Wednesday’s joint session of Congress did not proceed as it would have otherwise after those people broke in.
A team of Republican House members had resolved to contest results from swing states, and at least 12 Republican senators did, too. When all reconvened, Congress finished debating Arizona’s electors but accepted them.
House members then objected to Georgia’s and Michigan’s electors, but no senator concurred, so there was no debate. The chambers did diverge to “debate” Pennsylvania, but only the House actually deliberated about the state. The senate forwent debate and voted overwhelmingly to accept its electors.
And so President-elect Joe Biden’s victory was certified.
I suppose it’s perfectly valid to say that the objectors had a right to their contest, but it wasn’t a great idea. Several senators explained why: The end would disenfranchise voters who, in Republican Sen. Pat Toomey’s words, had in “good faith” relied on their states’ voting laws and mechanisms. It would affront federalism. It would effectively federalize elections.
Besides those problems, though, there was a particular weakness in how several members went about justifying themselves.
Those Senate Republicans who supported a commission to audit election results relied too heavily, as a defense of their own participation in the contest, on assessments about what people “out there” and at home think and feel.
“If you’ve been speaking to folks at home, I’m sure you know how deeply angry and disillusioned many, many people are,” Sen. Josh Hawley, the foremost election objector in the Senate, wrote in an email to colleagues before the New Year. He pledged to object before the other 11.
While contesting Arizona’s electors on Wednesday, before he was interrupted by “protesters in the Capitol,” Republican Sen. James Lankford leaned on his judgment that millions of people who question the election are being told to sit down and shut up.
Sen. Ted Cruz said in his speech during the debate over Arizona, “Recent polling shows that 39% of Americans believe the election that just occurred ‘was rigged.’”
OK, but should they believe that?
“People are concerned” was a legitimate aegis for a period of time. But not for long. After the Supreme Court passed on the Pennsylvania case (at the very latest), it became these officials’ obligation to stand on a judgment about that question, to address whether their constituents, the millions of people, the 39% should believe what Trump said about the election. It became their obligation to make normative claims rather than endlessly describe how people feel and to use evidence, actual numbers and arguments, to say whether or not the feelings of their constituents justified continuing the contest.
In contesting an election result, facts trump feelings.
Yet, Cruz urged his colleagues on Wednesday to “astonish the viewers and act in a bipartisan sense to say, ‘We will have a credible and fair tribunal consider the claims, consider the facts, consider the evidence,’” as if courts with jurisdiction in each of the contested states, along with the one with jurisdiction over them all, had done none of that already.
Lankford gave up on the formal effort, finishing his speech hours later when the chambers reconvened. “Obviously, the commission that we have asked for is not going to happen at this point, and I understand that,” he said. He voted ‘nay’ on the objections to both Arizona and Pennsylvania, but not before reiterating that people in his state of Oklahoma still want their questions answered.
The Senate objectors did not really deal with the fraud question at all on Wednesday. They didn’t throw out numbers of dead voters and voters turned away like Trump did in his call with Georgia Secretary of State Brad Raffensperger. In fact, they quite glaringly avoided it. “The state of Pennsylvania, quite apart from allegations of any fraud, you have a state constitution,” Sen. Hawley said during the debate over Arizona, going on to argue that the state’s election law violated its own constitution (emphasis added).
In short, because all of the Trump campaign’s election litigation hit dead ends, these objectors had little self-justifying material to point to other than, “Well, people feel defrauded.” They did it through to the end, and it wasn’t compelling enough.
