Why GOP is splitting over Electoral College results

Congress is heading for a showdown not seen in more than a century on Wednesday, as dozens of Republican lawmakers, under pressure from their constituents and their president, plan to object to the counting of Electoral College votes from up to six battleground states. GOP Rep. Mo Brooks of Alabama, who is spearheading the House objections, said that he knew of at least 50 members of Congress who planned to object, while at least 13 senators have publicly committed to doing so.

The effort won’t overturn Joe Biden’s win, given that Democrats hold a majority in the House and two dozen Republican senators have publicly expressed opposition to the move. But it would give Republican lawmakers up to two hours of debate per contested state to air concerns about electoral fraud and irregularities that some GOP lawmakers and many of their voters say warrant further examination. And as the party begins to look ahead to 2024, it would give presidential hopefuls an opportunity to bolster their credentials with the base.

Democrats have decried the move as a subversion of democracy and an attempt to disenfranchise tens of millions of Americans who cast votes this fall. Some of the most vigorous opposition, however, is coming from the objectors’ own side of the aisle. More than a dozen Republican members of Congress – including strong supporters of Donald Trump and the third-most powerful House Republican Liz Cheney – have publicly opposed any congressional intervention. They said it would infringe on states’ rights and undermine American democracy and particularly the Electoral College. 

“I think it’s a dangerous path to go down to let Congress override the Electoral College,” says Rep. Thomas Massie of Kentucky, one of 12 signatories to a joint statement that expressed outrage with “significant abuses” in the electoral system but said that “to unconstitutionally insert Congress into the center of the presidential election process would amount to stealing power from the people and the states.”

The larger backdrop is how the Republican Party will regroup in the wake of President Donald Trump’s loss. His campaigns and presidency strengthened a populist strain in the GOP that puts pressure on Republicans to hew to his line on issues like electoral fraud – a strain that is likely to remain strong in the next few years. That could complicate the reemergence of more establishment Republicans who have done their best to weather the Trump years without becoming a target of his Twitter outrage.

A big wild card is how involved and influential Mr. Trump himself will continue to be within the party.

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In some ways, the GOP divide over Congress’s role vis-a-vis the Electoral College results is an early indication of the struggles the party will face as it navigates its future without Mr. Trump in the White House.

“It is beginning to show the Republican Party grappling with the transition away from Trump as the unquestioned leader of the party,” says Matt Mackowiak, a Republican political consultant based in Austin, Texas, and Washington, D.C. That said, he adds, there are many factors at work. “The fact that you have Trump-like presidential [candidates] on opposite sides of a major, major vote should tell you how politically complicated this is.”

Electoral count

On Jan. 6, Vice President Mike Pence, in his capacity as president of the Senate, will open and count the electoral votes certified and submitted by each state in the presence of the House of Representatives and the Senate, as provided for in the 12th Amendment of the Constitution.

Under the 1887 Electoral Count Act, Congress can object to the electors submitted by any state if such an objection is put in writing and signed by at least one representative and one senator. Upon such a written objection, the two bodies separate into their respective chambers for up to two hours of debate, followed by a vote in each chamber. A simple majority is needed to exclude a state’s electors from the total tally. Currently Democrats have a slim majority in the House while Republicans hold 51 of the Senate’s 100 seats.

Senate Majority Leader Mitch McConnell of Kentucky had privately urged GOP senators not to sign on to any objections, which would put Republicans in the politically difficult situation of having to vote against something President Trump has advocated for. Many worry that such a vote could get them ousted in their next primary election.

But Josh Hawley, a young Republican senator from Missouri, broke ranks last week. Sen. Ted Cruz of Texas soon followed, issuing a joint call with 10 other senators to appoint an emergency electoral commission to investigate allegations of fraud and irregularities. He cited a Reuters/Ipsos poll released Nov. 18 showing that two-thirds of Republicans as well as 31% of independents and 17% of Democrats said that they “strongly agree” or “somewhat agree” with the statement, “I am concerned that the election is rigged.” 

