Rep. Tom McClintock: Congress Must Not Seize Power to Determine Presidential Election

Congress does not have constitutional authority to refuse to count electoral votes, Rep. Tom McClintock (R-CA) told Joel Pollak, host of SiriusXM’s Breitbart News Sunday.

“Congress does not have a constitutional right to refuse to count the votes of states that it believes acted fraudulently or illegally,” McClintock said. Such a move would amount to an unconstitutional seizure of power by Congress and away from states, he added.

McClintock stated, “If no candidate gets the majority of the Electoral College, Congress gets to elect the president. The House gets to elect the president. The Senate gets to elect the vice president — so if [Congress] can simply refuse to count electoral votes for whatever reason it comes up with, then it has the inherent power to seize the decision for itself, and that renders the Electoral College superfluous.”

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“This is a very dangerous power, and, again, it completely undermines the whole concept of the Electoral College,” McClintock held. “If Congress can seize the decision for itself, what’s the point of the Electoral College?”

McClintock remarked, “I think the courts let us down. I think the review process let us down to a great extent, but that does not give Congress the authority to replace the legitimate role of the judiciary with its own judgment.”

McClintock quoted a portion of Article II of the U.S. Constitution. He said, “The Constitution is very clear. The president of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted. There’s no discretion there for the vice president or the Congress. The votes shall then be counted; not some of the votes, all of the votes.”

McClintock went on, “What is being asserted is to undermine the whole architecture of the Constitution that establishes an Electoral College and assures that these decisions are federalized among the 50 states and not concentrated among 535 prima donnas in Washington, DC.”

McClintock said the Founders would not have established the Electoral College if they intended to empower Congress with authority to refuse to count electoral votes.

“[This] is important to consider if anyone thinks that the Congress — which is made up of the most intensely partisan politicians in the country — is a safe repository for the power to adjudicate the integrity of the vote,” McClintock added, “and yet that’s what’s being asserted by some of my colleagues”:

If the Congress can refuse to count electoral votes – for whatever reason – then it has the inherent power to seize the decision for itself and render the Electoral College superfluous.

— Tom McClintock (@RepMcClintock) January 4, 2021

Does anyone seriously believe that a body of 535 intensely partisan politicians is a safe repository for the power to adjudicate the integrity of the vote?

— Tom McClintock (@RepMcClintock) January 4, 2021

There still needs to be an intensive investigation into 2020 voter fraud. Every fraudulent vote disenfranchises an honest citizen. But once the electoral college votes, the question of who actually won the vote passes to historians – and perhaps prosecutors.

— Tom McClintock (@RepMcClintock) January 4, 2021

McClintock remarked, “I think there was an enormous amount of fraud that was perpetrated during this election. I think that the constitutional requirements were basically cast aside in several states. I do think that there is clear documentation of many cases of multiple votes by dead people or by nonresidents.”

“We need to bear in mind that every fraudulent vote is disenfranchising an honest citizen, and that is all appalling,” McClintock continued. “The question becomes, then, how is this judged? We have a system of administrative and judicial review, and a lot of us think it let us down.”

McClintock recalled, “I was one of the 126 members of the House that signed the ‘friend of the court’ brief to support Texas and the 18 other states that challenged the executive decrees that provided for mail-in ballots in several battleground states.”

“I think the Supreme Court let us down, but that does not give Congress the excuse to usurp their powers. Congress does not have a constitutional right to refuse to count the votes of states that it believes acted fraudulently or illegally,” he stated.

McClintock articulated his views in a column entitled “Respecting an Imperfect System,” published on his congressional website.