Lankford addresses Wednesday's events, rumors, legal and historical context, challenges, and more

U.S. Senator James Lankford sent out the following in a special edition of his periodical newsletter, specifically dealing with the events of Wednesday. It's very lengthy, but informative.

In it, he addresses what occurred during the Joint Session and later on the Senate floor, when proceedings were interrupted by rioters. He then has detailed sections addressing rumor clarification, historical election context, the Constitutional and legal background, current election challenges, and how we can solve the problems in the future. I encourage you to read it in full, even if you find yourself in disagreement with him on the issues.
 

Dear Oklahoma friends and neighbors:

I am aware this is a long letter, but it is a serious issue that requires a serious response. 

January 6, 2021, was a terrible day for our country and for our democracy. Americans do not all agree, but we settle issues through elections, legislation, and conversation. Ronald Reagan once said, “Peace is not absence of conflict, it is the ability to handle conflict by peaceful means.” Obviously that did not happen January 6. At 1pm eastern, the Joint Session of Congress started normally. Within a few minutes, a small group of Senators and House members, including me, challenged the election of Arizona to start a two-hour debate in each chamber on election integrity. 

About 30 minutes into the debate in the Senate, I stepped up to speak. I gave some background on how an election challenge has happened to the last three Republican presidents and how previous Democratic Senators have challenged electors in 1969 and 2005. I stated my desire to get all the facts out about any election problems in the country for the sake of transparency and building trust for people who do not believe this year’s election was fair. As I started to transition my speech into specific election irregularities and my call for a 10-day commission to audit the election results, Secret Service ran into the chamber and removed the Vice President from the presiding desk, then the presiding officer gaveled the Senate into a recess and a floor staff member came to me and told me that protesters were in the building.

None of us had any idea what was going on outside the Senate chamber. But within a few minutes, the protests had turned very violent around the Senate, and security was forced to move all Senators and staff out of the Capitol for our safety. For the next five hours, they kept all of us secure in a separate building while Capitol police worked to clear the Capitol building after rioters trashed multiple offices, broke windows, and occupied the Capitol. Those painful images will forever be burned into my mind. 

I am very grateful for the Capitol police, Secret Service, area law enforcement, and National Guard who all played a part in securing the Capitol during such a tumultuous time. They were professional but clearly overwhelmed at the size and determination of those coming to occupy the Capitol. Violence and terror are not acceptable ways of handling disagreements. In fact, they completely undermine any peaceful conversation to get answers and enact reforms. Doing the right thing is important, but it must be done in the right way. 

When we were finally able to regather in the Senate chamber six hours later, we were determined to finish the debate and count the electoral votes. I had worked for a week to build a coalition around a simple idea to pause the electoral count for 10 days to give time for additional review of the election. This was designed to honor the constitutional requirement that states select their electors, not Congress; but also give states more time to resolve any remaining questions. People have questions, and they legitimately deserve answers. 

By the time we started floor debate, we were certain our idea was not going to be successful. After the riot in the Capitol, not only did I know the commission would not pass, I also knew delaying the vote would only add more uncertainty and opportunities for risk in our nation. Rioters interrupted and destroyed an opportunity to have a serious dialogue on election issues in the days ahead. Any hope of getting resolution in the next few days was gone. So, after making the motion to challenge the electors in the House, I voted to accept the electors in the Senate debate. I was also able to finish speaking in the Senate chamber about the violence that interrupted our debate and the continued importance of election transparency. 

CLICK HERE to watch the first part of my speech. CLICK HERE to watch the second part of my speech.

I believe this was the right choice for Oklahoma and the nation. We absolutely had voting issues in November that need to be addressed, but the only way to resolve those issues consistent with the Constitution was to create a commission because the Constitution does not allow Congress or the Vice President to just decide to reject certified state electors. Vice President Pence addressed the issue of his role in the elector certification process as President of the Senate in a letter to Congress. If you want to read his letter, please CLICK HERE.

Free and fair elections are at the heart of our democracy, and regardless of our political affiliation or who we voted for, it is absolutely essential that our elections are safe and secure and that we can be confident in the results—no matter who the winner is. The integrity of our system depends on it—now and in the future.

