Senator Ben Sasse
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...)