GOP senators want election commission similar to what decided disputed 1876 race

Several Republican senators are vowing to challenge electoral votes in the 2020 presidential election from several battleground states when the votes are formally counted at a joint session of Congress on Wednesday, with the hopes of establishing a commission to determine who gets the votes.

Unlike what was called for by a failed lawsuit from Rep. Louie Gohmert, R-Texas, the suggestion here is not to simply overturn the election results outright and award a second term to President Trump, but rather to have an independent investigation of those states' elections. While out of the ordinary, it would not be the first time for such a process, as it is what happened following the 1876 election, allowing Rutherford B. Hayes to become president.

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"We should follow that precedent," Sen. Ted Cruz, R-Texas, and 10 other current and incoming senators said in a joint statement, referring to the race between Hayes and Samuel Tilden. "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. 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."

In 1877, following the 1876 election, returns from Florida, Louisana, and South Carolina – and one elector from Oregon – were disputed. Congress then set up a commission to determine how the electoral votes should be allocated, reserving the right to accept or reject the commission's findings. In the end, Congress awarded all 19 of the contested electoral votes to Hayes, who was elected with 185 electoral votes to Tilden's 184.

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Sen. James Lankford, R-Okla., one of the senators calling for a repeat of what happened then, outlined how it would work in a Saturday appearance on Fox News' "Justice with Judge Jeanine."

"We've asked a very simple question: Can we put together an electoral commission, have five senators, five House members, five members of the Supreme Court?" Lankford explained. "This is exactly how it was set up in 1876 when there was three states that had all kinds of fraud issues. And so the election commission was set up at that time in 1876, just like this, to be able to study it, look at it, make recommendations. We think that's a good plan. Obviously, there are millions and millions of Americans that think there are major issues with the election."

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Lankford said that he wants a commission to get to the bottom of how the election played out in these states, regardless of who the true winner is.

"No matter how this turns out, we want the facts to come out," Lankford said. "We want to make sure every legal vote is counted and votes that aren't legal are not counted. But regardless of where it goes at the end of it, it goes wherever the American people chose."

Senate Judiciary Committee Chairman Lindsey Graham, R-S.C., said he would pay attention to any allegations that will be made on Wednesday, but was skeptical of the overall strategy.

"Proposing a commission at this late date – which has zero chance of becoming reality – is not effectively fighting for President Trump," Graham said in a statement. "It appears to be more of a political dodge than an effective remedy."

Graham went on to say that he "will listen closely to the objections of my colleagues in challenging the results of this election," but noted that "they have a high bar to clear" in providing evidence that multiple state and federal courts erred in their rulings, and that "the failure to take corrective action in addressing election fraud" actually impacted the results of the presidential election.

Fox News' Chad Pergram contributed to this report.