Jan 18, 2022

The Electoral Count Act.

The Electoral Count Act.

Is this law in need of reform?

I’m Isaac Saul, and this is Tangle: an independent, ad-free, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum on the news of the day — then “my take.”

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Today's read: 11 minutes.

The Electoral Count Act. Plus, a question about how to better motivate members of Congress.

In 2020, Vice President Mike Pence was pressured into objecting to the election. Photo: Gage Skidmore
In 2020, Vice President Mike Pence was pressured into objecting to the election. Photo: Gage Skidmore

Quick hits.

  1. A gunman died after an 11-hour standoff with law enforcement where he took four people hostage inside a Texas synagogue. The man was identified as a 44-year-old U.K. national named Malik Faisal Akram. It is still unclear whether he was killed by law enforcement or killed himself. (The incident)
  2. Seven U.S. Senators flew to Ukraine in a show of solidarity as concerns rise that Russia is planning to provoke war along the Ukrainian border. (The visit)
  3. House Democrats running for re-election in swing districts are pushing for a new strategy to break up the Build Back Better plan before the midterms. (The shift)
  4. Beijing Winter Olympics organizers canceled a plan to sell public tickets, citing Covid-19. (The decision)
  5. Tension between former President Donald Trump and Florida Gov. Ron DeSantis is said to be rising as the two are considered favorites to be the Republican nominee for president in 2024. (The gossip)

Our 'Quick Hits' section is created in partnership with Ground News, a website and app that rates the bias of news coverage and news outlets.


Today's topic.

The Electoral Count Act. Momentum to reform the Electoral Count Act is growing in both Republican and Democratic circles, a change some say would help avoid the chaos of January 6 and ambiguity about how presidential elections are decided in the U.S.

The history: Before the Electoral Count Act, the guidelines for how to conduct presidential elections were rather straightforward. Every state ran its own election and each state was worth a certain number of electoral votes. When votes were counted in the state, a winner was certified, and then the electoral votes were sent to Congress to be counted. The Constitution says: "The president of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted."

In 1876, though, this process blew up during a contested election. That year, Democrat Samuel Tilden and Republican Rutherford B. Hayes were in a bitterly fought race, and four states sent conflicting slates of electors (i.e. two different results in their elections) to Washington. Congress formed a committee to try to resolve the dispute, Republicans got a majority on the committee and Hayes ended up winning the election, despite Tilden carrying the popular vote.

In 1887, a decade later and two contested elections later, Congress tried to ensure this wouldn't happen again by creating the Electoral Count Act. The law specified when and how electoral votes would be counted, and also drew up clear guidelines allowing members of Congress to object to certain results.

What's the problem? Experts say the law is so convoluted that it’s unworkable, so it’s been hotly contested since its inception. Problems abound, including that the law allows members of Congress to object to the results from individual states, despite the fact the Constitution explicitly says members of Congress’ only responsibility is to count the electoral votes. It also does not lay out clear procedures for what to do in the event of a truly contested election, and it does not clearly define the role the vice president plays in counting and certifying electoral votes.

In 2020, this led to serious issues. For starters, the Electoral Count Act is what called for Congress to meet on January 6 to formally count the votes. Its ambiguous language about the vice president's role also led many Trump supporters — including the former president himself — to attempt to pressure Pence into somehow halting or derailing the count and sending the election to the House of Representatives, which would have voted via state delegation (rather than individual members) and where Trump would have had a majority of states.

Now, a bipartisan group of senators is calling for changes to the law. Some want to make it clear the vice president has only ceremonial powers, and others want new language inserted on how to handle disputed state results. Many Democrats, who are trying to pass their own voting rights legislation, are skeptical of the push, and see it as a ploy to take attention and time away from more meaningful voting reforms.

Below, we'll take a look at some thoughts from the right and left. Then my take.


Agreed.

There is actually some broad consensus forming here across the political spectrum. Many left-leaning and right-leaning pundits have come out in support of reforming the Electoral Count Act, with each side framing it as essential to preventing a constitutional crisis in the years to come.


What the right is saying.

  • Conservatives support ECA reforms, saying clarity is clearly needed in the law.
  • Some say Biden has said he wants a bipartisan win, and this would be one.
  • Democrats have also abused the ECA and could object to results in 2024.

