I want to begin with a question I’ve asked before. What if Mike Pence had said yes? What if the history of January 6 was very different, Pence had agreed with the John Eastman memos arguing that he enjoyed a tremendous amount of discretion in counting Electoral College votes, and he either declared Trump the winner outright, throwing the election into the House of Representatives, or sent it back to the states for the state legislatures to decide which electors were valid?
America probably would have survived that moment, but the key word there is probably. Does Trump leave the White House? If the Supreme Court intervenes, does he care? Do we see a situation in which Chief Justice Roberts swears in Joe Biden while a MAGA judge swears in Trump for his “second term”? What do state governors do? Does federal law enforcement intervene? What about the military?
Mike Pence saved us from all this chaos, and he deserves our gratitude. But he never should have been put in that position, and we have an opportunity to fix the prime legal reason why he was. The primary blame, of course, rests with the depraved corruption of Donald Trump and his cadre of loyalists. The secondary blame, however, rests with the Electoral Count Act, an absolute mess of a statute.
This January I wrote a prequel to this newsletter, titled “Stop screwing around and reform the Electoral Count Act.” In that piece I quoted the entire act (go read it, if you dare) and then detailed its many, many flaws. While the overall intent of the act—to craft the process of certifying a presidential election and the process for objecting to state results—is quite clear, the wording itself is an incredible mess.
But it’s worse than a mess. It grants Congress the power to object to the counting of votes on flimsy or nonexistent pretexts, it permits Congress to overturn a presidential election upon a simple majority vote, and it fails to explicitly limit the power of the vice president.
As a result, the ECA is a playpen for bad actors. Steve Bannon and Peter Navarro, for example, used the ECA as the foundation for their so-called “Green Bay Sweep,” an effort to use the procedural quirks of the ECA to engineer a round-the-clock debate about the election that would ultimately result in a delayed certification.
In my original piece, I said that any ECA reform should at minimum raise the threshold of senators and members of Congress necessary to trigger a certification debate about any given state and clarify that the vice president’s role is procedural only, giving him or her zero independent discretion to reject a single Electoral College vote. Additionally, a reformed act should narrow the grounds for objecting to a state’s slate of electors.
Well, to my surprise and immense delight, a bipartisan coalition of senators have fashioned the Electoral Count Reform Act, and it does all of those necessary things, and more.
The act specifies that the vice president “does not have any power to solely determine, accept, reject, or otherwise adjudicate disputes over electors.”
The act increases the threshold for objecting to any state’s slate of electors—to one-fifth the members of both the House and Senate. Trump’s 2020 objections would not have met that standard.
And the act also clarifies that “the only grounds for objections” are that “the vote of one or more electors has not been regularly given” or that the electors “were not lawfully certified under a certificate of ascertainment of appointment of electors.”
But wait—there’s more! The Reform Act specifically binds the states to select electors “in accordance with the laws of the State enacted prior to election day.” This means there would be no legal way for a state legislature to change the rules after the election to override the votes of their own citizens.
In addition, the act states that governors (unless state law designates a different official) will certify each state’s slate of electors. The intent here is to block competing slates from reaching Congress.
Finally—and don’t underestimate this provision—the act provides for expedited federal court review of relevant election disputes. The statute provides for an initial hearing in front of a three-judge panel in a federal district court and also grants the Supreme Court the authority to immediately hear appeals, skipping the federal circuit courts.
There’s always a danger if legislation is too narrowly tailored to “fight the last war.” In other words, if it merely closes the loopholes Trump’s team utilized in 2020, then it would be an improvement, but it wouldn’t be enough to block similar (but not identical) mischief in future contests.
Fortunately, however, the Electoral Count Reform Act isn’t confined to simply addressing 2020. Its clarity, combined with expedited court processes, make it highly unlikely that the future bad actors will be able to attack the electoral process during national certification. It even makes specific post-election state challenges more difficult.
There are other vulnerabilities, to be sure, but the ECRA is a monumental improvement over the mess that is the ECA.
So its passage is a no-brainer, right?
Right?
Well not quite. Today Politico reported that key Democrats are not happy with its terms:
Pivotal members of the Jan. 6 select committee are unimpressed by the proposal recently released by 16 senators in both parties to update the Electoral Count Act, the arcane statute Trump and his allies sought to manipulate to block certification of the 2020 election. And House members are signaling they want to go further.
More:
Jan. 6 select committee members are eyeing a fall release of their own recommendations to reform a swath of election-related policies, including updates to the 1887 law that senators want to overhaul. Their work could complicate the Senate proposal’s path to President Joe Biden’s desk before next year — the effective deadline for action, given the House GOP is unlikely to let anything on the matter pass.
Rep. Jamie Raskin called the proposed ECRA “fine and necessary, but not remotely sufficient to meet the magnitude of the threat against democracy now.”
I have no problem with Rep. Raskin’s statement if it means voting for ECRA now and then proposing (allegedly) better and more comprehensive legislation later. But House Democrats who want to lard up the bill with measures that delay the bill or can’t pass the Senate risk the failure of the entire project.
As 2020 demonstrated, failure could be catastrophic. It would leave in place the very structure that could empower a congressional coup at the same time that Trump could very well run for office enjoying both House and Senate GOP majorities, including a majority of members who already challenged an election once. We should not doubt they’d do so again.
I want to end this piece with the same analogy I used the first time I wrote about the ECA:
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 …
Yesterday Sarah and I had the pleasure of hosting Judge Michael Luttig, a former 4th Circuit Court of Appeals Judge and one of the foremost conservative legal scholars in America, to discuss his role in blocking Trump’s attempted coup and his thoughts on the Electoral Count Act. It’s a great conversation. Please give it a listen.
One last thing …
Nerd heaven awaits! We’re a few short weeks away from the release of House of the Dragon (a Game of Thrones prequel) on HBO and Rings of Power (a Lord of the Rings prequel) on Amazon. Here are the two trailers. And here are my questions. Which series excites you the most? And on a scale of 10 to 10, how excited are you? I’m at 10.
Here’s House of the Dragon:
And here’s Rings of Power:
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