Could Sasse Be Re-Elected As An Independent?​

U.S. Senator Ben Sasse (R-Nebraska) has been in the news for a tweet over the weekend in which he said he regularly considers leaving the Republican Party. On an interview with Jake Tapper, Sasse stated that he considers it every morning. Sasse has often been an outspoken critic of Trump and considers both parties too willing to destroy each other to win while America’s real problems go unaddressed. The blogger Allahpundit warns, “That sentiment will help seal his doom if he runs for reelection in 2020.”

Sasse could face a serious problem if he tries to run for re-election as a Republican in Nebraska. However, it won’t necessarily stop him from returning to the Senate. While Sasse is often discussed as a 2020 Presidential candidate, he could also return to the Senate as an independent.

There is some relatively recent precedent for a Senator elected under a major party banner to turn around and win his/her seat as an independent:

• Senator Harry F. Byrd, Jr.  (D-Va.) declined to sign a loyalty oath to support the 1972 Democratic nominee for President, sensing that the Democratic Party would move significantly to the left. Byrd ran as an independent and won in 1970 and was re-elected in 1976.
• Senator Joe Lieberman (D-CT) lost the 2006 Democratic Primary, so he organized the Connecticut for Lieberman ballot line and was elected in the general election.
• Senator Lisa Murkowski (R-AK.) lost the 2010 Republican Primary but was elected as a write-in candidate.

An independent bid didn’t work for Senator Jacob Javits (R-NY) who lost the 1980 GOP primary to Al D’Amato but ran in the general election on the Liberal Party line and won only 11% of the vote.

The specifics of Sasse’s situation are different from the three successful candidates. Murkowski and Byrd were scions of politically well-connected families. Lieberman had been his party’s Vice-Presidential nominee six years prior while Sasse is a freshman Senator. On the other hand, Sasse won his first term with 64% of the vote, and he has a decent approval rating. Morning Consult’s tracking poll shows him at a +9 favorable rating among Nebraskans with an opinion of him (43-34%.) This is better spread than many U.S. Senators and comparable to his more conventional colleague Deb Fischer’s 8-point spread.

Nebraska is an odd state politically in a way that makes an independent win seem plausible. It’s the only state with a one-house, officially non-partisan legislature. While the statewide vote for President has been reliable for Republicans since 1964, Nebraska is one of only two states to award Presidential electors by Congressional district which gave Barack Obama one electoral vote from Nebraska in 2008. Nebraska has a history of electing independent-minded U.S. Senators of both parties, including Democrats Edward Zorinsky, Bob Kerrey, and Ben Nelson as well as Republican Chuck Hagel.

In 2012, in the last Senate election held in a Presidential year, 277,000 people voted in the two party’s primaries, but more than 788,000 voted in the General election. Sasse may have a better chance making his case to Independent-minded Nebraska’s general election voters than trying to satisfy the 200,000 or so voters who will vote in the Republican Party primary, with an outsized portion of them being Trump megafans and hardcore partisans.

There are two big issues that a Sasse independent bid would have to overcome. The first is money. Without the backing of the Republican Party and its donor base, Sasse would have to tap into some other source of funds against what will almost certainly come in for the Republican nominee.

A Sasse independent campaign would also raise financial questions for the National Republican Senatorial Campaign Committee (NRSC) and Republican Senate Leader Mitch McConnell (R-Ky.) Yes, they don’t want to encourage Senators to jump ship, but they have 21 other Senate seats to defend and U.S. Senator Doug Jones (D-AL) to defeat. So how big a priority will they make Nebraska? Plus, if Sasse decides to formalize where he identifies himself as being (an independent who caucuses with Republicans) to what extent is McConnell going to want to antagonize Sasse? McConnell is still likely to need Sasse’s vote in the next Congress for organizational purposes.

The second big issue for Sasse may be ballot access. One thing that may have caused Sasse to keep the independent talk on the down low is a 2016 law passed by The Nebraska legislature requiring an independent candidate to obtain signatures from 10% of the state’s registered voters, or more than 120,000 signatures. The requirement made it impossible for independents to get on state ballots. When collecting signatures, a good rule of thumb is you should collect twice as many signatures as is required to guard against disqualifications, and there’s no way an independent could ever collect 240,000 signatures in Nebraska. Thankfully, this law was struck down by a federal court in June when the Secretary of State agreed with the ACLU that the requirement is unconstitutionally high.

Nebraska now follows the previous requirement of 4,000 signatures with 750 from each Congressional district, an easily attainable number for an incumbent U.S. Senator. However, there will be a new legislature and a new Secretary of State in 2019. If Sasse continues to make noise about running as an independent, you could see a change to the law to massively increase signature requirements that might be lower than the overturned law requires but still unattainable. The new law might be just as unconstitutional but litigation to overturn the requirements could take a long time, particularly if the new Secretary of State is more willing than his predecessor to play politics with the law and fight for a new signature requirement that goes past the time of the 2020 elections.

A Sasse win as an Independent would do a lot of good for independent-minded conservatives and may further the goal of a new conservative party if Sasse uses his position to offer leadership and support in that direction. However, for this to work, Sasse needs to be sure he can get funding for his campaign. Also, he may want to hold off announcing an intent to run as an Independent until after next year’s legislative session adjourns.