In Politico, Rich Lowry asked why Joe Biden is ignoring bipartisan election reform.

"He touted legislation to, among other things, impose same-day voter registration on the entire country and water down voter ID requirements in dozens of states as the alleged solution to budding autocracy, without bothering to address the plausible threat of a sitting vice president or congressional majority trying to subvert an election result," Lowry wrote. “He called opponents of his voting bills the equivalent of Bull Connor and Jefferson Davis, a rancid and demagogic charge, even as some of those same opponents are actively trying to fix the weakness in the system that he studiously ignored.

"The bipartisan effort Biden steered clear of is, of course, the push to tighten up the Electoral Count Act, the muddled 140-year-old law setting out how Congress considers electoral votes from the states in presidential elections," Lowry said. "Members of the Senate GOP leadership, most importantly Minority Leader Mitch McConnell, have expressed an interest in getting something done, while Sen. Angus King (I-ME) has been working with Sen. Dick Durbin (D-IL) and Sen. Amy Klobuchar (D-MN) on a proposal. No one, Republican or Democrat, should want a repeat of Donald Trump’s attempt to exploit ambiguities in the Electoral Count Act to get the vice president to delay or change the count unilaterally. Yet, this simple imperative was not only absent from Biden’s purportedly historic address; many Democrats have sounded positively hostile to the idea."

In a Cato Institute article, Andy Craig said Democrats could just as easily use the ECA to object to elections (and have).

"It opens the door for Congress to effectively decide the results of an election, something the Framers specifically rejected at the Constitutional Convention. And the whole edifice arguably exceeds Congress’s constitutional powers by permitting the rejection of constitutionally valid and binding electoral votes," Craig wrote. "2020 wasn’t the first time in recent years that objections have been raised to counting electoral votes. As many Republicans noted, there was some Democratic hypocrisy here. Democrats in the House raised objections to results in 2016, 2004, and 2000: in other words, every presidential election won by Republicans this century.

"One of those times they found a willing Senate cosponsor, forcing the House and Senate to adjourn to their respective chambers and debate a baseless protest driven by debunked conspiracy theories (sound familiar?)," Craig said. "Suppose that in 2024 or a subsequent election, there are Democratic majorities in Congress and a Democratic vice president, as is currently the case. Are Republicans comfortable letting their election wins depend on Democratic acquiescence?"

The Wall Street Journal editorial board also endorsed reforming the Electoral Count Act.

"New statutory language could clarify that once legal challenges are over and the Electoral College votes, Congress can’t change the outcome," they wrote. "Disputes in the states would be settled in the states with the judiciary as the best forum to adjudicate... Rewriting or repealing the Electoral Count Act leaves neither party with a partisan advantage. Now is also a good time to pass such legislation, since no one knows who will control each chamber of Congress in 2025.

"Democrats keep saying Jan. 6 must never happen again, but their main goal seems to be to use the memory of that day against Republicans in 2022," the board said. "If they’re honest about 'never again,' they’ll grab the Electoral Count Act issue. Or Republicans could turn the electoral tables on Democrats by grabbing it first. If Congress does nothing, Americans are likely to conclude that Jan. 6 has become one more political prop for partisan gain."


What the left is saying.

  • The left mostly supports ECA reforms, but doesn't want them to replace voting rights legislation.
  • Some say they are necessary to prevent another Jan. 6, and Democrats should take an offer to change them if they get it.
  • Others say ECA reforms should only come after or as part of larger voting rights legislation.

The Washington Post editorial board said reforming the Electoral Count Act is necessary to stabilize democracy.

"Lawless as it was, the mob attack on the Capitol accompanied an attempt to validate President Donald Trump’s bogus fraud claims through ostensibly legal means," the board wrote. "Seizing on vague language in an 1887 law governing Congress’s counting of electoral votes, Republicans such as Sens. Ted Cruz (TX) and Josh Hawley (MO) sought to reject slates from states Mr. Trump contested — even though their validity was not in real dispute. This was supposedly necessary so Congress could investigate 'potential fraud and election irregularities and enact election integrity measures,' as Mr. Hawley put it. In reality, the maneuver would have opened the door to the overturning of the 2020 presidential election, and future ones, by a partisan majority of Congress, whereupon 'our democracy would enter a death spiral.'

