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Stop Screwing Around and Reform the Electoral Count Act
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Stop Screwing Around and Reform the Electoral Count Act

We’re idiots if we don’t. It’s that simple.

As an amateur student of history, I’m fascinated by the truly consequential mistakes that—in hindsight—look so glaringly, obviously wrong. The more I read and study, the more I’m convinced that the so-called “great man” theory of history is incomplete without a corresponding “dumb man” theory—that our mistakes shape us just as profoundly as our triumphs, and many of the most consequential mistakes were sometimes quite apparent even in real time. 

In fact, the last three books I’ve read, The Crucible of War (a history of the Seven Years’ War and Britain’s defeat of France in North America), A World Undone (an excellent one-volume history of World War I), and The Rise and Fall of the Third Reich (self explanatory) could each be subtitled, “A story of dumb decisions and dreadful errors.”

I often wonder about the obvious mistakes we’re making right now. What will future generations say about our worst decisions today? Here’s one head-scratcher: Why are so many leading environmentalist groups 1) utterly convinced we face a looming climate disaster; and 2) opposed to using nuclear power to address the crisis? And why are governments actually closing plants? For example:

Here’s another example of potential stupidity: If—after everything we’re learning about January 6 and Trump’s effort to steal the election—we don’t reform the Electoral Count Act, we’re idiots. There’s just no other way to say it.

If that sounds a bit wonky and weird, the reasoning is easy enough to explain. Congress passed the Electoral Count Act in 1887 as a decade-overdue response to the disputed election of 1876. It’s supposed to provide a mechanism for responding to and resolving disputes in counting and certifying the vote of the Electoral College, and while the overall intent is relatively clear, the language itself is a ridiculous mess. 

No, really. It is. During Trump’s election contests, Sarah and I spent multiple podcasts referring to the ECA, walking through its sentences, and all too often laughing out loud at its language. Don’t take my word for it. Here’s the key text, quoted in full. And yes, it is just one gigantic paragraph:

Congress shall be in session on the sixth day of January succeeding every meeting of the electors. The Senate and House of Representatives shall meet in the Hall of the House of Representatives at the hour of 1 o’clock in the afternoon on that day, and the President of the Senate shall be their presiding officer. Two tellers shall be previously appointed on the part of the Senate and two on the part of the House of Representatives, to whom shall be handed, as they are opened by the President of the Senate, all the certificates and papers purporting to be certificates of the electoral votes, which certificates and papers shall be opened, presented, and acted upon in the alphabetical order of the States, beginning with the letter A; and said tellers, having then read the same in the presence and hearing of the two Houses, shall make a list of the votes as they shall appear from the said certificates; and the votes having been ascertained and counted according to the rules in this subchapter provided, the result of the same shall be delivered to the President of the Senate, who shall thereupon announce the state of the vote, which announcement shall be deemed a sufficient declaration of the persons, if any, elected President and Vice President of the United States, and, together with a list of the votes, be entered on the Journals of the two Houses. Upon such reading of any such certificate or paper, the President of the Senate shall call for objections, if any. Every objection shall be made in writing, and shall state clearly and concisely, and without argument, the ground thereof, and shall be signed by at least one Senator and one Member of the House of Representatives before the same shall be received. When all objections so made to any vote or paper from a State shall have been received and read, the Senate shall thereupon withdraw, and such objections shall be submitted to the Senate for its decision; and the Speaker of the House of Representatives shall, in like manner, submit such objections to the House of Representatives for its decision; and no electoral vote or votes from any State which shall have been regularly given by electors whose appointment has been lawfully certified to according to section 6 of this title from which but one return has been received shall be rejected, but the two Houses concurrently may reject the vote or votes when they agree that such vote or votes have not been so regularly given by electors whose appointment has been so certified. If more than one return or paper purporting to be a return from a State shall have been received by the President of the Senate, those votes, and those only, shall be counted which shall have been regularly given by the electors who are shown by the determination mentioned in section 5 of this title to have been appointed, if the determination in said section provided for shall have been made, or by such successors or substitutes, in case of a vacancy in the board of electors so ascertained, as have been appointed to fill such vacancy in the mode provided by the laws of the State; but in case there shall arise the question which of two or more of such State authorities determining what electors have been appointed, as mentioned in section 5 of this title, is the lawful tribunal of such State, the votes regularly given of those electors, and those only, of such State shall be counted whose title as electors the two Houses, acting separately, shall concurrently decide is supported by the decision of such State so authorized by its law; and in such case of more than one return or paper purporting to be a return from a State, if there shall have been no such determination of the question in the State aforesaid, then those votes, and those only, shall be counted which the two Houses shall concurrently decide were cast by lawful electors appointed in accordance with the laws of the State, unless the two Houses, acting separately, shall concurrently decide such votes not to be the lawful votes of the legally appointed electors of such State. But if the two Houses shall disagree in respect of the counting of such votes, then, and in that case, the votes of the electors whose appointment shall have been certified by the executive of the State, under the seal thereof, shall be counted. When the two Houses have voted, they shall immediately again meet, and the presiding officer shall then announce the decision of the questions submitted. No votes or papers from any other State shall be acted upon until the objections previously made to the votes or papers from any State shall have been finally disposed of.

