Lawyers Had Some Thoughts About Josh Hawley’s ‘Irresponsible’ and ‘Pathetic’ Objection to Election Results

December 30, 2020
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Sen. Josh Hawley (R-MO) speaks on stage during the Conservative Political Action Conference 2020 (CPAC) hosted by the American Conservative Union on February 28, 2020 in National Harbor, MD.

Senator Josh Hawley (R-Mo.) announced Wednesday that he would object to certifying the electoral college vote on January 6, 2021.

Hawley justified his refusal in a statement declaring that “some states, particularly Pennsylvania, failed to follow their own election laws.” Hawley repeatedly expresses his concerns about “the integrity of this election” and encouraged Congress to investigate allegations of voter fraud and legislate in response.

The move will mean a floor debate followed by a vote in each chamber of Congress. Should enough senators follow Hawley’s lead, Vice President Mike Pence would become the tie-breaker. If Pence also refused to certify the results, the Democratic majority in the House of Representatives would then become the deciding body

Experts do not expect Hawley’s move to have impact on the election results in the long run beyond creating unnecessary delay.

Despite President Donald Trump’s refusal to accept President-elect Joe Biden‘s election win, a number of Senate Republicans have already publicly recognized Biden as the incoming 46th president. Accordingly, Hawley’s refusal to certify is unlikely to have any impact beyond aligning him with a narrow slice of the GOP determined —however ineffectively— to remain stalwart Trump allies. The move was immediately seen as an attempt by Hawley to boost his chances for higher office down the line.

The statement from Hawley appears to have had its intended effect on his target audience, however.

In a statement to Law&Crime, election law expert and Professor at USC Gould School of Law Franita Tolson called Hawley’s maneuver “irresponsible.”

“He plans to file an objection based on arguments that have been extensively litigated and rejected by numerous courts since Election Day, especially the claims that Pennsylvania failed to follow its election laws and that there was potential voter fraud,” said Professor Tolson. “He is prolonging and politicizing the process even though the outcome–Joe Biden wins a majority of the electoral votes–is inevitable.”

Assistant Professor at Florida State University College of Law Michael Morley told Law&Crime that, “Under the Electoral Count Act, even if an objection is lodged to a state’s electoral votes during the upcoming joint session of Congress, there is no prospect that a state’s electoral votes will be rejected, or that an unofficial competing slate of electors will be counted instead.”

Edward B. Foley, a law professor at Ohio State University’s Moritz College of Law and the director of the school’s election law program, told Law&Crime that “Any such objection would be based on a misunderstanding of the limited role that Congress is supposed to undertake in the January 6 joint session.” Foley pointed to his Washington Post column on the subject.

“It is true that the objections that Democrats previously made, in 2005 and 2017, were also inappropriate given this limited congressional role. But it would be preferable for Congress to get back on track in terms of acting appropriately, rather than perpetuating the same mistake,” Foley added.

Tulane Law’s Ross Garber said Hawley’s tactic was “doomed to failure.”

“I’m aware of no basis to challenge any electoral votes. And, given the application of the Electoral College Act, such a move is symbolic and doomed to failure. But keep an eye on Vice President Pence,” Garber said in an email to Law&Crime. “In 1876, before passage of the Electoral Count Act, some advanced a tortured interpretation of the Constitution under which the president of the Senate – now Pence – could claim for himself the right to determine which electoral votes to count or reject.”

Earlier this week, Republican congressmen sued Mike Pence, putting forth the bizarre idea that an incumbent VP could unilaterally ignore and reject the will of the voters in the interest of his or her own re-election.

Speaker of the House Nancy Pelosi (D-Calif) appears to be unfazed by Hawley’s announcement, stating that she has no doubt that Joe Biden will be confirmed as the next president.

Legal Twitter’s reaction to Hawley’s reaction “pathetic” move was swift and merciless:

One of the harshest rebukes came from Hawley’s former colleague at University of Missouri Law School:

Editor’s note: story was updated post publication with comments from Morley, Foley and Garber.

[image via Samuel Corum/Getty Images]

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