Matthew Seligman for Slate.
Category Archives: electoral college
John Eastman, in National Review Interview, Tries to Distance Himself from His Own Memo Suggesting How VP Pence Could Steal the Election for Trump, Repudiates Its Major Points
Signs that Eastman is getting increasingly desperate to distance himself from his false claims that the election was stolen from Trump and that VP Pence could unilaterally steal it back for him when Congress was supposed to confirm the Electoral College votes:
When Eastman spoke that day, he echoed Giuliani’s claims regarding the conspiracy theory that voting machines had fraudulently changed the vote tallies in Georgia. “We now know, because we caught it live last time in real time, how the machines contributed to that fraud,” Eastman said of the Georgia Senate and 2020 presidential-election results. “They put those ballots in a secret folder in the machines, sitting there waiting until they know how many they need.”
As for the electoral-vote tally at the Capitol, Eastman made the case that “all we are demanding of Vice President Pence is this afternoon at one o’clock he let the legislatures of the states look into this so that we get to the bottom of it and the American people know whether we have control of the direction of our government or not! We no longer live in a self-governing republic if we can’t get the answer to this question!”
But Eastman now tells National Review in an interview that the first of the two strategies Giuliani highlighted on stage — having Pence reject electoral votes — was not “viable” and would have been “crazy” to pursue.
What makes that admission remarkable is that Eastman was the author of the now-infamous legal memo making the case that Pence had that very power — that the vice president was the “ultimate arbiter” of deciding whether to count Electoral College votes….
Eastman says he disagrees with some major points in the two-page memo. That version says that Trump would be reelected if Pence invalidated enough electoral votes to send the election to the House of Representatives: “Republicans currently control 26 of the state delegations, the bare majority needed to win that vote. President Trump is reelected there as well.”
Eastman’s final six-page memo says Trump would be reelected by the House “IF the Republicans in the State Delegations stand firm.” But Eastman says he told Trump at the January 4 meeting in the White House: “Look, I don’t think they would hold firm on this.” (There were actually 27 delegations under GOP control, but Liz Cheney is the sole representative for Wyoming, Wisconsin’s decisive vote would have been Mike Gallagher, and both Cheney and Gallagher strongly opposed overturning the results of the election.)
“So anybody who thinks that that’s a viable strategy is crazy,” Eastman tells National Review.
When it comes to the legal argument that the vice president is the only person with authority to count the electoral votes, Eastman says: “This is where I disagree. I don’t think that’s true.”
“It’s certainly not been definitively resolved one way or the other,” he adds. “There’s historical foundation for the argument that the vice president is the final say and the argument that he is not. I think the argument that he is the final say is the weaker argument.”
Eastman says that weaker argument “doesn’t make a whole lot of sense given that we know the vice president is very likely to be one of the contenders for the office that he’ll be deciding.”
“The memo was not being provided to Trump or Pence as my advice,” he insists. “The memo was designed to outline every single possible scenario that had been floated, so that we could talk about it.”…
In other words, a plain reading of both versions of the memo would lead the reader to conclude that Pence had the power to take any of the options outlined in them.
When I pointed out that both memos said it’s a “fact” that Pence is the “ultimate arbiter” and “we should take all our actions with that in mind,” Eastman at first incorrectly claimed he’d only written that in the two-page “preliminary” memo.
“No, that’s the preliminary memo,” Eastman replied. “I don’t think that’s the strongest legal argument or scenario. So that was just the first piece that I’d been asked to look at and put together how that would work if that condition was true. And it was that condition that I specifically told them I thought was the weaker argument, which is why I’m going to give you a more complete assessment of all the various scenarios.”
After I pointed Eastman to identical language near the end of the six-page memo, he argued that he did not mean it was a fact that Pence was the ultimate arbiter of which electoral votes to count. He meant only that Pence was the ultimate arbiter of which ballots to open in a contested election, while he believes that Congress “most likely” makes the final substantive decision.
Readers can read the final memo for themselves, but that seems like a very odd interpretation of a memo that concludes: “The fact is that the Constitution assigns this power to the Vice President as the ultimate arbiter. We should take all of our actions with that in mind.”
