Jan 06 2021
WASHINGTON – Sen. Mike Lee (R-UT) issued the following statement Wednesday:
"My thoughts and prayers go out to the family members of those who have been injured or killed today. My heartfelt gratitude goes out to the Capitol Hill Police who valiantly defended our building and our lives.
While it is true legitimate concerns have been raised with regard to how some key battleground states conducted their elections in November this is not the end of the story.
The Constitution makes clear that the states — and the states alone — are charged with the task of appointing presidential electors. Article II, Section 1, Clause 2 provides that “[e]ach State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the state may be entitled in Congress.” Once each state has appointed electors and those electors have met, cast their votes, and submitted them to Congress, the role of Congress is a narrow one.
The Twelfth Amendment provides that the President of the Senate (who is also the Vice President of the United States) “shall, in the presence of the Senate and House of Representatives, open all the certificates [authenticating the electoral votes] and the votes shall then be counted.” It is those seven words—“and the votes shall then be counted”—that define Congress’ role in this moment.
Except in rare instances when states officially certify and submit two separate slates of electors, Congress does not have any role in this process beyond counting the officially submitted votes, after they have been opened by the Vice President.
That has happened before, as in the presidential elections in 1960 and 1876. But that did not happen in this election.
Many of my colleagues have declared their intent to object to certain states’ electors. Many others have publicly criticized those who declared that inten. I have spent an enormous amount of time over the last few weeks speaking privately with lawyers representing the Trump Campaign, reading everything I could find about the constitutional provisions in question, and on the phone with legislators and other leaders from the contested states.
I did not declare my position because I did not yet have one. I wanted the facts first, and I wanted to give those contesting the election results as much time as possible to persuade me that their case would meet the high bar set by the Constitution and the law.
But in none of these contested states, I have been repeatedly told, is there any chance that either the state legislature, the governor, or any other state official in a position to make such a decision will act to decertify the current slate of presidential electors.
If—as is now apparent—these state authorities are unwilling or unable to decertify their slates of electors, it would be constitutionally inappropriate for United States Senators and Representatives to substitute our judgment for theirs. This decision simply does not belong to Congress.
That is not how our federal system was designed to work.
If the question before us today were about the integrity of a Senate election, the Constitution very much would give us the power to adjudicate that dispute. Article I, Section 5 of the Constitution unambiguously empowers each house of Congress to be “the Judge of the Elections, Returns and Qualifications of its own Members.” Article I, Section 4 likewise gives Congress the power to enact laws governing the election of United States senators and representatives.
But the Founders deliberately decided not to include similar language describing Congress’ power in Article II, Section 1—the part of the Constitution that deals with the election of the president. Instead, that power is given to the states. In particular, it is reserved to the state legislatures. That power does not belong to Congress.
If we were to usurp this power, if Congress were to substitute our judgment for that of the states, we would essentially turn our federal government—one held carefully in balance and in check by the vertical protection of federalism and the horizontal protection of separation of powers—into a parliamentary system. This is not a change we should make under any circumstances, and certainly not one we should contemplate outside of the proper constitutional amendment process.
The boundaries of constitutional power were never meant for days of comfort. That’s why the Constitution requires us to swear an oath to preserve and defend it. We don’t need oaths to do what we want; we need oaths to do what we must, even when—especially when—we don’t want to.
The Constitution was specifically designed to serve a diverse republic even in times of division. We are obviously in such a time now. It was always going to be the case that, no matter who would end up in the White House on January 20, 2021, half of the country would be very frustrated.
But it is times of heightened frustration and division when America most needs the Constitution, especially including those parts that restrain elected officials’ power and ambitions. Only adherence to our Constitution can enable this difficult moment to pull us together and not pull us apart."