As I wrote back in late November, no matter how badly Donald Trump has behaved since Election Day, we were never in any realistic danger of a “coup” or a “stolen election.” Time and time again, Trump’s plans needed Republican cooperation in order to succeed, and Republicans either left him hanging or openly stood up to him. Republican elections officials did their jobs. Republican legislatures rebuffed requests to overrule the vote counts. Conservative judges gave careful scrutiny to Trump’s lawsuits, repeatedly finding either that the evidence did not support his campaign’s claims or that his lawyers had not proven misconduct large enough to change the election’s outcome. The U.S. Supreme Court turned away all his cases, with no justice arguing that any state’s outcome should be reversed by the courts. For a long time, Trump himself was unwilling even to argue publicly for appointing alternative slates of electors, and to this day, the pro-Trump electors in the contested states have never been appointed by any legitimate arm of state government. Under the Electoral Count Act of 1887, that means Trump’s challenge is over.
As Trump’s options have dwindled, he has dialed up his rhetorical assaults on Republicans. Many elected Republicans, even those who care little about Trump himself, still fear his apparent power to turn Republican voters against them. Unfortunately, that has led a growing number of Republicans in the House, and now a dozen in the Senate, to play along with the charade of attempting to throw out the election results in multiple states won by Joe Biden. 126 House Republicans signed an amicus brief asking the Supreme Court to hear the Texas v. Pennsylvania case, which sought to invalidate the Biden electors in Pennsylvania, Georgia, Michigan, and Wisconsin. When the House and Senate convene to count the votes on Wednesday, over 100 House Republicans are expected to join Mo Brooks of Alabama in objecting to the counting of Biden electors in several states. And now, twelve current or incoming Republican senators, led by Josh Hawley and Ted Cruz, say they will object as well.
This is still not a coup; these Republicans waited until they were certain that Trump’s efforts had no chance of success to step forward. But it is also not defensible. It is a cynical fraud, in which few if any of them believe. It will further poison public trust in American elections. The fact that Barbara Boxer and a bunch of House Democrats pulled similar stunts in 2005 and 2017 makes it worse, not better. If I wanted to be represented by people who act like Barbara Boxer and John Lewis, I’d vote Democratic.
How do we know this is all insincere? Because most of these Republicans are unwilling to actually argue in public that they believe the election was stolen (which it wasn’t). In justifying both the Texas v. Pennsylvania brief and the objections to Biden electors, Republicans have tried to thread a very narrow needle by claiming that they just want an airing and examination of legitimate questions about the integrity of the vote. This is, in fact, the same dodge that Democrats are still using to justify the effort to have Congress throw out the Ohio electors who proved decisive for George W. Bush in January 2005. And it is just as dishonest now as it was then.
The Texas v. Pennsylvania brief itself was part of these Republicans’ cynical strategy. Supreme Court rules require that amicus briefs filed by people who are not parties to a case must state on the front cover which side they are supporting, or say that they support neither party to the case. The House GOP amicus brief duly recites that it was filed “in Support of Plaintiff’s Motion for Leave to File a Bill of Complaint and Motion for a Preliminary Injunction.” It was, in fact, in favor of granting the motion for the Supreme Court to hear the case. But when you actually read the brief, what does it say the Court should do, and why?
The unconstitutional irregularities involved in the 2020 presidential election cast doubt upon its outcome and the integrity of the American system of elections [and] necessitate[s] careful and timely review by this Court. On the merits, this amicus brief defends the constitutional authority of state legislatures as the only bodies duly authorized to establish the manner by which presidential electors are appointed. . . . The election of 2020 has been riddled with an unprecedented number of serious allegations of fraud and irregularities. National polls indicate a large percentage of Americans now have serious doubts about not just the outcome of the presidential contest, but also the future reliability of our election system itself. Amici respectfully aver it is the solemn duty of this Court to provide an objective review of these anomalies and to determine for the people if indeed the Constitution has been followed and the rule of law maintained. [Emphases added.]
Nowhere in the brief did the House Republicans actually claim that there were enough improper votes counted to change the outcome of the election. Nowhere did they actually ask the Court to rule on the merits in Texas’s favor and throw out the Biden electors. They merely asked the Court to take the case, even as the cover of the brief proclaimed that it was also supporting Texas’s request for an injunction. This rhetorical sleight of hand was clearly how a lot of House Republicans expected to justify signing the brief, and perhaps how some of them were talked into signing it. Mike Johnson of Louisiana, in his email soliciting signatures, told his colleagues:
The simple objective of our brief is to affirm for the Court (and our constituents back home) our serious concerns with the integrity of our election system. We are not seeking to independently litigate the particular allegations of fraud in our brief. . . . We will merely state our belief that the broad scope of the various allegations and irregularities in the subject states merits careful, timely review by the Supreme Court. [Emphases added.]
In an interview with Isaac Chotiner of the New Yorker after the Court dismissed the case, Johnson reiterated:
I don’t see a grand conspiracy. What I see is a lot of chaos and confusion across the land, and the result is that this election will have this giant question mark hanging over it. . . . Whether it was stolen or not, the fact that such a huge swath of the country believes that it was is something that should keep all of us up at night.
Dan Crenshaw took a similar line on Twitter in defending his decision to sign the brief:
The request here is simple: allow this case to be elevated to the Supreme Court, and let the Supreme Court make a determination. All cases should be heard, all investigations should be thorough. It is that simple… My personal hope is that drawing additional attention to it forces states to clean up their act, and adopt far better and more secure systems going forward that will garner the kind of faith in our elections our nation so desperately needs. [Emphasis added.]