Senator Cruz, who like Senator Hawley is a Trump ally and likely presidential contender in 2024, cited the 1876 election as a historical precedent for his electoral commission proposal. 

In that election, unlike this one, three Southern states sent competing slates of electors to Congress and it was up to lawmakers to decide which slate to accept from each state.

Before Congress intervened, Democratic presidential candidate Samuel Tilden was one electoral vote short of a victory and his Republican rival Rutherford B. Hayes trailed well behind. However, in those three Southern states there was evidence of voting fraud and blatant suppression of Black voters, who tended to support the Republican Party of Abraham Lincoln. A bipartisan commission comprised of lawmakers and Supreme Court justices worked out a deal behind closed doors that ultimately awarded Hayes the presidency and ended Reconstruction, which was unpopular with Southern Democrats, opening the way for the Jim Crow era. Ten years later, Congress passed the 1887 Electoral Count Act designed to guide how Congress should address election disputes.

Mr. Cruz’s joint statement cited “allegations of voter fraud, violations and lax enforcement of election law, and other voting irregularities” as necessitating a similar commission. But as Sen. Ben Sasse of Nebraska, yet another likely 2024 contender, pointed out in a long statement explaining his rationale for not objecting, two months and dozens of lawsuits have so far failed to produce any evidence of fraud or irregularities on a scale that would come anywhere close to overturning the results of the election in the six states in question: Pennsylvania, Michigan, Arizona, Nevada, Wisconsin, and Georgia.  

While acknowledging his constituents’ distrust in the electoral system – and blaming the media for compounding it by “flatly declaring on high that ‘there is no fraud!’ – he disagreed with a key premise of Senator Cruz and his fellow objectors: that it is in the public interest for Congress to investigate these claims more thoroughly and thus put to rest concerns about the legitimacy of U.S. elections.

“I take this argument seriously because actual voter fraud – and worries about voter fraud – are poison to self-government,” Senator Sasse wrote. “But there is no evidentiary basis for distrusting our elections altogether, or for concluding that the results do not reflect the ballots that our fellow citizens actually cast.”

The view from Georgia

Another key difference between 1876 and 2020 is that no state has submitted a rival slate of electors. The judiciary committee of Georgia’s state Senate did recommend decertifying the current slate of electors and appointing new ones, but the Georgia General Assembly has not acted on that recommendation.

GOP Rep. Barry Loudermilk of Georgia, a freshman representative to Congress, told reporters on Capitol Hill this week that he planned to object to at least his state’s electors on Jan. 6. “My objective is not to have Donald Trump as president – that’s not the objective here,” he said. “The objective is to have an honest election, and I don’t see that we’ve had that, especially in these six states that are going to be contested.” 

But Baoky Vu, a Republican member of the Board of Registrations and Elections in Georgia’s DeKalb County, sees it differently. A day after the release of a recording of President Trump pressuring Georgia’s Republican secretary of state to “find” enough votes to declare Mr. Trump the rightful winner, Mr. Vu called the president’s efforts “baseless and destructive.”

“I was born in Saigon, I value the right to vote, and it’s sad to see this attempt to destroy American democracy for one’s personal gain,” said Mr. Vu in a phone interview. “I think Donald Trump is out to destroy American democracy; at the same time, he’s out to destroy the Republican Party, I suppose.”

Part of the challenge for Republican politicians is navigating the gray area between examining the integrity of the electoral process but not challenging the validity of the election results.

In addition, it’s unclear how quickly Mr. Trump’s influence within the party may begin to wane after Jan. 20. “Does the Republican Party remain the party of Donald Trump or does the party assess that he has jumped the shark with his behavior and decide to move on?” says Danielle Pletka, a senior fellow at the American Enterprise Institute.

One thing is for sure, she says, as Georgians go back to the polls to choose their senators, which will determine which party controls the Senate for the next two years.

“If Republicans lose Georgia, the blowback is going to be vicious,” says Ms. Pletka. “Because there will be one person to blame.”


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