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OPINION | TOM COTTON: Duty of Congress

Electoral votes must be counted by TOM COTTON SPECIAL TO THE DEMOCRAT-GAZETTE | January 5, 2021 at 4:00 a.m.

The House and Senate will meet Wednesday in a joint session to count the votes cast by the electoral college in the presidential election.

Some argue that Republicans in Congress should object to electoral votes from certain states, such as Arizona and Pennsylvania. They believe that objecting will highlight election disputes in these states, and perhaps even overturn the election results so the president remains in office. And, they note, a few Democrats have objected in various ways after each of the last three Republican presidential victories.

But objecting to certified electoral votes won't give the president a second term. With Democrats in control of the House, Republicans have no chance of invalidating even a single electoral vote, much less enough votes to deny Joe Biden a majority in the electoral college. Instead, these objections would exceed Congress' constitutional power, while creating unwise precedents that Democrats could abuse the next time they are in power.

For these reasons, I will not oppose the counting of certified electoral votes.

Of course, I share the concerns of many Arkansans about irregularities in the election, especially in states that rushed through election-law changes to relax standards for voting by mail. Some states sent unsolicited ballots to their residents, opening the door to potential fraud. States also removed important safeguards, such as signature-matching and postal-marking requirements. I therefore support a commission to examine the last election and propose reforms to protect the integrity of our elections. After Republicans win in Georgia, the Senate should also hold more hearings on these matters. Arkansans deserve to have confidence in the elections that undergird our free government.

Nevertheless, the founders entrusted our elections chiefly to the states--not Congress. They entrusted the election of our president to the people, acting through the electoral college--not Congress. And they entrusted the adjudication of election disputes to the courts--not Congress.

Under the Constitution and federal law, Congress' power is limited to counting electoral votes submitted by the states. Congress doesn't have to agree with the election practices of every state, nor dismiss the possibility of voter fraud. But the states have primary responsibility for the conduct of elections, and courts have the responsibility to adjudicate election disputes.

In very rare instances, Congress' limited power to count electoral votes may require it to decide which slate of electors to count if a state submits two certified slates. This happened in 1961 when Hawaii submitted a second slate of electors after a court-ordered recount determined that John F. Kennedy had carried the state, not Richard Nixon. Even in this peculiar case, Congress' role was to determine which slate of electors was valid, according to applicable election law--not to decide the election. And each state today has submitted only one certified slate of electors.

If Congress purported to overturn the results of the electoral college, it would not only exceed its power, but also establish unwise precedents.

First, Congress would take away the power to choose the president from the people and place it in the hands of whichever party controls Congress. This action essentially would end our tradition of democratic presidential elections, empowering politicians and party bosses in Washington.

Second, Congress would imperil the electoral college, which gives small states like Arkansas a voice in presidential elections. Democrats have long complained about Republican candidates winning the electoral college and thus the presidency without a majority of the popular vote. If Congress becomes a new battleground for determining the results of the electoral college, a future Democratic majority could deny the presidency to a Republican president-elect who didn't receive a majority of the popular vote.

Third, Congress would take another big step toward federalizing election law, another longstanding Democratic priority that Republicans have consistently opposed. Once Congress gets involved in the details of state election practices, it might not be long before a Democratic majority overrides our sensible election laws in Arkansas and imposes California's risky system of same-day registration, unsolicited mail-out balloting, and ballot-harvesting. Republicans would sacrifice a valuable argument for opposing such schemes.

I'm grateful for what the president accomplished over the past four years, which is why I campaigned vigorously for his re-election and served as an Arkansas co-chair for his campaign. But objecting to certified electoral votes won't give him a second term--it will only embolden those Democrats who want to erode further our system of constitutional government.

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Tom Cotton is the junior U.S. senator for the state of Arkansas.

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