Tangle - The Electoral Count Act.

Episode Date: January 18, 2022

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.You can read today's podcast here.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.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.

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From executive producer Isaac Saul, this is Tangle. Good morning, good afternoon, and good evening, and welcome to the Tangle podcast, a 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 the Electoral Count Act, some of the bipartisan consensus forming around reforming it, and as always, some news from the weekend. So before we jump in, we'll start with our quick hits for the day. First up, 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 UK national named Malik Faisal Akram.

It is still unclear whether he was killed by law enforcement or killed himself. Number two, 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. Number three, 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. Number four, Beijing Winter Olympic organizers canceled a plan to sell public tickets citing the COVID-19 outbreak. Number five, tension between former President Donald Trump and Florida Governor Ron DeSantis is said to be rising as the two are considered favorites to be the Republican nominee for president in 2024. One year after protesters stormed the U.S. Capitol in an effort to stop lawmakers from certifying the 2020 presidential election results, congressional leaders on both sides of the aisle have expressed interest

in revising and updating 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 6th and any ambiguity about how presidential elections are decided in the United States. 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 states, 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. These competing electors were sent to Washington, and Congress

had to form a committee to try and resolve the dispute. Republicans got a majority on the committee, and Hayes ended up winning the election, despite Tilden carrying the popular vote nationally. In 1887, a decade later, and after two more hotly contested elections, Congress tried to ensure this wouldn't happen again by creating the Electoral Count Act. The law specified when and how electoral votes should be counted and also drew up clear guidelines allowing for members of Congress to object to certain results. Today, though, experts say the law is so convoluted that it's unworkable and 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 a clear procedure for what to do in the event of a truly contested election, and it does not clearly define the vice president's role 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 6th 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 the left, and then my take. First off, it's worth noting that there is some common ground here. There is actually 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. So what is the right saying? Conservatives are supporting ECA reforms, saying clarity is 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. 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. 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. Members of the Senate GOP leadership, most importantly Minority leader Mitch McConnell, have expressed an interest in getting something done, while Senator Angus King, the Independent from Maine, has been working with Senator Dick Durbin, the Democrat from Illinois,

and Senator Amy Klobuchar, the Democrat from Minnesota, 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. Yes, 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 in this century. One of those

times, they found a willing Senate co-sponsor 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 January 6th 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 their 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 January 6th has become one more political prop for partisan gain. All right, so that's it for what the right is saying, and this is what the left is saying.

The left mostly supports ECA reforms, but doesn't want it to replace voting rights legislation. Some say they are necessary to prevent another January 6th, and Democrats should take an offer to change them if they get it. Others say ECA reform should only come after or as part of a 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 Senators Ted Cruz and Josh Hawley 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. 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 January 6, 2021, not by some alarmist Biden partisan, but by then-Senate Majority Leader Mitch McConnell. 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 before it's used to justify more subversion of democracy. Based on Charles Yu's award-winning book,

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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 the chaos exactly one year ago on January 6, 2021. 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 legislators the power to disregard it entirely. In 19 states, 34 of those bills have become law,

and there's 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 legislators 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 that 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 14th 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. All right, so that's it for the left and the right's take, which brings us to my take. So reforming the ECA sounds great, so long as it's done correctly. The biggest need at the federal level is clarification. Any update to the Electoral Count Act should do a few things. First, make it clear that Congress cannot change or reject state-certified election results. This is important for Democrats and Republicans both, who have had members of 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 in place for Congress to delay certification until that dispute is settled. Otherwise, they should not have a until that dispute is settled. Otherwise, they should not have a role in determining the outcome. Second, make it unambiguous that the 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. 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 dictate clearly which votes Congress should count if a competing state electors are sent in. Otherwise, a process can be laid out. But 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 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 damnedest, and at least in a dozen cases are succeeding, in empowering partisan state actors to be able to overthrow the will of the voters. I'm 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 legislators to replace previously protected election boards with partisan actors when they don't get the results they want. Even if they don't get enacted by 2024, these laws are truly a 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. Reigning in the extremely partisan actors who are driving election law in those states is critical and those 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's no reason not to. All right, that brings us to our reader question of the day. This one's from Matt in Richmond, Virginia. He said, 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 you're in power is not as important. How can we reward being good at the job of governing and discouraging the need for politicians to self-promote? Our 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. So this is a great question. 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 national

elections work. Term limits are definitely an option that could theoretically solve the issue of incumbents worrying about little else besides fundraising 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 and stuff to chew on about that pretty soon. Others, though, have proposed public campaign financing. This is a system where 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. But if you're interested in reforms to get politicians to respond to the will of the voter and not corporate or wealthy donors, that's a good place to start. It's definitely something we're going to cover here at Tangle in the future. All right, next up is our story that matters. This one is pretty interesting. Trust in government leaders is purposely trying to mislead people by saying things they know are false or gross exaggerations. That's according to Edelman's 2022 Global Trust Barometer, which also found 67% of people globally believe journalists are purposely misleading them 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 that government leaders are

exploiting divisions for political gain. Axios has a fascinating report on this survey, which you can find a link to in today's newsletter. All right, that brings us to our numbers section. All right, that brings us to our numbers section. 147 is the number of Republicans who voted to halt the certification of the 2020 election. Three is the number of Republican senators who decided not to object to the election results after the storming of the Capitol. 35% is the percentage of registered voters who said the results of the 2020 presidential election should be overturned. That's according to an October 2021 poll. 22% is the percentage of registered voters who said it should definitely be overturned. 13% is the percentage of registered voters who said it should probably be overturned. And 55% is the percentage of registered voters who said it should definitely or probably not be overturned.

All right, last but not least, we have our have a nice day section. Last week, Angelina Gonzalez received a letter that had been sent 76 years ago. The letter was penned by her late husband, John, 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 the 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 the Postal Service workers' efforts to preserve and deliver it. There's a link to this story in today's newsletter. It's super fascinating and actually pretty amazing. All right, everybody, that is it for today's podcast. As always, if you want to support this

work, you can check out the episode description for some links to do that. But the best thing you can do is give us a five-star rating and spread the word to your friends by sending the podcast around. Thanks so much for tuning in and we'll see you tomorrow. Our newsletter is written by Isaac Saul, edited by Bailey Saul, Sean Brady, Ari Weitzman, and produced in conjunction with Tangle's social media manager, Magdalena Bokova, who also helped create our logo. The podcast is edited by Trevor Eichhorn, and music for the podcast was produced by Diet75. For more from Tangle, subscribe to our newsletter or check out our content archives at www.readtangle.com. Thank you. 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 6 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. 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+.