Republican Sen. Ben Sasse of Nebraska was correct on multiple levels in a late-night Facebook post blasting President Trump for asking Congress to reject the duly certified electoral votes of several states.
The challenges are counterconstitutional in both a technical sense and in a deeper way that would corrode the (small ‘r’) republican order. As Sasse explains in convincing detail, they are also extravagantly counterfactual because there is nothing even close to solid evidence of voting irregularities of a scope large enough to overturn the states’ certified results.
Sasse posted his essay on Facebook, explaining why Trump and some of his Republican allies are wrong, and even hypocritical, for threatening the challenges. It is well worth a read, especially his detailed exposition of the factual inadequacy of the vote fraud allegations.
Sasse is also right, profoundly, in writing that an attempt in Congress to overturn certified election results is a “dangerous ploy” led by “institutional arsonists” who are “point[ing] a loaded gun at the heart of legitimate self-government.” Sasse’s larger point deserves a full column, and will receive one here soon, namely that we must fight the “deep cancer in American politics right now: Both Republicans and Democrats are growing more distrustful of the basic processes and procedures that we follow.”
For now, let’s review why, on a technical but irrefutable level, these challenges are entirely illegitimate.
Deeply rooted in the American understanding of constitutionalism is the absolute dedication to the legitimacy of the constitutional process itself and the rule of law that springs from the consent of the governed. An essential part of that constitutional rule of law is accepting that, while injustices might occur in single instances under the system, the system still contains enough self-correcting mechanisms to guarantee ordered liberty and broad-scale justice in the long run. Tearing down, or even ignoring the rules of, that edifice is societally dangerous in a way any alleged individual injustice is not.
Therefore, even in challenging what we believe to be an injustice, we should follow the constitutional rules that enable all such challenges to be considered on the same, neutral standards of evidence and merit. In this case, this means that even if we believe vote fraud and errors cost Trump an election he rightfully won, we must accept the Constitution’s prescribed rules and timelines for proving it.
By those standards, no congressional challenge of the Electoral College remains remotely acceptable.
Let’s follow the constitutional trail.
Article II says that the legislature of each state shall determine the “manner” of choosing that state’s allotment of electors. By “manner,” it means whether by direct appointment of the legislature, or by popular vote, or by some other method of selection. The same Article says Congress determines the time of choosing the electors, and the day on which electors vote. Congress duly set Election Day as the first Tuesday after the first Monday in November, and it set a specific mid-December day for the Electoral College in each state to cast its votes.
In what is known as the Electoral Count Act, Congress also said that if any state, acting under procedures adopted before Election Day, certifies its electors six days before the Electoral College meets, then those electors have safe harbor (they are exempt) from challenges.
Repeat: By Congress’s own constitutionally directed power, the only challenges Congress can make involve situations where a state or a state’s governor has either certified more than one slate of electors or hasn’t certified any slate by the safe harbor day. Indeed, section four of the applicable law actually prohibits Congress from rejecting electors lawfully certified according to the procedures Congress laid out.
In the 2000 case of Bush v. Gore, the Supreme Court, by a 7-2 majority, ruled that the safe harbor day is inviolable unless Congress changes the law before a relevant presidential election.
Congress also, by law, has set Jan. 6 as the day it counts the certified ballots. It says that the vice president actually opens the ballots — but it gives him no choice in which ballots to open. He “shall” open the ballots the states have “certif[ied].”
Granted, Congress has provided itself a procedure for “objecting” to a state’s slate of electors, but it also says that no “lawfully certified” slate may be rejected. And since all “safe harbor” certifications are presumptively valid, Congress acts improperly if it accepts any challenge to those certified ballots.
As applied to the Trump-Biden election, every state has sent only one certified slate of electors’ votes to Congress. All but one state (Wisconsin) met the safe harbor date. Not a single state has a single relevant official even pretending to certify a different slate than the ones that together give President-elect Joe Biden a 306-232 electoral vote victory. The only purported “slates” in states being challenged by the Trump forces are ones that claimed to certify themselves.
This is self-evidently ludicrous. Nobody would accept a self-certified surgeon. Nobody would accept a self-confirmed Justice of the Supreme Court. And nobody should even give a “self-certified” slate of presidential electors the time of day.
Objectors may say the certifications shouldn’t count because the election was “stolen.” But the constitutional system sets up procedures for proving as much. In court after court (after court, after court), the Trump forces have been adjudged to have failed to prove their cases.
They lost in the vote counts in the relevant states. They lost in every recount so far conducted. They lost in all the courts. They lost according to the safe harbor deadline. They lost according to the electoral votes actually cast in December. They lost, in sum, according to the Constitution.
What that means is obvious: Yes, they lost.
In these United States, when someone loses an election according to the constitutional processes, he is obligated to accept the loss. Otherwise, we live in lawless anarchy. Rejecting anarchy, and accepting the dictates of the Constitution, is no less than what Sasse says: It is “what self-government requires.”
