WHAT HAPPENS ON JANUARY 6th
In November, 160 million Americans voted. On December 14, members of the Electoral College – spread across all 50 states and the District of Columbia – assembled to cast their votes to confirm the winning candidate. And on January 6, the Congress will gather together to formally count the Electoral College’s votes and bring this process to a close.
Some members of the House and the Senate are apparently going to object to counting the votes of some states that were won by Joe Biden. Just like the rest of Senate Republicans, I have been approached by many Nebraskans demanding that I join in this project.
Having been in private conversation with two dozen of my colleagues over the past few weeks, it seems useful to explain in public why I will not be participating in a project to overturn the election – and why I have been urging my colleagues also to reject this dangerous ploy.
Every public official has a responsibility to tell the truth, and here’s what I think the truth is – about our duties on January 6th, about claims of election fraud, and about what it takes to keep a republic.
1. IS THERE A CONSTITUTIONAL BASIS FOR CONGRESS TO DISMISS ELECTORAL COLLEGE VOTES?
Yes. A member of the House and the Senate can object and, in order for the vote(s) in question to be dismissed, both chambers must vote to reject those votes.
But is it wise? Is there any real basis for it here?
Absolutely not. Since the Electoral College Act of 1887 was passed into law in the aftermath of the Civil War, not a single electoral vote has ever been thrown out by the Congress. (One goofy senator attempted this maneuver after George W. Bush won reelection in 2004, but her anti-democratic play was struck down by her Senate colleagues in a shaming vote of 74-1.)
2. IS THERE EVIDENCE OF VOTER FRAUD SO WIDESPREAD THAT IT COULD HAVE CHANGED THE OUTCOME OF THE PRESIDENTIAL ELECTION?
For President-Elect Biden’s 306-232 Electoral College victory to be overturned, President Trump would need to flip multiple states. But not a single state is in legal doubt.
But given that I was not a Trump voter in either 2016 or 2020 (I wrote in Mike Pence in both elections), I understand that many Trump supporters will not want to take my word for it. So, let’s look at the investigations and tireless analysis from Andy McCarthy over at National Review. McCarthy has been a strong, consistent supporter of President Trump, and he is also a highly regarded federal prosecutor. Let’s run through the main states where President Trump has claimed widespread fraud:
* In Pennsylvania, Team Trump is right that lots went wrong. Specifically, a highly partisan state supreme court rewrote election law in ways that are contrary to what the legislature had written about the deadline for mail-in ballots – this is wrong. But Biden won Pennsylvania by 81,000 votes – and there appear to have been only 10,000 votes received and counted after election day. So even if every one of these votes were for Biden and were thrown out, they would not come close to affecting the outcome. Notably, Stephanos Bibas (a Trump appointee) of the U.S. Third Circuit Court of Appeals, ruled against the president’s lawsuit to reverse Biden’s large victory, writing in devastating fashion: “calling an election unfair does not make it so. Charges require specific allegations and then proof. We have neither here.”
* In Michigan, which Biden won by 154,000 votes, the Trump team initially claimed generic fraud statewide – but with almost no particular claims, so courts roundly rejected suit after suit. The Trump team then objected to a handful of discrepancies in certain counties and precincts, some more reasonable than others. But for the sake of argument, let’s again assume that every single discrepancy was resolved in the president’s favor: It would potentially amount to a few thousand votes and not come anywhere close to changing the state’s result.
* In Arizona, a federal judge jettisoned a lawsuit explaining that “allegations that find favor in the public sphere of gossip and innuendo cannot be a substitute for earnest pleadings and procedure in federal court,” she wrote. “They most certainly cannot be the basis for upending Arizona’s 2020 General Election.” Nothing presented in court was serious, let alone providing a basis for overturning an election. (https://www.azcentral.com/…/federal-judge-throws…/6506927002)
* In Nevada, there do appear to have been some irregularities – but the numbers appear to have been very small relative to Biden’s margin of victory. It would be useful for there to be an investigation into these irregularities, but a judge rejected the president’s suit because the president’s lawyers “did not prove under any standard of proof” that enough illegal votes were cast, or legal votes not counted, “to raise reasonable doubt as to the outcome of the election.” (https://www.8newsnow.com/…/judge-no-evidence-to-support-vo…/)
* In Wisconsin, as McCarthy has written, the Wisconsin Supreme Court ruled against President Trump, suggesting that President-Elect Biden’s recorded margin of victory (about 20,000 votes) was probably slightly smaller in fact, but even re-calculating all of the votes in question in a generously pro-Trump way would not give the president a victory in the state. (https://www.nationalreview.com/…/biden-won-wisconsin-but-i…/)
* In Georgia, a Georgia Bureau of Investigation complete audit of more than 15,000 votes found one irregularity – a situation where a woman illegally signed both her and her husband’s ballot envelopes.
At the end of the day, one of the President Trump’s strongest supporters, his own Attorney General, Bill Barr, was blunt: “We have not seen fraud on a scale that could have effected a different outcome in the election.” (https://apnews.com/…/barr-no-widespread-election-fraud-b1f1…)
3. BUT WHAT ABOUT THE CLAIMS OF THE PRESIDENT’S LAWYERS THAT THE ELECTION WAS STOLEN?
I started with the courts for a reason. From where I sit, the single-most telling fact is that there a giant gulf between what President Trump and his allies say in public – for example, on social media, or at press conferences outside Philadelphia landscaping companies and adult bookstores – and what President Trump’s lawyers actually say in courts of law. And that’s not a surprise. Because there are no penalties for misleading the public. But there are serious penalties for misleading a judge, and the president’s lawyers know that – and thus they have repeated almost none of the claims of grand voter fraud that the campaign spokespeople are screaming at their most zealous supporters. So, here’s the heart of this whole thing: this isn’t really a legal strategy – it’s a fundraising strategy.
