The Dispatch Podcast - The Future of the Electoral Count Act

Episode Date: September 30, 2022

Understanding The Electoral Count Act, as it’s currently worded, requires a team of legal experts. So we got one! Sarah is joined by John Fortier, senior fellow at AEI, and Matthew Seligman, fellow at the Constitutional Law Center at Stanford Law School. Together they try to make sense of the law’s history, explain the difference between the two reform bills coming up through the House and the Senate, and debate whether either one goes far enough to prevent a constitutional crisis in 2024. Show Notes: -Matthew in support of the Senate bill -What the Vice President can’t do -John’s guide to the electoral college -Matthew’s 2024 risk assessment Learn more about your ad choices. Visit megaphone.fm/adchoices

Welcome to the Dispatch Podcast. I'm your host, Sarah Isgher, and I am joined by John Fortier from the American Enterprise Institute, where he is a senior fellow, and Matthew Seligman, a fellow at the Constitutional Law Center at Stanford Law School. And we are going to be talking Electoral Count Act, everything you ever wanted to know, the past, the future, the present, all of it, the different versions that have now passed, the House and the Senate, where they are stronger, weaker, what's likely to come out. But first, we're going to start with how we got here. Let's dig right in. John, very basics. Why does the Electoral Count Act happen in the first place? Well, they're a complicated set of actors in the Constitution. in resolving our presidential elections. Some people would call it the electoral college process. We have voting in the states. We have resolution of elections.

We have these people called presidential electors. They vote in December. And then Congress comes in January 6th and counts the votes. And some of that is laid out in the Constitution in a very general and not always particularly clear way. And over the years, we've had a... controversies at times. And if you didn't like the last election, the worst we've ever had is 1876. I think that that is one that really got us almost to the end of the process without a president.

And that had all sorts of troubles coming out of the Civil War, where there are essentially almost two governments in some southern states, appointing different states of electors, and this incredible clash. After that, although not right after that, it took them 11 years to debate and come up with what we call today the Electoral Count Act, a law was passed which tries to define the process, especially for the counting on January 6th. That implicates earlier things, like how the electors are originally appointed and who does that. But it lays out the process by which there could be objections to slates of electors, how they get counted, how we get to ultimately a president of the United States. And that's what's underlying the reform efforts that are going

forward. We're trying to think about ways to improve that act because it's not absolutely clear. It doesn't do everything everybody wants to do. We saw some problems in 2020, obviously. And we have House and Senate versions of bills that are trying to reform that act to try to make it better. All right, Matthew, let's dive into the weeds a little more. Why the Electoral Count Act come up in 2020 and what were the questions that people had? You know, I've talked about this on our other podcast, some might call it the flagship, advisory opinions. You know, one of the sentences in the Electoral Count Act by my count had, you know, over 200 words, 19 commas. I mean, even if you are a lawyer, that felt like legalese. And if you're not a lawyer, it was indecipherable.

That's right. And the vagueness and complexity of the existing Electoral Count Act is one of the huge problems that both the House and Senate versions of the reform bills go. a long way to addressing. And vagueness is not just, and ambiguity, it's not just a lawyer's problem. One of the serious issues that we saw in the run up to January 6th, and then on January 6th of 2021, was the way that these ambiguities and uncertainties in the law were exploited. And, you know, so there were people who were storming the Capitol under the false impression that the law permitted the vice president to change the outcome of the election. So this was a particularly stark example of the wages of vagueness in the law. Now, resolving vagueness in ambiguity is one of the most

important steps that this legislation will take, but it's not the only step. So the overall theme of what went wrong in the 2020 presidential election is attempts by political actors to overrule the results of the legitimate outcome of the presidential election in each state and then in the electoral college. We've had disputed presidential elections before. And for, you know, over a century now, the way those disputes typically get resolved is through courts. So, for example, in 2000, we had at the time what seemed like an extraordinarily heated disputed presidential election. And that went to the Supreme Court. And the Supreme Court rendered its decision. And then the next day, Vice President Al Gore conceded. He said he disagreed with the Supreme Court's