Section 3 of the Fourteenth Amendment and January 6, 2025: the need for legislation now
All the current talk of Donald Trump running again in 2024 assumes that he’s eligible to serve as president if reelected. He’s not, or at least there’s a strong argument that he isn’t.
In fairness to America’s voters, this argument ought to be resolved conclusively in court long before voters cast their ballots in 2024—and not on January 6, 2025, when Congress next meets to count electoral votes.
Section 3 of the Fourteenth Amendment explicitly bars from the presidency, as well as any other “office, civil or military, under the United States” anyone who “having previously taken an oath … as an officer of the United States … to support the Constitution of the United States, shall have engaged in insurrection … against the same.” Given all that we now know about Trump’s role in fomenting the insurrection at the Capitol this past January 6, including the extent to which he was pushing Vice President Pence to act upon the Eastman memo—and urging the crowd on January 6 to pressure Pence to repudiate the constitutionally proper electoral votes cast for Joe Biden—there’s already a powerful case to be made that Trump “engaged in insurrection” within the meaning of this constitutional clause, thereby making Trump ineligible to be inaugurated again as president on January 20, 2025. This ineligibility argument may grow even stronger after the House select committee completes its ongoing investigation.
Continue reading Section 3 of the Fourteenth Amendment and January 6, 2025: the need for legislation now“John Eastman’s Big Lie”
George Thomas at The Constitutionalist:
John Eastman was the architect of former President Trump’s plan to get his Vice President to declare him the winner of the 2020 election. The scheme turned on Eastman’s insistence that in seven states there were “dual slates of electors.” But that’s a lie. There were no competing slates of electors in these seven states or in any others. All of the states certified their electoral votes by December 8 and the Electoral College cast those votes on December 14, making clear that Joe Biden defeated President Trump by 306 to 232 electoral votes. Yet Eastman argued that when Congress met on January 6 to count the Electoral College votes, Vice President Pence could discard the certified electoral votes of seven states.
All Pence had to do was act and Trump would remain president. And Eastman argued for Pence’s constitutional authority to act in a six-page memo. Indeed, Eastman’s memo practically screams at Pence to act. You can almost see the spittle coming from Eastman’s mouth as he works himself into a frenzy and channels Trump: “this election was Stolen.” Yet now, the Claremont Institute, the think tank where Eastman is a fellow after ignominiously stepping down as a law professor at Chapman University, is walking back his argument. In a public statement, the institute said Eastman was only offering Pence “legal advice.” Right.
Read the memo.
Eastman begins by arguing that actions in seven states were “illegal” despite the fact that the states certified their electoral votes. He then claims, because these actions were “illegal” in his analysis, that “There are thus dual slates of electors from 7 states.” These supposedly illegal actions were challenged in state and federal courts. A jurist appointed by President Trump, Judge Stephanos Bibas, captured all of this perfectly in a case dismissing Trump’s claims against Pennsylvania: “Free, fair elections are the lifeblood of our democracy. Charges of unfairness are serious. But calling an election unfair does not make it so. Charges require specific allegations and then proof. We have neither here.” But even if you think Judge Bibas and scores of other jurists were wrong, as Eastman does, no state had submitted a “dual slate of electors.”
This is key. It’s Eastman’s Big Lie. And this Big Lie is the predicate for allowing Vice President Pence to resolve disputed electoral ballots in favor of President Trump. The insistence on dual slates of electors is what gives the Vice President the constitutional authority under the 12th Amendment to set these state certified electoral votes aside. As Eastman argues, there’s “solid legal authority” and “historical precedent” that the Vice President not only counts the votes but resolves any disputed electoral votes. What’s more, Eastman insists, “all the members of Congress can do is watch.”
Break this down. There are no “disputed electoral votes.” None. Eastman has made this up out of whole cloth. And continues to do so. Nor is there legal authority or historical precedent that gives the Vice President the power to resolve disputed electoral votes. But we only get to this question if there are disputed electoral votes. So let me say it again: There are not! Yet Eastman leaps ahead and gives the Vice President the constitutional authority to make the decision no matter what members of Congress happen to think. …
Latest statement on Eastman still relies on the unilateral power of the Vice President to ignore the Electoral Count Act
It seems the Eastman controversy will never end…. But one should not bury the lede: this theory, too, relies on unilateral vice presidential power to ignore the Electoral Count Act.