"Those latter words were spoken on Jan. 6, 2021 — not by some alarmist Biden partisan but by then-Senate Majority Leader Mitch McConnell (R-KY). A solid majority of the Senate, Democrats and Republicans, agreed," the board said. "What’s still overdue is corresponding legislative action: Congress should reform the 1887 law, known as the Electoral Count Act (ECA), before it’s used to justify more subversion of democracy."

But Fred Wertheimer and Norman Eisen said "we should not fall for this bait and switch."

"Some of these individuals point to the fact that ambiguities in the ECA may have contributed to chaos exactly one year ago on Jan. 6, 2021. They also say that there might be bipartisan willingness to address these problems, as opposed to what they claim to be a partisan Democratic drive to pass the more comprehensive voting reforms of other bills that would counter open suppression of minority votes and the many other worst excesses of hundreds of state legislative efforts across the land.

"Last year, state lawmakers considered 440 bills that would restrict the vote or give legislatures the power to disregard it entirely. In 19 states, 34 of those bills have become law. And there is no reason to believe that the onslaught will stop in 2022... ECA improvements are certainly needed... But no version of them will address the comprehensive predations of partisan state legislatures driven by former president Donald Trump’s Big Lie that the 2020 election was stolen. Passing broader legislation would. Protecting the fundamental right to vote is not a partisan act."

In The New Republic, Matt Ford wrote Democrats should "take it" if Republicans want to reform the Electoral Count Act.

"Despite the insurrection, Republicans have good reasons to want to reform the law, as well," he wrote. "For one, they aren’t the party that’s shown the greatest willingness to invoke the ECA over the last few decades. The Cato Institute’s Andy Craig warned conservatives last month that Democrats could theoretically use it to exclude Trump from the presidency, even if he wins the most electors in 2024, by citing the Fourteenth Amendment’s ban on public office for those who participate in insurrections. In the long term, Craig noted, Democrats could also use it as a backdoor mechanism to hand the presidency to whoever wins the popular vote, rendering the Electoral College superfluous without the trouble of amending the Constitution.

"For Democrats, the good-governance justifications for rewriting the ECA are obvious," he added. "A party that claims to champion the American democratic process cannot reasonably stomach a law that allows it to be subverted by the whims of a few hundred members of Congress. Though it was written with something resembling good intentions, a law designed to prevent the instability of disputed elections has instead become a key factor in that instability itself. Congressional Democrats have no shortage of good ideas for election reform and improving our democracy. Few, if any, are as urgent as this one."


My take.

It sounds great, so long as it is done correctly.

The biggest need at the federal level is clarification. Any update to the Electoral Count Act should do a few things. The first is to make it clear that Congress cannot change or reject state certified election results. This is important for Democrats and Republicans both, who have each had members in Congress objecting every time they lost for the last 20 years. Their job is to count the electoral votes. If competing state votes come in — or a state's results have not or cannot be settled by its own procedures and courts — then there should be a mechanism for Congress to delay certification until that dispute is settled. Otherwise, they should not have a role in determining the outcome.

Second, make it unambiguous that a vice president has no role except to oversee this count. Conspiracies were so rampant last year that someone literally bet me $15,000 in gold Joe Biden wouldn't be inaugurated on January 20th, wholly and completely convinced that there was a legitimate process for a vice president to overturn certified state election results. There wasn't, there isn't, and there should never be. And there should be no doubt about this among voters.

Congress's job is not to recount a state's election tally. They are ill-equipped, perversely motivated, and not constitutionally bound to play a role in that process. Every state needs laws on the books that dictates which votes Congress should count if competing slates of electors are sent in. In the event they don’t, a reformed Electoral Count Act should spell out what Congress should do. Still, this is extremely rare and did not happen in 2020, because state laws and courts have robust protections to prevent such a situation (hence my confidence throughout 2020 that the election was over, Biden had won, and the results would not change).