decision, but he respected it and he wished incoming President Bush the best of luck. Now, what people don't remember is that Vice President Gore was the sitting vice president. And so on January 6th of 2001, he presided over the count of electoral votes, including the disputed toward electors. But what's changed since then is that political actors are now willing in this age of polarization to take steps that haven't been taken in well over a century, if ever, in American history. So the existing Electoral Count Act, as we saw in 2020 and 2021, is catastrophically vulnerable to political manipulation of election results. And the reform legislation, both on the House and the Senate, takes enormous strides towards limiting the vulnerability to that kind of

political manipulation. All right. Well, let's dive in to some of these questions that the Electoral Count Act needed to resolve, John, one of which is a really fundamental one. Who decides if an election's contested? You've had at least some scholars say that Congress is the decider at that point. And you've had folks like former Judge Michael Ludig say, no, the courts should be the decider. Where do you think the Constitution comes out on that, first of all. Yeah, I think it's a good question because we do have this, these underlying constitutional provisions as well as the underlying current Electoral Count Act. And we have a lot of actors here. And I guess I do want to maybe focus on a couple of the, I can say simpler things,

but maybe even just more direct things that both of the bills do that are good, that does some good. And then the other issues are more complicated. But if you wanted to think about how the process really should work. The states have the strongest role in appointing their electors. And what that means today is that they pass laws for election codes and they have presidential elections where the people vote and they're resolved. And that's what leads to the appointment of electors. But to be clear, there is another way which states used to go and is in the constitution that state legislatures in the past sometimes have directly appointed. they were electors. They are elected people and not all the states had popular elections

in the 18th and 19th centuries. So that is there as a constitutional power. But, you know, I think for practical purposes, all states have passed election codes and we're looking to resolve those laws, resolve those elections under law, and then have a result, have the electorate cast their votes. And then there's the second period where there's a question of how they're counted and who counts them. That's another question. where essentially the Constitution is a little vague. It doesn't say who counts them. It just says there's a joint session of Congress

with the vice president and president of the Senate presiding and the votes are counted. I think the most sensible reading of all this is, you know, the states, again, through their laws, have the resolution of elections, and that if any sort of objection is made, I mean, it shouldn't be made almost ever, right? Counting is pretty simple if it's straightforward,

but if there is some problem with the elector's votes, it's really more in Congress's camp to make those objections than it is the vice president. Again, there has been argument over the years, but I think it just makes a lot more sense both from how Congress has acted over the years and how the institutions are structured, that that happens. Just briefly, the two things I think that both bills do

that we shouldn't lose that of because people want to fix every issue. And there are things that have come up. and one is how we can object to a place of electors. And right now, the electoral conduct has a very low threshold. The House of Representatives, one member, and the Senate one member can raise an objection. And what that means is the Congress then has to divide into the House and the Senate, for the joint session, divided into the House and the Senate.

They have to consider for a couple of hours. You could do that multiple times for multiple states. We saw that in 2020 in multiple ways. We had seen some of it earlier in the 2000. that both bills are raising the threshold significantly. They're not saying that Congress ultimately, if it really wanted to consider if a majority of each body wanted to consider objections, they couldn't,

but 20 or 30 percent, a third of the state, a third of the bodies is enough of a threshold to say, this is serious. So raising that threshold significantly. And then the second one is just clarifying, which I think is what's already true, is that the vice president really isn't there to make substantive decisions.

the vice president's there to reside. Again, if we had to have objections, which we really shouldn't accept the extreme circumstances, it should be Congress that actually resolves those and not some ruling of the vice president all by himself. But Matthew, again, let's step back a second. Just super first principles here. Constitutionally, separation of powers, federalism, sort of this very structural question. Set aside, the Electoral Count Act doesn't exist. You just have the Constitution. Who decides when there's a disagreement over who's won the presidency?