Setting aside any narrative issues about what Eastman did or did not advocate, I want to pick apart just one item from the Claremont statement (although one could pick apart more).
It’s this line: “John advised the Vice President to accede to requests from state legislators to pause the proceedings of the Joint Session of Congress for 7 to 10 days, to give time to the state legislatures to assess whether the acknowledged illegal conduct by their state election officials had affected the results of the election.”
There are several problems:
(1) the ECA (if one agrees with its constitutionality) does not authorize the Vice President to “accede” to anything (the same language in Eastman’s recent defense), because Congress votes on all objections;
(2) state legislators may not file objections (or “requests”), because the only objections to be considered are those from a member of the House and a member of the Senate, who have done so in writing under the ECA;*
(3) objections must be resolved after two hours’ debate; and
(4) recesses may only occur pursuant to Section 16, no longer than beyond one day, and no recesses may occur five days after counting begins.
It is worth looking back at how Eastman articulated this scenario in his longer memo:
VP Pence determines that the ongoing election challenges must conclude before ballots can be counted, and adjourns the joint session of Congress, determining that the time restrictions in the Electoral County [sic] Act are contrary to his authority under the 12th Amendment and therefore void. Taking the cue, state legislatures convene, order a comprehensive audit/investigation of the election returns in their states, and then determine whether the slate of electors initially certified is valid, or whether the alternative slate of electors should be certified by the legislature, exercise authority it has directly from Article II and also from 3 U.S.C. § 2, which provides:
“His authority,” to emphasize, is the vice president’s.
There is much more to pick apart in this very short piece. But this process only works if the Vice President ignores the ECA–a process, as I’ve written here, not within the vice presidential power, but within Congress’s power. And it sounds like Congress is looking for ways to limit the role of the Vice President in the future.
*Relatedly, while Senator Ted Cruz purported to “object” to counting to Arizona’s electoral votes for a “10-day audit.” As I pointed out then, Cruz never drafted a statute to allow for such a mechanism, and the objection he filed simply objected to counting Arizona’s votes with no qualification of delay.
Greg Sargent and Paul Blumenthal Report on Momentum Among Democrats to Reform the Electoral Count Act, and Uncertainty If Republicans Will Come Along
Greg Sargent in WaPo and Paul Blumenthal in HuffPo.
On Luttig on Eastman and the Electoral Count Act
Michael Luttig, a former federal judge, offers this thread that Rick helpfully links to. Luttig claims he advised that “the VP himself could [not] decide that the Electoral Count Act of 1887 is unconstitutional and accordingly submit the 2020 Presidential Election for decision only to the House of Representatives, instead of to both Houses of Congress, as provided in the Electoral Count Act”; and, furthermore, “I believe(d) the Supreme Court would have decided each of these issues had they been presented to the Court, which they undoubtedly would have been had the VP proceeded as outlined in the January 2 memorandum.”
There’s a legal gap in here that’s not obvious from the thread: does Luttig believe that the Electoral Count Act is constitutional? That is, does Congress have the power to count electoral votes?
In the Wall Street Journal in March, Luttig rejects the constitutionality of the Electoral Count Act. “No constitutional provision empowers Congress to resolve disputes over the validity of a state’s electoral slate—or for that matter addresses who is to resolve these disputes,” he writes. “Whether electors are validly chosen is a quintessentially legal determination, not a political one. When state legislatures select presidential electors, they exercise power vested in them by the U.S. Constitution, not by state law. As the power to say what federal law is rests with the federal judiciary, it is the federal courts that have the authority and the responsibility to resolve these disputes.” (I think that’s inaccurate as a matter of the original public understanding of the Twelfth Amendment, as I briefly lay out in my rebuttal to Eastman’s memo.)
