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How House Republicans could mount last-ditch effort to contest election results

President Donald Trump is said to be supportive of the efforts.

December 4, 2020, 2:13 PM

Some of President Donald Trump's staunchest Republican allies on Capitol Hill are preparing what could be one of the president's last long-shot opportunities to challenge the certification of the presidential election results in January and disrupt the peaceful transfer of power before Biden's inauguration.

When Congress gathers to count the electoral votes on Jan. 6, at least one Republican House member, Rep. Mo Brooks of Alabama, will object to the slate of presidential electors from multiple states -- an effort that would likely only make a symbolic stand, and delay the certification of the presidential race results by hours, rather than alter the election results.

With the support of a single senator, Brooks could disrupt the certification of the election by forcing both the House and Senate to debate and vote on the challenge -- turning the typically ceremonial proceeding on the House floor led by the vice president into another venue for disputing Trump's loss.

In this May 15, 2017, file photo, Alabama Congressman Mo Brooks announces his candidacy for the U.S. Senate in Huntsville, Ala.
Bob Gathany/ via AP, File

Under federal law, a member of the House or Senate can contest the Electoral College results from any state, forcing the House and Senate to separate for up to two hours of debate and vote on whether to accept a slate of electors. A majority of both chambers would have to support the motion to successfully challenge a given slate of electors, according to the Congressional Research Service.

"If the vote count was limited only to lawful votes cast by eligible American citizens, then Donald Trump won a majority of the Electoral College votes and was reelected to a second term," Brooks said in an interview, echoing the president's claims that have been rejected by experts and state officials from both parties.

Trump's efforts to cast doubt on the results of the election by alleging widespread fraud have been undercut by state leaders, election officials, courts across the country, the agency that led the Department of Homeland Security's efforts to secure the election, and just this week, by his own chief law enforcement officer. In an interview with The Associated Press, Attorney General Bill Barr acknowledged that the Justice Department has uncovered no evidence of widespread voter fraud that would change the outcome of the election.

Brooks has made a series of floor speeches disputing the election results, and unleashing false allegations that Biden's victory was attributed to noncitizens voting across the country and relaxed voter identification laws in critical states.

But election experts have dismissed his assertions altogether, pointing to a lack of proof of systemic illegal voting.

"That is extremely unlikely," said Lorraine Minnite, a professor of public policy at Rutgers University -- who has studied allegations of voter fraud for more than a decade -- of Brooks' claims about noncitizens swaying the election in Biden's favor. "The record of noncitizens voting is practically nonexistent."

Still, Brooks caught the attention of the president, who thanked him on Twitter Thursday.

Brooks told ABC News he has not discussed his plan with the White House or with Trump, but that the president has been briefed on the efforts by another elected official.

The White House declined to comment on whether Trump had been briefed on the plans

The U.S. Capitol building dome is seen in Washington, U.S., October 1, 2020.
Erin Scott/Reuters

The potential move -- a day after the Georgia Senate runoffs -- could force Republicans made uneasy by Trump's post-election legal efforts to go on the record about whether they support the campaign -- and by extension, the president -- as he continues to undermine faith in the electoral process. It would also put Vice President Mike Pence, who would be presiding over any challenges, in an awkward position as well.

While no Republican senators have publicly backed the effort from some House Republicans, few have ruled it out.

"I think we need to wait for the pending litigation to be concluded," said Sen. Ted Cruz, R-Texas, who competed against Trump in the 2016 Republican primary, adding that he believes the litigation will wrap up "expeditiously."

"I don't know enough about this process. ... I need to see ... procedurally what our role is and what we do. But I will get back to you on that," said Sen. Josh Hawley, R-Mo., a possible presidential contender in four years.

Senate Majority Whip John Thune, R-S.D., said earlier this week he "can't imagine that would ever happen."

"Somebody could, but I doubt that goes anywhere. This is a process that's well established and has been used every election year -- or every four years in election years -- since 1793, and I suspect that will be a fairly routine process," he added.

Experts suggest any dispute would be resolved or dismissed without impacting the final results of the election.

"I would guess that all of those things would be resolved, if not on the 6th, by the next day," said Norman Ornstein, a resident scholar at the conservative-leaning American Enterprise Institute, during a call with reporters on Wednesday. "The likelihood of having a sizable number who would vote against a slate of electors making a difference in the outcome I think is extremely unlikely. It's just a question of how long it gets dragged out."

Rep. Mo Brooks talks with reporters in the Capitol Visitor Center in Washington, D.C., October 23, 2019.
Tom Williams/CQ-Roll Call, Inc via Getty Imag

"It's Congress' responsibility to render the final verdict on all federal election contests, not the Supreme Court or any inferior court," Brooks said, downplaying the Trump campaign's floundering legal efforts to challenge the election results.

While rare, Brooks' maneuver wouldn't be unprecedented.

The House and Senate were last forced to debate on the certification of electors in 2005, when Sen. Barbara Boxer, D-Calif., and the late Rep. Stephanie Tubbs Jones, D-Ohio, pushed their own challenge over concerns about voting procedures in Ohio that fall. That effort, though, was not aimed at overturning the results of the election, Boxer said at the time.In 2017, then-Vice President Biden, presiding over the joint session of Congress, dismissed a challenge from House Democrats because they lacked Senate support.

"It is over," Biden said as he gaveled down the challenge, to cheers from Republicans.

ABC's Trish Turner and Ben Gittleson contributed to this report.