Is it the courts or is it Congress? So it depends. And that's a lawyer's answer, but unfortunately it's also the accurate one. You know, the number of legal actors here complicates the pictures. So John is absolutely correct that when we're talking about the role of the federal government and particularly of Congress and the vice president, the vice president has no substantive authority under the 12th Amendment to the Constitution to resolve any kind of substantive disputes. Just to be clear, as best I can tell under the Constitution, the Vice

President has no authority, period. We can stop it there. Right? The Vice President's job is to become president. That's it. Well, you know, the 12th Amendment adds one additional responsibility, which is to open the envelopes containing the electoral vote. You got me, Professor. She actually doesn't even really do himself. You know, so we should give the vice president his or her due. She's not just a warm body. She gets to open the envelope. Now, so John is absolutely correct that when you're talking about whatever authority,

the federal government, Congress and the vice president together have to resolve any disputes about the counting of electoral votes, that authority resides with Congress and not with the vice president. But there's another question as well, which is what types of disputes, if any, does Congress have the authority to resolve? And so this is a question of what we lawyers call the vertical separation of powers. It's federalism. It's the allocation of powers between the federal government and the states. And as John pointed out, the Constitution, Article 2 of the Constitution, Section 1, clause 3 is very clear that states have the authority to appoint electors. Now, there can be disputes about the outcome of popular elections in states, and we see this

every single election cycle, and there are ways to resolve those disputes. There's recounts, there are other administered processes, there is an increasing amount of litigation, and courts resolve those disputes. So what is Congress's role, if any, in stepping into that? And the answer is none. once the states and courts have resolved disputes about, you know, let's imagine again of Florida back in 2000 when it comes down to just a couple of hundred votes and, you know, it's a question of, you know, how many hanging tabs there were, is that the responsibility of Congress to resolve

that dispute or is that the responsibility of election administrators in Florida and courts resolving disputes about how the recount takes place and so on? Now, the answer, both as a matter of common sense and as a matter of constitutional law is not Congress there. So we election scholars think about this. The way we put it is that Congress shouldn't, quote, look behind the returns. Once Congress determines that, you know, the piece of paper in the envelope that they got from a state really is the legitimate certificate of the electors from that state, that's it. Congress has no authority to step behind that to inquire, as some members of Congress want to do, about whether there was voter fraud or whether there was voter suppression or

whether there were voting machines that were hacked. All of that is resolved by states and courts, not by Congress. And let me jump me because I agree with that broadly. And I think that connects to this idea of the Congress is counting, and that's usually a very simple thing to do. And what they're counting is the votes of the electorate, those people who met in December and cast their ballots. They're not really counting the votes of the American people. And just to contrast that, most people don't realize that. It doesn't come up very often, but for their own elections, for the House elections, the House of Representatives is actually

the final judge of its own elections. If it wanted to go behind the results and look in the states and count the ballots and bring them up there they can and sometimes have. And the same with the Senate, the judge of its own elections. Constitution lays it out differently for the presidential election. But the difficulty is the types of issues that you can imagine coming up have come up before. A new state came in. Were they actually a state by the date that we have the election or does that count or not? In 1969, they had some question about the electors or whether the so-called faithless electors,

There's people voting for the candidate you wouldn't expect or they were bound to voted the other way. Is that legitimate? That's probably a question about those electors votes. But the tricky part is in the worst election, the one of 1876 and a little bit in 1872, we saw some cases where the states had conflict within themselves and ended up sending a couple of slates of electors. And there, I mean, arguably, if you're the one counting, you have to say, well, which one do I count? and it invites Congress a bit to start to go behind the results. And I think the goal of both of these bills,

and I'm not sure they've accomplished it perfectly, and I think I'm probably a little bit more of a minimalist on what they should do, but I think the goal is to sort of clarify, well, there's really only one slate, or this is the right slate, and this is the one we count. But there is that possibility that Congress has a little bit more to look at because of state actors that they're determining which is the right one, and that gets them into other questions.