In other words, Luttig and Eastman agree that the ECA is unconstitutional. But Luttig rejects the notion that the President of the Senate can “himself” reject its constitutionality. Instead, the matter should be sent to a federal court (including to determine the constitutionality of the ECA). Where Eastman sees Congress lacking authority and power residing in the President of the Senate, Luttig sees Congress lacking authority and power residing in the federal courts. (And had the question been kicked to the federal courts, presumably Luttig believes that the Supreme Court should have concluded that the ECA was unconstitutional.)
For my part, I think they’re both wrong, and the ECA is constitutional. And I do hope Congress will shore it up ahead of the 2024 election.
John Eastman Gives CNN Longer Six-Page Memo on How He Hoped to Help Mike Pence Steal the Election for Trump
You can find the memo here.
I think it makes Eastman look even worse.
MORE from Jonathan Adler:
UPDATE: John Eastman has told CNN that the above-cited memo was merely a preliminary outline, and has provided CNN’s Jeremy Herb with a longer, six-page memo, dated January 3, which outlines several potential electoral count scenarios. I am not sure this longer memo makes Eastman look any better.
Like the shorter memo, the longer memo relies on the false claim that there were “dual slates of electors” transmitted to the Senate, adopts an expansive (and unjustified) interpretation of the Vice President’s authority under the Twelfth Amendment, and urged Vice President Pence to unilaterally disregard the Electoral Count Act and reject slates of electors certified and transmitted by seven states on the grounds that such a move would avert a “constitutional crisis.”
Initial Reaction to Eastman Memo
My first thought on reading the Eastman memo revealed yesterday was that it could wait until I do the relevant work for a planned second edition of Ballot Battles before I reflect on it in earnest. But in light of some discussion that I’ve seen on Twitter, it might be helpful to share these preliminary thoughts:
Setting aside the fundamental fact that the memo outlines a strategy to overturn enough valid electoral votes to keep Trump in power for a second term that he did not lawfully win (and therefore appropriately can be considered as a kind of coup attempt–with all the moral depravity that a purely despotic power grab of that nature entails), on its own terms the memo does not address the countermoves that would have caused its strategy to end in failure. (My analysis of this point derives from my Loyola Law Review article, Preparing for a Disputed Presidential Election: An Exercise in Election Risk Assessment and Management, as well as the follow-up Atlantic essay co-authored with Larry Diamond.)
Had Pence done any of what Eastman’s memo suggested, the plot would not have prevailed because the House of Representatives under Speaker Pelosi’s leadership would have caused the Twelfth Amendment’s joint session to come to a halt incomplete. Given Majority Leader McConnell’s acceptance of President-elect Biden’s victory, which he acknowledged in his speech on December 15, the day after the electoral college vote, it’s highly likely that the Senate under McConnell’s leadership would have joined the House under Pelosi’s in opposing any move by Pence to announce entirely on his own, based on his own manipulation of the process contrary to the procedures of the Electoral Count Act, that the Trump-Pence ticket was reelected. But the key point for Twelfth and Twentieth Amendment purposes is that the House under Pelosi’s leadership could have caused this halt in the joint session’s procedures even without the Senate’s participation. After all, it takes both chambers to conduct the joint session, and thus if the House shuts it down (even potentially kicking the Senate out of its own chamber), the joint session can’t proceed to completion to identify whether any candidate has won an electoral college majority. Likewise, if the process has broken down with the inability to identify whether any candidate has an electoral college majority, then there is no predicate for the backup “contingent election” procedure in the House (in which each state’s delegation gets a single vote).
With a stalled and incomplete count because of a standoff between Pence and Pelosi, the Twentieth Amendment becomes the relevant constitutional provision (not discussed in Eastman’s two-page memo, but the relevant part of the analysis in my Loyola Law Review article and the Atlantic essay). From the House and Pelosi’s perspective, because the counting of electoral votes remains incomplete, if that condition continues all the way through until noon on January 20, then Pelosi is in a position to assume the role of Acting President (and entitled immediately to receive the nuclear football, with its launch codes). Pence might take the alternative view, that he’s “gavel[ed] President Trump as reelected,” but then it becomes a question of whom the Pentagon recognizes as Commander-in-Chief: Pelosi as Acting President under the Twentieth Amendment, or Trump based on Pence’s asserted claim that the electoral count has been completed over the House’s objection and non-participation. Based on all we know about General Milley, from both before January 6 occurred and especially with all that has come to light since, in the context of this Pence-Pelosi standoff, Pelosi was going to be the one to prevail as consistent with the Constitution.
