Sen. Ted Cruz (R–Texas) and 10 other Republican senators say they are trying to restore faith in the integrity of the U.S. electoral system. They are doing that by joining the doomed effort to reject electoral votes for Joe Biden when Congress officially tallies the results on Wednesday, based on the unsubstantiated claims of a president Cruz himself has described as "a pathological liar" who "doesn't know the difference between truth and lies."
Like Sen. Josh Hawley (R–Mo.), who on Wednesday became the first senator to back electoral-vote objections, Cruz and his allies do not explicitly endorse the claim that Biden stole the election, which the Trump campaign and its supporters have failed to support with credible evidence in the scores of lawsuits they have filed since the election. But in a joint statement issued yesterday, Cruz et al. cite the doubts sown by the president's reckless allegations as a reason to challenge the results from "disputed states." In a Reuters/Ipsos poll conducted last month, they note, 39 percent of respondents, including 67 percent of Republicans and 17 percent of Democrats, said they were concerned that the election was "rigged."
Was the election actually rigged? Cruz et al., unlike their allies in the House, won't hazard an opinion.
"Some Members of Congress disagree with that assessment, as do many members of the media," the 11 senators note. "Whether or not our elected officials or journalists believe it, that deep distrust of our democratic processes will not magically disappear. It should concern us all. And it poses an ongoing threat to the legitimacy of any subsequent administrations."
Rather than evaluate the merits of Trump's fraud claims, which have made no headway in state or federal courts, the senators say the fact that many people believe them is reason enough for Congress to "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." They plan 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."
Do Cruz et al. have any specific reason to believe the audits and recounts that states have conducted since the election, all of which validated Biden's victory, were deficient? They don't say. Yet they imply that the certification of electoral votes in "disputed states" cannot be trusted, based on allegations by the same man Cruz has said lies almost every time he opens his mouth.
Despite his history of questioning Trump's honesty, Cruz was eager to represent the Trump campaign in two lawsuits that sought to prevent Biden from taking office. "Ideally, the courts would have heard evidence and resolved these claims of serious election fraud," he and the other senators say. "Twice, the Supreme Court had the opportunity to do so; twice, the Court declined."
Yet neither of those lawsuits, which focused on election procedures in swing states, alleged actual fraud. In that respect, they resembled most of the Trump campaign's post-election lawsuits. Again and again, the claims Trump's lawyers made in court fell far short of the allegations they have made in press conferences and TV appearances. Seeking to intervene in one of the cases the Supreme Court declined to hear, Trump conceded that he could not back up the claims of massive fraud he has been pushing for two months.
"Despite the chaos of election night and the days which followed, the media has consistently proclaimed that no widespread voter fraud has been proven," Trump lawyer John Eastman wrote. "But this observation misses the point. The constitutional issue is not whether voters committed fraud but whether state officials violated the law by systematically loosening the measures for ballot integrity so that fraud becomes undetectable."
That position contradicts everything Trump and his representatives have been saying since the election. Trump lawyer Rudy Giuliani said the purported plot to steal the election is "easily provable." Former Trump campaign lawyer Sidney Powell likened the evidence to a "Kraken" and a "fire hose." Trump himself insists he has "absolute PROOF" of "massive Election Fraud." Yet according to Eastman, it was "not necessary" for Trump to "prove that fraud occurred." In fact, he said, such evidence cannot be produced, because the procedures Trump challenged made any manipulation of the election "undetectable."
State and federal courts have been almost uniformly unimpressed by Trump's arguments that certain election practices were illegal or unconstitutional. And in the relatively few cases where the Trump campaign or its allies alleged actual fraud, the courts have found the evidence unpersuasive.