Again, I think we should try to limit that, but I'm not sure we can 100% limit that, but I think it's a good thing that we attempt to do that. Matthew, what you're describing, and I think John laid it out nicely, is a pretty ministerial role for Congress. Like, we don't really need Congress to do that. You and I could do that, and it would have the same effect. Like, we open envelopes and we announce what we see in the envelopes, basically. And I guess for me, if you buy into this theory that,

each branch has a separate duty to uphold their constitutional oath to defend and support the Constitution, then Congress separately from the judiciary has a responsibility and everything that they do. I'm not saying they do a great job upholding it all the time, and their approval number pretty much bears that out as far as the rest of America, although maybe the rest of America has a different beef than I specifically do. But let me paint a very, very cynical picture of 2024. Republicans win a bunch of Secretary of State positions in vital states in 2022. Come 2024, those secretaries of state ignore their state constitutions and just pick the Republican to win despite the popular vote. So it's not election fraud so much as just here is the

single slate of electors. It's signed by the Republican governor, done by the Republican Secretary of State, who simply announces that as the winner. And, it goes to the courts and it's, there's like procedural problem, sort of like in 2020, right? The Supreme Court declines to take it as a matter of original jurisdiction. There's like, you know, flailing about going on around standing, et cetera. And it gets to Congress. I find this to be a really troubling scenario. Because in this scenario, we all know that the elector slate is not the reflection of the vote in the state, which is what is required by the state constitution, per John. They could have written a different constitution and just picked their electors how they

wanted, but no state has that right now. In 2020, obviously, Republicans didn't, many Republicans, didn't want to certify the results of the election, and we all were up in arms about that. In 2024, these could be illegitimate slates of electors, and Democrats could be the ones refusing to certify the results of the election. Under your very ministerial view, they would be wrong not to certify the results of the election. Like, why, if it is only ministerial, if it is up to the states and the courts to resolve, why would we even care about them certifying the results of the election

because there'd never be a reason not to certify the results of the election? Well, I think the answer to your question is that both the House and the Senate versions of this reform legislation directly address that concern, at least with respect to governors. And so this is a problem that I've called in my scholarship. the governor's gambit, the concern that a rogue governor, and so there are two candidates right now in swing states that are explicitly running on the platform

that they would not have certified the 2020 election. That's Mastriano in Pennsylvania and Kerry Lake in Arizona. And so, you know, the polling data is disturbingly close. So what if Kerry Lake in Arizona wins and Joe Biden or some other Democrat wins the, you know, lawful legitimate election in Arizona in 2024, and Kerry Lake says, I don't care, you know, fake news, tons of voter fraud, et cetera, et cetera. You know, we know what the playbook is going to be. So under the existing Electoral Count Act, the governor's certification of the electors

carries an enormous amount of legal weight. And so that's a problem because that's one of the principal vulnerabilities in the existing Electoral Count Act. And both versions of the reform legislation address that. What they do is they say the governor's certification is subject to judicial review in a federal court. So the agreed candidate can sue and say, hey, federal court, Carrie Lake went rogue and she ignored all of the lawful results of the election in Pennsylvania, and she just sent in her own preferred certificate. In both versions of the bills, they differ a little bit in details, but both versions say the federal court can order Carrie Lake to send in the right certificate in both bills.

say that Congress can count those electors and only those electors that the federal court blessed. So that goes an enormously long way to resolving exactly the type of election subversion at a state level that you're concerned about. Now, the Electoral Count Reform Act and the House version as well, don't go beyond the government. And so if there is election subversion, and one of the things that's frightening about what we're seeing is, It's not just governors. It's, as you mentioned, state secretaries of state. It is county board of elections.

It goes down to individual election workers. So does this legislation solve that problem? Not all of it. No, it does. And I don't think it could. Now, there are other legal protections there. So if the state secretary of state just tosses out the electoral votes, I think that would violate the equal protection clause,

just as we saw in Bush v. Gore. So there are legal protections there. Now, those legal protection threats with courts, which is the right institutional actor to protect the integrity of elections, because whatever your political affiliation is, partisans, politicians are not the people who should be judging the results of elections. They're hopelessly conflicted. And so the right way to do this is to put courts in charge of resolving those disputes. So whatever you, you know, if you want to put, um, Democrats in charge of trying to prevent, you know, secretaries of state or local election board members from trying to, you know, subvert elections, well, you also have to imagine that you're giving the exact same authority to Kevin Park. And if you think that's a bad idea, then what you think is you think it's bad for politicians in Congress to be judging these results. So yes, there has to be more legal protections. And those legal protections have to be with court. The problem, just really

