Tangle - Electoral Count Act reform.

Episode Date: September 22, 2022

We are covering the Electoral Count Act reforms and skipping our reader question. Plus, a preview of tomorrow and a story on the Cherokee Nation.You can read today's podcast here, today’s “Under the Radar” story here, and today’s “Have a nice day” story here.Today’s clickables: Quick hits (0:59), Today’s story (2:52), Right’s take (8:24), Left’s take (12:28), Isaac’s take (17:04), Under the Radar (21:44), Numbers (22:33), Have a nice day (23:18).You can subscribe to Tangle by clicking here or drop something in our tip jar by clicking here.Our podcast is written by Isaac Saul and produced by Trevor Eichhorn. Music for the podcast was produced by Diet 75. Today’s episode was edited by Zosha Warpeha.Our newsletter is edited by Bailey Saul, Sean Brady, Ari Weitzman, and produced in conjunction with Tangle’s social media manager Magdalena Bokowa, who also created our logo.--- Send in a voice message: https://podcasters.spotify.com/pod/show/tanglenews/message Hosted on Acast. See acast.com/privacy for more information.

Based on Charles Yu's award-winning book, Interior Chinatown follows the story of Willis Wu, a background character trapped in a police procedural who dreams about a world beyond Chinatown. When he inadvertently becomes a witness to a crime, Willis begins to unravel a criminal web, his family's buried history, and what it feels like to be in the spotlight. Interior Chinatown is streaming November 19th, only on Disney+. The flu remains a serious disease. Last season, over 102,000 influenza cases have been reported across Canada, which is Chinatown is streaming November 19th, only on Disney+. yourself from the flu. It's the first cell-based flu vaccine authorized in Canada for ages six months and older, and it may be available for free in your province. Side effects and allergic reactions can occur, and 100% protection is not guaranteed. Learn more at flucellvax.ca.

From executive producer Isaac Saul, this is Tangle. Good morning, good afternoon, and good evening, and welcome to the Tangle podcast, the place where you get views from across the political spectrum, some independent thinking without all that hysterical nonsense you find everywhere else. I'm your host, Isaac Saul, and on today's episode, we are going to be talking about reforms to the Electoral Count Act. This is a bill that's being pushed, well, two bills, really, that are being pushed to change how we count votes in a presidential election

and certify that presidential election, really. It's pretty important stuff. Before we jump in, though, we'll start off with some quick hits. First up, New York Attorney General Letitia James sued former President Donald Trump and his three eldest children for allegedly misrepresenting their property values. Separately, the Justice Department won an appeal to retain control and continue to review the classified material seized at Mar-a-Lago. Number two, the Federal Reserve approved another 0.75% interest rate increase, raising the benchmark rate to the highest level since 2008. Number three, Russian

President Vladimir Putin partially mobilized his army reserves for the first time since 1941. The move is considered an escalation in the war, and some 1,200 people were arrested in protests against the mobilization. Number four, Russian Ukraine carried out an unexpected prisoner swap on Monday that included almost 300 people, including two Americans and eight other foreigners. Number five, Virginia Thomas, the wife of Supreme Court Justice Clarence Thomas, agreed to a voluntary interview with the January 6th House Committee. We've got some breaking news into our show here from Capitol Hill. The House of Representatives just passing a bill moments ago that would change how Congress certifies presidential elections. It passed mostly along party lines with nine Republicans siding with Democrats.

And if you're going, well, wait a second, why does this matter? The whole point of this bill is to prevent another January 6th from happening again. Specifically, the Presidential Election Reform Act would amend an 1887 law called the Electoral Count Act, an archaic law that governs the counting of votes after a presidential election. The Presidential Election Reform Act, as they call it, went through late this afternoon. Election Reform Act, as they call it, went through late this afternoon. Outgoing Congressman Liz Cheney introduced the bill with her Democratic colleague on the January 6th committee, Zoe Lofgren. Yesterday, the House passed a bill, the Presidential Election Reform Act, to reform the 1887 Electoral Count Act, which defines the way Congress counts and ratifies presidential elector

votes. The bill, co-sponsored by Representatives Liz Cheney and Zoe Lofgren, passed by a 229-203 vote, with nine Republicans and all 220 Democrats supporting it. All nine Republicans who supported the bill will now be retiring or have lost their primaries and will not be in Congress next year. The legislation now goes to the Senate, where a separate reform bill, the Electoral Count Reform and Presidential Transition Act, has already been proposed and garnered the necessary 10 Republican votes to pass. But there are some key differences between the two bills. First, some 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 college votes. When votes were counted in the state, a winner was certified, and then electoral votes were sent to Congress by each state to be counted. The Constitution says, quote, 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, end quote. In 1876, though, this process blew up during a contested election. Two contested elections and a decade later, Congress tried to prevent this from happening again

