The Future of the Electoral Count Act

Understanding The Electoral Count Act, as it’s currently worded, requires a team of legal experts. ...

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Understanding The Electoral Count Act, as it’s currently worded, requires a team of legal experts. So we got one! Sarah is joined by John Fortier, senior fellow at AEI, and Matthew Seligman, fellow at the Constitutional Law Center at Stanford Law School. Together they try to make sense of the law’s history, explain the difference between the two reform bills coming up through the House and the Senate, and debate whether either one goes far enough to prevent a constitutional crisis in 2024.

Show Notes:

–Matthew in support of the Senate bill

–What the Vice President can’t do

–John’s guide to the electoral college

–Matthew’s 2024 risk assessment

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Comments (11)
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  1. Avatar photo
    Marian Cates

    At the end of this very interesting episode, Sarah said we should end partisan primaries. I'm wondering what she meant. Preference for open primaries or ranked-choice primaries? I understand wanting to end primaries altogether, a point Jonah has made multiple times.

    Sarah, what did you mean?

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  2. Les

    One thought I kept having while listening to the discussion about the possibility of various actors including the courts going rogue: no Constitution or system of laws, however well written, can survive and be effective if enough people choose lawlessness. At a basic level, society can only function if most people in it have an underlying commitment to the agreed-upon rules and norms.

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    Rev Snow

    It is striking to me how different the start of this conversation is from its end. Early on, the separated powers of elections are laid out and for the most part praised. Notably the notion that each state holds the power to determine its own election results without interference by the federal Congress ("What power does Congress have? None."). Then in the closing moments when each guest is given their magic wand for a most important reform, both of them wish for Congress to impose conditions on how the states run elections.

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  4. Avatar photo
    Rev Snow

    The explicit Constitutional duties/powers of the Vice President also include the role she must play in any invocation of the 25th Amendment.

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  5. Jon

    Sorry- the ECA and any changes or lack thereof is not “the greatest threat to democracy”

    The “greatest threat to democracy already happened” nearly 100 years ago.

    It’s called the 17th Amendment.

    Repeal it!

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  6. David Savidge

    John Fortier's assertion that the January 6th rioters and their counterparts in the White House, the House, and the Senate were trying to use the legitimacy of the law is, well, poppycock. Eastman's arguments have been roundly binned and are simply extra-legal. The transfer of power to Biden was simply not peaceful. It's already happened folks. Please stop saying that you are trying to prevent it.

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  7. Avatar photo
    Rev Snow

    In 2001, VP Al Gore not only had to preside over the counting of electoral votes that certified his loss of the 2000 election, but while doing so he was obligated to gavel down 13 separate objections raised by members of the House.

    The suggestion by the guest that in 2001 we did not have "political actors... willing to take steps" to block acceptance of the election results is simply false. The counts in 2005 and 2017 had similar issues.

    The need for reform is even more strongly demonstrated when we observe that both parties suffer from the temptations present in the unreformed law.

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    Tiffw

    A really good and thoughtful discussion. Going to listen to this one more than once for sure. I'd add to the good ideas at the end (dealing with partisan gerrymandering and non partisan primaries) the need to repeal the apportionment act or at least reform it and expand the House of Representatives.

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  9. Avatar photo
    Bill Dyer (aka Beldar)

    I am concerned about unintended consequences of actions undertaken in the best of good faith. And the more frantic the voice of the reformers, the greater my concern becomes.

    THE CURRENT LAW IS (1) OBSCURE, AND BADLY WRITTEN, BUT (2) NOT "AMBIGUOUS." AND (3) DOES NOT REMOTELY SUGGEST THAT THE VICE PRESIDENT HAS ANYTHING MORE THAN A CEREMONIAL ROLE.

    If it were ambiguous, or if the VPOTUS did have a substantive role, it wouldn't have taken until the 2020 presidential election for someone to have made a serious (nonperformative) run at overturning an election by such arguments.

    And if the current reform efforts end up convincing even a further substantial plurality of the public that the current law IS ambiguous, or that the VPOTUS MIGHT have a substantive role, then the obvious (but unfortunate and incorrect) conclusion — when, for instance, new Speaker McCarthy declines to take up the prior Congress' not-quite-concluded reform legislation — among those voters will be that those supposed "loopholes" actually DO exist, and/or that the VPOTUS does have such authority, and those loopholes not having been sewed closed in 2022, they're available to be re-urged again in Congress on January 6, 2025. "As no less an authority than Prof. Seligman said on a podcast in late September 2022," they will say, "the current law is ambiguous! Therefore we, the Bozos Assembled in Joint Session here in January 2025, can do what we please."

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  10. Jacob Becker

    https://thedispatch.com/p/the-speech-that-saved-the-nation

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