeply against this war.
Writings from. From the notes from the Constitutional Convention of 1787, confirm this as well. They debated all of this how whether a Congress would be involved at all in presidential elections, this was just widely rejected. This was this was not that controversial. Actually, it was just widely rejected. There was some concern, in fact, with Article one that that because of the way Article one was written, that there might be too much influence from Congress on to state elections.
There was just it was it's very clear the intent is very, very clear. So now let's go to a 1787 Electoral Count Act. Now, the problem in 1786 during that presidential election was that states were sending competing slates of electors and certifying them to the US Congress. Maybe a governor would certify one and then a legislature would certify one and they would send them. That's a problem now, because which one do you count? OK, and so they they derive this process with which to to deal with that.
The the act itself allows you to object on on votes that are not regularly given. It's kind of vague language, sort of vague 19th century language. And because of how vague that language is, our modern partisans have. Decided that we can interpret it however we want and basically object for whatever we want. Now, in my opinion, this needs to get to the Supreme Court immediately, given how dangerous this process is and how anti constitutional it is, it needs to be ruled upon and clarified so that we stop doing this nonsense.
This is the argument that many of us looked at. Now the question is, are we even following the seventeen eighty seven, eighteen eighty seven act properly? And the answer is no, because that act very clearly states that once the governor has sent a certified set of electors to the Congress.
That shall be considered conclusive. In fact, the law clearly states that so long as the final determination of electors is made at least six days prior to the time of meeting of the electors, that the slate of electors shall be conclusive and shall govern in the counting of electoral votes as provided in the constitutions and the Constitution.
So it's even even if we're going by the 17th, the 1887 law, this is unlawful. Just this this process that we have engaged in on January six is unlawful needs to be challenged in the courts, firmly believe that we cannot have this every four years. So this was that's effectively the argument from from those of us who did not want to object and voted against the objections that had nothing to do with the merits of the objections. I've long said the merits of the objections are generally fine.
Now they're a bit weak if you watch these objections take place on January six for Arizona, for instance, many of the arguments were say about the registration deadline in Arizona changing and the legislature never passed a law to make that deadline change. And so therefore, we had to throw out all of the votes from Arizona. I mean, that's the argument. OK, so now let me be as fair as possible, the other side, this is how they're arguing that it's constitutional.
OK, so I just gave you an example of a registration deadline changing. You probably think in yourself. What's the big deal? OK, so what, the legislature didn't change it. Why can't the governor change it?
Well, those making this argument would say. That's. Because of this line right here, the electoral clause in Article two. Let me read it to you. Each state shall appoint in such manner as the legislature thereof may direct a number of electors equal to the whole number of senators and representatives, which the state may be entitled in the Congress.
OK, that's the line. So they're saying. There's two ways to interpret this, one way would be to say, look, it pretty plainly means that the legislature chooses the electors and then those electors vote for the president and they have to establish a manner in which to choose those electors. They can just choose them. They can have the governor appoint them or they can be appointed by popular votes. That's that's the manner. Another way to interpret this, maybe reading into I think this is an excessive way to read it, but this is how the objectors are reading into it.
They're saying that. This line also means that the legislature has to pass a law on every single, no matter how small, every single change in election administration, such as the change in a registration deadline. That was the biggest that was one of the big examples used in the Arizona objection. Now. Do you believe that maybe, maybe not. I think it's a pretty big hurdle. It's an honest legal question. Sure. I mean, I signed on to the amicus brief that basically asked this very question, is it constitutional for all of these changes to happen by by decree of the governor or the secretary of state or county election officials?
It's a question.
So there's three mental hurdles, though, you got to get over one, is that really unconstitutional, too? What would the remedy be if it was? And by remedy, I mean, let's call it punishment, right? Do you throw somebody in jail for life because they, you know, having a taillight out like, no, that would be the wrong remedy for that crime. Doesn't make it not a crime. Just means you're you have an excessive remedy.
So you have to make the argument then that the right remedy would be to throw out all the electoral votes. And then the third mental hurdle would be to to convince me that we even have, as a Congress, the authority to deliver that remedy. See, when I sign on the amicus brief, I was doing so because the authority would lay with the Supreme Court, not Congress, which is consistent with our laws. Our Supreme Court decided not to hear that case based on standing.
They didn't really rule on the merits of it. But you can judge for yourself how they would have ruled. But other courts did rule on that question. Judge Ludwig of Wisconsin ruled on this exact question. Let me read what he said.
So Judge Ludwig is saying this is an extraordinary case, plaintiff's request for relief are even more extraordinary and he's not wrong.
He's saying it's an extraordinary case because he's saying this is a this is a strained argument. This is quite this is quite the accusation you're making that, A, that state officials can't change anything at all, can't make any kind of changes.
I mean, in Texas, we changed early voting states.
The legislature never voted on that. Just, you know, so would that be that would be illegal and unconstitutional under this reasoning? And Judge Ludwig further knows the plaintiff's request for relief are even more extraordinary, again, like I was saying, you once you've identified a crime, you have to prove it's a crime. But then you have to say, OK, what is the relief? What is the remedy for this crime states? Well, it's quite extraordinary.
So here's how he explains his position.
He struck it down just to, you know, spoiler alert. He didn't like the the reasoning used in the case, he says, is used in the electors clause.
The word manor refers to the form or method of selection of the presidential electors.
It requires state legislatures merely to set the approach for selecting presidential electors. Put another way refers simply to the mode of appointing electors consistent with the plain meaning of the term. He's saying. The Wisconsin legislature, they could have chosen to appoint electors directly by congressional district or by delegating the appointment to the governor. Like I said before, or they can do a statewide popular vote, which is what all states do. Judge Legler continues the approach, form, method or mode in the Wisconsin legislature has set for appointing presidential electors is by general ballot at the general election, there was no dispute that this is precisely how Wisconsin election officials, including all the defendants, determined the appointment of Wisconsin's presidential electors in the latest election.
So he's saying. These deviations from state election laws that that the plaintiffs are claiming, again, something as simple as a deadline changed or some the form of the way they put ballot boxes out is different. There could be a number of things that change just according to the letter of the law.
You know, is this unconstitutional? He says no. He says they're not challenges to the, quote, manner of Wisconsin's appointment of presidential electors. There are disagreements over election administration, he says, but issues of mere administration of a general election do not mean there has not been a general ballot at a general election, meaning the manner is is still consistent. He goes on plaintiff's conflation of these potential nonconformity with constitutional violations is contrary to the plain meaning of the electors.