This is all well and good and reasonable enough, as far as it goes. These men did not make false claims or ask the Supreme Court to throw out the Biden electors. But they signed onto a brief supporting a lawsuit asking for an injunction, and they did so in order to promote the belief that they supported the people asking for that relief. This is what was cynical and fraudulent about the amicus brief, and why the brief will give cover in the future to similar efforts, just as the 2005 stunt by Boxer and most of the Congressional Black Caucus has been cited to give cover to this one.
No senators joined the amicus brief, and Majority Leader Mitch McConnell has clearly indicated that he wants no part of a challenge to the Biden electors. But now, Hawley and Cruz are leading just under a quarter of the Senate GOP caucus in a last-minute charge to object to the electors. The same two-step is deployed in the Hawley and Cruz press releases as in the amicus brief. Here’s Hawley’s statement:
Senator Hawley . . . will call for Congress to launch a full investigation of potential fraud and election irregularities and enact election integrity measures. . . . “Following both the 2004 and 2016 elections, Democrats in Congress objected during the certification of electoral votes in order to raise concerns about election integrity. They were praised by Democratic leadership and the media when they did. And they were entitled to do so. But now those of us concerned about the integrity of this election are entitled to do the same. I cannot vote to certify the electoral college results on January 6 without raising the fact that some states, particularly Pennsylvania, failed to follow their own state election laws. . . . At the very least, Congress should investigate allegations of voter fraud and adopt measures to secure the integrity of our elections. But Congress has so far failed to act.” [Emphasis added.]
And here’s Cruz, in a “Joint Statement” with Senators Johnson, Lankford, Daines, Kennedy, Blackburn, and Braun, as well as Senators-elect Lummis, Marshall, Hagerty, and Tuberville:
“The 2020 election . . . featured unprecedented allegations of voter fraud, violations and lax enforcement of election law, and other voting irregularities. Voter fraud has posed a persistent challenge in our elections, although its breadth and scope are disputed. By any measure, the allegations of fraud and irregularities in the 2020 election exceed any in our lifetimes. . . . Ideally, the courts would have heard evidence and resolved these claims of serious election fraud. Twice, the Supreme Court had the opportunity to do so; twice, the Court declined. On January 6, it is incumbent on Congress to vote on whether to certify the 2020 election results. That vote is the lone constitutional power remaining to consider and force resolution of the multiple allegations of serious voter fraud. At that quadrennial joint session, there is long precedent of Democratic Members of Congress raising objections to presidential election results, as they did in 1969, 2001, 2005, and 2017.” [Emphasis added.]
Like Hawley, the Cruz group invokes the precedent of Democrats’ doing this in the past, as if that’s some sort of justification rather than proof of its impropriety. Neither statement actually argues that the evidence shows Trump won. Cruz goes further and asks for the appointment of a commission to whom Congress could kick the can of actually deciding who won the election, after which the state-level certification process could begin all over again:
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. . . . 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.
As National Review’s editorial notes, the commission Cruz is referring to was a disaster, and the current law, the Electoral Count Act of 1887, was adopted by Congress precisely to ensure that election contests should not be decided in such a manner again. Just as with the amicus brief, the Hawley and Cruz efforts lack the courage of their convictions; they can’t bring themselves to actually say they believe the election was stolen, and are timed to play out as empty “failure theater.” They are a sham, not a menace. But today’s sham can pave the way for tomorrow’s menace.
Further proof of the cynicism of all of this is that none of the people pushing lawsuits or challenges to the electors — all of which rest on an assumption of vast, widespread, multi-state fraud in the tens of thousands of votes — are objecting to seating members of the House and Senate elected in the same election. Texas Republican representative Chip Roy called out his colleagues on this:
Today, I regretfully objected to the seating of 67 of my colleagues (best estimate), representing the delegations from six states: Arizona, Georgia, Michigan, Nevada, Pennsylvania, and Wisconsin. . . . I am compelled to do so because a number of my colleagues — whom I hold in high regard — have publicly stated that they plan to object to the acceptance of presidential electors from those particular six states. These members do so because of their deeply held belief that those states conducted elections plagued by statewide, systemic fraud and abuse that leaves absolutely no way for this chamber or our constituents to trust the validity of their elections. Such allegations – if true – raise significant doubts about the elections of at least some of the members of the United States House of Representatives. . . . After all, those representatives were elected through the very same systems — with the same ballot procedures, with the same signature validations, with the same broadly applied decisions of executive and judicial branch officials — as were the electors chosen for the President of the United States under the laws of those states, which have become the subject of national controversy. . . . It would confound basic human reason if the presidential results were to face objection while the congressional results from the same election escaped without public scrutiny.
Roy deserves credit for a consistency that his colleagues lack.
It was entirely reasonable, in the days after the election, to take a wait-and-see stance — to say “some things here bear closer inspection” and we should “let the process play out,” without necessarily concluding that the election was stolen. But the process has now played out; the Trump campaign availed itself of its legal options and failed, because it couldn’t provide the evidence to back up its claims. So the time for “just asking questions” has passed. The only question before Congress on Wednesday is whether the Biden electors meet the requirements of the Electoral Count Act. They do, and he has thus won. Anyone who is unwilling or unable to argue otherwise and back his arguments up with hard evidence has no business playacting at challenging the outcome just to signal loyalty to Donald Trump.