This was about every election in the future of our country. Demanding elections to be fair and transparent is not an obscure issue; it is an American issue. In normal days it is also a bipartisan issue. Two years ago, Democratic Senators Elizabeth Warren, Ron Wyden, and Amy Klobuchar sent a letter about their concerns for electronic voting machines, including Dominion voting. They wrote:

We are particularly concerned that secretive and ‘trouble-plagued companies,’ owned by private equity firms and responsible for manufacturing and maintaining voting machines and other election administration equipment, ‘have long skimped on security in favor of convenience,’ leaving voting systems across the country ‘prone to security problems.’

Four years ago, after allegations of foreign interference and questions that arose after the 2016 election, I worked earnestly to ensure our elections are safe. I was one of the first authors of major election security legislation and worked with the Trump Administration to enact several major reforms to our voting systems including ensuring that states could conduct paper ballot audits and that state election security officials could access classified information in regards to threats against their systems. We have made progress, but any accusation of fraud and irregularities is too many, and we have much work to do in the days ahead. 

Rumor Clarification

Let me take a minute to clarify some rumors and ideas: I have talked to friends who have told me this is such a critical and urgent moment that we should ignore the Constitution and the law to save the election and keep President Trump in office. I have even had people tell me that, “They cheated first, so we don’t have to follow the law anymore.” I have also had people tell me that Congress is the last line of defense from our nation becoming a socialist nation so you need to do whatever it takes to prevent that from happening, including overturning the state’s electors. I wholeheartedly disagree. I will not violate the Constitution to save the Constitution. I took an oath to defend the Constitution, and I have a responsibility to not ignore the questions and the problems. I will also not sit idly by if individuals or groups have committed voter fraud. In Oklahoma we typically have about 50 people a year that commit voter fraud, like voting twice in an election. Those individuals are turned over to local district attorneys for investigation and prosecution, which is entirely appropriate. 

I have spent weeks going through the statements of fact, accusations of fraud, court cases, the law on elections, and talking with election officials. I have spoken with numerous legal scholars about this question. This issue is not as simple as some pundits on television make it sound, on either side of the issue. Even after the lawsuits and the state determinations, there are legitimate questions that still exist. This was the heart of my I announcement on January 1, 2021, that I would support an election commission to conduct a 10-day review of state results and determine the actual facts to be presented back to the states to make a final determination on their electors. 

The idea of the commission was based on the election commission of 1877 after the disputed election of 1876. In that election, four states (Oregon, Florida, Louisiana, and South Carolina) had questions of election fraud that Congress had to resolve. It was a complicated mess. Congress created a 15-member commission (five Senators, five House Members, and five Supreme Court Justices) to make recommendations on how to resolve the dispute. They completed their work before the constitutionally mandated inauguration day. 

Several of my Senate colleagues and I asked for the same format, a 15-person commission, limited to 10 days of work to complete an investigation before the January 20 inauguration. The commission cannot select the next president; it can only do fact or fiction research and work to put rumors and allegations to rest so states can make their determination on what to do with that information according to the Constitution. That is the way to really solve this challenge. Fighting doesn’t help our nation; solving the problem helps our nation and brings truth to light. 

My goal was never to put our constitutional system at risk, nor was it ever to overturn an election; it was to get the facts into the open and allow the truth to direct our steps. I am well aware that some in our state have said—along with the national media—that more than 50 court cases have already settled this election. The problem with that argument is that clearly they haven’t. Thousands of people still have questions.

Congress did not agree to hold a 10-day election commission regarding voting irregularities this year, and the Senate and House have completed deliberation and certified the states’ electors. On January 20, President-elect Joe Biden will be sworn in as the 46th President of the United States.

CLICK HERE to read my thoughts in the Tulsa World on why I think the commission and its findings would have been helpful.

Historical Election Context

Let me also provide some historical election context that the media has not provided on challenging electors. 

On January 6, 1969, 33 Senators challenged a “faithless elector” from North Carolina, an elector that was pledged for Nixon, but actually voted for Wallace. It was the first time in history that a Representative and a Senator had challenged an elector under the 1887 Electoral Count Act. That national conversation led to changes in state laws around the country that banned electors from changing their votes after the election. In fact, Oklahoma banned “faithless electors” in 2013. That electoral challenge of more than 30 Senators in 1969 did not destroy our Republic, it strengthened it. 

