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“Dozens of Republican lawmakers are facing harsh condemnation after going forward with challenging the Electoral College results,” the U.K.-based tabloid Daily Mail reported on Thursday, January 7, 2021 (read story here).

“Throughout the certification process, which was delayed six hours due to pro-Trump protesters marching the halls of the Capitol, a total of eight senators and 139 House members objected to the Electoral College results in some states,” the Daily Mail said.

And now, a newly-elected Democratic member of Congress, Rep. Cori Bush of Missouri, “is calling for the expulsion of these lawmakers … who she claims ‘incited this domestic terror attack through their attempts to overturn the election.'”

Does this idea have merit?

I very much doubt anything will happen. The new Congress has bigger fish to fry. But we can still ask, as an academic exercise, whether sanctions are justified.

The starting point for any such discussion, of course, is the fact the Constitution and federal law create a procedure for challenging electoral votes. But that doesn’t mean you can use it willy-nilly. Rights don’t exist in a vacuum; they are to be exercised responsibly.

• Free speech doesn’t entitled you to yell “fire!” in a crowded theater.
• The right to keep and bear arms doesn’t mean you can fire them randomly.
• A lawyer’s license to practice law doesn’t mean s/he can file baseless lawsuits.

By now, you should see where I’m going with this. It’s one thing to challenge electoral votes if there’s a reasonable basis for doing so, backed by evidence of actual fraud or irregularities. But challenges based on nothing more than lies, conspiracy theories, and unsupported allegations are equivalent to frivolous lawsuits. Lawyers who file such lawsuits can be sanctioned by judges and their bar associations.

That’s why, for example, none of the lawsuits challenging Pennsylvania’s election results — and who would get that state’s 20 electoral votes — alleged fraud. Fraud didn’t happen, the Trump camp had no proof of fraud, and legal challenges alleging fraud not only would have been thrown out for lack of evidence, but the lawyers might have gotten in trouble, too. Instead, they went after the election procedures that were followed by Pennsylvania election officials.

Knowing this. the Republican congressmen and senators who joined in challenging Biden’s electoral wins in Pennsylvania and other states, many of whom are lawyers themselves, took a similar tack. Generally speaking, they argued the Constitution vests the power to prescribe election procedures in state legislatures; not governors, secretaries of state, or election bureaucrats. They claimed these public officials didn’t have authority to conduct the election the way they did, and usurped the legislative functions, which rendered many of the mail ballots illegal.

Superficially, it sounds like a reasonable argument to make, even if you don’t agree with it, but there are several problems with it. First, if you really believe in federalism, then Pennsylvania’s courts, not congressmen from Florida or Texas or wherever, should have the last word in whether state election officials violated state election laws. Second is the question of who should settle such issues; the courts (including the U.S. Supreme Court) had already rejected their arguments, so they’re in the position of second-guessing the courts. This, in turn, raises the question: When, and in what circumstances, should Congress overrule the courts’ decisions in specific legal cases? Is there ever a time when that’s appropriate?

And then there’s the question of the rights of voters whose votes would be thrown out. These are eligible voters, registered to vote, who had every right to vote, and who believed they were casting legal ballots by following the instructions given them by election officials. In law, there’s a legal principle called equitable estoppel, which roughly means you’re entitled to rely on what you were told (for a more technical explanation, go here). Essentially it means that even if those people voted in an illegal manner, if they were misled by election officials, then their votes should count anyway, because it’s unfair to punish them for the state’s mistake.

If some Pennsylvania votes were cast in an illegal manner, as alleged (but not proven), and this principle were applied, then at most the complainants would be entitled to a new election, not throwing out those votes. I can’t imagine any court depriving hundreds of thousands of lawful voters of their right to vote on grounds of technical errors in election administration, although it takes no imagination at all to visualize Republican congressmen wanting to do that, especially if the voters in question happen to be black.

And let’s make no mistake about that; the votes that Republicans challenged were lmost without exception those from heavily-black urban areas in a half-dozen key swing states.

The main point, though, is they had their chance to make their case — whatever it was — in more than 90 lawsuits filed in federal and state courts to challenge the election results, and they lost every single one of those cases. Given this complete rejection of their complaints by the judicial branch of government, it was not reasonable to relitigate those claims in Congress, even though the process itself is authorized by the Constitution and federal law.

The law says you can file lawsuits, but procedural practice rules proscribe frivolous lawsuits. We have an analogous situation here. The process exists, but it was abused in this instance.

The next question is, what should the sanctions be? Relatively minor breaches of professional conduct rules may get a lawyer admonished, reprimanded, or censured; major ones can get him/her suspended or disbarred. The rules of Congress are structured similarly; Congress does have power to expel members, but can also punish bad behavior with lesser sanctions, including censure.

Keep in mind these representatives and senators were elected by their constituents to represent them in Congress. If a Member commits a crime, or accepts a bribe, you can argue that wasn’t part of the deal between the Member and the voters, and betrayed the trust that the voters placed in them. This is rather different. In many of these cases, their constituents probably supported what they were doing, otherwise they wouldn’t have done it. You’re really sanctioning both the Member and the voters who elected him/her. That may well be warranted.

But telling those voters this person can’t represent them in Congress is a great big deal and I think probably goes too far, unless the Member incited and/or participated in the violence. For nothing more than challenging electoral votes without a reasonable basis for doing so, and in defiance of the courts’ rulings on the same complaints, I’d probably argue for censure instead.

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