Since Election Day, the president and his allied organizations have raised well over half a billion (billion!) dollars from supporters who have been led to believe that they’re contributing to a ferocious legal defense. But in reality, they’re mostly just giving the president and his allies a blank check that can go to their super-PACs, their next plane trip, their next campaign or project. That’s not serious governing. It’s swampy politics – and it shows very little respect for the sincere people in my state who are writing these checks.
4. WAIT, ARE YOU CLAIMING THERE WAS NO FRAUD OF ANY KIND THIS YEAR?
No. 160 million people voted in this election, in a variety of formats, in a process marked by the extraordinary circumstance of a global pandemic. There is some voter fraud every election cycle – and the media flatly declaring from on high that “there is no fraud!” has made things worse. It has heightened public distrust, because there are, in fact, documented cases of voter fraud every election cycle. But the crucial questions are: (A) What evidence do we have of fraud? and (B) Does that evidence support the belief in fraud on a scale so significant that it could have changed the outcome? We have little evidence of fraud, and what evidence we do have does not come anywhere close to adding up to a different winner of the presidential election.
5. BUT ISN’T IT IN THE PUBLIC INTEREST TO INVESTIGATE THESE CLAIMS MORE THOROUGHLY? DOESN’T IT HELP GUARANTEE THE LEGITIMACY OF OUR ELECTORAL PROCESS?
I take this argument seriously because actual voter fraud – and worries about voter fraud – are poison to self-government. So yes, we should investigate all specific claims, but we shouldn’t burn down the whole process along the way. Right now we are locked in a destructive, vicious circle:
Step 1: Allege widespread voter fraud.
Step 2: Fail to offer specific evidence of widespread fraud.
Step 3: Demand investigation, on grounds that there are “allegations” of voter fraud.
I can’t simply allege that the College Football Playoff Selection Committee is “on the take” because they didn’t send the Cornhuskers to the Rose Bowl, and then – after I fail to show evidence that anyone on the Selection Committee is corrupt – argue that we need to investigate because of these pervasive “allegations” of corruption.
We have good reason to think this year’s election was fair, secure, and law-abiding. That’s not to say it was flawless. But there is no evidentiary basis for distrusting our elections altogether, or for concluding that the results do not reflect the ballots that our fellow citizens actually cast.
6. DO ANY OF YOUR COLLEAGUES DISAGREE WITH YOU ABOUT THIS?
When we talk in private, I haven’t heard a single Congressional Republican allege that the election results were fraudulent – not one. Instead, I hear them talk about their worries about how they will “look” to President Trump’s most ardent supporters.
And I get it. I hear from a lot of Nebraskans who disagree with me. Moreover, lots of them ask legitimate questions about why they should trust the mainstream media. Here’s one I got this morning: “We live in a world where thousands and thousands of stories were written about the Republican nominee’s alleged tax fraud in 2012, but then when Harry Reid admitted – after the election – that he had simply made all of this up, there were probably three media outlets that covered it for thirty seconds. Why should I believe anything they say?” As a member of the Senate Judiciary Committee, who has watched for four years as lies made up out of whole cloth are covered as legitimate “news” stories, I understand why so many of my constituents feel this in-the-belly distrust. What so much of the media doesn’t grasp is that Trump’s attacks are powerful not because he created this anti-media sentiment, but because he figured out how to tap into it.
Nonetheless, it seems to me that the best way we can serve our constituents is to tell the truth as we see it, and explain why. And in my view, President-Elect Biden didn’t simply win the election; President Trump couldn’t persuade even his own lawyers to argue anything different than that in U.S. federal courts.
…WHERE DO WE GO FROM HERE?
The president and his allies are playing with fire. They have been asking – first the courts, then state legislatures, now the Congress – to overturn the results of a presidential election. They have unsuccessfully called on judges and are now calling on federal officeholders to invalidate millions and millions of votes. If you make big claims, you had better have the evidence. But the president doesn’t and neither do the institutional arsonist members of Congress who will object to the Electoral College vote.
Let’s be clear what is happening here: We have a bunch of ambitious politicians who think there’s a quick way to tap into the president’s populist base without doing any real, long-term damage. But they’re wrong – and this issue is bigger than anyone’s personal ambitions. Adults don’t point a loaded gun at the heart of legitimate self-government.
We have a deep cancer in American politics right now: Both Republicans and Democrats are growing more distrustful of the basic processes and procedures that we follow. Some people will respond to these arguments by saying: “The courts are just in the tank for Democrats!” And indeed the President has been tweeting that “the courts are bad” (and the Justice Department, and more). That’s an example of the legitimacy crisis so many of us have been worried about. Democrats spent four years pretending Trump didn’t win the election, and now (shocker) a good section of Republicans are going to spend the next four years pretending Biden didn’t win the election.
All the clever arguments and rhetorical gymnastics in the world won’t change the fact that this January 6th effort is designed to disenfranchise millions of Americans simply because they voted for someone in a different party. We ought to be better than that. If we normalize this, we’re going to turn American politics into a Hatfields and McCoys endless blood feud – a house hopelessly divided.
America has always been fertile soil for groupthink, conspiracy theories, and showmanship. But Americans have common sense. We know up from down, and if it sounds too good to be true, it probably is. We need that common sense if we’re going to rebuild trust.
It won’t be easy, but it’s hardly beyond our reach. And it’s what self-government requires. It’s part of how, to recall Benjamin Franklin, we struggle to do right by the next generation and “keep a republic.”