Society Magazine

Two Pedantic Problems with Representative Estes's Post

Posted on the 23 January 2021 by Russellarbenfox
Two Pedantic Problems with Representative Estes's PostDear Representative Estes,

Thanks for sharing your reasoning about your January 6 challenge to the Electoral College results, thus your challenge to the certification of President Biden's election. I am in complete sympathy with your statement that "all of us are appalled at the violence, destruction and loss of life that took place at the Capitol on January 6," and I heartily endorse your closing call for your readers to "join me in praying that our country has a renewed commitment to civil discourse." That is all very well said, and I appreciate your including it.

However, you also included a couple of statements that trouble me. Once is simply wrong, and the other misunderstands something that is implied by the first. So forgive me, but I feel a need to play the professor here for a moment. You wrote:

"The Founding Fathers did not want Congress to select the president. Nor did they want the judicial branch, or even governors to do so. That was the responsibility of the state legislatures."

Of course, this isn't correct; the people who wrote the U.S. Constitution stipulated that it was the members of the Electoral College chosen by the states that would select the president of the United States. Those electors are chosen in accordance with procedures established by the respective state laws which obtain in the different states, and since those laws are written by elected state representatives, I suppose you could argue that "state legislatures" are ultimately doing the selecting. But by jumping those steps, you set up the foundation for your action (specifically that "I, along with a majority of the Republican Party in the U.S. House of Representatives, raised objections in regards to what we believed was evidence that several states violated their own laws in administering the 2020 election as they pertained to the office of the president") in a way that side-steps an important truth.

That truth is that those state laws regarding the appointment of electors, just like the state laws regarding all electoral matters--voter registration, absentee ballots, etc.--are subject to constitutional challenge, such as any citizen (including yourself, Representative Estes) may bring. The rights laid out in the amendments to the Constitution have been extended and applied by the Supreme Court many times over the past 232 years to enable citizens to defend the principle self-government. And, of course, when citizens, or their elected representatives, bring forward such constitutional concerns, it is the place of judges in our system to make an adjudication as to the validity of the concerns so expressed.

What is the point of emphasizing this? Simply that when you allege that state legislatures "violated their own laws," what you are actually doing is alleging some constitutionally nefarious when elected representatives, or the election officials they appoint, adjust their statutory requirements (including deadlines and the like) regarding mail-in ballots, or ballot drop boxes, or more, during the pandemic. They did this not just to compensate for the change in voting patterns which the health concerns of the pandemic introduced, but also because if they didn't make such adjustments, they would be subject to exactly the sort of legal challenges which your own column vaguely refers to (though I note that, while you invoke the Constitution multiple times, you only ever call what the state legislatures or state election officials did "improper," not "illegal"). The whole point of these election laws is to support the exercise of constitutional voting rights by the people; when circumstances stand in the way of the exercise of those rights, officials of government are obliged to act. 

Now, if those actions themselves violate someone else's rights (as apparently former President Trump believed they did, since he insisted over and over that he'd won the election by a landslide, and had been robbed of his victory by electoral fraud), then they need to go to a judge and make their case. Which Trump's lawyers did, dozens of time, with a total of 46 out of 54 lawsuits being almost immediately dropped, dismissed, or ruled against for a complete lack of evidence (the rest are currently in the midst of the appeals process). Meaning, in short, that the system which we have determined, over and over and over again, that the claim that state legislatures had vacated their responsibility in regards to the means by which appointed electors make their selection is simply groundless. Rather, it was their view that election commissions, governors, state judges, or even committees of legislators themselves, in these several states, had acted responsibly in the determinations they made about statutory election requirements. In the eyes of the courts, there simply was no demonstrable constitutional harm done here. Which means that, strictly speaking, in accordance with how our constitutional system is supposed to work, your belief that, for example, "the Democratic majority of the Supreme Court of Pennsylvania unilaterally violated the U.S. Constitution," is simply nonsensical, because the Supreme Court of the United State itself said so.