Now: I understand Democrats' hesitation. It's true that Republicans at the state level are trying their damndest (and in at least a dozen cases, are succeeding) to empower partisan state actors to be able to overthrow the will of the voters. I am not talking about mail-in voting prohibitions or voter ID requirements, which are reasonable debates states can and should have. I'm talking about over 30 laws passed in 17 states that will actually facilitate partisan audits and allow state legislatures to replace previously protected election boards with partisan actors when they don't get the results they want.

Even if they aren’t acted on in 2024, these laws represent a true democratic crisis and they deserve the five-alarm fire warnings they're getting from Democrats. Congress should continue to push reforms at the federal level that make them illegal. Reining in the extremely partisan actors who are now driving election law in those states is critical, as these laws have already opened the door for a constitutional crisis in 2024.

But that doesn't mean Congress can't act on this, too. The Electoral Count Act is a broken, muddy, confusing piece of legislation that should have been rewritten a century ago. If there's bipartisan consensus to do it now, there is no reason not to.


Your questions, answered.  

Q: The biggest problem I see with American politics is that our system doesn't reward politicians, it rewards campaigners. People who can fundraise, schmooze party power brokers, and develop cult personalities are the ones elected and cemented in Congress. They operate on the reality that getting elected is how you stay in power. What you do while in power is not as important. How can we reward being good at the job of governing and discourage the need for politicians to self promote? Are term limits a solution? I was wondering if you had written about any reform ideas before or know of any ideas being discussed in political circles.

— Matt, Richmond, Virginia

Tangle: One of the reasons members of Congress spend so much time campaigning is that private donations funding elections are so critical to winning. This isn't always true (people do win elections even when they have less money) but it is absolutely baked into how elections work.

Term limits are definitely an option that could (theoretically) solve the issue of incumbents worrying about little else besides fundraising enough to stay in power. Incumbents have an inherent advantage because they enjoy the bully pulpit of already being in Congress, on top of being able to court donors because they hold power and can act in ways their donors want. I'm actually interviewing a term limits advocate this week for the podcast, so you'll have some more information on this pretty soon.

Others have proposed public campaign financing. This is a system where voter donations are matched and multiplied in a way that levels the playing field with major corporate and wealthy donors. There are all sorts of different ways to structure publicly funded elections, many of which I find compelling for different reasons. If you're interested in reforms specific to getting politicians to respond to the will of the voter, that is a good place to start. It's definitely something we are going to cover here at Tangle.

Want to ask a question? You can reply to this email and write in (it goes straight to my inbox) or fill out this form.


A story that matters.

Trust in government leaders is collapsing across the world. A new survey of 35,000 respondents across 28 countries shows a majority of people (66%) believe government leaders are "purposely trying to mislead people by saying things they know are false or gross exaggerations." Edelman's 2022 global "Trust Barometer" found 67% of people globally also believe journalists purposely mislead people by saying things they know to be untrue. Across the world, people are fearful that the media is becoming more sensational for commercial gain and government leaders are exploiting divisions for political gain, Axios reports. You can read the story here.


‼️
I just want to reiterate that 'story that matters' number here: 67% of people globally believe journalists are trying to mislead them by saying things they know are false or gross exaggerations.

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Numbers.

  • 147. The number of Republicans in Congress who voted to halt the certification of the 2020 election.
  • Three. The number of Republican senators who decided not to object to the election results after the storming of the Capitol.
  • 35%. The percentage of registered voters who said the results of the 2020 presidential election should be overturned, according to an October 2021 poll.
  • 22%. The percentage of registered voters who said it should definitely be overturned.
  • 13%. The percentage of registered voters who said it should probably be overturned.
  • 55%. The percentage of registered voters who said it should definitely or probably not be overturned.

Have a nice day.

Last week, Angelina Gonsalves received a letter that had been sent 76 years ago. The letter was penned by her late husband, Sgt. John Gonsalves, who wrote it when he was a 22-year-old Army soldier in World War II and was trying to write home to his mom. He was deployed overseas in 1945, and was writing to check in on his family and let his mom know he’d be coming home soon. Angelina and John didn't know each other when he wrote the letter. The USPS found the letter at a Pittsburgh distribution center and sent it to Angelina along with a note explaining how it was found and Postal Service workers' efforts to preserve and deliver it. You can read the story here.


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