by drafting what's known as the Electoral Count Act of 1887, which specifies when and where Congress shall convene to count electoral votes. That's 1 p.m. Eastern on January 6th. This bill also drew up clear guidelines on how members of Congress could object to the count. However, election experts have long complained that the bill is convoluted and unworkable, and it's been contested since its inception. One major problem is the legislation allows members of Congress to object to the results from individual states, despite the Constitution explicitly saying members' responsibility is only to count the electoral votes. It does not clearly lay out how to resolve

a contested election and does not clearly define the role of the vice president in such a conflict. In 2021, former President Trump pressured then-Vice President Mike Pence to reject some electors, which Pence refused to do. This was the same day rioters ransacked the Capitol as Congress was convening to count the votes. Since then, members have been discussing a fix to clear away any ambiguity about the process and to make clear an election simply can't be halted or overturned by any single person. Both bills attempt to clarify that Congress's role in ratifying states' electoral college votes is procedural and that the vice president's role in ratifying states' electoral college votes is procedural, and that the vice president's role is to only publicly count the votes. Both bills remove language that would allow state legislatures to override the popular vote in the event of a failed election,

a term not defined in law. Both bills set rules to ensure state legislators can't alter election procedures after election day to benefit one candidate. Both bills also raise the threshold from Congress needed to object to state electors. Currently, just one member of the Senate and House are needed to object to a state's electors. The Senate bill raises the threshold to one-fifth of each chamber. The House bill raises it to one-third of each chamber. Other major differences include who can sue over election results in federal courts and over what. The Senate bill allows existing state and federal laws to resolve most election disputes,

introduces a fast-track judicial review of claims made by candidates, and creates a three-judge panel that can directly and quickly appeal to the Supreme Court. The House bill also includes avenues for a three-judge panel and direct appeal to the Supreme Court, but makes clear that candidates can sue in federal court if a governor fails to transmit lawful election results to Congress. The House bill also lengthens the period of time allowed to resolve legal disputes from six to nine days and avoids language in the Senate version that characterizes a governor's certification of a state's results as conclusive. Finally, the House bill codifies that Congress can only object to electoral votes on very specific grounds, limited to the explicit constitutional requirements for

candidates and elector eligibility and the 12th Amendment's explicit requirements for elector balloting. It also provides grounds for objecting to a candidate's eligibility under Section 3 of the 14th Amendment, which bars anyone who has engaged in an insurrection from holding any public office or military rank. In a moment, we're going to take a look at some reactions to the House and Senate bills, as well as some overall arguments about reforming the Electoral Count Act. We previously covered that in January, and there's a link to that in today's episode description. First up, we'll start with what the right is saying. Many on the right support reforming the Electoral Count Act.

Some argue that the Senate bill is a superior version, while others lobby for the House version. Others say the reforms are a partisan attempt to give more election power to the federal government. In the Washington Examiner, Dennis Ross and Eric Paulson wrote favorably about the Senate bill. The recently proposed Electoral College Reform Act provides several solutions to the vaguest provisions within the ECA that have been used to cast doubt on the certification process, they said. Notably, it would establish clear procedures that clarify the state and federal roles in selecting the president and vice president. For example, it establishes that the government of each state is the person to certify the state's slate of electors rather than Congress

and clarifies that states must appoint electors in accordance with the laws they had before election day. The legislation would also raise the threshold to lodge an objection to electors and narrows the grounds for filing objections. These particular provisions are rooted in conservative governance. As conservatives themselves have stated, the current ECA reform hardens the powers of individual state authority with the Electoral College at a time when liberals want to repeal the Electoral College, they wrote. Furthermore, removing powers or the illusion of power through ambiguity from federal officials like the vice president at the same time only further empowers the states. Such provisions inherently decentralize government power and

ensure a peaceful transition of power by preventing mischievous actors in Washington from sowing doubts about the outcome of an election. In the Wall Street Journal, the editorial board wrote in support of the newly introduced House version of the bill. Where the House bill might be an improvement is in making it harder for partisans in Congress who want to get C-SPAN famous to lodge phony Electoral College objections, the board said. Only a specified set of complaints would be heard, such as if a state sends too many electors, if electors vote on the wrong day or are ineligible, or if the presidential or vice presidential candidate is ineligible. No whining

