Advisory Opinions - Revisiting the Electoral Count Act

Episode Date: January 6, 2022

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” Learn more about your ad choices. Visit megaphone.fm/adchoices

Sasquatch here. You know, I get a lot of attention wherever I go. Hey, Sasquatch! Over here! So, when I need a judgment-free zone, I go to Planet Fitness. Get started for $1 down and then only $15 a month. Offer ends April 12th. $49 annual fee applies. See home club for details. And if you're just joining us, we're live from Evan's living room. It looks like Evan is about to purchase tickets to today's match. Kate, the real test is, will he use the BMO Toronto FC cashback MasterCard?

Well, if he wants to earn cashback on his purchases, he will, and... Oh, hang on. He's at the computer with his card, and he's done it! Oh, clicky-click magic trick! The click heard around the room. You guys just about finished?

Sorry, we got excited. Thanks for snagging those tickets. Make every purchase highlight-worthy with the BMO Toronto FC Cashback Mastercard. You ready? I was born ready. Welcome to the Advisory Opinions Podcast. This is David French with Sarah Isger. And we've got a lot to talk about today.

We're going to talk about a husband of the pod update. We're going to have a husband of the pod update. It is Argument Eve, Sarah. Well, we don't want to jump ahead, but I was just going to say, how is Scott feeling quickly? He's feeling pretty good now. We had a low point a couple of days ago. We're up. Good, good.

Okay. So we're going to get a Scott update. We're going to talk about an interesting court decision permitting, granting religious exemptions to the vaccine, to the COVID vaccine, to a group of Navy SEALs. We're going to spend the bulk of our time on something particularly important on today, January 6th, the Electoral Count Act. For some advisory opinions listeners, this is going to be a blast from the past because if you're a longtime listener, which you should be, and no judgment if you're not, you're just at the front end of becoming a longtime listener if you've just joined us. We were spending a lot of December of 2020 jumping

up and down about the Electoral Count Act. And if you look at what has transpired and what we've understood about the run-up to January 6th, that the real fault line, the real risk, the real danger to the Republic centered around the Electoral Count Act. So we're going to talk about that. And then Sarah has a story about Ruth Bader Ginsburg inscribed books. So that's a lot. Let's get going. Sarah, your husband, Scott, is it's argument eve of what is right now looking to be until we see other future cases coming to the court. But as of right now, he's going to be arguing the most important case of 2022 so far.

And it's going to be hard to top it. Give us an update. Does he have COVID? How's he feeling? I'm going to save the substantive part for after the argument for I think what are obvious reasons since people know to listen to this podcast. But I do have lots of non-substantive updates. First, meal decisions.

We spent a lot of time on this because last night was probably the last good night of sleep he was going to have. But tonight, it's really important that he has a nice settled tummy, no tummy problems. And then tomorrow night, of course we need to celebrate, but there is a pandemic going on. So last night we did take out sushi tonight. He is, I'm going to the grocery store and getting like a fresh baguette from the giant. Um, you know, they make them like every couple hours. So if you go at the right time, they're nice and warm. And then getting him some ham and cheese. He's going to have a ham and cheese sandwich for dinner before the argument. And then tomorrow night we're ordering in Italian from like a fancy Italian place.

Yeah. So that's our meal planning pre-argument. I also. Now can he sleep? Can he sleep the night before a big argument? We'll see. We actually had a long discussion because it's supposed to snow in the morning about whether he should actually go stay at a hotel tonight so that he's not stressed about how much snow is falling overnight. I told him he was welcome to, but that I didn't think he'd

sleep very well in the hotel. And there isn't a hotel like next to the court. So he'd still need to find his way from the hotel to the court. He'd be closer, you know, like a 15 minute walk. So instead what we've come up with is that the brisket and I are going to drive him in the morning. Nice. He has to be there between nine and nine 15, which is a very short window when you're talking about snow, but we're going to do it. So that's the plan. And I don't know how he'll sleep. I don't sleep well even before like morning TV hits. Like when I do this week on ABC, now mind you, I'm staying in a hotel, usually in New York, but like something about having to wake up early, it just gets in my head and I don't,

I'm like up at four, I'm up at five. So I, I think he'll probably be the same, but, uh, I'll sleep fine. Um, other fun notes, by the way. So people on Twitter yesterday were super nice and funny and kept saying like, Whoa, whoa, whoa, whoa. Can I stop timeout? I know. I know it sounded weird. Did you just say, okay. All right. I just want to be clear that you just said what you said. Okay. But all these people were like, go prepare the hop or you need to get back to the hop. And I was like, what?

And it's, I just like, my brain wasn't working. And so I was Googling hop. Sorry, guys. I get it. That hop, husband of the pod. So anyway, I'm sitting on Twitter and I see this message come through and I have to read you this message. I've asked permission, by the way, to read this to you guys. Hi, I've never listened to your podcast before, but my aunt told me I should listen to the

advisory opinion segment, Ray the Ocean Mandate. I got to be honest, I get messages like this sort of on the regular, but I try to respond to all of them if they have a question or whatever. So I was like, oh, that's great. We have a new listener. The message continues. My husband, Ben is arguing for Ohio. The wife of the other advocate found me found advisory opinions and then me on Twitter. And so we've been having a great DM conversation through last night. So shout out to Denise. We're so glad you're a new listener and best of luck to Ben as well. It turns out both husbands have had wardrobe malfunctions.

