Senator Ted Cruz is the latest to lead a charge in Congress to object to counting to electoral votes from some states. It’s on the heels of embarrassing efforts by other Republicans, which is on the heels of other embarrassing efforts by Democrats in 2001, 2005, and 2017.

But Mr. Cruz’s proposal holds its own unique flaws I’ll lay out. First, it misunderstands a historical example he cites as precedent. Second, its timeline would ensure that Representative Nancy Pelosi, the presumptive Speaker of the House, would have the opportunity to serve as Acting President.

Mr. Cruz’s press release, on behalf of several other senators, provides in the relevant part:

The most direct precedent on this question arose in 1877, following serious allegations of fraud and illegal conduct in the Hayes-Tilden presidential race. Specifically, the elections in three states—Florida, Louisiana, and South Carolina—were alleged to have been conducted illegally.

In 1877, Congress did not ignore those allegations, nor did the media simply dismiss those raising them as radicals trying to undermine democracy. Instead, Congress appointed an Electoral Commission—consisting of five Senators, five House Members, and five Supreme Court Justices—to consider and resolve the disputed returns.

We should follow that precedent. To wit, Congress should immediately appoint an Electoral Commission, with full investigatory and fact-finding authority, to conduct an emergency 10-day audit of the election returns in the disputed states. Once completed, individual states would evaluate the Commission's findings and could convene a special legislative session to certify a change in their vote, if needed.

Accordingly, we intend to vote on January 6 to reject the electors from disputed states as not ‘regularly given' and ‘lawfully certified' (the statutory requisite), unless and until that emergency 10-day audit is completed.

(Set aside the necessity of an “emergency” audit in a presser January 2 from an election held November 3.)

How does an emergency 10-day audit happen? Congress would need to enact a statute to amend the Electoral Count Act of 1887 before January 6, when it's compelled by law to meet. That seems unlikely. Indeed, the presser suggests that they will object pursuant to the “statutory requisite,” having a stronger view of the Act than some others have written about. By its terms, any objections to a given state’s electors cannot yield debate lasting longer than two hours. There are fixed periods for adjournments, including a ban on any recess after five days. That means Congress would need to enact a new statute.

Mr. Cruz hasn’t publicly released any such draft. So the first stage is to get a statute drafted. It then has to go through both houses of Congress (including whatever filibuster rules make their way in the Senate) and secure the president’s signature.

The “commission” he envisions is not the same as the commission of 1877. That commission had the power to “resolve the disputed returns.” That was crucial to the commission’s work because of how electoral vote counting arose before the Electoral Count Act was enacted.

Before the Electoral Count Act, both Houses had to affirmatively agree to count votes. In 1873, for instance, one house refused to count votes cast for Horace Greeley, who had died before the Electoral College convened. If one house refused, the votes weren't counted—and in 1873, one house didn’t want to count votes for Mr. Greeley, so they weren’t counted.

The thick of Reconstruction was causing greater rifts in Congress and in the states. Electoral vote counting in 1873 was messy, including the decision to throw out votes from Arkansas and Louisiana—Louisiana, in particular, because some in Congress believed it lacked a republican form of government at the time. Lynchings of Black voters and the Colfax massacre were just a couple of the egregious acts occurring in the South.

In 1876, things were still messy, and the presidential election was extremely close. Democrats controlled the House, and Republicans controlled the Senate.

Republican electors, in favor of continuing Reconstruction, carried Florida, Louisiana, and South Carolina from the canvass, but alternative Democratic slates of electors also cast votes—in Florida with the assent of the attorney general and later the legislature, but in South Carolina with little legal authority. By today’s terms, the Republican slates were the “valid” ones. Both sides complained of fraud—the losing Democrats complained more, obviously.

When presented to Congress, the problem was that neither house would agree in a hyper-partisan atmosphere. The House would vote to count the Democratic electors, and the Senate the Republican electors. A dispute resolution mechanism was needed.

Enter the “commission.” It was maybe the best solution at the time because both candidates and both houses of Congress agreed to it.

The Commission would resolve any stalemate that might otherwise arise in Congress. The Commission was given the "same powers" as Congress, & its decisions could only be overridden if both houses of Congress agreed. (That wasn't just to "audit" & let the states know what happened. It was to, as Cruz notes, "resolve the disputed returns.")

The Commission, in a series of 8-7 votes, affirmed the Republican electors.

Importantly, the Electoral Commission wasn't principally created to investigate "allegations of fraud." It was created to resolve disputes to prevent electoral votes from getting thrown out because of disagreement between the two houses. Allegations of fraud confused the process, undoubtedly.

But it’s also a reason why Congress enacted the Electoral Count Act of 1887—to improve the process for counting electoral votes to prevent this problem again! Some highlights of the Act:

-When the president of the senate reads a state's votes, there can be an objection, but both houses have to vote to sustain it. That’s a presumption in favor of counting and prevents deadlock scenarios.

-If there's more than one slate of electors, each house votes, and if they agree they count that slate. If they disagree, they count the slate with the governor's signature. Again, a presumption in favor of counting, and a presumption of deference to any state canvass, recount, & contest.

-The Act also fixed limited times with circumscribed opportunities to object to prevent prolonged investigations into counting electoral votes. Again, given that the commission ultimately ratified what the initial state process yielded anyway, debate would be limited.

Mr. Cruz’s putative commission ignores all of these benefits to revert to the 1877 process—and a process that wasn’t principally driven by investigations of fraud.

Let’s set all this aside for a moment. The Constitution fixes the end of the terms of office of president and vice president for noon January 20. Mr. Cruz calls for a “10-day audit.” So between now (as I write, January 3) and January 20, here’s what would need to happen:

-A congressional statute (noted above), drafted, approved in each chamber of Congress, and signed by the President.

-An ensuing 10-day period of time, pursuant to that statute, to investigate allegations in some unspecified number of states.

-A report filed to “individual states” with time to “evaluate” the findings.

-A subsequent opportunity for states to “convene a special legislative session to certify a change in their vote, if needed.”

-An opportunity after that, which Mr. Cruz does not mention, for states to convene a new slate of electors to cast a new set of electoral votes, in the event that some new slate was certified as the true winner.

-A meeting of Congress to count the new set of electoral votes.

That cannot happen by January 20, Mr. Cruz’s statement asking for “[a] fair and credible audit-conducted expeditiously and completed well before January 20” notwithstanding. If that does not happen by January 20, then Ms. Pelosi, if she resigned from her office (and she might, as she might be able to run again quickly in an ensuing special election) would serve as “Acting President.”

Of course, no one is taking Mr. Cruz’s proposal seriously. Not even himself, as he writes, “We are not naïve. We fully expect most if not all Democrats, and perhaps more than a few Republicans, to vote otherwise.”

But it shows how poorly, even as a fundraising tool for Mr. Cruz’s 2024 presidential campaign, he has thought out his plan.