Clause of plaintiff's reading of manner was correct than any disappointed loser in a presidential election able to hire a team of clever lawyers could flag claimed deviations from the election rules and cast doubt on the election results. This would risk turning every presidential election into a federal court lawsuit over the electoral clause. That part is absolutely right. Again, you could by this logic and standard, it's easy to make the case that Texases electoral votes should just be thrown out because we made a significant change.
We change the early voting date. We extended it so people could vote more or vote earlier. OK. Where would it end, it would like, he says, it'd be very easy for a clever team of lawyers to do this and then the again, and that's the first mental hurdle. So the second mental hurdle is, do you really do you think it is morally right to then? Just cancel out all of the electors once you once you've achieved, once you've once you've decided that that first part's unconstitutional.
And then the third mental hurdle is how do you how do you claim to mean that the Congress then has that right? Not based on anything in the Constitution, based on any law. Just claim you have the right, and when I've asked my friends in the Congress this, they their answer goes something like this. Well, we just have a right to protect the Constitution. We just have to.
Well. The thing about the Constitution is it lays out exactly what our powers are, and it also specifically says if you don't have those powers laid out specifically in the Constitution, then they are for the states. This is the essence of federalism. A lot of people seem to be thinking lately that that we're just a higher government than the states we're not, we never have been where different government checks and balances means checks and balances.
It's not a hierarchy. A lot of people misconstrue that and say, well, the well, the state, you may be right, but the states failed us and the courts failed us. We didn't get what we wanted out of it. And so now you're the next highest form of government. This isn't true. This is fundamentally not true. If the Congress wants to pass laws that overpower state laws, it is because they're national in nature and federal law, what would would would supersede it?
But even but. That's still a law that is passed by the House and Senate and signed by the president. And it is not it is not the case that we simply, as a Congress, overturn any law that I or a practice even that a state engages in. Just by decree, it is just not how it works. The other problem was with some of the reasoning on the other side is, is this. This question of when the federal government can step in, but the fact is, and the courts have long upheld this this pattern and this practice is that when there's a dispute in the state law and the state constitution, as these things are not being followed according to their own state laws.
That has to be resolved by the state Supreme Court, if it's a state law only, does it go to the federal courts and to the Supreme Court when it is when when the question is of a federal law. This difference matters that the preservation of the system actually matters quite a bit because it's easy to see how all the second third order consequences materialize from here, you know, taking a step back, it's very easy to see that if we followed all this logic to its very end.
Last time I checked, we now don't have the Senate or the House, so if it stays that way, Democrats could easily choose their next president, simply based simply based off of this process by just canceling out electoral votes in a partisan fashion. It would happen, heck, if you if you follow the president's logic where he wanted Vice President Mike Pence to simply throw out the electoral votes, you can imagine a situation in four years where Vice President Harris is just making herself President Harris.
And we would have set that precedent, precedent as dangerous escalation is dangerous. That's what happened here. It's also worth noting that, look, I think all the people making these objections know everything I just said. A lot of them change their mind over time, tried to establish that sort of those three hurdles of mental reasoning that I described to you after they knew full well, after they told me behind closed doors, they knew full well that this was a deeply unconstitutional process.
And this is what's the point, right?
Because even if you believe in all this, even if it is a constitutional process, we don't have the majority in the House and it strains the imagination to figure out why you would tell so many millions of people that we could solve this for you on January six. It was just such a lie.
It was such a manipulation. Hard to say why or where it where it came from.
I mean. The passions and the pressure, it's it's immense, but our job up here is to stand up for what is true. I'm getting a lot of hate for standing up for what is simply true. I'd rather be on the right side of history, of course, and so and so the reality is I think I think a lot of people let me just let me just ask you some.
Do you think it makes any sense to assume that forcing two hours of debate will make some great statement on election integrity? Especially when the arguments in those moments was, well, they changed the registration deadline. This is the dirty little secret, no allegations of fraud were made in these objections. Everybody's been talking about fraud. No allegations of fraud were made in these objections, not not a single one, but because the because I don't think these members have the evidence to really back it up doesn't mean there's no fraud.
I think there's fraud. The question is, is there enough power to overturn the election? There's no evidence for that, doesn't mean there's no fraud.
I've been talking about fraud on this podcast for a long, long time and how it's done. I think Democrats deliberately loosened laws so that fraud can happen organically.
I think it's easy to imagine fraud or simply mistakes when you see thousands and thousands of ballots going to the wrong households and people could easily just fill them out, throw the men. And if you're not doing your signature verification process, while easy to see how that happens. OK, I get it.
We hear you. But the question about January six was always, where is the solution? These people, these so-called leaders, manipulated millions of you into thinking that the solution was going to be on January six, it has never been on January 6th.
Why they hyped this up as as the as the single moment. You know, between traitors and patriots, it was always absurd. It was always a lie because they could promote it because it's easy to promote a single day and then be done with it and then forget about you what you actually care about, which is exactly what they were planning on doing, still are. It's easy to do that, right, because then you can have a rally, you can make a speech, the cheers, the applause, it feels so good to these so-called leaders.
That's why they did it. It's hard to actually tell you the truth and say, look. You are totally right, signature verification, mail in ballots, all of it. It is not good practice. We should make more states look a lot more like Texas, Florida, Utah, Utah uses a lot of mail in ballots. They have an extraordinary system to make it secure. There's ways to do this. This is the hard work, though, because then you actually have to go to each state and figure out, OK, what's wrong, what went wrong, how do we do two things.
One, what's the exact policies we need to fix it? And two is the harder part. How do you build up a coalition and public support to get it done? This is hard. This takes time and it takes real effort. These so-called leaders who lied to you, they didn't want to do that. They didn't want to put in that effort. They didn't want to talk about what we can do things up here in Congress to. And let me be clear.
You don't want us passing a national voter ID law up here. Well, we can't now because Democrats took it all over. But if we did imagine what Democrats would do when they take it all over, they want to pass a no voter I.D. laws. OK, so you've got to be very careful about what you ask for.
Again, preservation of a federal system is really, really important. And you always have to remember that when the shoes on the other foot, they will do the opposite.
So be very, very careful on what kind of laws we pass. Doesn't mean we can't do anything. National Registration Database is an idea that's been floating around for a very long time. Makes a lot of sense. A county official and election officials should be able to know immediately if somebody in flag it. If somebody is registered in a different state, for instance, or a different county, whatever it is, if they're dead, if they're legal, databases need to be able to talk to each other.
We live in twenty, twenty one. We should have that capability. Shouldn't be that hard. There are things we can do to fix this stuff. You have to give people a feeling like there that their vote actually counts and saying that forever. But but to accuse people of not caring about this just because they didn't want to engage in some unconstitutional showmanship on January six is wrong. It is dead wrong. I will stand up for myself to the very end for what I did because I know I did the right thing.