Ben, I think is out buying a shirt today. I am sewing a button because my husband was like, my shirt, the button is like cracked. You know how when they like steam the shirt and they press it down too hard. Yeah. So I guess the button's cracked. And I was like, I can literally just find another button and sew it on. And his face was like confused. I don't know if he's confused that you can do that, that like a person can do that, confused that I can do it. I don't know. But I will just say that I don't do a lot of pat on the backs for myself on this podcast, but I am wife of the GD Millennium right now for this week. As I mentioned, the nanny's husband has COVID. And so I have full time Nate in the house. Also can't have any babysitter who could

have COVID or anything else for that matter, come into the house. So I had to find someone who had COVID basically in the last couple of weeks or was exposed to it. I have to deal with the food, have to deal with keeping him in a little bubble, had to shovel the driveway for the babysitter, which involved locking Nate in the car so that he could watch me in the garage shovel snow. I mean, is there any wife better than me? Oh, and, and I made homemade cookies for that little advocate last night because he loves my cookies. He in fact said, you should tell your advisory opinions listeners the recipe for these cookies. That's amazing. That's amazing. I have, you know, okay, now I've never argued at the Supreme Court, but I have never received such support before a big argument. Indeed. I don't think anyone has. It is a combination of norovirus in the house, COVID outside the house, and Sonomacron around the house that prevents me from anything.

So we are so blocked into this house right now. So yeah, he went this morning for his COVID test. We are awaiting the results. We did a rapid test yesterday and it was negative, but you never know, right? This is a PCR test. Right, right. Well, you know, Nancy was negative, but you never know, right? This is a PCR test. Right, right. Well, you know, Nancy was negative three or four rapid tests, positive PCR. Don't want to hear it.

Okay. Yeah. I didn't say anything. I didn't say one thing. In fact, let's just move on, shall we? Let's. All I'm going to say is you're just absolute flat out not going to want to miss the Monday podcast. It's true. Because not only are we going to get to talk about how the argument went, but more so than maybe any other podcast we've done, I'm going to get to talk to you about what went into the strategy on some of that. And there's a lot of strategy when it comes to this argument. Because as we said, there are six different ways to attack the mandate itself. Some are more legally cognizable than others, but it's hard to go to the Supreme Court and say, I win for six different reasons. You really want to say, I win for this reason, and if not this reason, and if not this reason, so what is that number one reason? And that has been a lot of discussion back here.

Yeah, no, I can't wait for it. I can't wait. But we still have a whole podcast to do before Monday. All right, let's start with Navy SEALs. So Justice Judge Reed O'Connor, U.S. District Court Judge Reed O'Connor issued an order granting an injunction on behalf of a group of Navy SEALs, alleging that the military, a preliminary injunction, alleging that the military, in their claim that the military was violating their religious freedom rights under both the Religious Freedom Restoration Act, which is the federal law that prevents other federal laws from violating religious liberty rights, applies a strict scrutiny standard to allegations of burdens on religious free exercise,

and the First Amendment in the Navy's COVID vaccine mandate. And Sarah, what is it that stood out to you most about this decision? I have some thoughts. My thoughts are very related to my own experience in the military, my own experience in the military dealing with religious objections within the military context, not so much to vaccines, but conscientious objections. But I'm very interested to get your thoughts on this opinion. Northwestern has an ROTC program and it's Navy ROTC. And so I am far more Navy proficient than I am any other branch. And I have a lot more friends in that category. Of course, Navy ROTC also includes Marine ROTC.

And I think as I've mentioned on this podcast before, one of my best friends from college is a Marine Lieutenant Colonel currently stationed at the Pentagon. And so living near her for the first time in so many years has just been a super treat. And so when I see headlines like Marine Corps has rejected every single religious accommodation request for the vaccine, and it's like 3000 or something, something really high. I, of course, send that to her immediately. I, of course, send that to her immediately. And as I think I've mentioned on this podcast before, I dated a pilot, a Navy pilot as well. And I lived in Corpus Christi. I traveled to Pensacola during that relationship. Meridian, Mississippi is where I drew the line, for those who are curious.

Corpus Christi was great, though. Pensacola, not bad until the hurricane hit, although it did hit in the middle of that whole thing. Okay. So what stood out to me? What stood out to me is that when this came down to it, it was the exact same argument as the Gorsuch dissent from the denial on the New York, was it New York or Maine? New York. On the New York mandate from a few weeks ago in which New York had an exemption,

a medical exemption, but basically not, well, not basically, not a religious exemption for healthcare workers. So if you were allergic to the vaccine, you didn't have to take the vaccine. I think that seems pretty obvious to most people, but that if you had a religious accommodation request against the vaccine. You didn't have to take the vaccine. I think that seems pretty obvious to most people. But that if you had a religious accommodation request against the vaccine, there was nothing for that. There was not even a process for it. No religious exemption from the vaccine.

And the point that Justice Gorsuch made, signed on to by Alito and Thomas, that we talked about, was the stated government's compelling interest to get over strict scrutiny is not just like there's a pandemic but that it is to protect patients that's why it's a health care worker vaccine mandate well if it's to protect patients then it doesn't matter why your health care professional doesn't have the vaccine the risk to the patient is the same and therefore you are treating religion worse than the secular equivalent. Hence, there were three votes, it seems, to strike down or at least enjoin the New York mandate. Reed O'Connor, Judge O'Connor, doing the exact same analysis really for the Navy SEALs. It's not that he applies strict scrutiny. He applies it under RFRA,

the Religious Freedom and Restoration Act. He applies it under the First Amendment, slightly different analysis, but not much. And his argument is, yeah, yeah, obviously this is strict scrutiny. I get that there's a pandemic and that that's stated as the government's compelling interest.