On January 6, 2005, California Democratic Senator Barbara Boxer challenged the electors in Ohio because she believed that urban minority neighborhoods had too few polling locations compared to non-minority neighborhoods. She was not wrong. Her electoral count protest pushed many states to provide more urban locations for voting. That electoral contest did not destroy our democracy or throw out an election; it improved our democracy. 

In 2018, Stacey Abrams ran for governor of Georgia. After the election, she complained bitterly about Georgia election systems and election law. Two years later, she still has not conceded the race. Last year, the Democratic caucus in Iowa was an electoral disaster. It took almost a month to get the results after Pete Buttigieg and Bernie Sanders called for multiple recounts. It was never fully resolved to the satisfaction of either. To say there are no issues is turning a blind eye to an imperfect system. We must all work together to ensure that regardless of your political affiliation that your vote matters. 

Most Oklahomans know me well enough to know that I do not run to the microphone first and then think second. I have a responsibility to get the facts straight and a constitutional obligation to protect our Republic. My decision to ask for an electoral commission to review the facts of this election before it was finalized was not done flippantly, nor was it intended to overturn an election. It was an opportunity to put the facts on the table in front of the American people and allow our nation to settle an election. 

The turmoil of the 2020 election should not be allowed to happen again. Americans do not demand perfection, but we do demand we learn from our mistakes. States could immediately convene hearings and/or put legislation forward to address the vulnerabilities that this election exposed, and Congress needs to incentivize the states that actually step up to fix the problems. I’m already working with my colleagues in the House and Senate to make these changes. 

If you have read this letter to the end, I am grateful. We may not all agree on every aspect of this issue, but you deserve to know my perspective and my reasons for challenging the election results this year. I am passionate about our Republic, as obviously you are. As a nation, we have lost trust in some of our institutions of government, and I am convinced that it does not get better until we have the maximum amount of transparency and the all aspects of government working with the highest amount of integrity. We may not always agree, but I can assure you that I am always working to help us make a more perfect union. I pray we never have another day at the US Capitol like January 6, 2021.

Please feel free to contact me or my office at any time if I can serve you and our state in the days ahead.

For those who are interested, I’ve added additional information on relevant law, facts, and background. 

In God We Trust,

James Lankford
United States Senator for Oklahoma

The Constitutional and Legal Background

States run elections and choose the president. We are the United States of America. According to our Constitution, each state determines who they will choose for President. It is not a national popular vote. The Electoral College selection assures that each state is represented equally. Each state writes the law for how they choose their electors, how they challenge their electors, and how they certify their electors. While there are federal penalties for federal election violations, states are still in charge of the method for the selection of their presidential electors. Four years ago, many Democratic voters cried foul when Hillary Clinton won more votes nationally, but lost the Electoral College vote. But that is the design of our constitutional system; states choose the President through the Electoral College. The 10-day Election Commission proposal to get more of the facts out about the accusations of election fraud does not attempt to change this constitutional requirement. We hoped to give the results of the commission to the states to allow them to have the option to update or keep their electors. That is the constitutional way to choose a president. 

After the constitutional crisis in 1800 with Thomas Jefferson and Aaron Burr tying in the Electoral College by accident, the 12th Amendment to the Constitution was ratified to require that electors must cast a separate vote for president and vice president with additional stipulations on contingent election processes in the House and Senate. This worked as designed until the 1876 election between Rutherford Hayes and Samuel Tilden. There were four disputed states and their electors, Oregon, Florida, Louisiana, and South Carolina. 

In Oregon their Democratic Governor declared one of their Republican electors ineligible and replaced him with a Democratic elector. In Florida, Louisiana, and South Carolina two sets of electors came to Congress for the official Electoral College count causing confusion and debate. The resulting compromise put Rutherford Hayes in the White House, but it also led to the writing of the Electoral Count Act of 1887. That Act provided instructions in law for the states and the Congress to determine which electors are the correct electors and how to settle any dispute in the future since the 1876 election almost took our nation back to war. It also limited the options for a future Congress to choose between competing certified electors from a state or not accepting the state electors at all. But, you could only reject electors if they were not certified by the state. 

