The senators contend they are not trying to reverse the election results, but rather give voice to those who don’t believe it was conducted fairly, despite no investigation nor court finding any evidence of wrongdoing.
Still, President Trump and many of his Republican allies see next week’s joint session of Congress to certify Biden’s victory as their last stand to contest the election results, even if doing so is largely political theater to undermine and delay Biden’s inevitable win.
“To wit, Congress should 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,” the senators wrote in a joint statement. “Once completed, individual states would evaluate the Commission’s findings and could convene a special legislative session to certify a change in their vote, if needed.”
Sens. Ron Johnson (Wis.), James Lankford (Okla.), Steve Daines (Mont.), John Neely Kennedy (La.), Marsha Blackburn (Tenn.) and Mike Braun (Ind.) — along with Sens.-elect Cynthia M. Lummis (Wyo.), Roger Marshall (Kan.), Bill Hagerty (Tenn.) and Tommy Tuberville (Ala.) — joined Cruz. Sen. Josh Hawley (R-Mo.) has already said he will contest the electoral college vote certification.
Vice President Pence, who will preside over the joint session in his role as president of the Senate, supports the GOP lawmakers’ efforts, according to a top aide.
“The Vice President 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. 6,” said Marc Short, Pence’s chief of staff.
By law, if members from both the House and the Senate object to the electoral college slates, both chambers must debate and then vote on the contest. The Republicans’ plans to muddy up the proceedings could force Wednesday’s ceremony to go all night and into the next morning.
For each successfully contested state, the joint session must recess, allowing the House and Senate to individually debate up to two hours and then vote on the challenges. Because of coronavirus precautions, House votes during the pandemic have taken an hour or more to conduct — meaning disposing of challenges for each state could take three to four hours.
Many House Republicans have already said they will contest the electoral college votes from multiple states. If Republican senators join House members in contesting all six won by Biden where the Trump campaign has questioned the results — Arizona, Georgia, Michigan, Nevada, Pennsylvania and Wisconsin — the proceedings could conceivably last 24 hours or more.
Ultimately, though, the GOP challenge will fail because Democrats hold more seats in the House and because a number of Senate Republicans have already recognized Biden’s win and are unlikely to support their colleagues’ effort.
“Now that we’re locked into doing it, we’ll give air to the objections and people can have their day in court and we’ll hear everybody out and then we’ll vote,” said Senate Majority Whip John Thune (R-S.D.) regarding Hawley’s initial plans to contest the results. “In the end, I don’t think it changes anything.”
Thune has indicated that he will vote to certify Biden’s win, drawing a rebuke from Trump, who called for South Dakota Gov. Kristi L. Noem (R) to run against him in a primary. She has said she will not challenge him.
Sen. Patrick J. Toomey (R-Pa.), who is not running for reelection when his term is up in 2022, released a scathing condemnation of Cruz’s plan.
“I intend to vigorously defend our form of government by opposing this effort to disenfranchise millions of voters in my state and others,” Toomey said.
Democrats in both chambers are also preparing to defend the election results during the debate period for each state. Sen. Amy Klobuchar (D-Minn.), who will help manage the proceedings as the top Democrat on the Senate Rules and Administration Committee, said she and other Democratic leaders are calling on lawmakers from those six states to be prepared to rebut the challengers and explain their states’ election processes.
“We are ready for every contingency,” she said in a Friday interview. “This isn’t like we just woke up this morning and said, ‘Oh, this is coming up!’ We’ve been working on this since Election Day.”
“I would very much hope it gets resolved on the 6th,” she added, but “it could go on for quite a while.”
Klobuchar said she had no doubt that, at the end of the process, Biden and Vice President-elect Kamala D. Harris would be confirmed as the rightful winners of the election. She praised Senate Majority Leader Mitch McConnell (R-Ky.) and other Republicans — such as Sen. Ben Sasse (R-Neb.), who wrote a long and scathing critique of the efforts to question the election results — for defying Trump’s attempts to undermine the democratic process.
“Our democracy will prevail,” Klobuchar said. “I just think this is kind of a sad, sad statement that some members are putting their own fear of Donald Trump in front of our democracy.”
Though McConnell has rejected calls from members of his party to challenge Biden’s win, a Senate Republican aide, who spoke on the condition of anonymity to candidly describe internal GOP dynamics, said that the decision of the 12 senators to do so should not be interpreted as a rebuke of McConnell — who was reelected party leader for the new Congress by acclamation in November and helped each of the senators-elect win their races — but rather a reflection of political reality.
“The 2022 and 2024 considerations definitely factor in,” the aide said, referring to senators up for reelection in the next election cycles. “If you think Trumpism is a lasting, dominant force in the party, and he’s set this up as a test, you’re going to do this.”
Sen. Kelly Loeffler (R-Ga.), herself in the middle of a hard-fought runoff election next week, campaigned with Cruz on Saturday, but she wouldn’t say that she supported his effort.
“Everything’s on the table; we’re looking at what we can do to make sure that this is a free and fair election and that we fight for the president,” she said.
Rick Hasen, a leading election law expert, said GOP senators supporting the challenge are trying to have it both ways.
“They didn’t fully endorse the president’s claims of a rigged election, so they are trying to please the Trumpian base of the Republican Party while also not fully endorsing the unsupported dangerous claims of a stolen election that have come out of Trump’s mouth incessantly,” Hasen said.
In their weekend statement, the 11 senators cited a public opinion poll showing that about 40 percent of Americans believe the election was rigged. They contend that additional vetting is needed to restore trust in U.S. elections. Trump spent months leading up to the election and afterward sowing doubt and confusion about the voting process and outcome.
“But, whether or not our elected officials or journalists believe it, that deep distrust of our democratic processes will not magically disappear,” the senators said. “It should concern us all. And it poses an ongoing threat to the legitimacy of any subsequent administrations.”
There is no evidence that there was widespread fraud in the election, a finding echoed by Christopher Krebs, the former head of the Cybersecurity and Infrastructure Security Agency, and former attorney general William P. Barr. Krebs was fired and Barr resigned before the end of Trump’s term.
The Trump campaign has brought dozens of cases alleging voter fraud in six states, and judges have rejected nearly every claim. The U.S. Supreme Court has also twice refused to take up the cases.
Republican Sen. Mitt Romney of Utah said his colleagues’ challenge “continues to spread the false rumor that somehow the election was stolen.”
“Look, I lost in 2012. I know what it’s like to lose. I have people today who say, ‘Hey, you know what, you really won,’ but I didn’t, I lost fair and square,” said Romney, who was the GOP presidential nominee that year. “Of course there were irregularities — there always are — but spreading this kind of rumor about our election system not working is dangerous for democracy here and abroad.”
Correction: An earlier version of this story said former Attorney General William P. Barr was fired by Trump. He resigned on Dec. 15.
Seung Min Kim and David Weigel contributed to this report.