But when the mandate treats comparable secular activity, e.g. medical exemptions, more favorable than religious activity, e.g. medical exemptions, more favorable than religious activity, you got a problem. So I picked out some key things that I would like to read, David, but that's my overall, that's to me what was so interesting about this is it's straight out of the Gorsuch Alito Thomas, that three. So we know where Judge O'Connor falls on the three, three, three. Yeah. Let me just put it this way. I'm not saying it's impossible, but I would be very surprised if this survives on appeal. I don't know. Look, Twitter is on Team David here. Every legal scholar is on Team David here. But I'd like to stake the minority position.

Well, I appreciate that. I appreciate that. The interesting thing to me was how little attention was given to the military context in the actual legal analysis here. Look, one of the things that the judge notes is that the Navy, this isn't just a COVID thing. The Navy hasn't granted a religious exemption in seven years for any vaccine. But weren't you deeply curious what that one seven years ago was? Because I am. I'm interested. If anyone knows, please let us know, because I want to know in seven years and presumably quite a bit of time before that, there wasn't one granted. Who are you, mystery religious exemption?

You know, and the interesting thing is in the military context, especially before you deploy, you're given a battery of vaccinations. Like before I went to Iraq, I was at Fort Benning. I remember this vividly because the consequences. I remember getting up, we go to the medical center where they give us like the most cursory possible physical, Sarah, like pulse check. No, we're not going to actually do blood pressure because that might be high because you're nervous and we need you over there. But then you line up and you start getting

inoculations. And I remember getting the smallpox and I said, oh, I'm old and so old that I've been, I've already had smallpox. And they said, show me the scar. And I said, well, I'm so old, the scar is gone. And they said, well, then you get it. And they gave me a smallpox inoculation, get it. And they gave me a smallpox inoculation, which promptly became quite infected. And so I almost wanted to, I remember I was in Kuwait getting ready to go to Iraq and having a medic look at this just grotesque smallpox wound. And I remember calling my wife right before I went to Iraq and I said, if I do at this point, if I do a memoir about this, it's going to be called me and my smallpox sore go to Iraq. But you just got your stinking vaccinations and it wasn't just smallpox, it was anthrax.

It was updates on every other vaccination, including of diseases that, you know, smallpox, we haven't had a smallpox outbreak in forever. And why do you do this? Because the stakes, and it's not just about spread, it's about your own personal health. Correct. That was unique, by the way. Unlike the patient, doctor, healthcare worker thing, this is actually the government has an interest in the health of each individual warfighter. the government has an interest in the health of each individual warfighter. Yes. And what's interesting with SEALs is because they work in small teams,

the health of each member of the team is all the more important. And so, you know, I will never forget, Sarah, we had an outbreak of a stomach flu when I was in Iraq. Oh, I know something about that. Yes. Yes. You do know something about that. Well, and another thing people forget is how much, especially in the Navy, but also in the Army, and how many circumstances in which you're piled on top of each other. You live in super close quarters. Maintaining hygiene is a constant struggle, especially in field operations and there was a point where out of our unit of about a little less than 800 guys we had more than 100 combat ineffective because of a stomach flu which was a real issue like it was a real issue how many guys

could fox troop muster on a given day or grim troop muster on a given day? And so, you know, these things are real issues and sort of say, well, I if you're going to say, give me the vaccine and we know the vaccine doesn't prevent spread. OK, but we we know what the vaccine does on prevent on on preserving your health and your health is incredibly important and can be life and death to the functioning of a team. And I just, it is very difficult for me to see a court of appeals or the Supreme Court affirming this ruling. All right, so a few pushbacks because I think Judge O'Connor does address all of your concerns,

maybe not to the depth that you would like him to, but all things considered, it was a relatively short order, 26 pages, but a lot of those have to run through the standards and the factors and all of that. Okay. First, he does address that this is the military in terms of deference. And he says, but unlike something that involves military special information, where you'd need like testimony from military officers about why something involves national security, that COVID is not a military specialty. And so in that sense, it's not the government's deference interest is not different. According to Judge O'Connor, I tend to agree with that. I then think you have a more nuanced point that it's not just

the threat and whether the threat is uniquely military, but rather the threat to the military is uniquely military. That, you know, if Navy SEALs work in a small team and one of those team members suddenly starts, you know, having a fever that bad for the team. I think he addresses that less, certainly. But let me read what he says. The Navy is willing to grant exemptions for non-religious reasons. It mandates those carve outs for those participating in clinical trials and those with medical contraindications and allergies to vaccines. Because these categories of exempt service members are still deployable, a clinical trial participant who receives a placebo may find himself ill in the high-stakes situation that

defendants fear. As a result, the mandate is under-inclusive. And now he's quoting a previous Supreme Court case. Indeed, under-inclusiveness is often regarded as a telltale sign that the government's interest in enacting a liberty restraining pronouncement is not, in fact, compelling. a different analysis part of this, of the injury and whether they had gone through all of their administrative, because the Navy has not actually rejected, they've not exhausted their administrative remedies because they haven't gone through the appeals process and gotten their rejection, even though everyone agrees they're going to get rejected. Some plaintiffs were told by their chains of command that if their religious accommodations were approved, they would lose their seal tridents. Others will lose their tridents merely for requesting the exemption.

