Letter on the 2020 Presidential Election
Thank you for contacting me regarding the 2020 presidential election process.
Since November, I have received more than 4,000 constituent messages related to the presidential election, the Electoral College vote and congressional certification, and the attack on our nation’s Capitol on January 6.
These messages conveyed a wide range of emotions on several topics, including:
• concerns that the election outcome was fraudulent;
• President Trump’s rhetoric throughout this period and whether it played a role in the riot; and
• actions that I took or did not take.
Each perspective of a constituent of Virginia’s Ninth Congressional District is unique and valid, and I value the time and effort taken to share those with me.
Please know that throughout this time I’ve taken no decision lightly. Each vote is significant, and I study the issues thoroughly. The votes I took related to the election and President Trump’s impeachment are grounded in my reading of the Constitution and my commitment to its core principles.
2020’s Election Day occurred on November 3, but it was only one step of the process of choosing our president. States must count and certify their vote totals, the Electoral College must meet in the respective states to cast its votes, and a joint session of Congress must convene for the electoral votes to be counted. At every step of the way, the Constitution and our laws must be followed.
Article II Section 1 of the Constitution, which governs presidential elections, requires state legislatures to decide the manner of choosing presidential electors. In the Constitution, there is a distinction between states and state legislatures, and such a distinction was made regarding presidential elections.
Prior to Election Day in several states of the Union, various other actors, including governors, secretaries of state, election officials, election commissions, judges, and private parties encroached on this authority which properly belongs only to state legislatures. These encroachments raised questions about the constitutional validity of their state’s electoral votes.
In an effort to resolve these questions, Texas filed a lawsuit against Pennsylvania, Georgia, Michigan, and Wisconsin because the latter states did not follow Article II’s mandates for selecting presidential electors. Members of Congress did not file the lawsuit, but 126 Members including myself signed an amicus brief urging the Supreme Court to take up the suit immediately. Without ruling on the merits, the Court declined by citing insufficient standing.
Dicta from the Supreme Court during the 2000 election contest indicated the Court might have responsibility over electoral votes by applying the Fourteenth Amendment to Article II Section 1, but I was not surprised by the Court’s decision. Historical precedents support the final authority of Congress over whether to count a state’s electoral votes.
During the Civil War, Congress debated whether to count the votes of Louisiana. Louisiana was then under Union control and a high proportion of eligible Louisianans had voted in the 1864 presidential election. Congress passed a joint resolution to exclude the votes of Confederate states from the Electoral College, even those under Union control. Upon signing the resolution, President Abraham Lincoln wrote, “In his own view, however, the two Houses of Congress, convened under the Twelfth [Amendment] of the Constitution, have complete power to exclude from counting all electoral votes deemed by them to be illegal.”
The Supreme Court in the legal battles that followed the 2000 presidential election provided more support both for Congress’ final authority to determine the legality of a state’s electoral votes and for the constitutional requirement that state legislatures, not other bodies or officials, control the election process.
In Bush v. Palm Beach County Canvassing Bd., 531 U.S. 70, 77 (2000), all nine justices noted that strict adherence to the provisions of the Electoral Count Act, passed in 1887, may “create a ‘safe harbor’ for a State insofar as congressional consideration of its electoral votes is concerned.” However, the unanimous Court cautioned: “Since [3 U.S.C.] § 5 contains a principle of federal law that would assure finality of the State's determination if made pursuant to a state law in effect before the election, a legislative wish [by a state court] to take advantage of the ‘safe harbor’ would counsel against any construction of the [state’s] Election Code that Congress might deem to be a change in the law.” Id. (emphasis added).
In the subsequent case Bush, et al. v. Gore, et al., 531 U.S. 98, 113 (2000), Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas stated in a concurring opinion that a “significant departure from the legislative scheme for appointing Presidential electors presents a federal constitutional question” regarding the “application of Art. II, §1, cl. 2.”
In a dissenting opinion, Justice Ruth Bader Ginsburg, whose constitutional jurisprudence differed greatly from Justices Rehnquist, Scalia, and Thomas, nevertheless agreed that although the Electoral Count Act identifies significant dates in the process of ascertaining and counting presidential electors, “none of these dates has ultimate significance in light of Congress' detailed provisions for determining, on ‘the sixth day of January,’ the validity of electoral votes. [3 U.S.C.] § 15.” Id. at 144.
Thus, a Supreme Court whose justices could differ widely on interpreting the law agreed unanimously that state legislatures are responsible for deciding how a presidential election should be conducted and that Congress possessed the authority to decide the legality of its votes.
People may disagree on instances when that authority should be exercised, but the Constitution, precedents, and legal history clearly give to Congress that authority.
According to the terms of the Electoral Count Act, objections to a state’s votes require that both a Representative and a Senator file an objection in writing. In three previous elections of the 21st century, at least one Representative filed an objection. During the counting of the electoral votes from the 2004 election, a Democrat Representative was joined by a Senator to object to the counting of Ohio’s votes for President George W. Bush. Few expected that the objection would overturn the election, but the right to file it was not denied. It was used as a vehicle to discuss issues important to those who objected.
On January 6, 2021, I did not file or sign onto an objection. However, when objections earned the support of both a Representative and a Senator, they went before the House and the Senate separately for debate. This occurred for the votes of Arizona and Pennsylvania. It was my duty to listen to the arguments and vote based on the constitutional arguments presented.
For me, the question before Congress was not about allegation of voter fraud, but about whether those states carried out their elections under rules set by their state legislatures. Some critics have pointed out that states that President Trump carried also had their rules set by entities other than the legislature. Accordingly, I would have listened to those arguments as well had Democrats lodged objections that forced a debate, and I would have decided whether to accept their votes according to the Constitution and law.
It was important to the country that the violent acts of January 6 not be permitted to obstruct the performance of our constitutional duty. This meant that the counting of the electoral votes needed to proceed, but it also meant that I was obligated to support a challenge to a state’s count that was grounded in valid constitutional concerns. I believe the objections to Arizona and Pennsylvania were so grounded.
Regarding the heinous violent events of January 6, I believe they were a disgraceful moment in American history. The Capitol is where the elected representatives of the people meet to debate and vote in order to peacefully resolve the challenges of our time. The individuals who interrupted that process through violence should be prosecuted in accordance with our laws.
While the individuals who stormed the Capitol ultimately bear personal blame for the riot, I believe the inflammatory and poisonous rhetoric that too often characterizes the present political discourse helped create a climate where such an event could happen. I faulted President Trump throughout his term for too often indulging in disrespectful comments, and I believe on January 6 his rhetoric did not help calm a volatile situation. Others at the peaceful rally at the White House inflamed the situation. Across the political spectrum, there is a need for all to conduct a more constructive and respectful dialogue.
While I object to the language and actions of President Trump on January 6, I voted against his impeachment. There were no hearings, no witnesses, and no due process provided to President Trump, features of every other impeachment proceeding. Further, at the time, he had mere days to finish his term, and Speaker Pelosi did not consider it urgent enough to transmit the article of impeachment to the Senate until after he had left office.
The counting of the electoral votes in Congress ended the constitutional process of the 2020 presidential election and, as expected, resulted in a victory for Joe Biden. This election was not the first presidential election with controversy, nor will it be the last. No matter whom you supported in November or what you think about the process, Joe Biden is our president now and deserves our respect.
It is time to move forward.