Sen. Josh Hawley (R–Mo.) plans to join the challenge to some of Joe Biden's electoral votes when Congress officially tallies the presidential election results next Wednesday. The support of a senator, along with the objections that some of Donald Trump's allies in the House plan to lodge, is enough to force votes in both chambers. But the effort to reject electoral votes, let alone stop Biden from taking office, is still bound to fail, since successful challenges require majority support in both the House and the Senate.
Hawley, a freshman senator with presidential ambitions and populist rhetoric similar to Trump's, has not explicitly endorsed the president's charge that Biden stole the election, which Trump has been unable to substantiate even while claiming to have "absolute PROOF" of "massive Election Fraud." The senator says he wants to make a statement about election procedures he considers illegal or deficient.
"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," Hawley said in a press release he issued yesterday. "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."
Hawley said "some states, particularly Pennsylvania, failed to follow their own state election laws." He added that "I cannot vote to certify without pointing out the unprecedented effort of mega corporations, including Facebook and Twitter, to interfere in this election, in support of Joe Biden."
The first claim has some merit, as illustrated by the controversy over the extension of Pennsylvania's deadline for absentee ballots, which was challenged in court but did not affect the outcome of the election in that state. The second claim, which alludes to Hawley's oft-stated complaint that social media platforms discriminate against conservatives, has nothing whatsoever to do with the integrity of the election or the validity of any particular state's electoral votes.
Hawley is right that Democrats have a history of expressing their dissatisfaction with election practices by objecting to electoral votes. But leaving aside a controversy over a "faithless" elector who voted for George Wallace instead of Richard Nixon in 1968, such protests have attracted a senator's support just once in the 133 years since Congress approved the Electoral Count Act, which established the procedures that Hawley intends to use.
In 2005, Sen. Barbara Boxer (D–Calif.) joined Rep. Stephanie Tubbs Jones (D–Ohio) in objecting to electoral votes from Ohio, which they claimed had disqualified or discouraged voters through various improper policies and practices. Under the Electoral Count Act, that forced the joint session of Congress to adjourn for separate debates and votes. The challenge—which was not supported by 2004 Democratic presidential nominee John Kerry, then a Massachusetts senator—failed by a vote of 267–31 in the House and 74–1 in the Senate.
Notwithstanding the resounding rejection of Boxer and Jones' objections, Republicans were not happy about the maneuver. House Majority Leader Tom DeLay (R–Texas) said the Democrats had a habit of "crying wolf" every four years. House Republicans ridiculed Democratic allegations of election fraud in Ohio, which George W. Bush won by about 120,000 votes. "This is a travesty," said Sen. Rick Santorum (R–Pa.). "They're still not over the 2000 election, let alone the 2004 election."
But that was then. Now that a Republican presidential candidate has lost, Hawley thinks it is perfectly appropriate to protest election procedures in Pennsylvania—and even, weirdly, the moderation practices of Twitter and Facebook—by objecting to electoral votes for the other party's candidate. And in this case, the losing candidate is enthusiastically backing the pointless exercise.
While Hawley does not assert that systematic fraud denied Trump his rightful victory, he says "Congress should investigate allegations of voter fraud and adopt measures to secure the integrity of our elections." His allies in the House go a bit further.
"Too many states have blatantly violated Article I, Section 4 of the U.S. Constitution, violated federal election statutes, or willfully failed to obey their own state election laws, thereby opening the door to massive voter fraud, casting of illegal ballots, and election theft," Rep. Mo Brooks (R–Ala.) said in a statement welcoming Hawley's support. "The 2020 presidential election was one we'd expect to see in a banana republic, not the United States of America," Rep. Louis Gohmert (R–Texas) said on Monday, after he filed a federal lawsuit asserting that Vice President Mike Pence has the constitutional authority to reverse Biden's victory and keep Trump in office. "The fraud that stole this election," Gohmert warned, "will mean the end of our republic."
Brooks and Gohmert are two of the 126 Republican House members who unsuccessfully urged the Supreme Court to hear Texas Attorney General Ken Paxton's quixotic lawsuit seeking to overturn the election by nullifying the results in four swing states. All of them agreed that "unconstitutional irregularities involved in the 2020 presidential election cast doubt upon its outcome"—meaning not just that certain procedures were suspect or that fraud occurred here and there but that the irregularities were massive enough to put Biden in the White House instead of Trump.
In other words, nearly two-thirds of House Republicans have lent credence to an extraordinary claim that the Trump campaign and its allies have conspicuously failed to back up with credible evidence in the scores of lawsuits they have filed. Gohmert claims "no court so far has had the morality and courage to allow evidence of fraud to be introduced in front of it." But that is flatly untrue.
Most of the 60 or so lawsuits filed by the Trump campaign or its allies did not allege actual fraud, which in itself is telling. But "in nearly a dozen cases," The New York Times notes, the campaign's fraud allegations "did indeed have their days in court" and "consistently collapsed under scrutiny."
While the campaign's lawyers claimed that more than 130,000 people voted illegally in Nevada, for instance, a state judge deemed the evidence unreliable; the Nevada Supreme Court unanimously upheld his dismissal of the case. When the Trump campaign tried to overturn Pennsylvania's election results, a federal judge noted that it had failed to present "factual proof of rampant corruption," instead offering nothing but "strained legal arguments without merit and speculative accusations." Upholding that decision, the U.S. Court of Appeals for the 3rd Circuit, in a blistering opinion written by a Trump nominee, noted that charges of election improprieties "require specific allegations and then proof," but "we have neither here."
Former Trump campaign lawyer Sidney Powell, who claimed to have so much evidence that she likened it to a "Kraken" and a "fire hose," has not fared any better. "Plaintiffs append over three hundred pages of attachments, which are only impressive for their volume," a federal judge in Arizona wrote. "The various affidavits and expert reports are largely based on anonymous witnesses, hearsay, and irrelevant analysis of unrelated elections." A federal judge in Michigan said Powell offered "nothing but speculation and conjecture that votes for President Trump were destroyed, discarded or switched to votes for Vice President Biden."
Hawley may not want to directly associate himself with the loony conspiracy theory promoted by Trump, Powell, and Rudy Giuliani, but he can't escape its taint. Neither can all of the House Republicans who have treated Trump's allegations as credible. From now on, whenever Republicans raise the issue of voter fraud, even fair-minded people who otherwise might be open to their arguments will be inclined to roll their eyes.
Hawley, in other words, is not doing the cause of "election integrity" any favors. Nor is he helping his party, which can only suffer from a vote that will force Republican lawmakers to choose between recognizing reality and joining Trump in the alternate universe where he won the election. Keen to avoid the divisiveness of that spectacle, Senate Majority Leader Mitch McConnell (R–Ky.) has urged his colleagues not to do what Hawley is doing.
Hawley is demonstrating his unquestioning fealty to Donald Trump, which presumably is also the point that his collaborators in the House are trying to make. Republicans are terrified of angering the president, who has a history of turning against stalwart supporters when they dare to deviate from his whims. After Senate Majority Whip John Thune (R–S.D.) belatedly acknowledged Biden's victory and observed that any challenge to electoral votes on January 6 will "go down like a shot dog" in the Senate, Trump declared that Thune "will be primaried in 2022," meaning his "political career [is] over!!!"
Republicans are betting that the political benefits of appeasing Trump and his supporters will outweigh the political risks of endorsing the president's self-flattering fantasy. They may be right, but I hope not.