The Electoral Count Act of 1887 provides for how states certify their electors, how they must send their electoral decisions to Congress, the date of the Electoral College meeting (January 6), and how Congress has to handle those electors when they arrive for the official Electoral College count. The Electoral Count Act of 1887 is now found in Title 3 of the US Code and in the current case, the most important part is section 15. CLICK HERE to read the entire law. I will paste sections of the law in some of the following paragraphs.

Article II, Section 1 of the Constitution stipulates the use of electors based on congressional allocation to choose the president. This was designed to make sure no single state could run up the score on a popular vote to the detriment of every other state. The issue has been so defined in law over the centuries that we have five amendments to the Constitution related to the Electoral College and the selection of a president by the states. According to Article II Section 1, Paragraph 3 of the Constitution, if no candidate receives enough state certified Electoral College votes, the House can choose the president. But, the law does not allow Congress to ignore state-certified electors or change electors for a state after they are certified. 

Again, states choose electors. That’s why we made the proposal of a commission to get as much information to the states as possible, so they could review their election and make their own decision. 

In the 2000 Bush v. Gore case, the Supreme Court held that:

The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College. Article II, Section 1 of the US Constitution is the source for the statement in McPherson v. Blacker, 146 U. S. 1, 35 (1892), 'that the state legislature's power to select the manner for appointing electors is plenary; it may, if it so chooses, select the electors itself, which indeed was the manner used by state legislatures in several States for many years after the framing of our Constitution. Id., at 28-33. History has now favored the voter, and in each of the several States the citizens themselves vote for Presidential electors.'  

This was affirmed in the Trump campaign’s legal filing before the US District Court for the Eastern District of Texas.

Current Election Challenges

All that background brought us to January 6. No state sent to Congress competing slates of electors. We only had one set of electors from each state, and each of those sets of electors have been certified by their state legislature and their executive branch. 

I have no question that there were problems and voting irregularities in multiple states during this year’s election. In the midst of a global pandemic, some state’s governors or Secretaries of State changed the election rules contrary to the election law passed by their legislature. Some state leaders took executive action to distribute ballots or ballot applications to everyone in the state, contrary to the law in their state. This happened in several states President Trump won, like Montana, and in several states that he lost, like Michigan. While I have every regard for protecting lives and keeping people safe, state officials cannot make those decisions contrary to the law. 

In other cases, we have reports of problems with voting machines, people voting twice, people voting even though they are not a resident of the state, or people mysteriously voting after their death. We had problems with signature verification, different rules for mail-in ballots than in-person ballots, delayed receipt of ballots, inconsistent curing of ballots, and a lack of meaningful access to the polls, the dispute process or the counting process for partisan poll watchers.

Many states, like Oklahoma, took proactive steps to prepare for changes in voting this year due to the COVID pandemic through the legislative process. Our state passed two laws this year to allow voters to have safe and easy access to mail-in voting but still maintain election security. Oklahoma had very few election problems or disputes this year, other than long lines, because of the pre-emptive legislative action and the hard work of our state, county election boards, and volunteers around the state. I wish that would have been true in all places.    

Many election issues were challenged in state or federal courts. Some of them were upheld, for instance the US Supreme Court prevented more than 10,000 ballots from being included in the final count in Pennsylvania due to clearly illegal actions by the Pennsylvania state courts. But many of the claims were not substantiated in state courts. Many of the court cases were not decisions based on the facts of the case; they were questions of “standing” or “timing” for the argument. Some of the decisions hinged on a lack of evidence or facts to back up the accusations. For instance, no evidence has been shown that votes were changed by voting machines, but the Trump team has argued that they did not have enough time or access to the machines to conduct a full forensic audit. That was a plausible accusation, and while no concrete evidence has been presented in court, questions still remain in the minds of millions of Americans. 

After December 14, 2020, when every state certified their election and sent a copy of their certified electors to the Vice President, changes to the outcome of the election became much tougher for the Trump legal team. They have continued to press the states and federal courts to review their arguments. I supported our state joining with Texas to file a suit with the US Supreme Court, knowing that it would be a long shot, but it was worth it to try to get all the facts out. The President, like any other citizen, deserves every legal option to bring up the facts. 