Period, full stop. I have some friends on here shortly to talk about that, talk about some of these arguments. OK, so I want to bring the conversation now to someone you might know, the honorable Trey Gowdy. Trey, great to have you. And we miss you, your colleagues miss you, and your voice is is still trusted and and just an exception. You're an exceptional fighter for the conservative movement. I've been a long time admirer.
I wish we had gotten to serve together. So let's get right to it. You know, I think you if you had been here this week, you would have you would have probably been doing what I'm doing and what all of us were doing, which was discussing what we should do on January six, what it was really about, whether it's constitutional or not, whether we even have this power as a Congress to decide whether we want to, quote, certify electoral votes or object to them.
And that was really the question. It was sort of for weeks, months now, it's just been assumed that this was the final say, like this is the process in our election system. But is it I mean, what what would you have said, how would these conversations gone if you were here? Well, let me first of all say, if I'd known you were coming, I probably would have stayed. I had been a huge admirer of your service to our country, and that has got nothing to do with being in politics.
What would I have done? I would have been fully prepared to be primaried and probably lose because of the misinformation that was being perpetuated. You know, what causes people to be angry is when you set expectations that can never be reached. And some people do that out of ignorance. But but that is really not a defense that many of the people who were engaged in this mythology, that they had some power on Wednesday, it was not due to ignorance.
These are some really, really well educated, smart, in some instances, constitutional scholars.
So they knew better. The way the way I break it down is the Electoral College is a friend to conservatives. We've lost seven out of the last eight popular votes for president, seven out of eight. That's not a good trend. The only hope we have is, is the Electoral College.
And up until the Civil War, my own state didn't even let people vote on who the president should be. I mean, you can get a Ouija board, you can flip a coin, you can draw straws.
The states decide which electors to send. It just so happens that we all now have elections, but there's no requirement that you do.
So, yeah, that's a lot of things. People don't even know that Article one dictates that we do have elections for representatives and senators. But Article two, in describing how we elect the president, very clearly says the states will choose electors that will elect the president. And it says that you will establish a manner in which to do so in that manner could be simply choosing them, having the governor designate who they are or a popular vote. Yeah, I mean I mean, we did not elect U.S. senators for the longest time in this country, state legislative bodies.
So our our framers were not fans of pure democracy. And anyone who tells you otherwise is just not read what they wrote to make. The Electoral College is not pure democracy, right. In the states being empowered to have some voice. And again, if you're a conservative, really the number you need to keep in mind is seven out of the last eight popular votes for president, you have lost.
So so Donald Trump would have been president the first time if we had kind of followed their pure democracy mindset. So, you know, when you set expectations unrealistically and then you don't cross-examine the information, I'll give you a for instance, I heard the president in his rally talk about these votes in Pennsylvania that should not have been cast because they didn't meet the deadline. All right. And then I heard Pat Toomey on the floor of the Senate. These are both Republicans.
And Toomey said, you're right, maybe they shouldn't have been counted, which is why we didn't count. Those eleven thousand votes were not included in the final tabulation then. Both of those positions cannot be true. This cannot be true. It's true.
So where do we go to litigate differences? You go to court or you go back to the state legislative body. You don't come to Congress on Electoral College confirmation day and set expectations that could never be met. Mike Pence was never going to declare Donald Trump the president. And God help us if he did, because I promise you, Kamala Harris will have a different view in four years. So it was never going to happen. What could I mean, in theory, can you reject electors?
In the past, some states have sent two groups of electors. Exactly. That did not turn out well in 1876. I mean, for anyone to cite that as precedent, Lyndsey's right. That's not good precedent and lots of bad things.
A very painful way to say Lensink was right, but Lindsey was right about that now.
So so what was a realistic expectation? A realistic expectation would be if a member of the House or Senate wanted to use his or her platform to highlight irregularities that they perceive happened to state legislative bodies or courts. I mean, they have a platform. They can do it. But to try to somehow mislead people into thinking that we can change the vote total the Electoral College vote total was really a disservice to democracy.
And look, you don't go into politics unless you have a certain amount of ambition, but that ambition has to be tempered with the facts and higher obligations, like to the well being of the republic. And so I thought a lot of people did a real disservice to democracy. Yeah.
And again, if you've been up here, you would have been arguing these things and I was trying to get it out. I wanted to understand a lot of us who who want to do what a lot of our base wants us to do. We're trying to get to. Yes. And so we talked to constitutional scholars. We talk to lawyers.
Is there a way to. Yes. Is there any way that this process, as we're describing it, is constitutional and the answer can't be.
Well, the Democrats did it in two thousand five because I'm like, well, I don't like to look to the Democrats for my constitutional standards. Just generally speaking, I don't think they have much respect for it. They certainly don't like the Electoral College. They're very clear about that.
And so just just because they did it in two thousand five to a much lesser extent than we did, by the way, you know that one senator objects only about thirty one House members. And they were also very clear that they had no intention of overturning electoral votes. Now, that's a bit having your cake and eat it, too, because engaging in this process automatically means you're seeking to overturn electoral votes. I wish that weren't the case. I would have been happy to go on the floor and make all the same complaints that my colleagues did about some of these processes that occurred in different states.
So there's two different questions here. The states have loosened unverifiable election practices. Yes, that's that's that's been happening for a long time. These are worthy complaints. These are frustrating to people. It makes them feel like they can't trust the outcome of the election. That is all very true. But then you have to get from that fact to the next one, which is what can we do about it? And then the hype to January six was all about this solution.
And it was a fantasy solution because I think it's deeply unconstitutional to to imply that the Congress has these powers. And so let me let me lay out the argument for you and let me respond to it. So this is this is what the objectors would argue. They said here's why it's constitutional. They said that because of the electoral. Clause in Article two, which says that legis only legislatures can choose their electors and they choose the manner by which they choose electors.
Therefore, any change to election administration leading up to the election that isn't explicitly passed into law by the legislature must be unconstitutional. And that could be something as small as changing the way you verify mail in ballots. Or in the Arizona case, they were arguing that because registration deadlines had changed, that this is unconstitutional. OK, so that's the first that's the first legal argument they make. And because that's unconstitutional, then the remedy apparently must be to reject their electoral votes so that that's another mental leap for me to take, because now you're basically saying, OK, so you got a taillight out, which means we need to put you in jail for life because it seems like an extreme remedy.
And then the third mental leap is that we have a constitutional duty as a Congress to enforce that. And that's the question. Do we really have the authority to do so? So there's a I divide it up into three arguments to get to the place that objectors wanted to get to to justify this process. Does that sound right to you? Yeah.