Evidently, even successfully exhausting the religious accommodation process would not grant plaintiffs the relief they seek. In some instances, it may invite more harm. At best, the available remedies would accord plaintiffs second class they seek. In some instances, it may invite more harm. At best, the available remedies would accord plaintiffs second-class status in a peerless community. I like that line. So they have all been told that they cannot deploy while they're religious exemption because they are not vaccinated, regardless of the fact that they have this request pending. Whereas someone who is in a

clinical trial, still deployable, someone with a medical exemption, still deployable. And this, I think, is also similarly interesting. First, the Navy has granted only secular exemptions. It has never granted a religious exemption from this vaccine. Second, even if the Navy were to grant a religious exemption, that exemption would still receive less favorable treatment than its secular counterparts. Those who receive religious exemptions are medically disqualified. Those who receive medical exemptions are not. But the activity itself, foregoing the vaccine, is identical. Given the irrationality of the mandate, it is unsurprising that such litigants are entitled to relief. So here, David, is where I think Judge O'Connor's opinion gets upheld.

That actually, it's if their religious exemption is granted that there's a violation. I would agree with you that if the religious liberty exemption is granted, that they should be treated the same way as those whose medical exemption request is granted. It's the grant, not grant. Correct. That's the key question. And I think that I actually want to judge O'Connor to spend more time on that because in that sense, you follow the same analysis. Their administrative remedies won't, you don't need to exhaust them because they won't provide the relief that they need. In fact, it's sort of the whole point.

Therefore, the case isn't mooted out in any way. And what they should have argued was, even if we get our religious exemption, we are being religiously discriminated against. I think that's a problem that the military has. I would agree with that. I would agree with that. The issue is, to me, grant or not grant of the exemption is the key issue. What happens once you're granted, because the process, as he said, is once you, if you get a religious accommodation, you then also have to then seek a new medical waiver. And so it's a two-step process.

Get your religious accommodation, then seek a medical waiver. But yeah, it's, in my view... I think the clinical trial thing is a little bit messy for them. I don't know about that, to be honest, because... Because the whole argument is 99.4% of Navy SEALs have been vaccinated. So we're talking about the 0.06 right now. Whether you're in that 0.06 because you're allergic to the vaccine, contraindication with some medication that you're taking,

clinical trial, or religion, the argument for the clinical trial people looks the same as the religion people to me, which is herd immunity. Well, the herd immunity has been reached regardless. Well, but see, again, that gets to the point of if the issue is the severity of the illness that you suffer and the military is trying to determine what is the potential universe, how many people are in clinical trials? Like how many SEALs are in clinical trials? potential universe, how many people are in clinical trials? Like how many SEALs are in clinical trials? If the answer to that is zero, that's a pretty material fact. Okay. Let's assume it's not zero. Because a lot of this, when it comes to military,

these, you know, when it comes to combat operations, you're not operating in a theoretical world. You're operating in an actual world that says, here are the numbers of people who are at risk, who are not at risk, who are deployable, who are not deployable, and you're operating in real numbers with life and death stakes. And again, look, I'm sorry, when you're in the military, there is a difference between a SEAL and a nurse and a New York hospital. There's a big, big difference between those two things from a constitutional standpoint. Totally true.

But you know what? They were deploying seals before there was a vaccine, God knows. Right. Of course. And they had no problem. We had armies before there was smallpox inoculations. That's right. Okay, so.

So we know they know how to deploy SEALs with the threat of illness. Of course. And we also know that when you can mitigate the threat of illness, it's better than not being able to mitigate the threat of illness. And so, yeah, I think it's going to be interesting to see. I would agree with you. I think that Gorsuch might dissent from this. Maybe, maybe.

I just don't think there's enough of a consideration given to the difference between a, you know, for example, a New York hospital COVID mandate and a Navy SEAL COVID vaccine mandate. But we'll see. We shall see. Also, and I'm far less sympathetic to this as an argument overall, but in this context, in which I think you are making valuable arguments,

maybe not persuasive ones, but valuable ones nevertheless, then they should take into account antibodies. Right? If you can still get COVID with the vaccine, which you clearly can, David, then the vaccination status itself isn't as meaningful as the antibody status, in which case they should just be testing everyone, including the vaccinated people, for how their antibody status is doing. And these people, many of them, they said, in the Reid O'Connor opinion, at least, tested positive for high antibodies. Well,

then that should be considered the same as someone who's had their two vaccines, but hasn't had a booster. Yeah. No, I mean, I think that's an interesting question. Again, one of the things about the military is you're also dealing with hundreds of thousands of people and policies applying to hundreds of thousands of people. And there is a limit to the degree of individual specialness that you're going to apply when you're enacting. Yes, but they're saying that the Navy SEALs have to be treated special because of their specialness in terms of what their job requirements are. The whole thing is about how they can't work remotely. And in fact, it is scoffed at in the government's brief. It's scoff-worthy.

It's scoff-worthy. I agree. And the fact that Judge O'Connor is like, I don't think it's scoff-worthy. I'm like, well, okay. Yeah. It's pretty scoff worthy. But if you're going to treat them individually because of their jobs and how special their jobs are, then I'm not sure it's so high a bar when it comes to a religious exemption to treat their religious request that way as well. Look, I'm a huge fan. If you've gone through BUDS, if you somehow made it through that and you're

lunatic enough, we should be doing quite a bit to ensure that you're deployable. I agree. And you should be willing to take the stinking vaccine. Here come the carrots making their way upfield, followed

by the whole wheat bread, over to the two dozen eggs. Sir, do you do this every time? Sorry, I've been a little excited ever since I got this BMO Toronto FC cashback MasterCard. Oh, and the broccoli boots it over the line. What a goal! How would you like to pay, sir? Credit, please. Make every purchase a win with the BMO Toronto FC cashback MasterCard with up to 5% cashback on your purchases in your first three months. Terms and conditions apply. Let's go to our main topic, the Electoral Count Act. And why is this our main topic?

