In early December, Republican Alabama congressman Mo Brooks let it be known that he planned to challenge Joe Biden’s election win when Congress convened on January 6 to execute the typically pro forma task of counting and confirming the Electoral College vote. Under the provisions of the Electoral Count Act of 1887, a challenge to any state’s electoral votes from one House and one Senate member triggers a two-hour debate in both chambers and then a vote in both houses on the challenge. Only if a majority of members in both houses vote to sustain the challenge does it have any effect. Given the impossibility of that happening, as Democrats control the House, the main effect of the gambit would be to force every Republican in Congress to go on record as crediting or discrediting Trump’s absurd claims that he actually won the election by a landslide.
For that very reason Mitch McConnell has strongly discouraged the members of his conference from joining Brooks in his gesture and triggering an actual debate and vote on January 6. But it was probably just a matter of time before the prospect of maximum appreciation from Trump and the praise of hard-core MAGA bravos led a senator to break ranks, and one of the prime suspects all along has made it official:
Yes, the junior senator from Missouri, often described as a potential leader of a post-Trump “conservative populist” wing of the GOP, is fishing in the troubled waters of election-fraud conspiracy theories. His so’s-your-old-man claim that he’s just following precedents set by Democrats after the 2004 and 2016 elections isn’t very sound. In the latter year there were protests from a smattering of House Democrats during the announcement of the electoral votes certifying Trump’s win, but no senator joined them, and as it happens, Joe Biden (who presided over the joint session of Congress as vice-president) shut down efforts to talk about election disputes from the floor. In 2005, a senator (Barbara Boxer) did join a House Democrat (Ohio’s Stephanie Tubbs Jones) in objecting to Ohio’s electoral vote based on concerns about voting-machine irregularities; this triggered a debate, but the protesters made it clear they weren’t actually challenging the outcome. More to the point, Democratic presidential candidate John Kerry did not support the protest at all. It was a very different kettle of fish from today’s Trump-supported election-coup effort. If there is any analog at all to this situation, it would be the 2000 election, when Al Gore quickly conceded defeat after the Supreme Court shut down the Florida recount that might have reverse the outcome there, and then presided over the joint session of Congress that confirmed George W. Bush’s dubious win without much of a peep of protest — even though Gore, like Biden this year, unquestionably won the popular vote.
While the Brooks/Hawley gambit is bad news for every Republican in Congress who does not want to displease Trump, which means most of them, the pol placed most dangerously in the spotlight is Mike Pence, who like Gore in 2000 and Biden in 2016 will preside over the joint session of Congress on January 6 and will be responsible for announcing electors from each state (though he could delegate that chore to clerks).
It has been reported that Pence has been present at White House meetings involving January 6 plotters like Brooks, along with Trump and his lawyers. One of those plotters, extremist Texas congressman Louie Gohmert, has filed a federal lawsuit aimed at declaring the Electoral Count Act of 1887 an unconstitutional limitation on Pence’s power to decide which electors deserve recognition (whether or not they have been state-certified as the Electoral Count Act provides, cutting off all later challenges). Nobody expects the suit to get a hearing before January 6, but its intended purpose may have been to smoke out Pence on his relative willingness to steal the election by “announcing” fake Trump electoral slates from close states as the actual winners. Now Politico is reporting that Pence rejected an opportunity to join in Gohmert’s suit (he is in fact the named defendant, since he’s the one who will supervise whatever happens on January 6).
So barring some reversal by Brooks and Hawley, the circus is definitely coming to Washington on January 6, and in the center ring Mike Pence may be forced to choose between his clear constitutional duty and pressure to tug his forelock one last time to the man who lifted him to the vice-presidency. If Pence does try to claim electors for Trump in states won by Biden, we could have a full-on constitutional crisis, or more likely a repudiation of Pence by both houses of Congress. As for the “debate” over Team Trump’s claims, it clearly won’t involve any more evidence than the allegations already rejected by federal and state courts from sea to shining sea.