Judge Luttig Talks Electoral Count Act Reform

Former federal judge John Michael Luttig joins Sarah and David to detail his involvement in ...

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Former federal judge John Michael Luttig joins Sarah and David to detail his involvement in the events leading up to January 6, 2021. He reveals the story behind his tweet thread on January 5 that ended up on the front page of the New York Times, and the problems with the Electoral Count Act of 1887. Plus: Luttig walks us through his comprehensive, published study refuting election fraud claims in the 2020 election.

Show Notes:

–Judge Luttig’s January 6 testimony

–Judge Luttig’s January 5 tweet thread

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  1. Avatar photo
    Dave

    Excellent and informative!

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  2. guysands19gmail.com

    3I have never, no, uh. Uh ,almost,uh uh, never heard such,uh uh,inarticulate speech in my,uh uh, life. He's a well respected,uh uh, judge? Heaven help us.

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    ed74siasl

    The idea that we have a responsibility as voters to elect not- corrupt office holders seems to be like almost a crystallization of the problems. The individuals running for public office who don't or won't have their fingers in the cookie jar at some point is vanishingly small, and every media outlet and electoral campaign is always going to sell the opposition as corrupt.
    Look where "Clinton is too corrupt, let's elect Trump instead" got us.
    Sometimes we need to weigh options and make grown up choices that suck.
    Giant D vs. S. Sandwich isn't a great choice, but sometimes it's THE choice.
    The last two presidential elections are great examples.

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  4. James Angelichio

    I would have thought the whole purpose of this podcast would be to contrast it with Professor Amar’s opinions and/or to debate the Independent Legislature concept, but they were barely touched upon.

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  5. Jared Manly

    Could Sarah, david or both speak to why the Elias critiques have no merit (or defend/steel man them if they do have merit)? Maybe luttig did but missed it

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  6. Avatar photo
    Will Roberts

    Son, "You're a dinosaur dad."

    Father, "A dinosaur who has the money so do what I say."

    Son, "Yes sir."

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  7. Avatar photo
    Will Roberts

    These reforms seem like obvious good ideas.

    Which makes there likelihood of success less I fear.

    I think control of certification to Governors could cause as many problems as it solves. Mastriano for example, after the federal courts say election fraud claims are b.s, could say don't care I am appointing my own electors anyway.

    Disputes should be resolved by the courts through the adversarial process and states required to abide by the outcomes.

    It's not perfect but better professionals resolve it than politicians elected on a tidal wave of populist zeal.

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    Larry Seltzer

    I'm going to make a picky objection to one of Judge Luttig's claims: Congress could not have given the Presidency to Trump that day because, even if he were in the lead after disqualifying votes from several states, Trump didn't have a majority of the Electoral College. Certified (by whom, I dunno) slates of Trump electors for the relevant states were not available. So the most Congress could have done is to throw the election into the House.

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    1. Mathew A

      I believe the thought was to have the Republican legislatures in the contested states send new slates of electors that would vote for Trump.

      Unconstitutional sure. But no more so than what Trump wanted Pence to do.

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        Larry Seltzer

        Yes, but they hadn't done it by Jan 6. I guess this is why people like Ted Cruz (feh!) were calling for an adjournment, which isn't permitted in the ECA

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      Larry Seltzer

      Given that Democrats have been separating into a few large, blue states, a House election of the President in which each state gets one vote guarantees a Republican win, if they vote party-line. This was a theoretical possibility in 2001 and Republicans controlled a majority of state delegations then too.

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    Bill Dyer (aka Beldar)

    Despite my great respect for Judge Luttig and this podcast's hosts, I fear that this episode did more harm than good.

    During most of the podcast, the discussion seemed to assume that we have no Twelfth Amendment, or that Congress could override its provisions, or that the SCOTUS could be excluded from its necessary and essential role of interpreting and enforcing the Constitution (including the Twelfth Amendment).

    No, Mr. French: Your statement at 55:48 — that "under the current Electoral Count Act a majority of the House and Senate can just go ahead and overturn an election, under the Electoral Count Act they can just flip it around" — is wrong. I'm still retrieving and trying to put back together (metaphorically) the pieces of my head that exploded when you said that. That's not a correct interpretation of the current law; and that's certainly not a result that the current law could support.

    Nor could any other law passed by Congress supersede or conflict with the Twelfth Amendment: If there's someone who's gotten the votes of "a majority of the whole number of Electors appointed," then Congress has no discretionary role at all, but merely the ministerial role of counting.

