The Electoral College may have made Joe Biden president-elect on Monday, but President Trump plans to dispute that outcome well into January.
“Yesterday was one step in the constitutional process,” White House press secretary Kayleigh McEnany told reporters on Tuesday. And, citing a series of election lawsuits in which the president is still involved, McEnany added that Trump’s legal team is doing well to pursue “legitimate litigation” as long as those avenues are open.
For many of Trump’s allies, the expiration date for success falls several weeks before Inauguration Day. Instead, they look to Jan. 6 as the day of “ultimate significance.” Congress on that day will count and certify the Electoral College votes. After that point, a Trump-driven election reversal is all but impossible.
Trump lawyers have bandied about the term “ultimate significance” with greater regularity since the lawsuit led by Texas to overturn the results in four states failed, arguing that it provides state legislatures several weeks to undo the results sent on Monday to the Electoral College. Rudy Giuliani, Trump’s top legal adviser, referenced it almost immediately after the Supreme Court tossed the Texas case. And this week, in a statement to the Washington Examiner, Trump campaign senior legal adviser Jenna Ellis cited it as guiding precedent laid down by the Supreme Court in its 2000 Bush v. Gore decision. The term originated from Justice Ruth Bader Ginsburg’s dissent in that case.
To leverage the date to Trump’s advantage, his campaign has to convince state lawmakers that the votes they sent to the Electoral College represented false outcomes. And to make that case, the president’s legal team has continued to file lawsuits in states where it alleges that fraud occurred. Many of those cases, including challenges filed in Wisconsin, Arizona, and Pennsylvania, have been tossed after judges found various inadequacies with the filings. The campaign on Monday brought up a new case in New Mexico, alleging that state officials used the pandemic to orchestrate voter fraud with mail-in ballots — a charge common to nearly every election challenge.
At the same time, the Trump team has been assembling a group of “alternate electors” ready to send amended votes to Congress if the campaign succeeds in state courts. Stephen Miller, a senior White House adviser, on Monday told Fox News that these state electors, many of whom on Monday cast unrecorded votes for Trump in conventions separate from their corresponding state’s Electoral College delegations, were a way to “ensure that all of our legal remedies remain open.”
Several of these electors gathered Tuesday at the Capitol Hill Club, a Republican social club, to push the party nationally to support their efforts.
“It is imperative that we get this right,” said Anthony Kern, an Arizona state representative who, along with 10 other Republicans, cast an unrecorded vote for Trump. “If we don’t, America is nothing more than a banana republic. I will pledge my life, my fortune, and my sacred honor to make sure that we do.”
Kern, flanked by other protest electors, demanded that Senate Majority Leader Mitch McConnell support Republicans still contesting the election on Jan. 6. His comments came just hours after McConnell congratulated Biden and Vice President-elect Kamala Harris on their victory in a Senate floor speech.
McConnell’s public acknowledgment of Biden’s win makes it more difficult for Republicans to contest the Electoral College results. For although one congressman, Alabama’s Mo Brooks, has pledged to push back against the certification of the results, per congressional procedure, he needs a senator to co-sponsor his complaint.
McConnell has reportedly pressured Republican senators to resist the temptation: “There’s zero sentiment” for the idea, he said, according to Axios.
Trump on Tuesday tweeted in support of Brooks.
Pro-Trump activists see the Republican division on election challenges as an opportunity to force elected officials to clarify if they are willing to go down fighting with the president. In addition to Brooks, six House Republicans have signed on to a challenge to Electoral College results, said Ali Alexander, founder of Stop the Steal, a pro-Trump organization. The group plans to pressure more into pledging loyalty to the president.
Referencing a brief filed last week in the Texas lawsuit in which 126 House Republicans, including Minority Leader Kevin McCarthy, threw themselves behind the state’s election challenge, Alexander told the Washington Examiner that Stop the Steal is targeting members of Congress who signed the brief to determine who will truly be a Trump loyalist as the date of ultimate significance approaches.
“We have a list. We have a whip list and a list to weigh people against,” he said. “We have an accountability mechanism to decide who’s honest with their constituents and who’s not.”