Moreover, once noon has passed on January 20, Pence is no longer Vice President (or Senate President) by virtue of the Twentieth Amendment. Thus, the Pence-Pelosi standoff will end this way: With the Vice Presidency still vacant, and Pelosi as Acting President, the joint session under the Twelfth Amendment and the Electoral Count Act will resume properly despite Pence’s earlier attempt to derail it. Once that proper process is complete, it will yield the conclusion that it would have all along: Biden and Harris have electoral college majorities and are duly elected. At that point, Biden becomes President under the Twentieth Amendment, and Pelosi is no longer Acting President. The whole process obviously would have been horribly messy, and deserving of the label “constitutional crisis,” but it would have ended with Eastman’s plan in failure.
Last point: I’ve read that the Eastman memo proves the need to reform the Electoral Count Act. To be clear, I’ve long been strongly in favor of reforming the Electoral Count Act. But what Eastman proposed was for Pence to bypass the ECA, declaring it to be unconstitutional, and purporting to proceed on his own authority based on his own (highly disputed) interpretation of the Twelfth Amendment. Improving the ECA might reduce the risk of a future Vice President trying to make that kind of move, because with a better ECA in place, it would make that kind of unilateral power grab by a Vice President even more brazen and politically untenable. But ECA reform can’t eliminate this risk entirely. To do that, it would be necessary to undertake the even more difficult task of revising the Twelfth Amendment itself, to remove its frustratingly ambiguous language about the process of counting electoral votes in the joint session, including the role of the Senate President.
Rebutting some of the claims in the Eastman memo about Congress’s role in counting electoral votes
On November 29, 2000, the Select Joint Committee on the Manner of Appointment of Presidential Electors, a group convened by the Florida legislature, gathered. It was the second day of hearings about how to handle the presidential election dispute unfolding in the state. And it considered what role, if any, the state legislature might play in resolving the dispute.
John Eastman testified before that committee. He made a number of important (and, I think, largely correct–at least, for purposes of what I’ll discuss in this post) assessments about how the Electoral Count Act works and Congress’s role in counting electoral votes. The ECA, Eastman explained, was “technical,” not “ambiguous,” but included “complicated” statutory provisions.
This Act, Eastman explained, is “how Congress is going to vote or count the votes that it receives.” Among other things, returns from a state “must be counted by Congress unless both the House and the Senate meeting separately concurrently reject that return.” Who acts? “It is Congress, both houses, operating separately.” “That gives to Congress the power to be the ultimate judge,” Eastman expounded. Problems of how to count multiple returns submitted to Congress arise “only if the two houses in Congress do not agree.” The ECA, Eastman noted, is “the mechanism by which Congress has set out for itself how it will govern its counting obligations.”
One might read the memorandum obtained by CNN, attributed to Eastman and drafted ahead of January 6, 2021 and the counting of electoral votes, and wonder whether these statements (“Eastman 2000”) were made by the same person.
Continue reading Rebutting some of the claims in the Eastman memo about Congress’s role in counting electoral votes“Memo shows Trump lawyer’s six-step plan for Pence to overturn the election”
A conservative lawyer working with then-President Donald Trump’s legal team tried to convince then-Vice President Mike Pence that he could overturn the election results on January 6 when Congress counted the Electoral College votes by throwing out electors from seven states, according to the new book “Peril” from Washington Post journalists Bob Woodward and Robert Costa.
The scheme put forward by controversial lawyer John Eastman was outlined in a two-page memo obtained by the authors for “Peril,” and which was subsequently obtained by CNN. The memo, which has not previously been made public, provides new detail showing how Trump and his team tried to persuade Pence to subvert the Constitution and throw out the election results on January 6.