At a December 16 hearing on election "irregularities," Sen. Ron Johnson (R–Wis.) acknowledged Trump's repeated failure to make the case that Biden did not really win the election. "We will hear testimony on how election laws in some cases were not enforced and how fraudulent voting did occur, as it always does," Johnson said. "The question that follows is whether the level of fraud would alter the outcome of the election this year. In dozens of court cases, through the certification process in each state and by the Electoral College vote, the conclusion has collectively been reached that it would not." Johnson nevertheless has joined Cruz and the other senators in claiming that decisive electoral votes for Biden cannot be trusted.
During the same hearing, Trump campaign lawyer Jesse Binnall, based on evidence that had been decisively rejected by state courts, claimed more than 130,000 people voted illegally in Nevada, including "42,000 people who voted more than once." Sen. James Lankford (R–Okla.) said double voting is rare in his home state, which sees such cases "about 50 times a year," and he noted that "we prosecute individuals that vote twice." Lankford asked Binnall how many people had been prosecuted for the allegedly rampant voting fraud in Nevada. The answer was zero. Yet here is Lankford, joining Cruz, Johnson, and the other senators in implying that systematic fraud denied Trump his rightful victory.
Cruz et al., like Hawley, say they are merely following the example set by Democrats who challenged electoral votes from certain states in past presidential elections. 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 process that Trump's supporters plan 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.
Republicans vociferously objected to that maneuver, depicting Democrats as sore losers looking for excuses. Yet now Republicans are adopting the same tactic, with the support of at least a dozen senators and the enthusiastic backing of their defeated candidate. "Our Country will love them for it!" Trump declared on Twitter yesterday.
Other Republicans are not so sure. Senate Majority Leader Mitch McConnell (R–Ky.), who belatedly acknowledged Biden's victory on December 15, urged his colleagues not to do what Cruz et al. are doing. McConnell thinks a divisive vote with a foregone conclusion can only hurt the Republican Party. Senate Majority Whip John Thune (R–S.D.) likewise warned that any challenge to electoral votes on January 6 will "go down like a shot dog" in the Senate.
Under the Electoral Count Act, challenges to electoral votes can succeed only if they are backed by majorities in both the House and the Senate. The House is controlled by Democrats. In the Senate, the combination of Democrats and Republicans who are on record as opposing challenges to Biden's electoral votes is enough to defeat any objections. "We are not naïve," Cruz et al. say. "We fully expect most if not all Democrats, and perhaps more than a few Republicans, to vote [against us]."
According to a federal lawsuit that Rep. Louis Gohmert (R–Texas) filed last week against Vice President Mike Pence, that should not be the end of the matter. Gohmert argues that the Electoral Count Act conflicts with the 12th Amendment, which he implausibly claims gives Pence the sole authority to decide which electoral votes should be counted. On Friday, a Trump-appointed judge dismissed Gohmert's lawsuit, ruling that he did not have standing to file it. Yesterday the U.S. Court of Appeals for the 5th Circuit upheld that decision.
Pence, who argued that Gohmert had sued the wrong defendant, nevertheless supports Cruz et al.'s plan. Last night Marc Short, the vice president's chief of staff, said Pence "shares the concerns of millions of Americans about voter fraud and irregularities in the last election." Short added that Pence "welcomes the efforts of members of the House and Senate to use the authority they have under the law to raise objections and bring forward evidence before the Congress and the American people on Jan. 6th."
Since that "evidence" has not persuaded the courts and those objections are bound to fail, forcing these votes can serve only to further undermine confidence in the election system by lending credence to Trump's wild claims. Pence, like Cruz and the other senators, does not have the courage to reject those claims or to endorse them.
"When we talk in private, I haven't heard a single Congressional Republican allege that the election results were fraudulent," Sen. Ben Sasse (R–Neb.) said in a statement he posted on Facebook last week. "Instead, I hear them talk about their worries about how they will 'look' to President Trump's most ardent supporters….Let's be clear what is happening here: We have a bunch of ambitious politicians who think there's a quick way to tap into the president's populist base without doing any real, long-term damage. But they're wrong—and this issue is bigger than anyone's personal ambitions. Adults don't point a loaded gun at the heart of legitimate self-government."