States’ rights and January 6th

The other phony argument by election deniers

It’s not easy to be a Congressional election denier when January 6^th rolls around. You go on the national news programs and have to face embarrassing questions about your record, your party’s frontrunner and how you plan to act next time around.

This year, top election deniers in Congress tried to wiggle out of any responsibility by reviving a legalistic argument about states’ rights. And their argument does sound more respectable than some of the tinfoil hat conspiracy theories about election fraud that come from the Trump camp.  

But don’t let their dry, legalistic formulations fool you. When Congressional leaders claim that they only tried to overturn the 2020 election because of these alleged “procedural irregularities,” they are pushing a long-debunked argument that they should know by now is a lie.

What they are actually saying is that they don’t care what choice the voters really made. That they have nothing but contempt for the dozens of court rulings which upheld the election. And that they still wrongfully see their own Congressional faction as “the last bulwark in a Presidential election,” as House Speaker Mike Johnson put it on January 6^th, 2021, while aiding a plot to reject the will of the voters and their states’ lawful presidential electors.

What are they saying?

House Speaker Mike Johnson and GOP Conference Chair Elise Stefanik were each forced to answer some uncomfortable recent questions on news shows that aired on the weekend of January 6^th.  In response, they tried to justify their complicity in events surrounding the Capitol insurrection by reviving a specious argument about states’ rights that was already disproven by 2021. Stefanik even went further, threatening in her interview to overturn the 2024 election on the same bogus grounds.

During an extended interview for CBS’s “Face the Nation,” Speaker Johnson was asked about the Supreme Court amicus brief that he organized in 2020 to challenge the election results and whether he still refuses to recognize President Joe Biden as the winner of that election.

Johnson refused to directly answer host Margaret Brennan’s questions. Instead, he averred that Biden “was certified as the winner” but that “the Constitution was clearly violated in the 2020 election.” Noting that the Constitution empowers state legislatures to decide the manner for administering elections and appointing presidential electors, Johnson asserted that this principle “was violated in the run up to the 2020 election… in the aftermath of COVID” because “many states changed their election laws in ways that violated that plain language. That’s just a fact.”

When Brennan asked Johnson why his 2020 amicus brief has been accused of making “numerous false factual and Constitutional claims,” he insisted that “what happened in many states by changing the election laws without ratification by the state legislatures is a violation of the Constitution.  That’s a – that’s a plain fact that no one can dispute.”  

Speaker Johnson almost certainly knows that this simply is not true. So should current GOP Conference Chair Stefanik, who was recently interviewed at length on NBC’s “Meet the Press.”

When asked if she would accept the results of the 2024 election even if former President Trump doesn’t win, Stefanik said that “I voted not to certify the state of Pennsylvania” on January 6^th “because, as we saw in Pennsylvania and other states across the country, that there was unconstitutional acts circumventing the state legislature and unilaterally changing election law.”

When host Kristen Welker asked: “What about 2024, Congresswoman?” Stefanik retorted: “We will see if this is a legal and valid election.” When pressed if she would “only commit to certify the results if former President Trump wins,” Stefanik repeated herself: “If they’re constitutional.”

Welker reminded Stefanik that President Trump and his allies filed over 60 unsuccessful court cases contesting the results of that election, and that the independent firms he hired to investigate the election found zero evidence of widespread fraud sufficient to change the results. But Stefanik insisted: “What we saw in 2020 was unconstitutional circumventing of the – of the Constitution, not going through state legislatures when it comes to changing election law,” and that “I’m always going to stand up for the Constitution” in this manner.

Their argument was debunked before January 6^th

The most striking thing about Johnson and Stefanik’s recent claims is not just that they have been thoroughly debunked.  It’s that they were already debunked well before the Capitol insurrection and before they voted with other GOP lawmakers to reject lawful electoral votes that day.

This is because the judicial branch had already done its duty, responsibly adjudicating all of the most important disputes over whether state and federal laws had been followed in the election. The Trump team had enjoyed its day in court on this question, over and over again. It’s just that they did not like the result, losing in every major case – in state courts and federal ones, and even in front of judges that Trump himself had nominated – because his arguments were baseless.

In many of these court cases, the judges held evidentiary hearings before ruling. Often, judges even specifically addressed the argument that state election law had been usurped or flouted – and they repeatedly ruled that these arguments were flat-out wrong.

What the courts found

Rep. Mike Johnson’s December 2020 amicus brief was filed in support of Texas v. Pennsylvania, a Supreme Court lawsuit alleging that officials in Pennsylvania, Georgia, Wisconsin, and Michigan “usurped their legislatures’ authority and unconstitutionally revised their state’s election statutes.” But there was already a body of rulings that refuted this claim by then – and well before January 6^th, when Johnson and Stefanik cast their votes to reject lawful electors.

For example, Johnson’s amicus brief argued that “Pennsylvania’s Secretary of the Commonwealth, Kathy Boockvar, violated Article II of the U.S. Constitution when she usurped legislative power by unilaterally abrogating Pennsylvania statutes that mandate signature verification on mail-in and absentee ballots.” But a federal judge nominated by President Trump had already examined this exact matter and ruled that the state’s legal code actually “does not impose a signature-comparison requirement for absentee and mail-in ballots,” and so “there can be no… usurpation of the legislature’s authority.” Similarly, Pennsylvania’s Supreme Court had reached this same conclusion, in a ruling that was supported by a bipartisan majority of justices.