on the House floor that somebody had a funny feeling about the vote totals in West Southeastern Pennsylvania. The best approach remains for lawmakers to get out of this objection business and to leave such disputes to the courts, they added. The House bill retains a purported authority to reject electoral college votes if Congress decides that the incoming president is constitutionally ineligible. But isn't 14 days before Inauguration Day a little late for that, folks? Imagine if President Trump wins in a landslide in 2024 and then Democrats move to invalidate his electors, saying that Mr. Trump led an insurrection as defined under the 14th Amendment. Perhaps it's unrealistic to expect lawmakers to give up the power they arrogated in 1887,

but the madness of January 6, 2021 should have made a convincing case. However, some are skeptical of the proposals, especially the newly introduced House bill. In the Federalist, Tristan Justice called it a Trojan horse. Chinese Presidential Election Reform Act became the Democrats' answer to their failed attempt to override the state election laws in H.R. 1, which Senate Republicans blocked last summer. The legislation carries some of the same provisions of the doomed election bill at the top of Democrats' congressional agenda, Justice wrote. Just nine Republicans supported the bill, all but one of them who supported President Donald Trump's second impeachment and are either retiring or have

lost their primaries. New York Republican Representative Claudia Tenney, who co-chairs the Election Integrity Caucus, condemned the bill as the latest attempt from House Democrats to stack the democratic process in their favor and complain that the proposal did not go through the proper legislative process, he said. The text was only released days before the Wednesday vote and received no bipartisan hearing or markup in committee. In 2017, Democrats objected to more states certifying President Donald Trump's win than Republicans did four years later for Joe Biden. Alright, that is it for what the right is saying, which brings us to what the left is saying. The left is supportive of both reforms, though they seem to favor the House bill.

Some criticize the Senate version for not going far enough. Most just want to ensure that something is passed to prevent another January 6th. Craig Sargent and Paul Waldman wrote in support of the new House bill. Based on Charles Yu's award-winning book, Interior Chinatown follows the story of Willis Wu, a background character trapped in a police procedural who dreams about a world beyond Chinatown. When he inadvertently becomes a witness to a crime, Willis begins to unravel a criminal web, his family's buried history, and what it feels like to be in the spotlight. Interior Chinatown is streaming November 19th, only on Disney+. flu vaccine authorized in Canada for ages six months and older, and it may be available for free in your province. Side effects and allergic reactions can occur, and 100%

protection is not guaranteed. Learn more at flucellvax.ca. Under the Senate bill, if a corrupt governor certifies electors in defiance of the popular vote, an aggrieved candidate can take it to court, they said. A federal judicial panel could weigh in and designate which electors are the legitimate ones subject to Supreme Court review. Congress would be required to count those legitimate electors. But there, a problem might arise. If the corrupt governor simply ignores the new law and disregards what the court said and certifies fake electors in defiance of that court ruling, then a GOP House of Representatives could also ignore the new law and count those fake electors in defiance of that court ruling, then a GOP House of Representatives could also

ignore the new law and count those fake electors. The House bill adds an additional safeguard. If a corrupt governor defies that judicial panel review and refuses to certify the electors the panel deemed the legitimate ones, the House measure empowers that panel to designate another state official to certify those legitimate electors. Congress would then be required to count those electors. This would effectively take the weapon out of the hands of the corrupt governor entirely, they said. That rogue scenario could happen if Republicans win governorships in swing states other than Pennsylvania. For instance, in Arizona, GOP nominee Carrie Lake has made questioning the 2020 election central to her campaign. In Michigan, nominee Tudor Dixon has spread Trump's

2020 lies. In New York Magazine, Ed Kilgore wrote that Democrats should take the Senate bill. In a very short period of time, the window for a congressional fix of the Electoral Count Act of 1887, the dusty, convoluted statute that made the events of January 6th possible, will probably close, Kilgore said. For the foreseeable future, and most definitely for the period before MAGA forces have the chance to consider another coup, there is one and only one chance to make the counting of a presidential elector as the uneventful chore it was always intended to be. Yes, there are some minor differences between the House and Senate bills. Most notably, the Senate bill would raise the threshold of one-fifth

