With their phony legal arguments and pandering to Trump's baseless claims, Cruz and Hawley's bad behavior sets a bad precedent. William N. Eskridge Jr.Opinion contributor
As Sen. Mitt Romney (R-Utah) said, accountability for the Jan. 6 invasion of the Capitol to disrupt Congress’s Electoral College count rests not only with President Donald Trump, but also with those who “object(ed) to the results of a legitimate, democratic election.” Romney was referring to, among others, Sens. Josh Hawley (R-Mo.) and Ted Cruz (R-Texas), both alumni of my Legislation classes at Yale and Harvard Law Schools.
The Ivy Leaguers irresponsibly magnified the president’s baseless claims of widespread voter fraud — but they tried to deepen that bogus indictment by pandering to those who "believe the election that just occurred, quote, was rigged," as Cruz put it, and with smart-sounding legal arguments criticizing judges and the legal process. They know the process worked normally because I taught them how the process works. Neither had a single constitutional or statutory point that had not been examined and rejected by a bipartisan bevy of judges and administrators.
Pennsylvania law under siege The keystone state was Pennsylvania, where Hawley and Cruz were two of seven senators (along with 138 House members) voting to sustain objections to the lawfully chosen Electors. The congressional objectors largely avoided claims of fraud. Instead, they maintained that the rules followed in the Pennsylvania election were legally invalid. Their arguments disrespected the legal process established by the Constitution and statutes and interpreted responsibly by judges.
Sen. Hawley maintained that Congress was the proper forum for registering concerns about whether the Pennsylvania legislature’s 2019 law expanding mail-in voting violated the state constitution. Adopted by the GOP-dominated legislature, the law had never been challenged until after the 2020 election.
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On Nov. 28, 2020, the Pennsylvania Supreme Court unanimously ruled in Kelly v. Commonwealth that the post-election challenge came too late. Permitting the challenge would disenfranchise millions of voters who had relied on the law, a point also made by Trump-appointed Judge Stephanos Bibas in a related federal lawsuit. At no point in American history has a state or federal appellate court retroactively disenfranchised a state’s electorate in a presidential election for such a reason.