The effort to sway Pence was just one of several behind-the-scenes attempts that Trump’s team undertook ahead of January 6 in a desperate bid to overturn the 2020 election loss, after dozens of lawsuits were thrown out of the courts. “Peril,” which will be released Tuesday, details how Eastman’s memo was sent to GOP Sen. Mike Lee of Utah and how Trump attorney Rudy Giuliani tried to convince fellow Republican Sen. Lindsey Graham of South Carolina of election fraud. But both Lee and Graham scoffed at the arguments and found they had no merit.
My New Draft Paper: “Identifying and Minimizing the Risk of Election Subversion and Stolen Elections in the Contemporary United States”
I have written this new academic draft, in connection with the virtual Election Subversion conference that we are holding at UCI Law’s Fair Elections and Free Speech Center, this Friday, September 24. Here is the paper’s abstract:
The United States faces a serious risk that the 2024 presidential election, and other future U.S. elections, will not be conducted fairly, and that the candidates taking office will not reflect the free choices made by eligible voters under previously announced election rules. The potential mechanisms by which election losers may be declared election winners are: usurpation of voter choices for President by state legislatures purporting to exercise constitutional authority to do so, possibly blessed by a partisan-divided Supreme Court and acquiesced to by Republicans in Congress; fraudulent or suppressive election administration or vote counting by law- or norm-breaking election officials; and violent or disruptive private action that prevents voting, interferes with the counting of votes, or interrupts the assumption of power by the actual winning candidate.
Until recently, it would have been absurd to raise the possibility of such election subversion or a stolen election in the United States. Few cases have emerged in at least the last 50 years in the United States of actual election subversion by election officials, leading to an election loser being declared the election winner, despite other unique pathologies of American election administration.
Ironically, the conduct of former President Donald J. Trump in repeatedly and falsely claiming that the 2020 election was stolen has markedly raised the potential for an actual stolen election in the United States. Millions of Trump’s Republican supporters now believe the false claim of a stolen election, and some Republican elected officials have pursued bogus sham “audits” and taken other steps that undermine voter confidence in the fairness of the election process. Threats of violence and intimidation have led to unprecedented attrition among election administrators, and some exiting officials are being replaced by those who may not have allegiance to the integrity of the election system. Those Republican election officials who stood up to Trump in 2020 and saved the United States from a potential constitutional and political crisis have been censured, stripped of power, and challenged for office by those embracing the “Big Lie.” Together, these actions serve both to delegitimate the election of Democrats including President Joe Biden in 2020 and to open the door to election manipulation in future elections. Elected officials, election officials, and others believing or purporting to believe the false claim that the 2020 presidential election was stolen may seek to justify subverting future election results in response to earlier purported fraud.
The solutions to these problems are both legal and political. Legal changes should include: (1) paper ballot, chain-of-custody, and transparency requirements, including risk-limiting audits of election results; (2) rules limiting the discretion of those who certify the votes, including Congress through reform of the Electoral Count Act; (3) rules limiting the over-politicization of election administration, especially by state legislatures; (4) increased criminal penalties imposed on those who tamper with federal elections or commit violence or intimidation of voters, elected officials, or elected candidates; and (5) rules countering disinformation about elections, particularly disinformation about when, where, and how people vote. In addition, it will be necessary to organize for political action to reenforce rule-of-law norms in elections. This means advocating for laws that deter election subversion and against laws making stolen elections easier; politically opposing would-be election administrators who embrace false claims about stolen elections; and preparing for mass, peaceful protests in the event of attempts to subvert fair election outcomes.
Part I of this Essay describes the path to this unexpected moment of democratic peril in the United States. Part II explains the five potential mechanisms by which American elections may be subverted in the future. Part III recommends steps that can and should be taken to minimize this risk. Preserving and protecting American democracy from the risk of election subversion should be at the top of everyone’s agenda. The time to act is now, before American democracy disappears.
Greg Sargent on Electoral Count Act Reform: “How to prevent the next Jan. 6, as revealed in an important new analysis”
We cannot say we weren’t warned.
As the select committee examining the Jan. 6 violence ramps up, one of its lesser-known goals is to offer “recommendations” to prevent a future effort to overthrow U.S. democracy through violence.
As it happens, there is a critical way Congress can minimize the possibility of another Jan. 6 — by addressing glaring legal vulnerabilities in the presidential electoral process that encouraged Donald Trump’s movement to try to overturn his loss, creating the conditions for the worst outbreak of U.S. political violence in recent times.