Of course, if you want to insist that your love of the U.S Constitution obliges you to disregard the judicial functions which that same constitutional system sets up, that's a political belief which you have every right, as a citizen, to advocate for, and you'd find me agreeing with you partly as well. (You and me, Representative Estes: down with the imperial judiciary, and down with the power of judicial review!) But note that I called that a "political belief," because that's what it is--a belief about what ought to have happened in our polity (which presumably is, in your case, at the minimum: "election officials shouldn't adjust statutory requirements for ballots in the name of supporting voting rights during a pandemic without a complete change in state law"--though maybe, to be frank, the political belief here is actually just: "Donald Trump should be president"). Which leads me to another concern I have with your column. You write:

"In America, we must be able to use the legal processes prescribed in the Constitution without fear of retribution by those who hold the levers of political power."

In your column you speak on a couple of occasions of the "legal and political processes" of government, and as a way of expressing a general point, that's fine. But if you're going to specifically refer to "the legal processes prescribed in the Constitution," then I have to remind you of everything in the previous five paragraphs: the actual "legal processes" which follow from applying the Constitution as written involves petitioning judges to consider potential constitutional violations, and they didn't find any (in fact, usually Trump's lawyers, knowing they had no evidence that met the standard of scrutiny and not wanting the get disbarred for lying to a judge, mostly averred that there wasn't any fraud at all). So may want to rephrase this to speak of "political processes" alone, rather than legal ones.

Am I saying that when you and other House Republicans objected to certifying the Electoral College votes, that you were doing something illegal? Of course not; as a member of Congress, it was perfectly legal for you to vote however you wished. But the idea that you were legally obliged to so act, or that your actions followed any kind of legal necessity, is silly. You made a political stand, as is your right, but you had no legal rationale for doing so.

And remember, that making political stands--that is, standing up on behalf of a political belief--is a symbolic action. It's not necessarily just symbolic, of course: when one votes, or engages in a protest, or writes a column for a local newspaper like you did (or writes a blog post in response to it like I am), there are often real-world consequences in play: someone might get elected or not, someone might be arrested or not, someone might be persuaded or not. But even those real-world consequences exist in relation to the symbols and associations which surround them. You recognize this yourself; you associate your action with enabling "millions of Americans the ability to voice their opinion" and with honoring "my constituents and the Constitution." So let's think about the particular moment, and some of the other associations which were in play at that moment when you stood up to be counted as challenging the legitimacy of electoral votes which dozens of courts (many of them filled with Republican judges) had found legitimate.

The Capitol Building, just hours before you voted, had been attacked by a mob determined to do what you did, only much more violently and directly: oppose the certification of President Joe Biden's Electoral College victory. Five people died as a result of that violent attack--the worst which the Capitol has experienced in over 200 years. There were people looking for the person who is in charge of the House you are a member of--Speaker of the House Nancy Pelosi--with the apparent intention of kidnapping or killing her. Are you responsible for them? No! (Or at least, certainly not nearly as much as former President Trump, who fed them the delusional nonsense which led them to make the attack.) But in the final moment, I fear your actions fell symbolically on the same side of the rioters. After all, you were, at the very least, being motivated (or at least so you claim; I'm writing all this under the assumption that you were sincere in your column, and not just covering up the simple self-interest of keeping the Trumpist voters in the Kansas Republican Party on your side) by the same legally groundless political convictions about supposedly "improper" state electoral determination which Trump employed to fire up the mob in the first place. You may say that you were solely acting on behalf of Kansas Republicans who embraced Trump's dismissed claims about fraud, and you may genuinely believe that. But you can't wish away the symbolic weight which the House carried at that moment, in the wake of insurrectionary violence only a few steps logical steps removed from your cause.

You could, I suppose, simply embrace this association, and insist that while the rioters were utterly wrong in their methods, they were not completely wrong in their cause. I suspect you'd denounce that as a terribly unfair connection to make, and you'd probably be right. But is it an unreasonable connection to make? That, Representative Estes, I don't think is the case at all.

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