of the members of both chambers to trigger a debate and vote on challenges to certified electoral votes, while the House bill would raise that threshold to one-third of the members. More to the point, the threshold will likely remain at one member of each chamber if a fix is not enacted by the end of this Congress. Yes, it's unfair the Senate gets to call the shots on issues like this, but they're the ones with the arcane rules and the still rampant filibuster which aren't going to be fixed in this Congress, he wrote. So, if House reformers want to reform the ECA, they really absolutely have to swallow their pride and take the Senate bill with whatever minor changes can be negotiated quickly. Such a surrender would obviously pale next to the concessions the House has had to make in the Senate on virtually every other piece of legislation this year, most notably the massive package that ended life as the Inflation Reduction Act

after nearly being throttled altogether. In Democracy Docket, Democratic lawyer Mark Elias wrote about his concerns over the Senate bill. At the heart of my concern with this bill is the requirement that at least six days before the Electoral College meets, each governor must submit a Certificate of Ascertainment identifying their state's presidential electors. According to the new bill, that document is conclusive with respect to the determination of electors appointed by the state. Conclusive is a very strong word, Elias said. Typically, in legal construction, a fact or piece of evidence is conclusive when it is settled and cannot be contradicted by other facts or evidence. For decades, the U.S. Supreme Court

has reasoned that if something is conclusive, it is incapable of being overcome by proof of the most positive character. Under such an interpretation, the declaration by a governor that a Republican presidential candidate received more lawful votes than the Democratic presidential candidate could not be challenged, even if there was strong evidence to the contrary, he said. If elected this November, a future governor, Kerry Lake, the Republican from Arizona, or Governor Doug Mastriano, the Republican from Pennsylvania, could certify the big lie presidential candidate as the winner, even if the best evidence showed that he or she had lost the presidential election. That conclusive determination would be the end of the analysis. Proponents of the

Senate bill will point to another part of the law to support the idea that the governor's conclusive determination is, well, not conclusive at all. Yet, that provision is a bit of a muddle. All right, that is it for the left and the right are saying, which brings us to my take. So something interesting happened as I was researching this piece and kind of going through all these arguments. I noticed on both sides of the aisle, there was both significant division and agreement. Bastions of right-wing thinking like the Wall Street Journal editorial board spoke clearly in favor of the House version of this reform, as did hardline liberals like the Washington Post's Paul Waldman and Greg Sargent. At the same time, the Cato Institute and Ed Kilgore, two ideological sources you'd typically expect to be polar opposites of each other, agreed over the need for such reform now. Usually, when there is a big mix of ideas and

agreement and division like this across political tribes, I find myself in conflict too. But oddly enough, my take on this is actually more direct than usual. I think the House bill is clearly superior. This is for a few reasons, but before I explain them, let me just say, unambiguously, that I'd be glad to see either bill become law. The Senate bill is a product of good bipartisan work, amendments, and negotiations. It does the same work the House bill does to remove any doubt about when and where an election can be challenged or upheld. Before January 6, 2021, America had a perfect record on peaceful transfers of power, and we should do everything we can to make sure the next several centuries bring that streak back.

Unfortunately, the drawn-out and arduous process around the Senate bill seems to have reproduced a couple of the same problems found in the original 1887 Act, though to a less significant degree. For starters, the Senate bill still has muddy language that doesn't properly distinguish between objections to electors and objections to electoral votes. It also leaves language around regularly given votes in place, the same language that has wreaked havoc on elections for the last 20 years. The House bill makes it clear precisely what kind of objections would be heard, which, as the Wall Street Journal editorial board rightly said, will undoubtedly reduce the number of charlatan objections from either side.

Cheney and Lofgren's explanation of the bill put it in very clear terms. If members of Congress have any right to object to electoral slates, the grounds for such objections should be narrow. Congress doesn't sit as a court of last resort capable of overruling state and federal judges to alter the electoral outcome. If any objections are allowed during the joint session, grounds should be limited to the explicit constitutional requirements for candidate and elector eligibility and the 12th Amendment's explicit requirements for electoral balloting. I also appreciate the higher threshold for objections from the House and Senate.

One member in each body being able to halt an election was always an absurd notion, but one-fifth is still not high enough. The threshold for impeaching a president is two-thirds majority. The threshold for objecting to a state-certified election should be at least one-third of both chambers. Here, again, the House bill is superior. Both bills lean on the courts to resolve disputes, but the House bill allows more time for a resolution and leans into existing mechanisms to challenge an election result. Perhaps most importantly, the House bill does not include language that a governor's certification is conclusive.