    EDIT: Here's what I think Mr. French was trying to say:

    The current Electoral Count Act states that a majority of both chambers may reject electoral votes only "when they agree that such vote or votes have not been so regularly given by electors whose appointment has been so certified [according to 3 U.S.C. § 6]." The safe harbor provision of 3 U.S.C. § 5 makes "conclusive" the "final determination of any controversy or contest concerning the appointment of all or any of the electors of [any] State" which has been made at least six days before the meeting of Electors. So if there's been no timely "final determination" that would qualify for the safe harbor, then Representatives and Senators may object under 3 U.S.C. § 15 on grounds that "such vote or votes have not been so regularly given by electors whose appointment has been so [duly] certified." This isn't just a timing detail; this is precisely what drove the timing of the SCOTUS' final decision in Bush v. Gore.

    If we further presume that a majority of both the House and Senate are willing to act and vote corruptly — and that they're willing to disqualify votes that have been regularly given by electors whose appointments were duly certified, just because the Reps and Senators comprising those majorities really just want their preferred candidate to win — THEN yes, Mr. French would be right: They could ignore the law by sustaining bogus objections based on false factual allegations, manipulating the total number of electoral votes being counted until their preferred candidate has a majority.

    But that's the part Mr. French's formulation leaves out: They'd have to IGNORE THE EXISTING LAW and IGNORE THE FACT THAT THESE VOTES WERE REGULARLY GIVEN BY DULY QUALIFIED ELECTORS. They would have to be actively complicit in an attempt to subvert the Twelfth Amendment by manipulating the number of electoral votes it would take to constitute a majority. The "duly qualified' and "regularly given" language in the current ECA is vague, so much so as to invite litigation — but IT DOES EXIST, and it purports to deny Congress the unlimited discretion Mr. French's formulation gives it.

    So this boils down to: If Congress is absolutely committed to being unethical and lawless, then Congress might be unethical and lawless — but even then, Congress would only be able to get away with that IF the SCOTUS also decides to ignore Congress' flouting and manipulation of not only of its own ECA of 1877, but also the Twelfth Amendment, which I can't see happening.

    The sky did not fall on January 6, 2021. Reforms are needed anyway, but Mr. French disserves the cause of those reforms by pretending that the sky really was very, very close to falling. It wasn't.

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    1. Mathew A

      I don't think there is a correct interpretation of the electoral count act. Although I agree that there are less correct interpretations

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  10. MM

    I may have missed the episode (recent listener), but at some point, it might be helpful to steel-man the 2020 election - even both sides - instead of just relaying the "no widespread fraud" message. I accept that President Biden won the election, but much of what ends up casting doubt in my mind is not all the nonsense we got from the Trump Dream Team, but all the nothing-to-see-here and the repeat-after-me coming from the other side. "Lost Not Stolen", as Judge Luttig seems to admit, reads like it was written, not to convince the unconvinced, but to affirm the already convinced.

    To anyone even slightly Stolen-curious, if you suspect you lost out on a large sum of money because some regulators bent the rules for how that money would be awarded, it may be true that the money is now legally in the hands of another person. It may be true that there is no legal recourse to address your grievance. But no amount of "Lost, Not Stolen" is going to help shake the feeling that "I was robbed". (More than one Super Bowl also come to mind) Surely we can admit that Option A - Lost, Option B - Stolen (or Fair vs Fraud) does not cover the spectrum. Next up: Jan 6 - Armed Insurrection or Patriotic Tourism?

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    1. GregS

      Oh that one's easy!
      Armed insurrection obviously.
      Don't forget that fists kill more people than rifles. You don't need a gun to be "armed" - metal poles will do.

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    2. Mathew A

      There was a ton of good stuff on this in Advisory Opinions right after the election. They were covering the Trump election lawsuits in real time, as well as Sarah's excellent explanations of how hard it actually is to commit fraud on a big enough scale to have changed the results.

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        Scarlette Tarte

        As an aside, the absolute reason it would be almost impossible to steal an election, is because every state does their own election. It's not a "national election" in that sense. No republican state is going to allow Dems to "rig" their results, and vice versa for the states controlled by Democrats.

        One of the worse things these people ever did was stir up distrust in our electoral system. That illustrates just how depraved they are.

