A fly had just landed on Vice President Mike Pence’s full head of white hair during the 2020 Vice Presidential debate, when Sen. Mike Lee, who owes his job to democratic elections in Utah, tweeted out that “We’re not a democracy.” “The word ‘democracy,’” Lee lectured, “appears nowhere in the Constitution, perhaps because our form of government is not a democracy. It’s a constitutional republic.”
Lee’s tweets launched a thousand opinion pieces about how wrong he was, and I took the bait as well. But I also thought there was more going on here than just trolling liberals. I began my piece this way: “Senator Mike Lee is afraid. Very afraid.” Afraid of the prospect of impending Democratic wins. In hindsight, I got that right, but I failed to anticipate that one month later he would begin to act on his fears.
Lee’s text messages to White House Chief of Staff Mark Meadows provide a rare opportunity to see the real man behind the curtain. They reveal that Lee was an active participant in the White House’s scheming to overturn the 2020 election.
The CNN reporting on the texts starts on November 7, 2020, when the Associated Press called the election for Joe Biden. That same day, Lee reached out to Meadows, and through him counseled the president to find a “third way” between “immediate concession” and “destruction of the credibility of the election process.”
For Lee, that first meant promoting lawyer Sidney Powell, whose allegations of widespread voter fraud could “keep things alive and put several states back in play.” By mid-November, however, her claims were unproven, and he cooled on her.
That should have marked the end of Lee’s efforts to find a “third way,” since Biden had clearly won the election.
Instead, on November 23, Lee referred Meadows to John Eastman, “who has some really interesting research.” Eastman would, in time, provide the “legal” strategy the White House would try to enact on January 6. And while Lee and Eastman would eventually part ways on strategy — Eastman focused on Pence in his role as President of the Senate, whereas Lee focused on Republican state legislatures in the swing states— they both zeroed in on the electors/delegates to the Electoral College. (Reminder: American voters choose the president indirectly, through electors.)
December 8 was the statutory “safe harbor” deadline to resolve any electoral disputes in the states and to certify the voting results. The deadline sets up the meeting of the Electoral College a few days later, when state electors gather in their capitols to cast their ballots. Every state except Wisconsin met the deadline, meaning Biden was the winner according to the Constitution and election laws. But that didn’t stop Lee.
On the deadline, Lee texted Meadows: “If a very small handful of states were to have their legislatures appoint alternative slates of delegates, there could be a path” to victory for Trump. This and other texts concerning the appointment of “alternative slates of delegates” are the most damning.
Because here’s the thing: there was never a legal path to reverse the outcome of the 2020 election. There was never even an arguable point. There was only an anti democratic strategy on the part of Lee and other members of the pro-Trump cabal to overthrow a free and fair election. Lee on January 4: “I’ve been spending 14 hours a day for the last week trying to unravel this [Biden’s win] for him [Trump].” “We need something from state legislatures to make this legitimate and to have any hope of winning.”
There is no provision in the Constitution that authorizes a state legislature, whenever it doesn’t like the outcome of an an election, to go rogue by appointing competing electors who will then choose the candidate who lost the popular vote. And yet Lee, who fancies himself a constitutional scholar, promoted just that. “Everything changes [on January 6], of course, if the swing states submit competing slates of electors pursuant to state law,” he texted on January 3.
The pool of electors are chosen before a presidential election. The political parties in each state choose their slates of potential electors. During the general election, the voters select their state’s electors by casting their ballots. Every state (with two partial exceptions) appoints a slate of electors to the Electoral College from the slate selected earlier by the political party whose candidate has won the state’s popular vote.
Coincidentally, the Supreme Court decided a rare case on the precise point of a states’s electoral appointment power only a few months before Lee began messaging Meadows. In Chiafalo v. Washington, a unanimous court rejected a challenge by so-called “faithless” electors to a state’s “pledge law,” which requires all electors to cast their ballots for their party’s (winning) presidential candidate. There is no elector discretion.
Justice Kagan ends the court’s opinion by reminding us that American sovereignty lies with the people: state electors have “no ground for reversing the vote of millions of Americans,” she instructed. This “accords with the Constitution — as well as with the trust of a Nation that here, We the People rule.” This is the law of the land, not Lee’s faux constitutionalism. He’s entitled to his own opinions, but not his own constitution. We are a democracy — if we can keep it.
Lee, we have always known, is an extreme right-wing politician. A 2015 Brigham Young University study, for example, ranked him the most conservative senator then serving in the Senate, and the most conservative Utahn to ever to serve in Washington.
But his participation in the cabal to overturn the 2020 election takes his extremism to a new level. He doesn’t believe in the legitimacy of the political opposition, and we now know he is willing act on that belief. Nor does he believe in the rule of law, because his advocacy for “competing electors” was without any merit. He’s unfit to serve in the U.S. Senate.
In February, I advocated in these pages for Evan McMullin’s independent campaign to unseat Lee. I pointed to political parties outside the United States that have set aside their differences to form coalitions for the purpose of protecting their democracies from right wing candidates. I believe Utah Democrats, independents, and disaffected Republicans can and should also join together to protect our democracy. News of Lee’s knee-deep involvement in the conspiracy to overturn the presidential election convinces me even more that these unusual times demand unusual cooperation.
To that end, I encourage the delegates to the upcoming Democratic Convention to decline to run a candidate for U.S. Senator, thus releasing Democrats — myself included — to form that informal coalition and vote for McMullin. That is the only feasible path to stop Lee.
David Burns
David Burns has degrees in history and law. He resides in Salt Lake City.
