President Trump lost important swing states significantly. Its spate of widespread electoral fraud lawsuits have been dismissed almost everywhere, most recently by the Supreme Court. And on Monday, the electoral college will officially cast a majority of its votes for President-elect Joseph R. Biden Jr.
However, with the president continuing to refuse to admit, a small group of his most loyal supporters in Congress are planning one final challenge on House floor in early January to try to reverse Mr Biden’s victory.
Constitutional scholars and even members of the President’s own party say the effort is almost certain to fail. But the upcoming battle on January 6 is likely to culminate in a chaotic and deeply divisive spectacle that could put Vice President Mike Pence in the dire position of having to declare once and for all that Mr Trump did indeed lose the election.
The fight promises to shape how Mr. Trump’s grassroots view the elections for years to come, and are once again questioning Republicans who privately hoped the electoral college election this week will be the final word on the election result.
For the vice president, who the Constitution assigns the task of counting the results and declaring a winner, the episode could be particularly excruciating, forcing him to balance his loyalty to Mr Trump with his constitutional duties and considerations about his own political future bring to.
The effort is led by Republican Alabama Representative Mo Brooks, a conservative backbench. Along with a group of allies in the House of Representatives, he is monitoring election results in five different states – Arizona, Pennsylvania, Nevada, Georgia, and Wisconsin – where they claim that despite being certified by the US, different frauds or illegal votes have taken place in electoral authorities and none Evidence of widespread inappropriateness.
“We have a superior role in the Constitution as the Supreme Court, as any federal judge, as any state judge,” Brooks said in an interview. “What we say works. That is the final verdict. “
According to the rules set out in the Constitution and the Electoral Count Act of 1887, their appeals must be submitted in writing with the Senator’s signature attached. No Republican senator has yet come forward to say he or she will support such an effort, although a handful of Mr. Trump’s trusted allies, including Senators Ron Johnson from Wisconsin and Rand Paul from Kentucky, have signaled that they do are ready for it.
The president has praised Mr. Brooks on Twitter but has so far shown no apparent interest in the strategy. Aides say he was more focused on throwing the results out of court.
Even if a senator agreed, constitutional scholars say the process should be a tedious one. Once a member of each convention house objects, senators and officials retreat to their chambers on opposite sides of the Capitol for a two-hour debate and then vote on whether to disqualify any state’s votes. Both the Democratic-controlled House and the Republican-controlled Senate would have to agree to cast a state’s electoral votes – something that has not happened since the 19th century.
Several Senate Republicans – including Patrick J. Toomey from Pennsylvania, Susan Collins from Maine, Lisa Murkowski from Alaska and Mitt Romney from Utah – have vigorously opposed the idea of reversing the results, and their votes would be enough to win Mr. Biden enforce the support of the Democrats.
“The January 6th meeting will confirm that no matter how many objections are filed and whoever signs up, they will not affect the outcome of the process,” said Edward B. Foley, a professor of constitutional law at Ohio State University who has Written in detail about the electoral process. “We can say that with clear confidence.”
However, he noted that the meeting could have ramifications for years to come. If even one Republican Senator supported the effort, it could ensure that the partisan cloud hanging over the elections would obscure Mr Biden’s presidency for years to come. If not, it could send a final message to the country that, despite Mr Trump’s excitement, the party trusted the results of the electoral process and was finally ready to recognize Mr Biden as a legitimate winner.
Mr Brooks is far from being the first lawmaker to attempt to use the counting process to question the results of a bitter election loss. The House Democrats made attempts in 2001, 2005, and even 2017, but they were essentially acts of protest after their party’s candidate had already accepted defeat.
What is different now is Mr. Trump’s historic opposition to democratic norms and his party’s willing consent. If Mr Trump were to bless efforts to challenge the Congressional balance sheet, he could force Republicans to make a difficult decision on whether to support an attack on election results that is essentially doomed or risking his wrath. Many Republicans are already afraid of being punished by the electorate for not continuing his struggle.
The dilemma is particularly acute for Mr Pence, who has his own presidential campaign in mind in 2024. As President of the Senate, he has the constitutionally defined task of opening and counting envelopes from all 50 states and announcing their election results.
Given Mr. Trump’s penchant for testing every law and norm in Washington, he might insist that Mr. Pence refuse to play that role. Either way, a final performance of the delicate dance that Mr. Pence has performed for the past four years will be required to maintain Mr. Trump’s trust while upholding the law.
“The role of the V.P. Games in transition are something people have never focused on or thought about, but with Donald Trump you must now consider all options, “said Gregory B. Craig, a White House attorney under President Barack Obama .
In 1961, Richard M. Nixon, who had just lost the election, was overseeing the voting table and had to decide whether competing voters from the new state of Hawaii should be recognized. Mr Nixon eventually made a decision that affected his vote count but did not affect the bottom line that John F. Kennedy won. Forty years later, after the 2000 election, Al Gore had to dismiss opposition from fellow Democrats and uphold the victory of George W. Bush, who won the state of Florida after the Supreme Court ordered the state’s recount to end.
Since the election, Mr Pence has sent mixed messages about how far he would be willing to help Mr Trump. In the early days of the transition, Mr. Pence fended off requests from the President’s loyalists to substantiate false claims of electoral fraud. More recently, he publicly praised the Texas Attorney General’s failed lawsuit to cast votes out of battlefield states.
Democrats said they were confident Mr Biden would be safe, but his transition team has started coordinating with New York spokeswoman Nancy Pelosi and Senator Chuck Schumer, the minority leader of New York, to prepare for the possibility of that one or more senators would join the challenges.
Mr. Brooks was trying to get support. He met with about half a dozen senators, including Utah’s Mike Lee, and separately with the conservative House Freedom Caucus last week.
“My # 1 goal is to fix a badly flawed American electoral system that is too easily prone to election fraud and election theft,” said Brooks. “A possible bonus for achieving this goal is that if you count only legitimate votes from legitimate American citizens and exclude all illegal votes, Donald Trump would officially win the electoral college, as I believe he actually did.”
It remains unclear how broad a coalition could be. More than 60 percent of Republicans in the House of Representatives, including the two top party leaders, joined a legal letter backing the unsuccessful Texas lawsuit and asking the Supreme Court to dismiss the election results. But it’s one thing to sign a legal mandate and another to officially challenge the outcome on the floor of the house.
Some Republicans, including Pennsylvania Representative Scott Perry and Matt Gaetz, have also signaled that they could support an appeal. Mr. Brooks said he had spoken to other interested parties. But prominent allies of the president who plunged headlong into previous fights, such as representative Jim Jordan from Ohio or even the minority leader of the House of Representatives, representative Kevin McCarthy from California, have so far been publicly non-committal.
“All eyes are on January 6th,” Gaetz said on Fox News Friday night after the Supreme Court dismissed the Texas lawsuit. “I suspect there will be some debate and discourse in Congress as we go through the voter certification process. We still believe there is evidence that needs to be considered. “
Kentucky Republican Mr Paul said he would “wait and see how all legal cases play out” before deciding what to do.
Mr Johnson plans to hold a hearing this week “investigating the irregularities in the 2020 election” and Ken Starr, the former independent attorney who is a right-wing favorite and at least two attorneys who stand up for Mr Trump have spoken out. Whether he will question the results on Jan. 6, he told reporters last week, “depends on what we find out.”
Maggie Haberman Contribution to reporting.