Revisiting the Electoral Count Act

On today’s episode, David and Sarah start with a husband-of-the-pod update, debate a federal district ...

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On today’s episode, David and Sarah start with a husband-of-the-pod update, debate a federal district court judge’s ruling temporarily granting more than two dozen Navy SEALs a religious exemption from the Navy’s COVID vaccine mandate, and spend the lion’s share of their time talking about the infernal Electoral Count Act and saving America from electoral chaos.

Show Notes:

–U.S. Navy SEALs 1-26 v. Joseph R. Biden, Jr.

–French Press: “Stop Screwing Around and Reform the Electoral Count Act”

–Reason: “How Justices Scalia, Sotomayor, and Breyer Inscribed Books to RBG”

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Comments (94)
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  1. Mary Stine

    Very late listening to this (time occupied with toddler sitting). Just wanted to thank both Sarah & David for supporting the Electoral Count Act. Also, agree completely with Sarah that Fort Sumpter is a far more apt simile to Jan. 6. Also agree with David that Jan. 6 was a long time in the making. *sigh*

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    Jordan Caruso

    #teamsarah again and always. David, you give too much deference to the military. I am Army too, and I understand your reasoning. But you are so inconsistent, man. We sell our bodies to the military for a contractual period, but the fundamental values that frame our rule of law cannot be thrown out the window for the .5%-1% of us that find our way into military service. Serving your country cannot forfeit such fundamental rights as religious liberty, and it is so, so tragic that, at least in the navy, this is the case.

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  3. CAProf

    At 11:20 Sarah inadvertently coined the best neologism of 2022: "Podscat." (AO is decidedly not a podscat.)

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  4. Tom (Inadvertent Obfuscation)

    I'm behind on podcasts, but dare to ask: has anyone brought up HIPAA law conflicts in arguments about the OSHA mandate?
    The company that employs me is trying to be careful, but no company can require tests without implicitly revealing one's vaccination status. That opportunity for shaming appears to be the motivation for some of these rules; doesn't that make HIPAA more relevant? (My memory is that HIPAA was at least partly motivated by the rise of anti-homosexual reactions because of HIV.)

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    Robert Knudson

    What is this religion that accepts taking human life in the lawful service of the state but draws a hard line on vaccinating oneself against a novel disease under the same circumstances?

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    PB3

    Reason #231 to Not Have a Twitter Account:
    Being put in the (contextually understandable) position of needing to clarify to stupid people your position on whether the Fort Sumter attack was good thing for America.

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    Aylene Wright

    Well, I appreciated the ECA discussion but got pretty depressed by Sarah's steelman argument that Republicans signing onto ECA reform is just a cynical tactic to make sure that Congress can't do anything once Republicans steal the election for their candidate at the State level through nefarious means. This hasn't even been openly mentioned by Marc Elias and other Democrats just citing a general "you can't trust Republicans" reason against Democrats agreeing to a standalone ECA reform bill. And IMO, David really didn't have a good comeback to that, he basically admitted that was indeed a possibility.

    Although even that argument doesn't really argue against minimal reforms of actually writing an ECA in something close to plain English, clarifying the VP role as merely procedural/ ceremonial, and raising the number of Reps and Senators needed for the initial objection, as I assume that the vast majority of Democrats and maybe even some Republicans would object to certifying an obviously corrupt electoral vote count. But that might be a good argument against the supermajority requirement to actually reject votes.

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    1. GregS

      It actually gets back to the underlying problem here.
      We all know perfectly well that if you write law to govern taxes, smart people will find loopholes to get out of it. And if you write a more complex law to close those loopholes, people will probably just find other loopholes in the new law.

      Elections are different than taxes because it's not supposed to be one group (taxpayers) set up in a cat-and-mouse game with another group (the IRS). It's supposed to be two groups that both have am incentive in a smooth predictable operation of the system. So the rules can be simple, with the understanding that noone will try to break the system by finding loopholes. Once we start treating elections like taxes, it doesn't matter what laws we write, the die is cast and its only a matter of time before the system collapses.

      The only way out is for the group that tried to violate this compact (in this case, the GOP) to own up to it, to say "these sorts of violations will be punished" and suffer some consequences. If that doesn't happen, the incentive becomes for both sides to violate the compact in the future- because (1) there is no downside, and (2) one group has already shown a willingness to blow up the system in their favor and has not suffered for it, so the only strategically sound move for the other group is to do pre-empt the next attempt

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    Bill Dyer (aka Beldar)

    She saw it coming, but she STILL tried to deflect it with a "the dog ate my homework, Mr. Chief Justice" response. Not a good look. Starting at page 79, line 1, of the transcript:

    ===begin quote===

    CHIEF JUSTICE ROBERTS: General, you said just a short while ago that this presented -- COVID presented a grave danger to people in the workplace. In a few minutes, we'll hear an argument in the CMS case, and it will be that it presents a grave danger in Medicare and Medicaid facilities.