I apologize for inflicting that on you, but it has to be seen—to be read, if you dare—to be believed. For those keeping score at home, that is a single 809-word paragraph that succeeds mainly in creating multiple points of confusion and empowering frivolous and bad-faith congressional challenges to electoral outcomes.

Moreover, we have learned since January 6 that the act’s flaws and ambiguities were the legal cornerstone of Trump’s effort to overturn the election. In an extended interview with Rolling Stone magazine, former Trump adviser Peter Navarro detailed how he and Steve Bannon developed a plan they called the “Green Bay sweep” that was designed to specifically exploit the Electoral Count Act’s objection provisions to engineer (at the very least) a marathon, 24-hour debate about the election outcome that could empower Vice President Pence to delay certification.

Here’s Navarro in his own words:

So the whole concept of the Green Bay Sweep was twofold. One was to provide a public forum whereby grievances we had regarding possible fraud and election irregularities could be aired in 24-hours of televised hearings to the American public, and thereby bypass the mainstream media’s biased coverage. And then the second part was to have a mechanism, following in the constitution, that would allow those likely illegal [Electoral College] votes to be sent back to the states for further review.

Interestingly, Navarro claims the mob ruined everything:

It started flawlessly when [Arizona Rep. Paul] Gosar and [Texas Sen.] Cruz promptly at 1 p.m. called on scrutiny of the Arizona vote. Arizona was one of six battlegrounds: They were Arizona, Georgia, Michigan, Wisconsin, Pennsylvania, and Nevada. And it started flawlessly, but the violence overtook that event. The rest, as they say, is history.

The infamous Eastman memos also use and abuse the Electoral Count Act to lay out a plan for overturning the election. He proposed using the act’s provisions to initiate challenges to state outcomes then discarding or creatively reading the act to empower either Pence or Congress to delay certification or decide the election. 

It’s not hard to fix the act to block any future attempt at a Green Bay Sweep—or to undermine any future version of an Eastman memo. As my friends at Protect Democracy have pointed out, there are obvious, broad and bipartisan contours for agreement. In fact, there’s an avalanche of intellectual support on the right and the left for reform. 

While there is room for compromise on any given particular proposal, everybody generally knows what must be done. Last June, my friend Mona Charen outlined multiple suggestions for reform in The Bulwark, and versions of these same suggestions have been hashed out in piece after piece after piece after piece

At a minimum, what do we need to do? First, make it crystal clear that the vice president has zero discretion to reject the electoral votes of any state. His or her role should be procedural only, running the joint session of Congress that counts the Electoral College votes.

Second, a reformed Electoral Count Act should dramatically raise the threshold for objecting to the electoral votes of any state. Presently it takes just one member of the House and one member of the Senate to initiate a debate about any state. I’d like to see it take a majority of the House and a majority of the Senate to initiate debate and a supermajority of both houses to decertify any electoral votes. 

Moreover, a reformed Electoral Count Act would narrowly specify the grounds for any congressional decertification. For example, if electors cast votes for a person constitutionally ineligible for the office, or if electors cast votes even if the vote has been set aside for fraud by a court of final jurisdiction. And any reform should provide precise guidance for state certifications, so that there is minimal opportunity for Congress to face so-called “competing” slates of electors. 

Even if reform is so modest that it merely clarifies the vice president’s role and significantly raises the threshold for election objections, it will go a long way toward avoiding the spectacle we witnessed on January 6. It should take more than Paul Gosar and Ted Cruz to launch a congressional debate. 

Given the sheer number of people who are jumping up and down begging and pleading for reform and describing in exquisite detail the potential stakes of failure–combined with the failure so far to take action—I’ve been trying to think of an analogy for the present moment. I think I’ve got one.

Imagine you live in a city and an invading army is approaching. Sure, there are lots of things that could be done to shore up the defenses—you don’t have enough arrows, the wall could be higher in places, you face a boiling oil shortage—but there’s one problem that outweighs all the others. You have no city gate. The entrance is wide open.

“We need a gate!” you cry. “We need a gate!” everyone cries. City business leaders form the bipartisan gate coalition. Citizens present the mayor with a gate petition. The leaders of the town council even seem to agree. They nod sagely, and say, “Ahh yes, gate construction is vital. It needs to be included in the omnibus For the City Act which will upgrade all our defenses and solve the invasion problem once and for all.”

Slack-jawed, you respond, “I’ve read the For the City Act. Some of it is great, and some of it is lame. Some of it violates the town charter. You can’t get a majority for it. Lots of folks don’t think we need to do all that to stop the army. But everyone knows we need a gate. Everyone. What about a standalone For the Gate Act?”

“You must be soft on defense. We’ll build and close the gate just as soon as the red party can agree to crossbow reform.” 

Crossbow reform is important, but not as important as that darn gate. Build it. Close it. Now. We’re idiots if we don’t.

One more thing …

I’ve restrained myself. Truly, I have. I can restrain myself no longer. My Memphis Grizzlies are for real. It might be time to uncork a 3,000 word tribute to Ja Morant. But in lieu of an essay, I’ll let two tweets speak for themselves. Behold the wonders of the Grizzlies:

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David French

David French is a columnist for the New York Times. He’s a former senior editor of The Dispatch. He’s the author most recently of Divided We Fall: America's Secession Threat and How to Restore Our Nation.