And here's my theory, Sarah, and you can tell me if you think that I'm wrong. As we're unwinding everything that led up to January 6th, and we're beginning to learn more and more about the Trump team's efforts to overturn the election results, in my mind, the much more danger, as far as threats to the republic not threats to health and safety which of course the riot was far more threatening to immediately threatening to people's safety but the far more threatening thing as far when it comes to the the health of the republic was the effort focused on vice president pence to try to coerce or persuade him to exploit ambiguities in the Electoral Count Act to either delay certification of the vote or overturn and

reverse certification of the vote pursuant to the Eastman memos. And on the one hand this looks to be like an absolutely absurd effort and it was in a fundamental level but on the other hand one of the problems that we had moving into january 6th and this is something we were jumping up and down and stamping our feet about for weeks several weeks on this podcast is that the electoral count Count Act itself is an absolute, ever-loving mess. We'll put in show notes my piece that I wrote that had a very subtle, non-dispatchy headline entitled, Stop Screwing Around and Reform the Electoral Count Act. But I pasted the whole- Which was breathtaking for me, by the way, to see David French and stop screwing around. David, salty language, or as they would say in Ted Lasso, though it doesn't translate, I don't think particularly well on this side of the coast,

fruity language. That's how strongly I feel about this, Sarah. I went ahead and I just pasted the whole key, 3 U.S.C. section 15, the whole key text. I pasted that into the piece so people could see it in all of its glory. It's one paragraph that is 809 words. And one sentence, one sentence is a substantial portion of that paragraph. And I don't know, do you want to start or do you want me to start with what you see as potential or not potential, but actual problems with the text? Or do you want to go political on the possibilities of reforming it? Tell me, Sarah, what's your preference? I think it would be in the service of our listeners if you discussed areas in which the text can be reformed, ways in which to reform it. And I will provide the

pushback of why there's pushback on those reforms, which I think there are bad faith reasons to push back on the reform. But I think there are bad faith reasons to push back on the reform, but I think there are some good faith reasons. And even though I am staunchly in favor of reforming the Electoral Count Act, with language far fruitier than David's, I do think it is worth taking seriously the concerns, the good faith concerns of those people because we need to address them. Right. Okay. First, we'll just kind of walk through one, two, three, four or so. So first, I think that a reformed electoral count act needs to absolutely crystallize the role of the vice president in the counting of the votes. So if you look at some of the Eastman memos, what they did is they told Pence

that he had far more discretion than he really had. And this was a combination of the abuse of the Electoral Count Act and actually a rejection of the Electoral Count Act, sort of where the Electoral Count Act contradicted the Eastman theory. Eastman just threw it out. But in any case, the Electoral Count Act does not really super clearly specify the role of the vice president. And so a new Electoral Count Act, we'll call it ECA 2.0, should make it very clear that the VP has zero discretion to reject electoral votes. And the role of the VP is procedural only. The VP runs the joint session, and that's all that the VP does. Any pushback on that one, Sarah? the only way that I've heard to reform the Electoral Count Act is by, yes, basically saying Congress doesn't have discretion, the VP doesn't have discretion. Whatever the states send you, if they only send one, that's it. And of course, that means that if the state sends something that

is obviously corrupted by the state process, there's nothing for Congress and potentially even the courts to do about it. I think that is a real concern and one that we as electoral count reform advocates need to address. Ah, we'll get to that. Yes. We'll get to that. Okay. So number two, I think number one, there's a huge amount of consensus on that. Yeah. Nobody wants the vice president having any role in this whatsoever, even the concerners. Yes. Number two, there's a huge amount of consensus on this one as well. And that is that ECA 2.0 should raise the threshold for objecting to the electoral votes of any state.

So as of right now, the way you can object to electoral votes and trigger a debate and a vote on it is if you just have to have one member of the House and one member of the Senate. One member of the House, one member of the Senate. That is an easy threshold to overcome. I mean, Peter Navarro, in going back over what he called the Green Bay Sweep, which he and Bannon actually gave a name to their effort to use the Electoral Count Act to delay certification, was very proud that it just, he said, Paul Gosar and Ted Cruz, if I'm Ted Cruz, I don't want to be in that group with Paul Gosar, but Paul Gosar and Ted Cruz began to execute the plan flawlessly when they objected. Okay. And we have seen, as Sarah, you pointed out on the dispatch pod, we've seen Democrats in previous elections use the Electoral Count Act to trigger objections. Got to raise this

threshold. If it's just one Senator and one member of the house, and especially in our hyper-polarized environment, just get ready for this to happen every single time. To quote Britney Spears, you say I'm crazy, I got you crazy. It's in the House of Representatives. Yeah, yeah. So raise the threshold for objecting and raise the threshold beyond a majority of the House and a majority of the Senate to decertify votes. So make it a super majority to decertify. Okay, I want to marinate on that one a little more. My instinct is to agree with you that it should be more than a bare majority, but I'm not sure. But okay, we can asterisk that one. Yeah.

