Republican members of Congress this week split into two basic groups: Those who used the power of their office to advance an effort to override the will of American voters and keep President Donald Trump in office, and those who declined to do so.
For weeks leading up to Wednesday's joint session of Congress to count electoral votes, there was plenty of gray area for Republicans to respond to Trump’s ultimately baseless allegations that he actually defeated President-elect Joe Biden in key states if it weren’t for widespread fraud.
Many were unwilling to say publicly that Trump had lost, and argued Trump and his Republican allies had a right to file legal challenges to contest elections. State and federal courts rejected dozens of those attempts, including a Supreme Court brief signed by a majority of the House Republican caucus that sought to wipe out the results of enough state elections to keep their party’s candidate in the White House.
But Jan. 6 was the day members of Congress had to vote.
The day started with Trump still refusing to concede and encouraging efforts to stop the electoral vote count that would officially close the book on his presidency.
"We're going to see whether or not we have great and courageous leaders or whether or not we have leaders that should be ashamed of themselves throughout history, throughout eternity," Trump told supporters gathered near the National Mall on Wednesday. "And, you know what? If they do the wrong thing, we should never, ever forget that they did."
Some Republican members moved forward on plans to reject electoral votes from enough states to override millions of voters and deny a Biden win. Other current and former Republican members called that effort anti-democratic, anti-Republican, directly at odds with the Constitution, a violation of the oath of office, an exceptionally dangerous precedent, or a blow against the American system that allows voters to choose a president.
“This week is clarifying. Hundreds of public servants are going on the record to show us who they are and what they value,” Gregg Nunziata, a former staffer for Florida Republican Sen. Marco Rubio and the Senate Republican Policy Committee under then-chairman South Dakota Republican John Thune, tweeted ahead of the votes.
There was no doubt about what the votes represented, even if the Republicans couched the push as a way to air concerns about the integrity of state elections, or about the creation of a congressional commission to audit the results, or even if the vote appeared to be consequence-free because the effort was doomed to fail.
All states had certified their elections. All states sent only one uncontested slate of electoral votes. No states had requested Congress not count those votes. The major font of allegations about irregularities in the presidential election were from the losing candidate himself, Trump.
And those allegations consisted mainly of a toxic mix of lies, misinformation, conspiracy theories and bogus legal arguments that state and federal judges, even those Trump appointed, quickly booted from court.
While Democrats had objected to counting states in previous presidential elections, the losing candidate had already conceded. This time the president sought to have Congress reject the outcome of the election. And Congress on Wednesday had only two choices: either to count the votes or to reject them.
“We’re debating a step that has never been taken in American history: Whether Congress should overrule the voters and overturn a presidential election,” Senate Majority Leader Mitch McConnell, R-Ky., said. “The voters, the courts, and the states have all spoken. They’ve all spoken. If we overrule them, it would damage our republic forever.”
For a few, a change of heart
There was even less doubt what was at stake when a Trump-incited mob invaded the halls of Congress and disrupted the electoral count for hours. One rioter was fatally shot, a shocking incident that led Sen. Kelly Loeffler of Georgia — who lost a runoff election the night before — and a few other Republican senators to reverse course and oppose the challenges to counting certain states.
Going into the day, there were plans from at least 13 Republican senators to support objections in three to six states. In the end, only two states got the objections needed to cause a vote. The Senate rejected the Arizona objection by a vote of 6-93, and the Pennsylvania objection, 7-92. The House did not sustain the objections, rejecting the Arizona challenge 121-303 and the Pennsylvania challenge 138-282.
Yet the vote opened a major rift in the Republican Party that might not fully heal for the next elections. On one side are those chasing Trump voters, now a solid portion of the Republican base, either for reelection or aspirations for higher office. On the other are those who retained a reverence for more traditional conservative ideas such as federalism and the Constitution.