The Senate bill includes this language, then tries to clarify that a governor's certification isn't actually conclusive, leaving a reader with the uneasy feeling there is a crack ready to be exposed. States should have full control over their elections, but no single person should be granted conclusive certification of such an election. The House bill better clarifies the powerful but finite role a governor plays in certifying votes, and makes it clear that if a corrupt governor ignores a court's order on certifying legitimate elections, the court can direct another state official to do the governor's duty instead. In sum, the House bill has more safeguards, clearer language, and a higher threshold for

upending a state's presidential election. The bill's downside is the process and the people behind it. Cheney is a poison pill for Republicans, and so her bill is going to draw opposition no matter what is in it, especially in the context of being pill for Republicans, and so her bill is going to draw opposition no matter what is in it, especially in the context of being drafted, driven, and supported by so many outspoken Trump opponents. It was passed hurriedly and with little oversight or negotiation, unlike the Senate bill. The perfect scenario would be the text of the House bill combined with the process of the Senate bill. With any luck, the Senate bill will be further amended and moved toward the House bill and then pass with a wide range of bipartisan support in Congress and among the pundits. Either way, it's clear Congress needs to do something,

and the bare minimum of simply clarifying its role as mostly ceremonial is pressing. All right, that is it for my take. We are skipping today's reader question because our piece got pretty long. So, you know, if you want to ask a question, you can write in Isaac, I-S-A-A-C at readtangle.com. Next up is our under the radar section. The Cherokee Nation is asking for a seat in Congress. A new campaign is being launched to prod Congress to honor a 19th century treaty that has been ignored. In 1835, then-President Andrew Jackson signed the Treaty of Nuachota, which was ratified by Congress and promised a non-voting House delegate to the

Cherokee Nation. The same treaty forced the Cherokee Nation to go to Oklahoma, moving there from Tennessee, Alabama, and Georgia. No such delegate has ever been seated, though the Cherokee Nation has named Kim Teehee as its delegate. If seated, she'd be able to give House floor speeches and vote in committee, but not on final legislation. Axios has the story, and there's a link to it in today's episode description. All right, next up is our numbers section. The average annual percentage interest rate on a credit card in May was 16.17%. The average annual percentage interest rate on a credit card now is about 18%. The rough increase in interest rate the average household will pay each month on their credit card is $14. The increase in the monthly cost of a typical mortgage on a median

priced home because of increased interest rates is about $250. The number of attempted book bans logged by the American Library Association in 2021 was 729. In 2020, that number was just 156. All right, that is it for our numbers section. And last but not least, our have a nice day section. Cancer death rates in the United States are continuing to fall. That's thanks to advancements in treatment, diagnostic tools, and prevention strategies. There are now more than 18 million cancer survivors in the U.S., up from just 3 million in 1971. Death rates from cancer have been falling for over two decades, but the decline has become even sharper in the last few years. Between 1991 and 2016, the cancer death rate fell 27%, according to the Cancer Society.

Between 1991 and 2019, the overall cancer death rate reduction translated to about 3.5 million lives saved. CNN has the story and there's a link to it in today's episode description. All right, everybody, that is it for the podcast. We are not going to be back here tomorrow because it's Thursday. So if you want to hear from us, you need to subscribe to our paid version of the newsletter. We're going to be covering something kind of interesting, something people talk about a lot in this newsletter or in my emails, I guess, which is whether public opinion really matters for legislation. So if you're curious about that,

go to readtangle.com slash membership and subscribe. We'll be back here on Monday. Have a good one. Peace. Our podcast is written by me, Isaac Saul,ul and edited and produced by trevor eichhorn our script is edited by ari weitzman sean brady and bailey saul shout out to our interns audrey moorhead and watkins kelly and our social media manager magdalena bakova who designed our logo music for the podcast was produced by diet 75 for For more from Tangle, subscribe to our newsletter or check out our website at www.readtangle.com. We'll see you next time. When he inadvertently becomes a witness to a crime, Willis begins to unravel a criminal web, his family's buried history,

and what it feels like to be in the spotlight. Interior Chinatown is streaming November 19th, only on Disney+. The flu remains a serious disease. Last season, over 102,000 influenza cases have been reported across Canada, which is nearly double the historic average of 52,000 cases.

What can you do this flu season? Talk to your pharmacist or doctor about getting a flu shot. Consider FluCellVax Quad and help protect yourself from the flu. It's the first cell-based flu vaccine authorized in Canada for ages six months and older, and it may be available for free in your province. Side effects and allergic reactions can occur, and 100% protection is not guaranteed. Learn more at flucellvax.ca.