Now, here's where it gets interesting. So I think there's a super broad degree of consensus on VP's role narrowed and defined and raising threshold for triggering any kind of debate and vote. Now, this is what is interesting. This is where, and there's a lot of consensus that this should happen in concept. There's less consensus on the actual way in the specific grounds. So next, a reformed ECA, ECA 2.0, would narrowly specify the grounds for any congressional decertification. So right now, in theory, if you get a majority of the House and majority of the Senate, and they just kind of subjectively say that these electoral votes were not, they were not, you

know, regularly presented, then you can toss electoral votes. There's an enormous discretion to toss electoral votes. And so should ECA 2.0 define when they should be tossed? For example, if electors cast votes for a person constitutionally ineligible for office, like California says Arnold Schwarzenegger gets our votes. Another possibility is to say that the House and Senate can set aside electoral votes if a court of final jurisdiction, e.g. the Supreme Court, has set aside election results for fraud. So, for example, if a electoral challenge has made it through and has been an electoral result to set aside for fraud, which is entirely possible. It's happened in it has happened before, not in a presidential race, of course, but it's happened before in other races. specifically, that still gives you an opportunity to say if something is blatantly, clearly

unconstitutional or where electors are trying to override the, or a state is trying to override the judgment of the Supreme Court. What do you think about that, Sarah? Yeah. I mean, now we're getting into the heart of it, which is, as it turns out, when this project first was picking up some steam, it was initially Democrats who were very in favor of reforming the Electoral Count Act. And it was Republicans who were like, well, I don't know about that, which was super weird to me even at the time, because you know who the vice president is? Not Mike Pence. Right. So you want to make it ambiguous of whether the vice president is? Not Mike Pence. Right. So you want to make it ambiguous of whether the vice president has power

to overturn the results of a presidential election? Oh, okay. That's one strategy. Not surprisingly, then, people found themselves sorted back into their camps. Phew. And Republicans seem to be the ones now wanting to reform the Electoral Count Act. Mitch McConnell

has said he is open to it. John Thune as well, who's supposed to announce whether he's running for reelection on Sunday, I think, in South Dakota. So my political part of my brain is very much anticipating that. And it's now Democrats who say, well, wait a second. We can't simply reform the Electoral Count Act if you're not fixing the problem at the state level, which I'm going to try to put this in a, again, the good faith argument, which is Republicans are changing the rules at the state level to take power away from local election officials that could allow state legislatures to simply decide who they think should have won the presidential election in their state without much regard to how the vote turned out, and therefore send a slate totally agreed upon by the governor and the state legislature, like there's not two slates going, send a slate to Congress that is blatantly not what the vote in their state was and not in a Maine and Nebraska way where it's like, oh, well, we also do it by

a congressional district. And that's so fun. By the way, everyone should do what Maine and Nebraska did. Genius, total genius would be so much better for the country. But I digress. OK, so Congress now gets this slate that is the opposite of the clear and legal vote in the state. And the problem with the Electoral Count Act reform suggestions that you're making it making is that it would actually then make it more difficult for Congress to do anything about that. And I think that is a valid concern on their part, even if I hope it is not valid and far-fetched. I think at this moment in time, I see the concern with raising the bar for Congress to decertify obviously incorrect election results without having some sort of federal deal on the election results at the state level themselves being

monitored more closely. I don't, you know, I don't want a federal takeover of our elections, but that's basically what you'd have to have in connection with the electoral count act reforms in order to fix this problem. Hence why Republicans are like, absolutely not to that. And Democrats are like, well, we're not going to do Electoral Count Act reform without it. I think, and I completely get that concern. And in many ways, I share that concern. and I'll give you a concrete reason why I share that concern. So there is an effort underway at the Republican grassroots to essentially swap out election officials. And so you're seeing secretaries of state who resisted Trump facing primary, Republican secretaries of state who resisted Trump facing primary Republican secretary of state who resisted Trump facing

primary challengers from people who believe that Congress shouldn't have certified the results. And to make it concrete, there's a tweet came out yesterday by Michael Bender, and it said NPR finds 15 Republicans who've denied or cast doubts on the 2020 election results running to be chief election officer in 12 states, including six of the seven states with Biden's slimmest victory margin. So is there a problem? I've long thought that the real issue and the real challenge we have going forward isn't towards vote casting. Both the vote fraud argument and the vote suppression argument in American politics, I think, have been overblown. The real issue we have is with vote counting. And that's, again, why I support electoral count act reform. But here's the challenge, Sarah. Here's where this

gets really rough. So constitutionally, states are not required to give electoral votes to the winner of the popular vote in their state indeed constitutionally states it's up to state legislatures how they allocate their electoral college votes and so if a state legislature passes a scheme that grants an enormous amount of discretion to the executive authorities of the state, can the federal government override that scheme? That is a constitutional question that I have, and I'm actually kind of doubtful about that because in theory, a state legislature can say, we decide. We decide who gets electoral college votes. Or in theory, it could say, we've appointed an independent commission to weigh the interests of our state. Now, those things are unrealistic because

people wouldn't want that and they would reject that. But there is a real limit of the ability of the federal government to say, this is how you must determine who receives your electoral college votes. decertify those votes is something that at least Democrats currently, no doubt Republicans someday, are feeling squeamish about. And look, my pushback, my pushback to the pushback is fine. Can we at least fix the ambiguities? Don't change the standards. That's fine. Let's at least agree on what we think that it says and just write that in plain English. The 275 word sentence with 19 commas and two semicolons is in effing decipherable or at least open to multiple interpretations. So let's just say that the vice president

doesn't have that power. Don't raise the bar for how many people have to object. Don't raise the bar for the majority thing. But let's agree on the rules in advance because if we don't, I am deeply concerned about what happens next. Completely agree with you. I think, look, to be honest, if you just had electoral count, ECA 2.0 clarified the vice president's role, significantly raised the threshold for election objections, and was amended to be understandable. I mean, three modest goals. Let's just, three minimally modest goals. They could literally save us from a constitutional

crisis. It's true. I mean, quite literally. Hey, David, before we move on to our last topic, can I just note that in our Dispatch podcast, we talked about kind of the politics of January 6th. In the second half, you and I had a heated disagreement. And I think that it'd be funny for Advisory Opinions listeners to know that Dispatch pod listeners don't know David and I's relationship as well as you do. Oh, yeah, that's true. And so there were a lot of, in the comments at least, a lot of people, David, talking about how you got chippy with me.