Let's start with number one. So my question, if I were there alongside you is what do the proponents of what you laid out, their position that you laid out, what do they do with those line of Supreme Court cases that do allow state legislative bodies to delegate certain functions to other people? If the state of Pennsylvania delegated part of their responsibility to the secretary of state or delegated it to someone else, is their argument that the state legislature doesn't have the power to do that.
I mean, I'll give you an example. Courts that allow polls to stay open longer is is the argument of some of the Republicans in the House that the courts don't have the power to do that because the state legislature said the polls close at 7:00. I've never heard that argument before. So you have to ignore all that line of cases that says, all right, yes, the Constitution says state legislatures, but if a state legislature decides that they're going to empower someone else to do it, then go litigate that in Pennsylvania, go litigate that in Arizona or Nevada, but do not litigate that on the floor of the House or the Senate where no one has the power to do anything about it.
Go fight these battles in the 50 state capitals. Don't come to Washington. That would be my response. Number one is whether or not state legislatures have the ability to delegate certain powers. And the answer, clearly under Supreme Court law is, yes, you do. Number two, do you have the power to reject a slate of electors? OK, let's assume you did. Let's assume you you rejected the slate of electors that Arizona sent you, which I'm pretty sure has a Republican governor.
Did you correct me if I'm wrong? But but so you send it back to Arizona and then they and a matter of 30 seconds send you back that same slate. Now what? I mean, so you send it back to them and they say, you know what, actually we like the first slate we sent you. We're not going to change it. Then what? We just don't have a president because we're at some impasse. The states take the electors.
It may be true that you could reject them, but. But but what then? So can you pick them for them? Can Congress pick the electors for them?
That's a good point. You're making the point that according to this, what I believe is a fantasy process, because I don't think this process is laid out the way people are making it seem like it's laid out in from the Electoral Count Act of 18 1887. And you make the point as to why it's it's not even meant for that, for that exact reason. They would just send back the exact same slate because they never sent us to different sets of electors, which is which is what the Electoral Count Act is meant to deal with, when when maybe a governor sends you a certified slate and the legislature sends you another certified slate.
OK, now you act. Now, you really do have a problem in Congress that you do have to deal with it. That is that's why they they implemented that act. But that's not the case here.
And you can see it would play out exactly like you just stated, right in in 1876, the remedy was perhaps worse than the crime. They brought the Supreme Court into it. And then a Supreme Court justice decided, I'd rather be a US senator than be on the Supreme Court. And they lost the odd number, went back to an even number, and they got outvoted and it was the end of reconstruction. I don't know that anyone would cite that as precedent that we should be following.
But that was to say. Slate, slate of electors, that was not that was not the fact pattern here, so so you reject Arizona and Pennsylvania and they say, no, we're happy with the ones we sent you. Now what?
I mean, you can't you can't, Pikul. It's not your job to pick them, but our party used to believe in states rights and even the right to do something we disagree with. We used to believe in that, but.
But we fought. Right. So that that's the argument. Right. Because because you got to fight, you know, you've got to you've got to fight and it doesn't matter.
And this is where I get a little bit upset because and this is why I so much appreciated what you did earlier this week. I can't wait to hear people lecture Dan Crenshaw on the need to fight. I can't wait to hear people tell you about when it is the proper time to fight or or Tommy Cotton, who also served. He didn't sign up for Jack. He signed up for the infantry. He's an authentic conservative by any objective standard, but somehow he's an apostate because he didn't, quote, fight whatever that means.
And then you got Kenny Buck, who I think has a one hundred conservative rating by Heritage or Club or whoever does the ratings. Now, I need to get to the right of Kenny Buck. You need rappelling gear. But yet but yet he was somehow an apostate because he reads the Constitution the way you and I do. So I don't know what you need to fight me. I mean, if it means we need to go to Austin or we need to go to a state capital and advocate for changes in their voter laws.
Let me let me give you an example. What if what if the House and the Senate decided they were not going to accept South Carolina's slate of electors because they didn't like our voter I.D. law?
And can they do that next time according to this process?
Yes, because in Texas, we, our governor by edict, just change the early voting day, you know, to accommodate for covid, I guess. I mean, so do we have to reject Texas's slate of electors also? I mean, again, it brings to question the point of is this even a valid process? And I just I firmly believe it is not it was not valid when when Democrats did it. And it's not valid now and it's dangerous.
One thing I bring up is the the chaos in the capital and the the siege that occurred is exactly what you can expect if every time you put the the election of the president in one time, in one place where all pressure is now on one single moment, you can expect exactly what we saw there. And it's so unhealthy in our founders knew this. I mean, reading Federalist 68 is is is unbelievably insightful. It just shows that they they understood the nature of man very, very well and they understood what would happen if you did this, if you put the power into into one body at one time to elect the president.
And Hamilton talks about this, that you don't literally says the only people we don't want being electors are representatives and senators and anybody else holding a position of trust. Right. And all.
So why would they single why would they single the group out? That can't be electors only to say what we really want you to do is pick the next president of next vice president. Yeah. And while you were defending our country, that was patrolling the main streets of Spartanburg, South Carolina courtroom and I can't tell you anything about fighting, but I can tell you something about setting expectations for the jury in a manner in which you could never reach them.
And what it does is it provokes anger. And what real leaders do is they tell the people what they ought to hear, what they need to hear and not what they want to hear. And I celebrate the fact that there are people like you and Timmy, Scott and Tommy and Kenny Buck. This was hard. It is hard to tell your constituents you're right about irregularities. You're right to be concerned about it. But this is exactly the wrong remedy.
I mean, that should be celebrated, quite frankly. That is conservatism to say this is not the right way to fix it.
Conservatism is protection of process. You know, what I tell people is, look, the left is always happy to change the rules of the race just to get there their preferred winner. And if they if they if you see somebody who keeps winning a race and they don't like the person who keeps winning a race, and if if you're a leftist, it's usually based on skin color or gender or whatever it is, then they don't mind changing the rules of the race, even if that.
Means the rules of the race are now not fair. We are the ones who protects the rules of the race and the rules of the race. In this case, it's in the Constitution. The Constitution tells us how to govern. And it was very carefully laid out and only bunch of fools would dare mess with that and just cast aside the consequences. Because, I mean and you laid out some of the political consequences. You know, the fact that we haven't won a popular vote in a while and, you know, other consequences are well, now, we've laid the groundwork for Democrats to engage in this behavior constantly for years to come.
They now have control of the Senate and the House. If they really wanted a partisan vote, they could easily do this according to the process that we've now set a serious, serious precedent for. Because let's be honest, before before this year, it was really not taken seriously. You know, again, the most serious that was taken was 2005 when you had a Democrat senator object also. But it was still laughed out of the chambers. It really was.
