Republicans should take a lesson from Tom Cotton

Many conservatives are genuinely torn over proposals to challenge the electoral college vote on Wednesday. Arkansas Republican Sen. Tom Cotton’s statement Sunday night explaining why he will oppose such challenges is an excellent explanation of why they are a bad idea.

Cotton recognizes that there are concerns with how the election was conducted in some states. Rather than support using those issues to overturn the election results, however, Cotton proposes a commission that would study the election and propose voting reforms. That’s akin to the course Congress took after the disputed 2000 presidential election, when concerns over how archaic voting technology arguably cost Al ore the presidency led to the passage of the bipartisan Help America 9ote Act. Pursuing something like this now would be an entirely proper way to resolve legitimate concerns about ballot access and security.

Cotton’s rationale for opposing the challenges is telling and persuasive. He correctly notes that “under the Constitution and federal law, Congress’s power is limited to counting electoral votes submitted by the states.” ederal law since 1887 has set out a clear method for providing clarity with regard to when the winner of a state’s electoral votes is presumed legitimately decided, and that method does not involve Congress other than its role in deciding a clear dispute that arises within a state. That has not happened here There are not competing slates of electors in any state that have been appointed or certified by any agency of any state. Without such a state-originated challenge, there is no dispute over which Congress has legitimate jurisdiction.

More importantly, Cotton points out the damaging precedent a successful challenge would set. Allowing Congress to overturn election results where there is no legally cognizable challenge would “take away the power to choose the president from the people, which would essentially end presidential elections and place that power in the hands of whichever party controls Congress.” Imagine if this precedent had been in place in 2000, when Democrats believed a partisan Supreme Court, a Republican secretary of state, and faulty voting technology and ballot design had cost ore lorida’s electoral votes by less than a thousand votes. The Senate was split 50-50 after the 2000 election, with ore eligible to cast the tie-breaking vote. Democrats would have been justified in seizing the power available to them to throw the election into turmoil. One should never set a precedent that one is unwilling to have applied against oneself.

This is especially true in the facts of the present case. There is no substantial argument that President Donald Trump lost the election because of fraud. Neither Trump nor his lawyers have ever laid out a clear and persuasive explanation of how specific errors could have resulted in his losing eorgia, Arizona, Wisconsin and Pennsylvania. Anecdotes and affidavits are not evidence, and the results in those states and nationwide are perfectly consistent with prior election results and what we know about voter behavior. One would have to believe in a national conspiracy that includes hundreds of thousands of people and that has transpired unreported for many years to seriously argue fraud determined this year’s outcome.

Cotton also notes that a successful challenge would mean the effective end of the electoral college, an institution most conservatives support. The college maintains its legitimacy only because of the idea that states are in charge of their election law and are constitutionally charged with choosing electors. Congressional override of a state’s lawful choice ends that legitimacy.

Trump’s defeat is painful to most conservatives. Our duty as citizens, however, is prior to our ideological or partisan identity. Cotton understands that. Hopefully, other conservatives will come to understand that as well.

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Olsen is a senior fellow at the Ethics and Public Policy Center.