Wyoming Republican Rep. Liz Cheney, who leads the House Republican Conference, voted against the objections. She wrote in a letter to colleagues that objections meant “members are unavoidably asserting that Congress has the authority to overturn elections and overrule state and federal courts,” a dangerous precedent that threatens “to steal states' explicit constitutional responsibility for choosing the President and bestowing it instead on Congress. This is directly at odds with the Constitution's clear text.”
House Minority Leader Kevin McCarthy of California and Minority Whip Steve Scalise of Louisiana voted to reject votes from Arizona and Pennsylvania. So did nearly two-thirds of the Republican caucus when it came to Pennsylvania, where, despite the intense focus of Trump and his legal team, federal courts determined that nothing went wrong that could possibly have changed the outcome of that vote.
The effort on the Senate side was spearheaded by Sens. Josh Hawley of Missouri, an alum of Yale Law School, and Ted Cruz of Texas, an alum of Harvard Law School, who are well-versed in constitutional law but widely believed to have presidential aspirations. The other side included Sen. Tom Cotton of Arkansas, himself a Harvard law graduate with presidential aspirations.
“I think this sort of reflects the fact that Republicans are trying to figure out what a post-Trump future looks like, and how big of an influence he will have on the party after he leaves office,” said Steven Webster, an assistant professor of political science at Indiana University who in August published a book, "American Rage: How Anger Shapes Our Politics."
Webster said the fact that this is happening without any real evidence of fraud, certainly fraud at the level that would change the result of the election, sets a dangerous precedent that is “a scary thought from the sort of little 'D' democratic perspective.”
“Just because it's unlikely to succeed this time doesn't mean that an attempt like this, in 12, 16, 20 years, would have the same outcome,” Webster said ahead of the votes. “And you have to wonder, what would this look like if Republicans controlled the House, and there were more Senate Republicans who wanted to go along with this group of 12 or 14 or whatever it is now?”
The top Republican on the House Judiciary Committee, Rep. Jim Jordan of Ohio, one of Trump’s most vocal backers in Congress, made it clear on a Fox News interview that for him it wasn’t just a symbolic effort.
“When you violate the premise of all of this, and go around the legislature determining how elections are held, that’s the main thrust of our arguments,” Jordan said. “I hope we prevail, I hope we convince enough people not to seat the electors from states that held elections in an unconstitutional fashion.”
At stake were Arizona’s 11 Electoral College votes and Pennsylvania’s 20 votes. House Republicans also sought to reject Georgia’s 16 electoral college votes, Michigan’s 16 votes, Nevada’s six votes and Wisconsin’s 10 votes.
It takes 270 electoral votes to win. Biden won 306 electoral votes; the rejections Republicans sought, if successful, would have knocked him down to 227.
The publicly stated reasoning of those who backed the efforts was transparently pretextual, based mostly on Trump’s insistence without proof that he had won the election and a poll that indicated a base of Trump supporters who agreed with him.
For example, New York Republican Rep. Elise Stefanik, in a video statement, said she would object to certain states “to protect our democratic process.” She cited “serious questions with respect to the presidential election,” and added that “tens of millions of Americans are rightly concerned that the 2020 election featured unprecedented voting irregularities.”
She voted against the rejection of the Arizona election results, but for the rejection of Pennsylvania’s election results. Wednesday morning she issued a statement that cited specific examples of reports of what she called “unconstitutional acts” in Pennsylvania, Georgia, Wisconsin and Michigan — allegations that echoed Trump’s that had gone nowhere.
Steve Vladeck, a University of Texas law professor, said the overwhelming majority of the arguments made by House Republicans to throw out Biden's electors from Pennsylvania are not valid, and if they were, would not invalidate nearly enough ballots to change the result.
“The folks making these arguments either know that, and are objecting anyway, or they don't,” Vladeck tweeted. “I'm not sure which one of those is worse.”
Among the most baffling positions were Republicans who voted to reject their own states’ presidential election results when it was on the same ballot that put them in Congress.