Johnson’s amicus brief also argued that Georgia Secretary of State Brad Raffensperger “usurped legislative power by purporting to ‘materially change the statutory requirements for reviewing signatures on absentee ballot envelopes to confirm the voter’s identity by making it far more difficult’” than what the legislature had allowed.  Rep. Stefanik made the same argument from the House floor on January 6^th, 2021. 

Yet this was so easily debunked that the New York Times fact-checked it as false that day in real time. The lawmakers were referring to a March 2020 settlement agreement whereby the Democratic Party agreed to drop a lawsuit against Raffensperger and the State Election Board in exchange for a statewide election bulletin instructing local officials not to reject absentee ballots over possible signature issues unless two poll workers agreed that the signatures did not match.

Another Trump-appointed judge had already ruled in November 2020 that this settlement agreement complied with Georgia state law. He wrote that state legislatures “possess the authority to delegate their authority…  The Settlement Agreement is a manifestation of Secretary Raffensperger’s statutorily granted authority. It does not override or rewrite state law.”

As for Wisconsin, the lawsuit backed by Johnson argued that “[i]n direct contravention of Wisconsin law, leading up to the 2020 general election, the Wisconsin Elections Commission (“WEC”) and other local officials unconstitutionally modified Wisconsin election laws,” including via WEC guidance over absentee ballots. Then, on January 6^th, 2021, Stefanik asserted that these Wisconsin officials “issued illegal rules to circumvent a State law, passed by the legislature as the Constitution requires, that required absentee voters to provide further identification before obtaining a ballot,” by claiming to be indefinitely confined.

However, another Trump-nominated federal judge ruled in December 2020 that “[t]here has been no violation of the Constitution” because, “far from defying the will of the Wisconsin Legislature in issuing the challenged guidance, the WEC was in fact acting pursuant to the legislature’s express directives.” Additionally, by the time Stefanik spoke on the House floor, a bipartisan majority of justices on the Wisconsin supreme court had ruled that the issue of indefinitely confined voters was handled by state officials in accordance with state law.

Finally, Johnson’s amicus brief argued that Michigan Secretary of State Jocelyn Benson “violated Article II of the Constitution when she seized local power granted by the legislature and distributed 7.7 million absentee ballot applications.” However, a panel of Michigan appeals court judges — all appointed by GOP governors — had already upheld Benson’s authority to send these absentee ballot applications to all registered voters, under “the authority and discretion afforded the Secretary of State by the constitution and state law.”

Do they know it’s a lie? 

Far from standing up for American voters, states’ rights, and the Constitution, Speaker Johnson and Conference Chair Stefanik are thumbing their noses at them. Worse, reviving these arguments lays the groundwork to overturn the 2024 election if the results aren’t to their liking.  

The sad thing is that they almost certainly know better. They are running roughshod over the rule of law in service to a lie.

On January 3^rd, 2021, Representative Liz Cheney sent all House Republicans a memo explaining that “multiple judges have ruled state election officials were not acting contrary to state election laws” [italics in the original]. It cited examples to that effect and explained that “state elections, recounts and state law legal challenges” cannot be “just ‘make-work’ until Congress gets around to investigating and deciding who should be President.” She sent it on the day Mike Johnson became her Vice Chair at the GOP House Conference, and he even acknowledged in his CBS interview that “Liz and I were in constant dialogue about that” at the time.

He was also informed by other credible sources. Georgia’s Republican Attorney General wrote in his state’s reply that Texas’s lawsuit constituted an “attack on Georgia’s sovereignty.” According to the New York Times, multiple sources indicated that the House GOP Leadership’s General Counsel also told Johnson before January 6^th his position was unconstitutional. 

As for Stefanik, she secured her current post as House Republican Conference Chair only after pledging on Steve Bannon’s show in May 2021 to oppose what she called the “unprecedented, unconstitutional overreach” of “unelected judges and bureaucrats who were rewriting election laws in real time.” And now she is going one step further, threatening to overturn another election on January 6^th of next year if she decides after the fact that she has any concerns.

“A dangerous violation of federalism”

The irony of it all is that these prominent lawmakers are again invoking states’ rights to justify one of the most unconstitutional violations of federalism in our lifetime.  

Rep. Chip Roy, who previously served as Texas’s First Assistant Attorney General and lost out to Stefanik in the May 2021 contest for GOP Conference Chair, put this problem best in the lead-up to January 6^th.  He decried Texas v. Pennsylvania as a “dangerous violation of federalism” and a “usurpation of our authority as people — through our states,” by trying to “police the voting procedures of other states.” Yet most of his colleagues piled onto Mike Johnson’s amicus brief anyway, inaccurately claiming to be safeguarding states’ rights under the Constitution.  

Now those same election deniers are signaling that they want to try making Congress into the final arbiter of states’ election results again on January 6^th, 2025, overriding the rule of law, the Electoral College, and the will of the American voters. Regardless of what pretense they invoke — whether it’s more unproven claims of election fraud or this debunked argument about procedural irregularities and states’ rights — the American public needs to be ready to push back.