On December 16, 2020, the Homeland Security and Governmental Affairs Committee, on which I serve, held the only Senate hearing on election integrity. In fact, my committee was the only committee in all of Congress to hold a hearing on this year’s election. We invited members of the Trump legal team and state legislators to come testify to what they have discovered. The focus of the hearing was to get the information out in the public eye and to encourage states to consider their election laws and oversight. We also wanted to create a forum for factual information to get out to the states. If you want to watch the entire hearing you may CLICK HERE, or if you want to just see my section of questions, you can CLICK HERE. 

The most difficult part of this process is the delay on getting evidence from and to the states. It took so long to call the election in states like Georgia, Pennsylvania, Arizona, and Nevada that there was very little time to challenge instances of irregularities or suspected fraud in state courts. This is an issue that we must resolve for the future and is one of the many proposals that I have for future election legislation. 

Even the notorious video of the “suitcases of ballots” under the tables at the State Farm Arena in Georgia was questioned when the full video was released. The ballots were in proper ballot containers and had already been through the envelope verification (as much as Georgia verified signatures), but they had not been scanned. They were not hidden under the tables. The full video shows when they were brought into the room. The biggest problem with those scanned ballots, and it is certainly a big problem, is that the election monitors were not present in the room. That makes the process very suspicious, but they cannot prove to a court that the ballots were not legitimate either way. States must ensure transparency and integrity—to include the continual presence of election monitors—throughout the entire ballot-counting process.

Recounts have been conducted across multiple states. Three statewide recounts were conducted in Georgia and a single county recount in Michigan after a report was released stating that the voting machines in one county had a high error rate (68 percent). When the recounts were conducted in Georgia and Michigan the voting machines were found reliable; however, election officials did discover that an entire precinct had been left out in Georgia from the first count. Painfully, none of the three recounts came up with the same final number of votes. In Arizona, the recounts had to have the exact same number, but that was not true in multiple other states. 

During the Senate hearing in December, a representative from the legal team from Nevada testified during my questioning of him that they have identified 130,000 possible illegal voters, which is obviously plenty of ballots needed to overturn the Nevada election. But during their court filing, they did not present that list to the court, they only made the accusation. That was disappointing and frustrating. The court in Nevada did not want to just take their word for it, and I certainly could not push the Nevada legislators to reopen their certification without evidence. 

How do we solve the problems in other elections?

