Congressional Record/Volume 167/Issue 4/House/Counting Electoral Votes/Arizona Objection Debate/Johnson Speech
Mr. Johnson of Louisiana. Madam Speaker, we have a solemn responsibility today. We must vote to sustain objections to slates of electors submitted by States that we genuinely believe clearly violated the Constitution in the Presidential election of 2020.
This is the threshold legal question before us, and it is an issue before us for the State of Arizona. We have to repeat this for emphasis because a lot of people seem to be confused.
Because judges and not the State legislature changed the rules of the election, Arizona clearly violated the plain language of Article II, Section 1 of the Constitution in its selection of Presidential electors.
The Framers of our Constitution recognized that elections were susceptible to corruption. We all know that. So, how did they fix it? How did they provide for that? They created the electoral college as a safeguard, and they expressly empowered State legislatures to ensure the integrity of our unique election system.
Only the State legislatures, because they are a full body of representatives and not rogue officials, were given the authority to direct the manner of appointing Presidential electors because it was so important.
The Supreme Court has acknowledged this over and over. They previously affirmed in Article II, Section 1, Clause 2: “The appointment of these electors is thus placed absolutely and wholly with the legislatures of the several States.” That authority can never be taken away or abdicated.
The Arizona Legislature did enact detailed rules and procedures that the State was supposed to follow to choose its electors. But in the months preceding the 2020 election, as we have heard—and by the way, a thousand pages of evidence have just been submitted on the facts on this—those well-established rules and procedures were deliberately changed.
They weren’t changed by the legislature, friends. They were changed by judges. And those actions taken by the judiciary were not limited to mere interpretations of existing law. No, they were substantive, wholesale changes to those statutes.
Madam Speaker, that is a usurpation of the authority that the legislature had. That usurpation was repeated across the country this year. It is the primary reason—it is one of the reasons why the election of 2020 became riddled with an unprecedented number of serious allegations of fraud and irregularities all over the country.
National polls, it has been said, indicate that a huge percentage of Americans now have serious doubts about not just the outcome of this Presidential contest but also the future reliability of our election system itself.
Since we are convinced that the election laws in Arizona and some other key States were changed in this unconstitutional manner, we have a responsibility today. The slates of electors produced under those modified laws are thus unconstitutional. They are not “regularly given” or “lawfully certified,” as required by the Electoral Count Act, and they are invalid on their face. That is just the conclusion that you have to reach.
Madam Speaker, given these inescapable facts, we believe we have no choice today but to vote to sustain objections to those slates of electors.
Mr. Raskin and others today have cited the 12th Amendment, and they cite Article II, Section 1, Clause 3—remember that, Clause 3. And they have asserted that Congress has only one narrow role today; we are just supposed to count the electoral votes that have been submitted. But those advocates have overlooked a critical first principle.
Their assertion is only true so long as Congress first is convinced that the electoral votes were not produced by a process that violated the Constitution is there. We have to get through Clause 2 of Article II, Section 1, before we get to Clause 3 is the point.
Look, in our unique system, Congress is positioned as the last bulwark in a Presidential election to ensure the Constitution has been followed. Indeed, just two decades ago, the Supreme Court spoke to this. They plainly acknowledged this important deliberative role of Congress. It was the famous Bush v. Gore litigation that everybody remembers from 2000.
In a per curiam opinion—meaning all nine Justices, that it was unanimous—they noted strict adherence to the provisions of the Electoral Count Act may create “a ‘safe harbor’ for a State insofar as congressional consideration of its electoral votes is concerned.”
However, unanimously, the Court said since title 3, section 5 contains a principle of Federal law that would assure finality of the State’s determination if they followed all the proscriptions there, if the will of the legislature is attempted to be changed by a State court, that is a problem. That, they said, Congress might deem to be a change in the law.
That is precisely why we are here right now. Go read Bush v. Gore, and you will see this.
Chief Justice William Rehnquist and Justices Scalia and Thomas joined in a concurring opinion 8 days later, and they reiterated this point.
A significant departure from the legislature’s scheme for appointing Presidential electors presents a Federal question. It is a big problem for us, and it is one we cannot get around. That is why we are here.
Madam Speaker, I urge my colleagues today to look at the facts, to follow the law, and to follow our congressional oath. We are supposed to support and defend the Constitution. That is what we do here today. I urge everyone to do the right thing.