I saw that. And I'm trying to think of a polite way to respond to them to say basically like there is literally nothing David could do to get chippy with me um and then because then there was like pushback of like no Sarah got chippy with him first and like well no Sarah was simply trying to make I mean they're like really taking up sides for us without understanding that like look I do think it's important to give the best arguments of the opposing side, especially when all four of us agree. A, it makes for a boring podcast, but it's also not very helpful for listeners.

That's not to say that everything that I say pushing back on you guys is devil's advocate stuff, but I do want y'all to have to address the good faith arguments of your detractors on some of this stuff. the good faith arguments of your detractors on some of this stuff and your chippiness notwithstanding. I thought it was a good heated discussion and I like our heated discussions. And I'm just realizing as we agree on the Electoral Count Act stuff that on legal stuff, we don't have a lot of heated discussions even when we disagree. And it's a shame. More chippiness, David. That should be our New Year's resolution. You know, the funny thing is, as soon as we entered, as soon as we ended that podcast, my first thought was that was literally the best

Dispatch podcast we've had in a long time. Literally the best one. And if there's two people in the Dispatch who could get quote unquote chippy with each other with no consequence, it's you and me. For sure. I mean, yeah, it didn't even cross. I thought, oh, that was, and I literally actually thought for a moment that gave Sit and Dispatch podcast listeners an insight into occasional exchanges we have at advisory opinions. So speaking of people misunderstanding. So my point in all of this on the January 6th stuff, politically speaking, is that January 6th to simply focus on the rights role in January 6th in a vacuum misses the greater problems facing our country right now. And it's not to say that they're comparable. It's not whataboutism.

I'm not saying that the objections to George W. Bush's elections were as serious as the 2017 objections to Joe Biden's. They weren't. What I'm saying though, is that if you take the 2017 objections totally out of context of what's been happening in the last, sorry, 2021, the last 20 years,

we're not going to fix this huge snowball that's picking up snow every four years as it rolls down the hill. Okay. So anyway, in Vice President Harris's speech this morning, she compared January 6th to 9-11 in Pearl Harbor, which again, I think is so inapt because you can put those in a bit of a vacuum, right? Outside terrorists attack our country and we come together to move against this outside threat that we all agree is a threat. And so I tweeted, January 6th was far more like Fort Sumter than it was 9-11 or Pearl Harbor. I thought that was obvious. I thought it was obvious because there were Confederate flags walking through the Capitol. Right.

Oh my God, the number of people on Twitter who then think that somehow I'm saying Fort Sumter was a good thing. That's insane. It's insane. So I've had to add the clarification. Some people are interpreting this to mean that somehow I don't think the attack on Fort Sumter was serious or that would be a weird take given the sheer magnitude of the lives lost to defend the evil of slavery. So again, I feel like everyone

wants to put someone as opposition to them, to vilify them. And I think what was good about our conversation yesterday was there was a ton of stuff we were agreeing on. We were disagreeing on maybe the framework with which to see January 6th, how best to put it in context, in a framework of any kind. And I think some people are dissatisfied that either y'all weren't vilified enough, I wasn't vilified enough, that you're missing then what the conversation was. And same with this Twitter thing, right? Like me disagreeing with Vice President Harris that it was like 9-11 or Pearl Harbor doesn't make her evil or that I

think she is in opposition to what we both think happened on January 6th. No, no. My point is that it's more concerning in a lot of respects. No, I thought your tweet was 100% spot on. I mean, 9-11 and Pearl Harbor represented an attack on our country from an external enemy. The storming of the Capitol was an attack on our democracy by Americans. I mean- And Fort Sumter, when it happened, was not the beginning of the Civil War. It's the beginning of the Civil War because of what happened after the attack on Fort Sumter, if that makes sense. There were a group of people who attacked Fort Sumter. There were a group of people who attacked the Capitol.

The main difference right now is how many people were behind the people at Fort Sumter. Yeah, you know, you had total military mobilization of North and South. Yeah. I mean, and I also think, you know, the Civil War analogy is apt in this other respect ominously, which is what happened in April of 1861 was a culmination of decades, of decades of legal, cultural, political developments leading to that moment. And it was not a moment in time that just stood out on its own and kind of dropped to us from the sky. It was a culmination of unfolding decades.

And I think that what we're seeing happen in national polarization, which is a big part of the book that I wrote, is we are seeing the culmination of decades of increasing polarization. And then that doesn't mean that one side or the other doesn't just go ahead and jump the shark, right? I mean, like there's this analogy. I've heard Jonah use it. I've heard many other people use it. I think I've used it even on this podcast that companies go bankrupt slowly and then suddenly.

Yes, like so many things, right? Tipping point. Malcolm Gladwell's whole thesis there reaches a tipping point. Exactly. Exactly. And I think when I think of what happened in the run up to the election contest, it is that Donald Trump exploited and amplified and magnified all of these trends. But in the absence of these trends before Donald Trump,

they wouldn't have been there to exploit and amplify and magnify. Yeah. And when you look at Malcolm Gladwell's thesis, by the way, and I'm butchering it to some extent, but basically the tipping point isn't 51%. The tipping point's around 35%. And so the question is, if we were in 1985 at 3% and in 2001 at 7% and in 2013 during sort of the height of the birther stuff, maybe we're at like 17%. 2017, we're at 23%. Then we edged up by the end of the Trump administration to 28%.