• Voter ID
• This should be a simple solution, but for some reason it continues to be a contentious issue. You have to show some form of ID for almost every federal benefit; it should not be controversial to show ID to vote. In Oklahoma you can show a license, a water bill, a library card, or just about anything with your name on it. But you can’t just show up and pick a name. It is the same for absentee voting. You must get your ballot notarized to prove ID or for 2020, you could make a copy of your ID and mail it. That is a consistent system of ID.  
• Some states, like Georgia, you can sign your absentee ballot, but you have to show ID for in person, that is a different standard. The same standard should apply to both. At the very least, there should be some standard. More and more states are moving to eliminate their voter ID requirements. Clearly this election showed that making it easier to vote for someone else would create even less trust in our system, not more. Every legal registered person in America could and should vote, but those that are not legal to vote, should not. 
• This is also an issue with states that allow same day registration and voting. Same day registration does not allow the state time to verify that they are not registered in another state or even in another county in the same state. Obviously, that is a crime, but one of the best ways to prevent crime is not to make it easy to commit.
• Double Voting
• There is already a national system in place that identifies if a person is registered in two states. It is called the Electronic Information Registration Center (ERIC) system. Thirty states use this system, but many do not use it to its fullest capacity. Identifying people who are registered in two states helps clean up voter rolls only if states actually contact the voter and work to purge the roll of people who no longer live in that state. The US Postal Service also has a national list of people who have conducted a change of address, which could be referenced multiple times a year to purge voter rolls. In some states, college students can vote, even if their permanent address is in another state; though obviously it is still illegal to vote in two states. In other states, their law does not allow someone who is only a temporary resident, like a college student or part-time worker, to vote in their state. 
• Voter files could be cleaned up by using the national death master file from Social Security to quickly identify voters still on the roll that have died. In the latest national survey of voter rolls, tens of thousands of people were identified as registered to vote, but they had died years before. That does not mean that someone voted for them, but it leaves open an opportunity for someone to vote for them. Most but not all states also purge their voter registration if someone has not voted in multiple elections. In Oklahoma for instance, your name will be dropped off the voter registration list if you have not voted in eight years or four general election cycles, and have failed to respond to an address confirmation. 
• Deadlines
• As many people noticed, Oklahoma was finished counting all of our ballots this year while many other states took more than a week to conduct their first count. That is because Oklahoma, like 27 other states, has a deadline for submitting your vote by 7 pm on Election Day. Even military and overseas ballots can be received by Election Day if you use a combination of verified digital and paper ballots as we do in Oklahoma and multiple other states. Other states allow votes to trickle in for up to 10 days after the polls close, as long as it was postmarked by Election Day. This creates a great deal of skepticism and opportunities for mischief during the vote count that is unnecessary. If a state would count their absentee ballots before Election Day, as they come in, it would provide plenty of time for challenges and it would remove the post-election drama. It would also provide something very important, time for court challenges. 
• One of the top complaints of the Trump legal team was the very limited time to challenge election fraud in the courts. It took so long to count in many states, the state certification deadline was only a few days away from the end of the first count. That did not give adequate time for recounts and detailed court challenges. This is not just an issue with this year’s election, it is an issue with elections every year in multiple states.  For instance, a Democratic House member in the Iowa’s 2nd District had this issue during the 2020 election when the race came down to a six vote margin. The certification had to be completed before they were ready to concede the race. In fact, they are challenging the race to the US House itself because they had no other good option in their state. This has to be fixed. 
• Ballot Harvesting
• This sounds like fiction, but it is fact. Some states allow anyone to collect your ballot and turn it in. So, someone could show up at your door one day and help you fill out an absentee ballot request. Then, they could stop by your house a week later and help you fill it out after you received the ballot in the mail. It is even easier in states where they just mailed ballots to every person in the state, even when they did not request one. After they helped you fill out your ballot, they could take it and turn it in. Obviously, this opens up opportunities for tremendous fraud. They could turn in your ballot only if they liked your vote, they could “complete” your ballot if you left anything blank, or they could stand at your doorstep and fill out your ballot for you if you had no preference in how to vote. If a stranger or activist could have access to your ballot, the opportunities for fraud are endless. Two years ago a congressional race in North Carolina was thrown out because one of the candidates was harvesting ballots. But in states like California and multiple others, ballot harvesting is legal or even encouraged. 
• Ballots to Everyone in the Mail
• Mailing ballots to people that have requested a ballot, is not a problem, mailing ballots to everyone, especially if they have not cleaned up their voter registration list, is a huge problem. Some houses in Nevada received multiple ballots from people who had moved out of that address years before. The state of Nevada just hoped that people did not sign that ballot and return in, but they have no way of verifying those votes. Their signature-matching system is a machine that notes at high speed if the letters are the same, but it does not truly match the signature on file. That again is an invitation for fraud. States should make it simple to request a ballot through a phone system or online but not sending ballots to everyone in the state, especially if the voter verification is low and the registration data is not current.
• A Commission
• I am aware that many of these ideas seem like commonsense to Oklahomans, but they are radical concepts for people in other states. That’s why setting up a non-partisan commission to study and recommend election best practices and to determine what happened in the 2020 race is essential. That’s why I recommended it before the vote was certified and that is why I continue to propose it. We need resolution in this election and for every future election. 
• Election Reform
• I will continue to push for significant reforms in our election process. After the 2016 election, I discovered multiple areas of vulnerability in several state’s election systems, like the failure to have paper ballot backups in at least five states and many states failing to adequately protect their voter data. I worked with states and with the Department of Homeland Security to make significant improvements to our election systems around the country for the 2018 and 2020 election cycles, like increased information sharing between our federal, state and local election partners, enhanced cybersecurity measures and security clearances for state and local election officials. It did make a huge difference in many states, but obviously there is still work that needs to be done. I am proud of Oklahoma’s Election Board and the counties that worked incredibly hard to protect the integrity of our election in Oklahoma.