    Not here, but in the lower courts, the federal contractor mandate, the argument is going to be it's a grave danger to federal contractors.

    Could you give me examples of some federal agencies where you would be willing to say COVID is not a grave danger in their -- in that context?

    [SOLICITOR] GENERAL PRELOGAR: Well, Mr. Chief Justice, I haven't, of course, surveyed the landscape of all of the different authorities that federal agencies can invoke. I -- I take the point of the question --

    CHIEF JUSTICE ROBERTS: Well, but you represent them on a regular basis here, so you have a pretty general idea of some other examples of federal agencies.

    And my point obviously is that I don't think, as more and more mandates, more and more agencies come into place, it's a little hard to accept the idea that this is particularized to this thing, that it's an OSHA regulation, that it's a CMS regulation, that it's a federal contractor regulation.

    It seems to me that it's that the government is trying to work across the waterfront and it's just going agency by agency. I mean, this has been referred to, the approach, as a work-around, and I'm wondering what it is you're trying to work around.

    ===end quote===

    link: https://www.supremecourt.gov/oral_arguments/argument_transcripts/2021/21a244_kifl.pdf

    The absolutely HONEST (but losing) answer would have been: "We're trying to work around YOU GUYS, along with a deadlocked Congress!"

    *****

    [EDIT:] Well, I've finished listening to the whole thing. Good job by the HOP/FOB throughout!

    And what a great plan to save for his rebuttal the quote from the Court's decision in Alabama Ass'n of Realtors v HHS just last August: "It is undisputable that the public has a strong interest in combatting the spread of the COVID-19 delta variant but our system does not permit agencies to act unlawfully even in pursuit of desirable ends." Righteous! Preach it, Brother Keller! Link: https://www.supremecourt.gov/opinions/20pdf/21a23_ap6c.pdf (at page 8).

    And yes, indeed, this IS a sweeping-ass Emergency Temporary Standard! (Tr. 139:13)

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  9. Paul

    Is it safe to assume this picture will be framed in the Isgur/Keller household?
    https://www.wsj.com/articles/supreme-court-considers-bidens-covid-19-vaccinate-or-test-mandate-11641583505?mod=mhp

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      Bill Dyer (aka Beldar)

      Deal lawyers have "deal toys," typically a 104-page prospectus or offering statement shrunk down into a miniature size, but with its bold-face title still readable, and with its pages unfurled slightly — all embedded in a Lucite cube, which in turn can be stacked up with your other deal toys on a shelf. The fancy ones might come in other three-dimensional shapes, feature a client-company name or logo, or incorporate tiny sculptures or figurines or whatever.

      I've always wondered if SCOTUS-level oral advocates commissioned deal toys of their own, replacing the prospectus or offering statement with a SCOTUS slip opinion? If they don't, they ought to.

      And if so, Mr. Keller's deal toy could include a reproduction of that wonderful — and so singularly distinguishable! — courtroom sketch, quite possibly (knock wood) with a victorious slip opinion to complete the memento!

      But yeah: It should definitely go on the wall. Probably on many family members' and friends' walls, I would imagine.

      I'm pretty sure it ought to be reproduced (fair use!) in the next Morning Dispatch, for that matter, along with the link.

      In case Paul's link doesn't work for everyone, this one is supposed to be a free link:

      https://www.wsj.com/articles/supreme-court-considers-bidens-covid-19-vaccinate-or-test-mandate-11641583505?st=y9dtmtmaokg6oki&reflink=desktopwebshare_permalink

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  10. Paula Weber

    I am so glad that David and Sarah did a little "behind the scenes" talk about The Dispatch Podcast! In part because I love all behind the scenes type things (yes, I have listened to all four audio commentaries for each of the extended Lord of the Rings movies, why do you ask?) but also because it sounds to me like Sarah has just confirmed my long held theory that one of her roles for the Dispatch is to steel man the opposing view - whatever that may be. She has done this for "the far right", the Left, Republican leadership, Democratic leadership, and others so I have suspected for a while that we may not be getting solely what Sarah thinks on an issue, but rather she is acting as a host to the other 3 and making them confront an argument.

    And I really enjoy it and think she does an excellent job. Thank you Ms. Isgur!

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