quickly is, and this is at the same time that courts are increasingly being seen as partisan actors, as that institutional credibility deteriorates. I mean, that's a dangerous combination. I agree with everything you say. Yeah, I, of course, understand that concern, especially now, you know, the Supreme Court last term, you know, issued some really controversial, I'll say, opinions. and that's likely to continue going forward in the future. And that's, you know, maybe particularly a problem because the Supreme Court is more conservative than the median voter in the United States right now. But I think it's also relevant.

It's the worst best option. The best worst option? I always messed up. It is the least bad option. Yes. You know, as Churchill said, you know, it's the worst form of government except for all the others. And the best proof of that is exactly what happened in 2020. The courts got every single case right in 2020, and it wasn't close.

So, yes, I am concerned about the politicization of the courts and the federal courts, but it's just not nearly as bad as putting this authority with Congress. So I guess I'm going to disagree a little bit. I think that the court, look, I think the process, we all know how the process should go. And with states having election codes, the process is typically going to go, with the resolution through the administrative, an executive process, secretary of state, locals, and then ultimately perhaps recounts

and judicial challenges of those results. You know, I think what we're also then talking about is perhaps the courts are demanding that actors, governors, for example, appoint certain states of electors, or the legislature stepped down. And, you know, there I think we're potentially giving courts a dangerous power. I don't think there's an easy answer to this,

But here we have worries about rogue actors of state legislatures or of governors or secretaries of state or other actors. Well, you know, there are worries about rogue courts. And I think Republicans don't have to remember too long ago in 2000 where they worried about that. They worried that essentially the state courts in Florida were changing the law. If the law was put in place and everybody else is supposed to respect it, then a state court coming in and saying, well, these deadlines don't matter. we're crafting a new recount process, we're creating new causes of action,

we're going forward. The worry there was that a court would by itself sort of distort the law that was in place before. And so I think it's a difficult thing. And at the end of the day, I also think there's a question of whether, and the Senate bill doesn't really do this as much, the House bill sort of hints at it,

that courts could, for example, tell Congress exactly how to count according to the electoral count, it could force them to do what was said in the law. There's a lot of reason to believe that Congress itself is the decider of its own rules could change things. Even today, the Electoral Count Act, it's a law in place, but every four years, Congress comes into being and creates a joint resolution that says, okay, we're going to follow that law. It kind of agrees to it each time because of this question of, you know, can a court really

enforce it upon them? So I don't have a problem with courts being involved pretty strongly, but I do think at the end of the day, there are these other actors, and I think there would be some constitutional questions for a court, you know, demanding that Congress count this way, and perhaps even some question of whether other actors couldn't come in if courts were really rogue. I don't encourage that, but, you know, I think our system is not one that's so easily locked down by saying, well, the courts will be the final decider on these things. So, John, for you, this is not a ministerial act, there is a world in which Congress can choose not to certify results that, regardless of what a court says, just to reiterate. Well, I mean, again, if the new laws are going to say, this is the slate of electors, what the act essentially does is say, we're Congress, we get to count, and we're going to tell future Congresses how to count two, and they're going to have to follow these rules. and courts will actually enforce them so strongly. I mean, arguably, that's a sort of change to the Constitution, right? The Constitution, I think, gives, you know, doesn't encourage, but it certainly gives a power for Congress to count the votes.