And we have to be honest about that. But I don't trust Democrats, OK?
They will they would love to take this precedent to the next level. And it's a scary and it's a scary future if that's the case.
Well, they want to they have long since wanted to undo the Electoral College because Gore would have beaten President Bush. But for the Electoral College, Hillary Clinton would have beaten Donald Trump. But for the Electoral College, that was a big movement.
And part of my fear and concern is that we have done more to undermine the Electoral College in the last two months than they could have ever hope to have done in the last decade. So our framers wanted states to pick the president. They didn't want the general population. And God knows, they didn't want the House and the Senate. They wanted the states. So when I listened to the president's speech, I listened to every word of it. I counted thirty eight either factual or legal irregularities, every one of which could either be remedied in a state legislative body or a courtroom.
Not a single one of them was going to be remedied when they marched over here, and it was a disservice to suggest otherwise. And I just I think leaders tell the truth even when the crowd doesn't want to hear it. And that didn't happen. I mean, that didn't happen and it makes me so angry because people are dead now. And look, I know a lot of people felt they they they had to object for political reasons. People wanted them to.
But some people, like I said yesterday, they hyped up the rhetoric a lot more than that. I mean, really made people think that January six was your revolution. It was your 1776. That was a war, by the way, in 1776. OK. Others called for. Others said they'd be happy to to start a civil war. I mean, it was very irresponsible language. And you can't be surprised when people take it seriously. You really can't.
And it just it destroyed the intentions of I think I mean, a lot of people who were up here certainly had no intention of what happened. I mean, the vast ninety nine point nine nine nine nine nine percent of them had zero intention for what happened. But it did.
But it did well for.
There's a book I'm sure you read in school, I probably read the Sparkhill notes, but Mary Shelley created something she could not control. And sometimes in politics we create something because of this echo chamber between certain members of legislative bodies and then the media. It's great for fundraising. Let's just call it like it is. It's great for fundraising. I'm sure there are folks who thought it would be good for their future political aspirations. But when I think about you and I talked to Tim Scott more than I do any other member, and so Tim had a choice.
You know, Tim could pledge finality to a constitution that at one point didn't even consider him to be a fully human being or he could take the easy route out. He's on the ballot again in twenty, twenty two. I mean, people discuss him like they do you as a future presidential candidate. The easy thing to do is to go along and get along. It's just not the right thing to do.
So tell people that if you think something bad happened, tell them how to fix it, where to fix it and offer to help. But to create this fake panacea that Mike Pence is somehow going to declare Donald Trump the winner of the presidential election. It's just a fool's errand. And I some people don't know better but what to do and they should never have let it get that far.
And it's frustrating because you talk to people who came up here, they're they have righteous concerns about election integrity again. And I can name a bunch. I've been doing podcasts on Election Integrity for a while. I think a lot of the practices in these states do not give you a feeling of security that your vote is going to count and not be canceled out by an illegal vote. I mean, when you're when when mail when ballots come to your home and they're for somebody else and you realize that all you have to do is fill it out and send it in.
And and especially if if you don't think that your state is doing a good signature verification, well, then your first thought is, what if I can do this, then a lot of other people can do this. This is a real problem. Like, it's not to dismiss the real concerns that people have, but, man, we've misled them. We misled them so badly on what that solution would be in the solutions are hard. I mean, you really do have to you've got to go to the state level and fight this stuff.
You have any more thoughts on on maybe are some more productive things people could do? And on a substantive level, I mean, that's where we've got to direct the conversation because this issue isn't going away, nor should it. Yeah, I mean, I think it's so level not to be too ethereal, but we do have to have a conversation on the right about whether to advance the tactics that our culture should have or just follow the ones that we currently have.
And right now, politics, to me is about winning. And it doesn't really matter that much how you when winning is the only virtue. And I just I think that's an effective call to conservatism. So the hardest thing in the world to do is to persuade people that don't agree with you. The easy thing for you to do is go find like minded people and then repeat back to them what they want to hear. That's easy to do that in ABCL.
To do that, what's hard is to persuade people. So I think the hardest thing for us to do is convince all of our fellow citizens that winning is not the ultimate virtue. It has to be fair. And look, I am what California does in terms of elections. I couldn't live in a state like that.
It made me just as angry as it did anyone else when I saw the secretary of state in Pennsylvania acted as if she really was the legislative body.
The question is, where do you fix it? And you don't fix it on Capitol Hill. You fix it in the capitol of Pennsylvania and Nevada and Arizona and California. That's hard. You can't just show up for a rally and listen to a speech and scale a wall that's not going to fix it so well. Conservatives have been in the minority for a while. I think it'd be helpful for us to identify those things that we hold inviolate and then fight for those, even if in the short term that means not electoral success.
I'd just rather know what I'm fighting for. And simply winning is not a sufficient virtue for me to fight.
Yeah, but I think I think in the long run it does mean winning. And I think the way you define winning is, is how I define winning. You have to persuade people and you have to implement measures that have long term stability and a long term winning outcome for us. I think our ideas are easy to win on. It's I think it's easy to persuade people that you need voter ID. Pew Research says that four out of five Americans believe in voter ID.
It's common sense. You know, we don't have to accept this left wing lie that voter ID equals suppression, but we've got to persuade people to vote that way. You know, the left is just a little bit better at at this kind of hard work at the state level. They seem to know the system better than we do, it seems like. And we've got to fight that way. I mean, it's just it's just what you got to do.
And fighting needs persuading. Finding does not mean, like you said, repeating the things back to your own group that they want to hear that's not fighting. A lot of people said it was fighting. A lot of people like to use wartime rhetoric, but that's how you get a war in the Capitol on Wednesday.
Well, the head wind is hard and the headwind is the is the DC media and the print media. And of all the things I miss the least, having been there for eight years, it is that headwind, the media headwind. And you're right, if you think that you should show the same I.D. to vote as you have to show, I had to show to go visit with Eric Holder when he was the AG that that can't that can't be racist.
But part of what I think our party needs are our different looking faces making that argument for us.
It is one thing for me to say something is not racist. It is quite another for Will Hurt or Mia Love or Tim Scott to say, yeah. So I think our party. The head one is tough. I'm sure you have felt it, even though you've been there a relatively short period of time. I don't. My guess is you do not perceive it's a level playing field for conservatives and progressives with the media outlets you deal with now.
Of course not.
I'm not minimizing the difficulty of it. However, we have to find a way.
You're doing it right now. You've got a podcast, you're on television, you do a great job on television. And my sense is you would not be afraid to go on less friendly venues.