The question is, what was January 6th? Was it 29% or was it 36%? I don't know the answer to that. No one does. But that is my overall point is that there are people acting like it's nope, this thing happened and we need to condemn this thing. I am very concerned that we hit 36%. That's all. That's my point. That's what I'm trying to scream at the rooftops. Because then it doesn't matter what happened on January 6th. What matters is we just hit 36%. To amplify your point and how the nation has changed, can you imagine the 2000 election in 2024? Which is why the Electoral Count Act needs to be reformed. Yes.

I'm losing my words. My head's about to pop off my body. In other words, stop screwing around and reform the Electoral Count Act. Screwing, again, not the word I would use, but I would stunt that you used it, David. Okay. Well, it got attention. I will tell you that. It got attention.

It got my attention. I actually thought the email was for me. I did not realize it was your like, you know, you send it to some other people other than just me. And I was like, stop screwing around. What did I do wrong, David? It was like disappointed dad. And we'll take a quick break to hear from our sponsor today, Aura.

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I upload photos all the time. I'm just like bored watching TV at the end of the night. I'll hop on the app and put up the photos from the day. It's really easy. Right now, Aura has a great deal for Mother's Day. Listeners can save on the perfect gift by visiting auraframes.com to get $30 off, plus free shipping on their best-selling frame. That's A-U-R-A-Frames.com. Use code advisory at checkout to save. Terms and conditions apply. All right, last thing real quick. And thanks to Josh Blackman for posting this on

the Volet Conspiracy because it made my day earlier this week. More than a thousand books from Justice Ginsburg's personal library went up for auction, and he gave us the pictures of three of the inscriptions where her colleagues on the court had inscribed books to her. So the first one, Reading Law by Justice Scalia, and he inscribes it to her to justice Ginsburg with respect and warm regards Antonin Scalia. And he dates it 15 forward slash Roman numeral six forward slash 12 instead of June 15th, 2012. Fascinating, right? Like, so it's the European, but then also with a Roman numeral.

I feel like you could write a whole book on who Justice Scalia was with just that as the title. 15 Roman numeral 612. Okay, then there's My Beloved World by Justice Sotomayor. She inscribes it. Ruth, I hope you enjoy it. Sonia, right?

Very personable first names. She signs it again under her name, Sonia Sotomayor, under the printed name. But then there's Justice Breyer's inscription of the court and the world. We will put this in the show notes. And truly, if you're not driving your car, this is worth a click through because I will not be able to describe the visual that I am looking at. First of all, it's hard to read. Josh Blackman has tried his best. I will read his transcription of this, which may or may not be correct. So this is just the words that we think

are written. To Ruth, my friend and colleague, 21 years, exclamation point, together, parenthetical, and often with many others too, in friendship and affection, SB, with much admiration, comma, Much admiration, comma, appreciation. S. Okay. Also, it's written all over the page and different, what would you call it, David? Different angles, right? Like some of it is written at like a 110 degree angle. Others more like 160.

Then we're back to maybe 110 then maybe down to 170 um it's the most justice briar thing ever ever it's so cool um as josh says did he sign the book twice it appears that he wrote the inscription at two points in time. When looking at it later, he realized he had to add a date and perhaps he didn't realize he had already signed it. Hence the two signatures. It's so funny. It is so funny. I loved that so much. I can't remember if I've ever told you my, I've had two pre Supreme court close encounters with members of the Supreme court. My, my first one was that my first ever federal court, first ever time I stood up and said

a word in federal court was to judge Sonia Sotomayor, Southern district of New York. Um, which she was already famous at that point cause she'd played a key role in ending the baseball strike. She was already famous at that point because she played a key role in ending the baseball strike. And then the other close encounter is when I was in law school, we went to see First Circuit arguments. And this was when Judge Breyer was on the First Circuit. And what was interesting is he didn't sit, when he was the chief judge on the panel, they didn't sit at the bench. They sat on a table in the courtroom and the argument was a table side discussion with counsel that Justice Breyer or then Judge Breyer just sort

of orchestrated. And it was very interesting to see that as a method of having a court argument. I actually found it fascinating. I mean, it was like literally a conversation between counsel and the judges. It was really an interesting way to do it. So that was my close encounter with Judge Breyer before he became Justice Breyer. And it wasn't that close. I was just watching the whole thing transpire. Well, I think that was a good AO episode. Indeed. Indeed. And just priming the pump for Monday. I'm so excited to tell you guys. I'm so excited for the argument tomorrow.

I want that COVID test result back. They said noon-ish. It's 1140 right now, Eastern. But yeah, because a lot of the job this week is trying to guess what direction some of these justices go in. And I don't know, David, I think I'm kind of good at it. So we'll see. Yeah. Oh, no, you're very good at it. You're very good at it. I think the only time I have seen you stomped and we were both stumped was Texas SB8. Yep. And I honestly am not sure that they knew where they were. I'm not sure they know where they are. So definitely tune in Monday.

Tell your friends if you want to be introduced. Now we're building it up too much. No, we're not. No, we're not. Not enough. We need to take out social media marketing dollars and hype this pod. No. Tune in on Monday for a... Because I'm looking forward to hearing all of the twists and turns because I haven't heard it yet and I don't want to hear

it yet until Monday. So I only have a little glimpse and it's interesting stuff. So please go rate us on Apple Podcasts. Please subscribe on Apple Podcasts. Please check out thedispatch.com and long, but we had to pay for 30. Those leftover five seconds shouldn't just disappear, right? It's kind of like what happens to your unused mobile data at the end of each month. Except at Fizz, your unused data from the end of the month rolls over, so you can use it the next month. Hey, you paid for it, so keep it. Try the other side.

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