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        1. Mathew A

          Agreed. Also the difficulties in getting ballots. You can't request 500 absentee ballots to one address.

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    3. Avatar photo
      Whitman H. Brisky

      A good place to look for a very helpful discussion of this is a recent Bari Weiss podcast Honestly, and the episode "Election Denial Roundtable" including Jonah Goldberg as one of the panelists. They make a distinction between fraud and irregularities in some states where state law regarding signatures, deadlines, dropboxes or whatever were not followed. Among the problems with the idea of using the irregularities to attack the election is that they (1) were not objected to PRIOR to the election and (2) there is no way to determine if ineligible people were allowed to vote and, if so, which ones, meaning there is no way to correct them AFTER the election, particularly where a legitimate voter relied on the (erroneous) statements of election officials as to how to cast votes. I think you will find that podcast very helpful. I link to that podcast here: https://podcasts.apple.com/us/podcast/election-denial-a-roundtable/id1570872415?i=1000570570208

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      1. MM

        So having listened to the roundtable, I think it was Jonah who seemed to express my thoughts best when he said "If you are not going have a responsible conversation about the issue, you are going to get an irresponsible politician pick up the issue and run wild with it..." He uses immigration as an example. BUT he then goes on to say that he doesn't apply it to the election "because this is a very special case" - because it's Trump. But that doesn't change the apparent truth of his earlier statement when it comes to the election. He may not want to have that responsible conversation about election issues (he mentioned some earlier), but that just leaves us with this sort of reverse Overton window when it comes to the election (or anything even remotely political, it seems).

        Again, using Jonah's comments as summed up in the comment above, if some rules were bent as a reasonable response to having an election in the middle of Covid and accepting arguendo that they were not objected to ahead of time and cannot be remedied afterward, that still leaves a lot of room between Lost and Stolen for "responsible conversation" regarding what effect those measures might have had on the election. Even the issue of if a legitimate voter cast a vote illegally based on the erroneous, and let's say good faith, statements of election officials, should that still count (legally count, not say morally) seems ripe for discussion. What are the limits there, what are the issues? It may be, as Jonah says, that it is still too radioactive at this point; but he seems to miss his own point that by removing the responsible conversation, you leave (and thus make) the environment even more radioactive.

        In sum, to my original point, Jonah seems to agree that there is a conversation to be had, but then says, but let's not have it yet. I say, Sarah and David are the ones to have it and no time like the present! (I quickly searched the AO archives and there seem to be 3 post-election that I'll have to review - 11/23/20, 12/7/20, and 1/4/21 - but honestly taking on Sydney Powell and the Kraken is not what interests me here. If anyone has another AO podcast in the archive to point me to, let me know)

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          Whitman H. Brisky

          Until January 6, I consistently argued against the "Trump exception" and that he should be judged the same way we judge everyone else. I think January 6 and the undisputed evidence that Trump tried to get Pence to act in what I think is a clearly unconstitutional way and that, even if he did not intend or expect violence, that he sent his mob, which he knew to be armed, to Congress in an attempt to intimidate it and failed to act once violence started, is sufficient to be a difference in kind from everything else we can complain about from the Right. As long as Trump remains in public life, refuses to concede 2020 and angles to return to the White House, he has to remain a special case.

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      2. MM

        Thanks! I'll check it out! Without the benefit of listening to it first and just taking your 2 points on their face, that is the sort of thing I'm talking about - being willing to address the more serious issues with the election, even if they wouldn't move the needle. Sarah and David are great at steel-man, which means tackling your opponent's strongest argument not just their craziest or even loudest argument. I just think that would add to the good work they've already done on the election so far.

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          Scarlette Tarte

          What examples of "more serious issues with the election" are you referring to?

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      Scarlette Tarte

      What are you suggesting? That there is some 'in between" of cheating? Can you give an example?

      Why do you remain "stolen curious"? Were you very emotionally invested in the election and could not believe it when Trump lost?

      What I think the big problem is, is that people who voted for Trump cannot believe that anyone could hate the man more than they love the man. They could never fathom just how much the other half (over half) of this country loathed the man. And how much they feared what bad he would do to the country.

      Unless there is evidence of some kind of "theft", which is what is being asserted by the Trump voters, then there is nothing but the void feeling of loss. EVIDENCE is the key word. If you have EVIDENCE of theft, everyone is willing to look at it. What we are not willing to do is make nothing into something just to satisfy people who feel they wuz robbed.

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