(...) In a
blistering open letter on Wednesday, Nebraska Republican Senator Ben Sasse also
opposed Hawley, warning that “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 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,” Sasse
wrote. “But they’re wrong … adults don’t point a loaded gun at the heart of
legitimate self-government.”
Senator
Ben Sasse
@SenatorSasse ·
Overheidsfunctionaris
Senator Ben
Sasse
https://www.facebook.com/SenatorSasse/posts/3517705981660655
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?
No.
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.../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.../)
* 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.../)
* 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...)
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.”
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