Those were: Arizona Republican Reps. Andy Biggs, Paul Gosar and Debbie Lesko, who voted to reject Arizona’s results; and Pennsylvania Republican Reps. John Joyce, Fred Keller, Mike Kelly, Dan Meuser, Scott Perry, Guy Reschenthaler, Lloyd Smucker and Glenn Thompson, who voted to reject that state’s results.
On the Senate side, Cruz led a group of Republicans who announced they would vote to reject the electors from contested states unless an emergency election commission was formed for a 10-day audit of results — something not described in the Constitution as part of the congressional role in elections.
Joining Cruz in that effort were Sens. Ron Johnson of Wisconsin, James Lankford of Oklahoma, Steve Daines of Montana, John Kennedy of Louisiana, Marsha Blackburn and Bill Hagerty of Tennessee, Mike Braun of Indiana, Cynthia Lummis of Wyoming, Roger Marshall of Kansas and Tommy Tuberville of Alabama.
A statement from the group ahead of Jan. 6 cited a mid-November Reuters/Ipsos poll that they say showed around 4 in 10 people had concerns the election was rigged, and “unprecedented allegations of voter fraud, violations and lax enforcement of election law, and other voting irregularities.”
The Cruz group called for an “Electoral Commission” to audit the results in contested states, but omitted that the Constitution gives states the power to conduct elections — not Congress — and that those states have longstanding audit procedures and safeguards to ensure the validity of results before the state certifies an election.
The Cruz group said that they “are acting not to thwart the democratic process, but rather to protect it.” But the group aimed to give states a reason to “convene a special legislative session to certify a change in their vote,” or in other words, potentially have state lawmakers send a different slate of electoral voters based only on the 10-day audit. Such a move would override millions of voters in several states in elections, which are the heart of the democratic process.
Yet Cruz, after he objected to Arizona’s slate of electors, said on the floor that he was “not arguing for setting aside the election.” That debate, on one of the first opportunities for Republicans to object since the states were considered in alphabetical order, was interrupted when the Trump-inspired mob swarmed the Capitol Building.
When Congress resumed more than four hours later, the tone had changed in the Senate. If there were plans to object to other states than Arizona and Pennsylvania, they did not materialize.
“The violence, the lawlessness and the siege of the Halls of Congress are abhorrent and stand as a direct attack on what my objection was intended to protect, the sanctity of the American democratic process,” Loeffler said.
Braun, Lummis, Blackburn, Hagerty, Johnson, Daines and Lankford likewise initially objected but then voted against the rejection of Arizona’s electoral votes.
Cruz, Hawley, Hyde-Smith, Marshall and Tuberville voted to reject Arizona’s and Pennsylvania’s votes. Kennedy voted to reject Arizona votes but not reject Pennsylvania votes. Lummis and Florida Republican Sen. Rick Scott voted to reject Pennsylvania’s votes but not reject Arizona’s votes.
Integrity at issue
Across the Capitol Building, the day’s events did not quell the desire to deny Biden a victory. Georgia Republican Rep. Jody B. Hice objected to counting that state’s electors, but neither Loeffler nor another senator co-sponsored it.
Hawley still objected to Pennsylvania, as he had previously announced he would. In the House, the debate nearly sparked a fistfight on the floor and nearly two-thirds of Republicans voted to reject Pennsylvania’s results.
Hawley, one of the first to speak on the Senate floor after the insurrection was quelled, maintained that election integrity was an important discussion even more because of the violence. "This is the place where those objections are to be heard and dealt with, debated and finally resolved, in this lawful means, peacefully, without violence, without attacks, without bullets,” Hawley said.
Columnist George Will, long a leading voice of conservatism until the Trump era, wrote Wednesday night in the Washington Post that Cruz and Hawley should be “forevermore shunned” and “scrubbed from public life.”
“Until that hygienic outcome is accomplished, from this day forward, everything they say or do or advocate should be disregarded as patent attempts to distract attention from the lurid fact of what they have become,” Will wrote. “Each will wear a scarlet 'S' as a seditionist.”
The following is a list of lawmakers who voted to reject votes from at least one state: