Congressional Record/Volume 167/Issue 4/Senate/Counting of Electoral Ballots/Arizona Objection Debate/Toomey Speech
Mr. Toomey. I intend later to address the specifics of Pennsylvania if and when an objection is raised in regard to Pennsylvania.
For now, I want to address my remarks to what I think is the fundamental question being posed by the objectors, and that is, does Congress have the constitutional authority to decide which States’ electoral college votes should be counted and which should not based on how well we think they ran their elections? This is what the objectors are really asking us to do—to federalize elections by rejecting electoral college votes from States whose processes they say they disapprove of and thereby having Congress select the President of the United States instead of the American people.
The answer, Mr. President, is no, there is no such authority under the Constitution. The Constitution assigns to the States the responsibility to conduct elections. It is clear in article II, section 1. It leaves courts with the responsibility to adjudicate disputes, and it assigns to Congress the ministerial function of counting ballots, except for extreme circumstances, such as when a State sends competing slates of electors to Congress, which brings me to the 1877 President.
Some objectors claim to merely want a commission to conduct an audit and then let States decide whether to send electors. Well, first, the situations are not at all analogous.
In 1877, Congress had before it two slates of electors from several States. There are no Trump electors from swing States; there are just Biden electors.
Second, legislators from the swing States—they have already spoken. They have made their decision. They have chosen not to send us alternative electors.
Third, a commission—really? It is completely impractical, and we all know it, with 14 days to go before a constitutionally mandated inauguration.
Look at it this way: If the electors are right and it is Congress’s job to sit in judgment on the worthiness of the States’ electoral processes, what is the criteria for acceptable electoral processes? What investigations have been conducted of these processes? What body has deemed that certain States’ processes are unacceptable? What opportunities were these States given to challenge the findings? Why are the objectors objecting only to swing States that President Trump lost? What about the ones he won? I don’t know—North Carolina? What about California? They have ballot harvesting, I am told. If this is all supposed to be Congress’s job, you would think we would have answers to these questions and procedures in place because we would have done this every 4 years, right? But we don’t because it is not our job.
If we adopt this new precedent that we sit in judgment of States’ processes, then we are federalizing the election law. We would necessarily have to establish the permissible criteria and rules for the States’ elections.
The ballot harvesting example—it is illegal in some States; it is encouraged in others. Does it become mandatory or forbidden depending on who is in control of Congress? And, as the leader pointed out, it would be the end of the electoral college. The electoral college is the mechanism by which the people select the President. But if Congress gets to decide which States get to vote in the electoral college, then clearly Congress is electing the President, not the people. Whichever party controls both Houses of Congress would control the Presidency.
The public would never tolerate Congress picking the President instead of themselves, so they would abolish the electoral college, as many of our colleagues would like to do, and the end of the electoral college, of course, means the Nation will be governed by a handful of big blue States and regions that can drum up very large numbers.
Mr. President, the Constitution does not assign to Congress the responsibility to judge the worthiness of State election processes nor its adherence to its rules. That is the responsibility of the States and the courts.
Let me conclude with this. I voted for President Trump. I publicly endorsed President Trump. I campaigned for President Trump. I did not want Joe Biden to win this election. There is something more important to me than having my preferred candidate sworn in as the next President, and that is to have the American people’s chosen candidate sworn in as the next President.
A fundamental defining feature of a democratic republic is the right of the people to elect their own leaders. It is now our duty. It is our responsibility to ensure that right is respected in this election and preserved for future elections. I urge you to vote against this objection.