We have. And that's where we got to do it, where we got to spread the word with common sense arguments. It's not hard when you're right. You know, conservatives have to be a little bit more comfortable with being right and then knowing how to make arguments and screaming is not an argument. We can do this right.
There's no reason to feel like we've been defeated. We can do this. Um, so I know you got to go to the gym. I know we're we're we're out of time here to tell the audience what you what are you doing at the gym today?
Actually, at my age, I'm trying to stay awake for the entire hour. I'm like, I'm a golfer. You know, Tim Scott's arms are about the size of my legs. I'm not ever going to get there unless I choose. And I don't want to lose my hair.
I am trying to stay in some of the same suits that I wore when I was in Congress. You know, the great thing about exercise might be if you exercise a lot that I my guess or maybe you did it all your budget trying to you just don't want to do it anymore. I just drink.
I just drink muscle milk. That's all you have to do. You're not the workout.
If you drink muscle milk, it's oh, I read a study the other day that the thing that makes people happiest is not money and it's not power, it's exercise. And I think exercise is good for your soul and it's good for your mind. So I go, you'd be embarrassed to the weights I lift you. You would think it was harder to walk over and pick up that dumbbell that it was to curl it. But I hit something I like.
I like to go to the gym. But I'll tell you this. There are not that many people that I really kind of have on my list that I want to meet. Want to talk to. But because I followed your career, because I have a connection to Texas, because of what Kevin McCarthy and others have said about you, you were on that list and you skyrocketed up to the second on that list. Halle Berry is still number one.
Used you you made it the number two this week because you showed a level of courage in saying, look, I understand your anger, but this is not the remedy and it takes a lot of guts to do that. I really appreciate that.
You've always been on my list, my friend, the watching a long time in America. America needs guys like Trey Gowdy, that's for sure.
Well, I'm in Spartanburg, South Carolina. I'll be the one kolender 17 pound dumbbells, if you're looking for me at the gym and if there's ever anything I can do for you, you let me know.
OK, all right. All right. Maybe add some deadlifts to that. All right. Best exercise. There is a thank you so much for being on and giving us your insight.
Really appreciate it. God bless you. Take care of yourself. Thank you to. OK, so my next friends on the on this episode, I've got Representative Chip Roy, a fellow representative from the Texas delegation, and Professor Steve Vladeck at the University of Texas School of Law. Thank you both so much for coming on. Thanks for having me. Thanks, Daryn. So, Steve, you know, Chip and I have been here speaking to our colleagues.
I will say it was some of the most intense and interesting debate and the and the and the Republican conference leading up to January six. And the debate never centered around the merits of the of these objections because the merits of the objections, you know, I've long said, you know, I can agree with them. I don't like the way some states engage in an election practices. I think they're loose and I think they invite uncertainty.
The debate was always about whether we even have the power to actually overturn electoral votes. And if we believe that we do. Is it a good idea?
And what kind of precedent does that set and what is that what the founders intended? And so you're coming on after? I've already laid down a lot of context and background on what we did. But you know what, Steve? What kind of direct this to you? Do these arguments make sense if you're trying to make somebody believe that it's constitutionally acceptable for Congress to overturn electoral votes, that this process that we're engaging in on January six, that that hasn't been engaged in before by Democrats, that it's even that it's even remotely constitutional, you know, how can you make an argument?
And so what people will say is that because of the electoral clause in Article two, which says that that legislatures choose electors and choose the manner by which they choose those electors, any deviation from strict state law, even something as simple as changing a registration deadline which was brought up in the Arizona objection, is deeply unconstitutional. And therefore the remedy must be to throw out their electoral votes. And then the third mental leap that you have to get to is that we have a constitutional obligation as a Congress to take that action.
So there's three there's I separated the two three. Categories first, that that action is unconstitutional. Second, the remedy for which is throwing out electoral votes. Third, we actually have the authority to do so. How would you respond to that argument?
I mean, you know, those are the right three layers. And if we take them in order. So let's start with the first. So the first layer, I think it's important to note, just before you can go much further, if this were the only constitutional objection. Right. Take Pennsylvania, for example. That is that's an objection to, for example, counting the late arriving mail in ballots in Pennsylvania. That's different from actually what many of the objections to Pennsylvania were, which is actually to the entire edifice of mail and voting.
So with that caveat, the question is, did does the federal constitution actually rewrite state constitutions? Because for this argument to work, you'd have to believe that even if a state constitution expressly said the state Supreme Court has the last word on the validity of election laws passed by the legislature, that the federal constitution, by giving the legislature the power to provide for the choosing of electors, overrides that. That's a pretty bold claim. We don't have a lot of context where the federal constitution is interpreted to rewrite state constitutions as opposed to imposing a federal mandate.
And it's a pretty novel argument. In the first time it really received much purchase was in Chief Justice Rehnquist. Three Justice concurring opinion in Bush versus Gore. It's never been endorsed by a majority, the Supreme Court. So, you know, starting with just the first layer, I think it's a tough sell. It's not outside the realm of possibility. There are good arguments on both sides, but it's never been accepted before now. And I think one of the questions as the layers start to blur is should Congress ever be in a position to throw out electors based upon maybe plausible but not necessarily previously accepted constitution?
All right. So, Jeff, do you have anything to add? Well, the only thing that I would add to the specifics of this thing and Steve brought up Pennsylvania and I appreciate you being on.
And typically staffers like you, you have a little you have a law background.
I mean, I we'll need to know that first. Assistant attorney general of Texas, a former federal prosecutor, assistant United States attorney, I've worked in constitutional law, worked on the Senate Judiciary Committee. Some worked on these issues for almost two decades, also went to University of Texas School of Law. Steve?
What I would say is one of the primary concerns I've had about the argument about this Article two argument and Steve brought up Pennsylvania could also bring up Georgia.
Is this idea that what occurred in the states is then a direct attack on the US Constitution, when in fact, what I see that occurred in the States and Steve, I'd like your opinion on this is that you had legislatures in the states that took specific action and then didn't specify. So Pennsylvania, for example, they passed a law at seventy seven and twenty nineteen.
That law did not have a specific requirement in there for signature matching. They could have. They didn't.
I wish they did. I wish they did. And it was a Republican led legislature, Republican led legislature, and they didn't pass it. And then the secretary of state changed what had been practice and said we're not going to have a requirement for matching signatures.
Now, that might have been a bad policy. Go take that out with the secretary of state.