And if today's Congress is going to decide all the little avenues and directions that those future counts have to have, our separation of powers doesn't usually allow that. Our Congress doesn't allow, even in bills that it tries to limit itself, like the budget process, it has the right to change its rules. And so, again, I don't encourage that. I don't think we should get to the end of the day where we're going to have this constitutional crisis. But if you want to think that there's a rogue actor out there, the rogue actor could be the courts as well. And I think when you get to Congress, I mean, it would have to be the

biggest debate in the world where one, like in 1876, where one house is controlled by one party, the other house is controlled by the other party. And there is some fundamental sense that, that some is wrong and have been put in place, I think it's going to be hard to imagine that the Congress is just going to say, well, this law says these three things about exactly how we count the votes. I think it's a more fundamental question about that Congress might have to get into it at the end of the day. So I think that's the interesting part for me. You can pass all the laws you want, but if the Constitution has an inherent structure,

then the only way to change that is by constitutional amendment. And yes, maybe it's silly to talk about all these hypothetical. but why pass a law for the normal course? We're passing a law because of the non-normal course of events. We're trying to manage all the hypotheticals we can think of. So let's get to these bills, Matthew. John laid out some of what's in the House version and the Senate version. I'm curious if you have a favorite one that you think is stronger

or just one that you prefer, maybe it's not stronger necessarily, and if you'll lay out what you like and what you don't. Well, so I think the most important point here is to emphasize the core similarities between the two bills. The underlying principles and indeed their structure, some of their terminology, are coming from the same place and they're motivated by the same ideas. So there are important and meaningful differences between the two bills. And, you know, John mentioned some of them and we'll talk about some more. But I think the important thing to recognize here is that they really tried to do the same thing with, which, you know, with respect to John, I think, is they try to implement my idea of how to do things,

which is to put courts in the final decision-making authority and try to bind both state officials and Congress to respect the resolution of disputes that courts make. Now, there are, as John mentioned, some deep constitutional questions that that raises about how Congress can bind itself, but, you know, that's at least what the legislation is trying to do. So one, you know, I'm a bit of a dissenter from John on the, one of the headlines he said, what he said, one of the most important aspects of this legislation and one of the most important differences is raising the de-objection threshold. So right now, it's just one member of the House and one member of the Senate has to sign onto an objection to trigger debate. The Senate version

of the bill raises it to 20 percent, and the House raises it even more. It's 33. And I think it's good to raise the objection threshold. I also think the distinction between the two bills is absolutely nothing. It doesn't matter at all. And here's why. The only thing that this does is it raises the threshold for triggering debate. It will never, literally never make a different to the outcome. Because the only time it's that to make a difference between these two thresholds

is when 25% of both chambers signs onto an objection. What's going to happen if 25, but not 33% happens? Well, then you have two hours of debate and the objection goes down. Now, you know, the debate about, you know, spurious objections can be bad. It's on January 6th of 2021 that, you know, the existence of the debate, that alone can cultivate the misimpression among the public that there's really an open question about the resolution of the presidential election. So yes, we should raise the threshold, but the different threshold I don't think really matters

that much. What does matter is providing for ways to try to prevent political manipulation by trying to make more clear, for example, that Congress can object only on certain ground. And here, the House bill is stronger than the Senate bill because it goes further in enumerating exactly what the valid grounds for objection are. Now, the House and Senate bills have actually gotten closer on this issue this week because the markup and the Rules Committee in the Senate add a little bit of clarity that Congress can't, you know, isn't supposed to reject electors when they've been being conclusive by a court. Now, as John will point out, well, you know, Congress can ignore that and, you know, so they might. But having a law that says that you're

supposed to do that and then having members of Congress stand up and say, we are openly going to violate the law, well, I think that puts them in a much more difficult position if they have to be openly lawless as opposed to simply hide in the ambiguities of the existing law. So I'll defend my liking the threshold a bit. And maybe, you know, just to step back, you know, the 1870, 1887 law, the Electoral Account Act, we actually had a very good run for a long time. We didn't have an objection raised until 1969. And I think those were probably legitimate enough elections to have objections to consider. It really wasn't until 2000 that we started to get more people objecting

that the underlying election went the wrong way. And so I think that this law, if nothing else, might do something to just restore some norms or to make it harder to do things that we shouldn't be doing. And so, you know, objecting whether people think it's just a political act or a way of expressing your strong opposition to the other candidate winning, it's become a regular thing. And so having some thresholds, you're right, people could still object and we wouldn't get

