The Scariest Thing About January 6th
Author’s note on Jan 6th, 2023: Since I originally published this on Jan. 13th, 2021, Congress passed the Electoral Count Reform Act (ECRA). While that was a good step, it does not go far enough to inoculate us from the risk I outline below.
Original story:
I was twenty years old in 1992 when it dawned on me that the United States was not immune to the upheaval seen in banana republics. I was living in south central Los Angeles and watching it burn during the riots. There were days of lawlessness, then days of curfew, with sand-bagged machine guns on corners and patrolling armored personnel carriers. I could not believe that what I usually only saw overseas was happening in front of me. As I matured, I became a better student of history.
In Germany, in 1933, the legislature voted to ignore their constitution, to take the power away from the people, and to give it to a single man. The vote was 441 in favor and 84 against, all while a mob of Hitler supporters shouted, “Full powers, or else!” The Enabling Act’s passage was the moment that the German republic was lost.
The 441 members who voted in favor of unconstitutionally giving power to a single man were not all Hitler acolytes. There were many who thought that while Hitler was distasteful, they could achieve long-sought policy wins through him. There were some who thought the alternatives to Hitler were worse. There were some who saw the fervor of the Hitler base and feared it, thinking that they would lose their own legislative jobs and power if they opposed him. And so, representative democracy died.
Such a thing could never happen here in the United States, could it? My nineteen-year-old self never would have believed it possible. My now-middle-aged self isn’t so sure.
In 2020, the U.S. election was followed by many complaints, objections, and accusations of voter fraud. These played out in the court system with dozens of cases. In my view, this was all fair play. This is how we resolve political and legal disputes in this country. We vote. We sue. We don’t suspend the Constitution. We don’t resort to arms and mob violence. The process of court challenges and rulings is how we determine what is lawful under our Constitution.
Those cases played out. Both state and federal courts found no legal basis for changing the results of the election. This included judges appointed by Trump himself, and it included the Supreme Court, with a conservative majority and three Trump-appointed justices. With all of the court challenges resolved, and the election results upheld as legal, the states then sent their certified electoral college votes, the people’s power, to Congress. Congress’s job under the Constitution was to simply certify that the votes came from the states and to count them. Trump, though, called on Congress to reject them.
Under the law (3 U.S.C. §15), congressional members can object only if an electoral vote is not “regularly given” or is not given by a “lawfully certified” elector. There have been objections only twice in our history; in 1969, and in 2005. In 1969, two members objected under the “regularly given” clause when an elector was pledged to vote for one candidate but actually voted for another. In 2005, two members objected because of reported voting irregularities in a state; a reason not authorized under the law. The objections overwhelmingly failed, as they should have.
On the day that Congress met to count 2020’s electoral votes, Trump again called for Congress to reject them, and he riled up a mob with phrases like, “it’s time that somebody did something about it,” and “if you don’t fight like hell, you’re not going to have a country anymore.” Then, he told the mob to head to the Capitol Building. The word “peaceful” was only mentioned once in the rally speech, and it obviously wasn’t enough. The violence was predictable. The scenes on our TVs again belonged in banana republics, not ours.
When it was finally over, Congress reconvened and counted the votes cast by the states’ electors. Yet, for several Biden-won states, 147 Republicans voted to reject the judgement of the voters and the courts. They voted to unconstitutionally take the power to choose the President into their own hands instead. All to ensure that a particular man could keep it. This is how representative democracies die. Over 25% of our legislature wanted to toss out certified election results. It should have been far less. Too close for comfort.
With the legal scrutiny given to this election, with over sixty lawsuits, not a single one of which succeeded in changing the results, it simply is not credible to claim the electors’ certifications were unlawful. Besides, our Constitution lays out that it is the Judicial Branch, the courts, that determines questions of lawfulness, not the Legislative Branch. The courts had already found the results lawful. When two members baselessly object, as in 2005, it is a publicity stunt. When 147 baselessly object, it is a real threat to our republic.
Had the objection passed, as these 147 wanted, then the electoral votes from those Biden-won states would not have been counted. Trump, right then and there, would have been declared President, in spite of the results of the election and the finding of the courts. It wouldn’t have created a pause. It wouldn’t have created a commission to investigate. It would have unconstitutionally taken the power to choose the president away from the people and the states.
Not all of the Republican objectors were true Trump acolytes. Some believed that Trump, while distasteful, could produce useful policy wins. Some thought the alternative to Trump was worse. Some saw the fervor of Trump’s base and feared it, that they would lose their own legislative jobs and power if they opposed him.
It all sounded frighteningly familiar. I am not comparing Trump with Hitler. I am comparing the legislature that killed the German republic with our own.
I was disheartened to see veterans participating in both the storming of the capital and as members of congress voting to reject the electoral votes from the states. In the military, it was the Constitution itself that we swore to defend from domestic threats. We did not swear to defend a party or a president. Veterans ought to be bulwarks in guarding against the slide toward extra constitutional remedies, not participants.
Ironically, those who fear what Biden might try to do to the country should look to permanently limit the power of the Presidency, to respect the courts, and to strengthen the processes which ensure an orderly succession. Because that’s how Biden will ultimately be forced to leave the Presidency.
Republicans should not want Congress to be able to overrule elections and associated court rulings, because Congress will sometimes be, as it will now be, controlled by Democrats. Biden may lose reelection. If he does, surely Republicans do not want a Democratic-controlled Congress to be able to simply reject the states’ results that they don’t like in order to keep Biden as President. Yet, that is precisely how 147 of them behaved on the 6th of January.
That is why our republic depends on defending the constitutional processes, not the desired results. That is why our military’s oath is structured as it is.
I was heartbroken by the rioters storming the Capitol Building. Yet, upon reflection, it is what happened after the rioters left that scares me the most. It has me thinking about Benjamin Franklin’s attributed statement upon the Constitution’s drafting, “A republic, if you can keep it.”
We are not immune from losing it.
James Seddon is a father, husband, author, Navy veteran, speaker, military veteran activist, IT manager, and regularly unsuccessful fisherman living in Southern California. Find him at https://james-seddon-author.com/ and https://www.facebook.com/jamesseddonauthor