But how on earth is that, A, somehow undermine the authority of the legislatures thereof to take the language that's in the Constitution? I don't see that, because for us to insert Congress into that, I think turns the whole construct on its head. Putting aside, by the way, Steve, that the argument you alluded to about the ballots coming in after 8:00 p.m. that's being litigated, it's being let it be litigated by a strong conservative right now, Chuck Cooper, who I trust immensely, and they might win it, but it is fewer than five thousand ballots and fewer than several thousand that might go to Trump or not far away from the eighty seven thousand in question.
And that's one of the reasons it hasn't been finished yet. There are reasons for these things. Steve, do you agree with that? I agree with every word of that.
And if I might just add one point. The other thing I would say is let's just let's take a more mundane example. Right. We're all familiar with examples where local judges have extended the time for voting right. Work, keeping a polling place open an extra hour or two. There's no warrant for that in state law. Right. Usually they're doing that as an interpretation of the state or federal constitution. Are we really of the view that the state constitution prohibits a local judge from keeping a polling place open for an extra hour in a circumstance where the legislature has said, no, you can't and are we really have to do that?
Even if that's true, it's for Congress as opposed to the state Supreme Court. Right. To have the final word on that question of state law. That's that's where I get off the ship, guys, right where I think there's an interesting question about whether state legislatures have primacy. My instinct is that the answer ought to be no for some of the reasons we've laid out. But also there's the question of who should be the arbiter of that question.
Right. Why should Congress and or federal courts necessarily be the final word versus state courts? That's part of the problem here is that we're we're sort of blurring different questions along the way, if I might.
This is Chip and Steve. If I might ask one more question, my interpretation of that clause with respect to the legislatures thereof would suggest to me that when you're saying states shall appoint. Right. So it's still referring to the states, but then it refers to in a manner, you know, laid out by the legislatures thereof, that is to lay out the scheme.
In other words, that the legislatures are supposed to be the ones that define the scheme by which we choose the electors. It's not to suggest that that means the United States Constitution tells you every specific aspect of it, every way that you do the you know, the exact timing or so forth. We legislate that way all the time. Congress legislates that way all the time where we will lay out, hey, have secure ballots and then let the administrators figure out how to do that.
And let's clarify what you just said. You said scheme, and you're basically repeating what Judge Ludwig from Wisconsin said, because this has been ruled upon, that this question has been ruled upon, in fact, by Judge Ludwig in Wisconsin. And it was a Trump appointee. And, you know, to clarify for the audience, my scheme. You mean whether or not you even have an election, right. Because those electors could just be appointed by the governor to correct.
And whether or not whether or not you have an election, how you have an election. Right. You know, what is that? How are you going to vote? I mean, like that, you know, the mechanics of the election, I gather, is what is what Congressman Roy was getting at.
It is and the fact that you even vote in the first place in the way you do it. In other words, if Georgia said, look, we're going to choose our presidential electors based on the outcome of the Georgia Tech Georgia football game, OK, well, they could set that law, decide that's how they're going to do it.
But that's technically constitutional. But they don't. And and so they've laid out a scheme and they say, here's how here's how you do it. The legislature did that in every state and then they allow some administrative decision making about the way you do it, how the signatures get matched, how you check the ballots, what applications go out, where the voting booths go. And by the way, every state made decisions like that, including our great state of Texas, where the governor himself made unilateral decisions in the wake of the covid situation to move, you know, ballot locations and to make certain decisions for Texas.
And I would have this argument with some colleagues and they would say, well, that's exactly right. And maybe we should throw out Texas electoral votes. So it's kind of a desperate a desperate attempt to remain consistent in their intellectual reasoning.
But I'm like, OK, so let's say you are being consistent there and we should throw out every single state's electoral votes that that that that engaged in some kind of change to the administration of elections that wasn't explicitly written into law by the legislature. Imagine what our future looks like now. And this is what Judge Ludwig wrote.
It said, you know, he pointed out that we would our elections would now be mired in endless, frivolous court battles by by clever lawyers. You could you could litigate it constantly.
And so and we're going to be fighting over his where's the line between what the legislature expressly provided and what the state executive reasonably interpreted from the statute. I mean, you know that you guys mentioned Governor Apitz proclamation. He based those on his interpretation of Texas election law, but they weren't exactly compelled by the letter. So, you know, I think there are two different problems here. One is the implications of the argument. But again, two, there's also the sort of the structural constitutional law.
I mean, for especially for folks who are committed to the federalism, to the primacy of states. You know, the notion that the federal constitution exerts a federal constitutional obligation on state constitutions to give state legislatures primacy over state supreme courts. I have to think that would have provoked some of the founders who were in many ways more protective of states rights than many of us are today. They certainly are.
OK, so but let's assume that were these arguments all turn out to be wrong in the Supreme Court? The Supreme Court had ruled on the Texas lawsuit that they would have said explicitly that everything these states are doing is totally unconstitutional. So now the second the second category we then get to is what the remedy would be, what you know, do we really believe that the Supreme Court would have just thrown out electoral votes based on that, based on that ruling?
Yeah, I mean, let's just take Pennsylvania first, right? I mean, and this is you know, this was some of the fighting that was going on right before the election was should Pennsylvania be required to segregate the late arriving mail in ballots? I think we all agree those were the ones that were most vulnerable, at least in Pennsylvania, to this particular argument.
That was the case where I think there was the most clearcut example of the state Supreme Court doing something different from what the state legislature had provided. And Pennsylvania followed. First, Pennsylvania volunteers to do it. Then Justice Alito ordered them to do it. And so, you know, even in that case, guys, right.
The remedy might have to throw out some number of actual votes of a person votes right before Pennsylvania's certified its final count.
As as Congressman Roy said, we're not talking about a large number of votes in the state that Biden won by way more than the margin we're talking about here. So I can't see how that would justify throwing the baby out with the bathwater when there was a much more precise targeted remedy that would have been available.
Right. And then the question constitutionally, is this entire process just a fantasy? Because I think it is. I mean, that was the basis of my entire argument for not voting for objections is that we just don't even have this authority, period.
You know, I think constitutionally it's an open question, and I think some of this really comes down to how we interpret the Electoral Count Act of 1887. Guys, to my mind, there's no question that there are at least some cases that the Constitution and the Electoral Count Act do commit to Congress's discretion. Right. To place Congress as the arbiter. And that's cases where a state returns either no electors by the relevant dates or states return multiple conflicting slate of electors.
What happened, of course, in 1876 and guys, I mean, obviously, there has to be someone who resolve the dispute in those circumstances. That's where there's a clear role for Congress. But part of the point of the Electoral Count Act is to create a procedure for those cases as opposed to cases where there's no competing electors.
And I mean, to my mind, I think there's one example. Since the Electoral Act was enacted of a state return of a multiple slate of electors, it was Hawaii in 1960. Yeah.