to the division of the two houses. It doesn't matter to me how high it is, but I think raising it is both a good symbol and also make this happen a little less likely. You know, again, I think the vice president's role, that's something that we can put on the books, and that's not insignificant, given the last election where that argument was made very strongly by, obviously, a presidential president and presidential candidate. So, you know, I think that's something that both parties putting them on notice, that is a good thing. You know, at the end of the day, I do think the House bill is often more convoluted and sometimes

gets into things in a very specific way that I worry about. And one issue that both try to attack is this idea of a delayed election. And look, I sympathize with trying to deal with this issue, but I think it's very hard to put all of the ways in which this would play out into a law. And the Senate bill is much more general about it, and the House bill tries to put some very, very specific conditions on how this would be done

and how a court would run this. Again, I think we're probably, you complain about the current act, having all these clauses and long phrases and what does it mean? I think clarity and sometimes helped by simplicity. And so I think there's a way in which that is the case. And then I guess the other thing is to the extent that we can sort of identify the politics

of these bills, I think the Senate bill is going to have more Republican support, certainly across the board, partly because it's simpler, partly because it has, some have noted the members of the House and Republicans that are pretty much going out the door. they're not going to be around the next Congress. I think it's useful to think that. And there probably are a few things in the House bill that poke fingers in the eye of Donald Trump and support it. Like the whereas is at the beginning to describe why we're doing this, as well as just there's a point of objection you can make that the candidate is not eligible.

And one of the eligibility requirements is that they've been banned from running for office because they've participated in an insurrection. Well, I mean, if you think Congress can do what it wants, they probably could bring that up anyway, but just to bring that up, I think for many Republicans probably it felt like sticking the figure in the eye a little too much. So, you know, I think for that reason, you know, they both get the two key things done. They both encourage a lot of good behavior. And I don't mind that you lay out details that maybe at the end aren't totally enforceable. But I think in terms of politics and getting it done, the Senate bill is a much more

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and your more structural argument about the role of states and federal courts and maybe Congress having a more ministerial role, does it matter what the law, if the law exists at all or if the law passes, if you can make that more structural argument, i.e., have the doomsdayers just not talk to Matthew that none of this matters? Well, no, I'm a bit more of an optimist than that, but I do recognize the limits of law. At a certain point, if Congress, you know, both chambers of Congress vote and they say, we don't care what the courts have said, you know, come Supreme Court and enforce your order. Well, at that point, we're beyond the limits of law. At that point, we're in the realm of transitional justice and revolution. And no written law could ever, ever enforce

itself. Not quite. But what written law can do is it can make it more difficult for bad faith actors to manipulate the law itself. And that's, I think, one of the great lessons of 2020 and January 6th. What I don't think anybody really thought that there was going to be a successful violent attack on the Capitol building, and that itself was going to prevent the peaceful transfer of power. When there are military coups, there are tanks. The way that the manipulation of the result was supposed to be executed, the way the plot was supposed to unfold, is to operate through the law, to manipulate the law, to reverse the legitimate results of the election. That there is at least at this point in American political history, a fidelity to following at least crystal clear instructions of the law.

And so if we can make it so we're never going to be able to have a law that enforces itself, nor are we ever going to be able to eliminate every single loophole. there is an original law. But if we can make the law not so full of loopholes, then we can make it for bad faith actors, make it so much harder for them to manipulate the law and to say to the American people, ah, this is the lawful result. It was never supposed to be a violent coup. It was supposed to be closed in the legitimacy of the law. And that's why changing this law matters. On the timing of when, you know, this might pass. I mean, I think people should be hopeful. We've got two vehicles that have some similarities and I think probably there's a little more sense that something like the Senate bill could have broader support might be able to get done. You know, in a funny way, though, to make the argument that you couldn't wait to the next Congress, I worry about that argument a bit because we want this to be something that's passed with at least a decent amount of support on both sides.