We’re talking about revising the Electoral Count Act of 1887. That may sound dry and unexciting, but it would shore up hidden weaknesses that made the 2020 breakdown possible.
This week, a coalition of pro-democracy experts will release a new blueprint laying out a way to revise the Electoral Count Act (ECA) along those lines. The report from the National Task Force on Election Crises — which includes dozens of experts in election law and voting rights — outlines major fixes….
The ECA’s language, which sets the process for Congress to count presidential electoral votes, is vague and prone to abuse.
“Congress Has The Power To Prevent A Repeat Of January 6”
Trevor Potter and Norm Ornstein at TPM Cafe:
The barriers voters face before casting a ballot have rightly grabbed headlines recently. But there’s a way that tens of millions of Americans could be disenfranchised after voting in the next election that has gone under the radar. As the stirring testimony of the Capitol police officers recedes into our memory, we shouldn’t forget our democracy is still vulnerable to attack.
Of course, it is important to address voting protections, preventing partisan actors from overturning legitimate election results, and creating better physical safeguards, like Capitol security. But we can’t lose sight of what made Jan. 6 a pivotal date. It is the date set by an 1887 law for the counting of electoral college votes — and it was the controversy engineered by Donald Trump over those votes that precipitated the violence. That law — the Electoral Count Act (ECA) of 1887 — is outdated. Congress can take an important step toward restoring Americans’ trust in the integrity of our democratic process by updating an obsolete law most Americans have never heard of, which is full of archaic and unclear language, to provide a clear and fair framework for resolving disputes in the Electoral College.
We narrowly avoided a constitutional crisis on Jan. 6. The question becomes: what can we do to prevent an even worse scenario the next time?
The biggest flaw in the ECA as written is that it makes it too easy for individual members of Congress to try to throw out a state’s results. There is bipartisan consensus amongst election law and constitutional experts that Congress can address this and that it must be done before the 2024 presidential campaign begins. As the American Enterprise Institute’s Kevin Kosar has written, “tightening up the ECA is critical to ensuring states’ lawfully submitted electoral votes are counted.”
In fact, there is a real hero opportunity for a Republican Senator to take this on, since it’s a Democrat, Vice President Kamala Harris, who will preside over the joint session of Congress the next time we count the electoral college votes – in January 2025. It’s true that then-Vice President Mike Pence took the high road on Jan. 6 by correctly declaring he lacked authority to reject state electoral slates lawfully submitted to Congress. However, the American people can’t rely on future vice presidents to do the right thing. The stakes are too high to leave this to chance and the time for action is now, while there is still daylight before the looming 2024 campaign season.
One can start by looking to Senate Minority Leader Mitch McConnell’s actions around Jan. 6 to see a bipartisan path forward. When Sen. Josh Hawley (R-MO) publicly declared he would object to the electoral vote count, it forced McConnell between a rock and a hard place. Congress would either try to override the voters’ decision for the first time in history or honor the people’s decision. The vast majority of Republican Senators understood their constitutional role and voted accordingly. …
Harvard Law and Policy Review releases symposium issue on the Electoral College
I’ll highlight some more academic work this weekend. Up first: It was a pleasure to participate in this terrific event with a fantastic lineup! Volume 15, Issue 1 of the Harvard Law & Policy Review is here.
Guy-Uriel E. Charles & Luis E. Fuentes-Rohwer, Chiafalo: Constitutionalizing Historical Gloss in Law & Democratic Politics
Rebecca Green, Liquidating Elector Discretion
Michael T. Morley, The Framers’ Inadvertent Gift: The Electoral College and the Constitutional Infirmities of the National Popular Vote Compact
Derek T. Muller, The Electoral College and the Federal Popular Vote
Rob Richie, Patrick Hynds, Stevie DeGroff, David O’Brien, & Jeremy Seitz-Brown, Toward A More Perfect Union: Integrating Ranked Choice Voting with the National Popular Vote Interstate Compact
Samuel S.-H. Wang & Jacob S. Canter, The Best Laid Plans: Unintended Consequences of the American Presidential Selection System