So, you know, I think that there's a pretty good argument that at least under the statute, yes.
There's no substantive role for Congress besides just the ministerial one. And when, as we saw this year, every state returns a timely and unitary slate of electors as opposed to cases where there's conflict. And Steve, this is Jeff.
The you just made a good point where they timely return a unitary slate of electors this year just to make sure everyone listening knows all 50 states returned a single formal slate of electors, not more. There were some parties who said that they had some alternative electoral stuff, but none of those were under color of law. None of those were official. None of those were formal.
And so to your point that you just outlined under the Electoral Count Act, that those procedures, if you assume the electoral count act is itself constitutional in a framework we should follow, which is a subject to some debate as to whether or not we should be more bound to just follow the 12th Amendment as it is. But fine, that's a separate conversation. If you follow the Electoral Count Act, then and you go through the process you just laid out, I think it is very clear that we still count.
You laid out the situation where we have multiple slates. Then we make a decision on whether on what to count or somebody. If they said no slate whatsoever, I guess we can make a determination of what that means with respect to the numerator and the denominator.
But we're not supposed to be inserting ourselves into the decision making of how of how those electors were chosen. And it did and I think I mean, I agree with that. I would just say the historical context, the argument even more compelling, because, you know, keep in mind, you guys know, some of your listeners may not know the electoral count act as a response to the disaster. That was the 1876 election where Congress almost fell apart, trying to figure out how to count conflict in slate of electors from three states where those three states would have either thrown the election to Tillett or thrown it to Hayes.
And so in this context, it would not have made sense for Congress to set up a rerun of 1876, except in the circumstances where it was unavoidable, except in a circumstance where it really had no choice but to decide between conflicting ballots, slate of electors, or where there were no electors from the state. And perhaps that meant we fell below a candidate with the majority. Oh, this is the vacuum of add one more point, Dan, that I think is critically important for listeners to understand is that of the six states that were being raised as questions among our Republican colleagues, now, obviously we only ended up voting on two objections, I think in part because of what transpired in Washington.
Otherwise we might have been, you know, responding to three, four or five states worth of objections.
But it's important to understand that five of those six states are controlled by Republican legislatures. Those those legislatures, both houses, five of the six have Republican leaning Republican led legislatures, not one body, not one of those Republican led bodies sent a separate set of electors, not one and not one of those bodies sent Dan or myself or any other member a letter by a majority of that body subsequent to the election saying, you know what, we have concerns about the process or concerns about how we chose the first set of electors.
Would you guys take this into consideration? The only thing we got was one last minute letter from the state Senate in Pennsylvania that had a majority of Republicans, but not a majority of its body that raised certain questions.
And they did that at the 11th hour. And I believe it was a purely political face-Saving maneuver. And this is just all really important because they had an opportunity. They are the legislatures. They could control it. So if you're hung up on the legislatures thereof or these Republican legislatures could have spoken.
Yeah, and I'm sorry. Please go ahead. Go ahead now. And I'll just have to that I mean, you know, and for folks who are saying, well, what if there really were shenanigans, but we only found them out a few days after the election.
Right. I don't want to belittle some of the litigation we saw. Right. That there are opportunities under every state law for the candidate to contest the results for, you know, campaigns to contest results, certain voters, the contest results. That's why. Right. Federal law gives states up to five weeks to certify the results of their presidential election. That's why every state gives the state at least a little bit of time to certify the results, to conduct audits, as some states did, especially Georgia.
And so, you know, it's not like this matter came to Congress in the joint session without sufficient opportunity for exploration. I think that's another part of the story that we have to we have to include. We're we're I know Steve has to go within the next few minutes, I mean. You know, I always like to end these conversations with within what would then what is the right solution, because people are frustrated. I mean, this was like I think people were misled and the deep and enormous way about what January six would mean for them, it was always hyped up to be, I think, an opportunity for some ambitious politicians to have a name for themselves.
And and that ended in disaster. But people really believed it. And people have real concerns. Again, I always point to examples like if you're if you're getting a ballot to your house that has somebody else's name on it, well, then it's pretty easy to imagine that a lot of other people are getting that a similar misnamed ballot and could easily fill it out and cancel out your legitimate vote. These concerns are not are not frivolous. But what I point to point out to people is you got to do the hard work at the state state level, and that is hard work and it's going to take time and we've got to do it.
Yeah, I think that's exactly right. For better or for worse, I know that I mean, the three of us don't always agree on everything. The Constitution gives primacy in federal elections to the states. Congress has the power to assert more of a federal role in regulating the time, place and manner of elections for federal office. It hasn't chosen to do so historically. And so, I guess what do we say to folks? I think my response is focus on your state process, right?
If a law comes across that looks like Act 77 in Pennsylvania and you don't like it, don't wait till after the election to challenge it. Right. If the if the election goes in a way that you're concerned about. Right. Use the remedies available under state law, but also have faith that those processes are meant to work. And if they end up producing a result, that's not the one you want. Maybe that's because the claims you've made, the allegations you've levied, could not be sufficiently substantiated.
I'll only add that I think there is a role for Congress, the federal government, to play here, and I'm a fairly outspoken, ardent federalist and you and I agree on a lot of that about leaving as much as we can to Texas and other states. And that's one of the reasons I think that you and I and I don't speak for you. But why we felt strongly about this. Right. It's preserving and protecting the role of states in this process, as the founders intended.
But there is a role in the Constitution, the pure text of the Constitution for us with respect to time, place, manner of how federal elections are carried out. So we have a role. We should look at it. We should determine whether we should do something about, you know, you know, maybe we would have a federal holiday for, you know, elections so that everybody can get as many people in that day. Maybe we should have some specifications on how mail in ballots are actually carried out.
I think that there's a bipartisan agreement dating all the way back to the Jim Baker Jimmy Carter 2005 report that mail in ballots are fraught for more abuse and fraud.
Right. It's just it's just by definition, it's obvious. I mean, anybody would recognize that that's at least true. And so I think there are ways we can step into that role and then give some deference to states and some road maps and then and then just tell people, push your states to then fill in the gaps.
Yeah, I think that's right. And, you know, I mean, people like us may not agree on what those policy choices should be, but I think we can find common cause in the notion that making sure there are clear rules in advance of elections is a far healthier way to do this than trying to litigate after the fact.
Come on, Steve. You know, Dan and I are right. And you should just go along with what we're saying. We're definitely right.
Well, Steve, I know you got to go. Thank you so much for for coming on and and lending us your expertise on this issue.
It's important to note that it's a pleasure. I hope we can do it again. Thanks. Thanks. Steve Holcomb.