If it's passed with mostly Democrats and a few reluctant Republicans quickly, that's not a good look. right? This is a law that arguably we should have both parties buying into. And so can we get that done? I think in the Senate, you could probably have that type of vote and it could get done more quickly. Would it absolutely die if it went to the next Congress? I'm not so sure. I don't know. But if, you know, arguably, if it were to pass with one of the Republican houses, that, you know, that would be a great thing. But so I'm not saying that there's a deadline by which we have to do it. But I do think that doing it in a way that has more buy-in from both parties, whichever way that is, is going to be much more beneficial to just the working of that law going forward. Well, so I'm going to budget dissent here, at least in part.

So I think there's no question. I mean, so we know right now that the Senate version of the bill will clear the filibuster and which, you know, there seems to be a little bit of a stampede among Republicans right now. We may clear 80 votes in the Senate on this. The concern politically for waiting for the next Congress is if Republicans take the House. I have no doubt that the Electoral Count Reform Act, the Senate version, would clear the filibuster in 2023 as well. But if Kevin McCarthy is Speaker of the House, I think there are profound doubts about whether he would even bring it to the floor. So, you know, the concern

here is not, I completely agree with you that bipartisan buy-in to a law of this nature that requires a certain amount of bipartisan cooperation in Congress just to make it work. I think that's really, really important, but the political concern is about the Republican House, that they won't pass it and that they might not follow it in the future. So I do think we can rely on reasonable Republicans in the Senate to vote for this bill now, vote for this bill later, and then to abide by it in the future. I'm not so sure about, you know, Republicans in a gerrymandered house. Okay. Last question. I'm granting you each a magic wand. You get one, but only one thing in Congress. And I don't mean like a bill with a bunch of pieces in it.

One. It doesn't have to be this, by the way. We'll assume this passes. But you're both election democracy experts in this country. Set aside the electoral count act issues. What is the one other thing that you would fix with your magic wand that you think isn't getting enough attention right now or has been hanging out for too long?

John, I'll start with you. So, you know, to change your... question a bit. I don't know why I have to do a federal law. I guess I'm interested in this issue more at the state level. It could have some federal backing, but I think it would be better if we're done more of the state. Look, I think the issue of voter registration, which has different parts, both in terms of the comprehensiveness of the list, as well as the accuracy, and that is something, probably the type of reform in our running of elections that would have the most effect, and it's more behind the scenes. And I think if we move forward in a direction,

a lot of states have moved forward, but just continue to do that and put more resources and more thought to that. I think that's something that people don't think about as much, and we should. Matthew. The issues we've been talking about today are the gravest threat to American presidential democracy. The gravest threat to American legislative democracy is partisan gerrymandering, and that exists in the House of Representatives, and it exists to an even greater degree in state legislatures. And this is a serious problem that, unfortunately, it looks like the courts, or at least the federal courts, are not going to step in. And there are concerns about whether state courts are going to be able to step in as a matter of constitutional law.

But there's no question, I think, that Congress could step in and prevent at least some versions of partisan gerrymandering. And, you know, the idea of proportional representation where the party that gets, you know, the most votes gets the most power, that is the core tenet to democracy. Of course, we have counter-majoritarian institutions like the courts that I've been emphasizing today. But the core idea that the legislature is supposed to represent the people in rough proportion to how they voted is the fundamental idea of democracy. And if we don't have that, then we are at risk of going down a road of entrenched permanent minority rule. I love both of those answers. I think mine is just the other side of Matthews' coin, which is nonpartisan primaries and ending parties, in theory, running their own primaries, which they haven't.

Legally, we said they couldn't run their own primaries. They're considered state actors. Let's make it state actors. Let's end partisan primaries. I think it takes care of the partisan gerrymandering in a different way, potentially, because it would change the behavior of the people running and then change their behavior once they're in office. But I love all these ideas.

We could do a whole other podcast of just fun, democracy-saving ideas that aren't going to happen anytime particularly soon. Thank you, Matthew Seligman, fellow at the Constitutional Law Center at Stanford Law School, and John Fortier. at Senior Fellow at the American Enterprise Institute. It's been a treat. Thank you. Thanks for having you.

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