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Protecting democracy, or political distraction? Inside efforts to reform the Electoral Count Act

Vice President Mike Pence makes his way to the House floor for a joint session of Congress to tally the electoral college votes for the president and vice president in the Capitol in Washington on Wednesday, Jan. 6, 2021. (Caroline Brehman/CQ-Roll Call, Inc via Getty Images)
Vice President Mike Pence makes his way to the House floor for a joint session of Congress to tally the electoral college votes for the president and vice president in the Capitol in Washington on Wednesday, Jan. 6, 2021. (Caroline Brehman/CQ-Roll Call, Inc via Getty Images)

Former President Donald Trump has openly admitted that he was pushing former Vice President Mike Pence to “overturn” the 2020 election.

“The vice president has never had the authority to overturn the election. The former president’s claim to the contrary is frankly baseless and incredulous,” Judge Michael Luttig says.

Trump’s admission has added urgency to efforts currently underway in Congress to amend the 136-year-old Electoral Count Act.

“Leaving this law unamended is like leaving a loaded gun on the table for Trump or any other future bad actor to pick up and use to disenfranchise millions of voters,” Mark Joseph Stern says.

Protecting democracy, or just a political distraction?

“No one should look at Electoral Count reform as just a trick or a trap or even necessarily a compromise. This is a legitimate voting rights issue that needs Congress’s attention.”

Today, On Point: Looking at the Electoral Count Act.

Guests

Mark Joseph Stern, reporter at Slate, covering courts and the law. Author of The Crucial Voting Rights Bill That Congress Can Actually Pass. (@mjs_DC)

Judge Michael Luttig, he served as a judge on the Fourth U.S. Circuit Court of Appeals from 1991 to 2006. He also advised Vice President Mike Pence on the 2020 vote certification, and is advising Republican senators now on potential ECA reform. (@judgeluttig)

Norman Eisen, senior fellow at the Brookings Institution. Special counsel to the House Judiciary Committee during the first Trump impeachment. (@NormEisen)

Also Featured

Sen. Angus King, senator from Maine. He co-drafted proposed reforms to the Electoral Count Act. (@SenAngusKing)

From The Reading List

Slate: “The Crucial Voting Rights Bill That Congress Can Actually Pass” — “Democrats’ year-long push to pass major voting rights legislation stalled out on Wednesday night when Senators Joe Manchin and Kyrsten Sinema allowed Republicans to filibuster the Freedom to Vote Act and the John Lewis Voting Rights Advancement Act.”

Washington Post: “Fixing the Electoral Count Act is no substitute for real election reform” — “With the Senate finally scheduling action to address the national epidemic of voter suppression and election hijacking laws, Minority Leader Mitch McConnell (R-Ky.) and others in his party have suddenly found an alternative election reform they are signaling they will consider instead.”

Election Law Blog: “‘The lawyer who helped Pence stand up to Trump is still concerned for democracy.’” — “‘Mr. Luttig, whom George W. Bush considered to become chief justice of the United States Supreme Court, found Mr. Eastman’s arguments preposterous and publicly said that Mr. Pence had no choice.'”

Wall Street Journal: “Congress Sowed the Seeds of Jan. 6 in 1887” — “Congress plans to establish a commission to investigate the Jan. 6 storming of the Capitol. We already know one reason for that terrible event.”

Transcript: Highlights From Our Interview With Judge Luttig

MEGHNA CHAKRABARTI: Judge Michael Luttig joins us. … He’s a former judge who sat on the U.S. Fourth Circuit of Appeals. And on January 6th, 2021, he advised Mike Pence on his constitutional role in the electoral count. Judge Luttig, welcome to the program.

JUDGE MITCHAEL LUTTIG: Hi. Thank you for having me on your show today. It’s a pleasure.

CHAKRABARTI: I wonder if actually we could start two days before January 6th, 2021, around the 4th of January. Because I have seen it reported that at that time you had already found yourself enmeshed in a brewing constitutional crisis. Can you tell me about that?

LUTTIG: Yes. Yes, I did, Meghna. That came about in this way. On the evening of January 4th, after what we now know was the fateful meeting in the Oval Office between the president, and the vice president, and John Eastman and Marc Short, the vice president’s chief of staff. I received a call in the evening from Richard Cullen, who was at the time outside counsel to the vice president. Richard was a long time and dear friend of mine. And he asked me what I knew about John Eastman. And I told him that John was a former law clerk of mine and asked why he was asking.

And he said that John Eastman was advising the president and the vice president, that the vice president had the authority on January 6th to effectively overturn the presidential election. I had not known that Professor Eastman was advising the president, until Richard Cullen told me that. The next morning, early, I was in Colorado at the time, early around 6 a.m. Colorado time.

Richard called me back and asked if there was anything that I could do to assist the vice president. And I didn’t, at the time, have even a thought as to what I could do. I didn’t hold a position at all of any kind. And I had no way to broadcast, if you will. You know, my view that the vice president had no authority to overturn the election.

CHAKRABARTI: Just to clarify, when you say you didn’t have a position on the election itself, you definitely have a strong constitutional position on the vice president’s role during the electoral —

LUTTIG: Yes. But what I meant was I didn’t have an official office, or understood position, and therefore a platform from which I could broadcast my view.

CHAKRABARTI: Understood.

LUTTIG: Yes, I had a very firm view on the constitutionality …

CHAKRABARTI: … Now, Judge Luttig, before we have you pick up your story here, I want to emphasize some things to listeners. One is that you are considered a leading light among legal scholars in in the United States. At one point in time, President George W. Bush considered you as a nominee for chief justice of the United States Supreme Court.

And in addition, as you had said earlier, from the 4th to the 6th, there was this very powerfully, interesting sort of nexus of people, including John Eastman, who was advising President Trump, and who wrote the memo that the public later saw, that laid out this road map for a vice president to overturn an election.

Turns out Mr. Eastman at one time was a former law clerk of yours. I can only imagine your surprise in finding his name on that memo. And then in addition, it was the vice president’s lawyer who had called you seeking advice, and you were telling us that on what was it, the early hours of January 5th, I believe, the story picks up then. Can you continue?

LUTTIG: Yes. And then briefly, I decided eventually to tweet my advice. I had only gotten on Twitter, or an account on Twitter, weeks before. And didn’t even know how to tweet a multiple or thread of tweets. But I decided that that was the only way that I could speak publicly, which is what Richard Cullen, I believe, the vice president wanted. So I tweeted the advice that is now publicly known.

CHAKRABARTI: Did you ever speak directly to the vice president?

LUTTIG: I did not, Meghna. Not until after January 6th. When on January 7th, in the morning, I received a call from the vice president who thanked me for what I had done on January 5th.

CHAKRABARTI: Can we presume, though, that because you had been speaking to the vice president’s lawyer, Richard Cullen, as you mentioned, that beyond your tweet or even prior to your series of tweets, that your advice had reached the vice president?

LUTTIG: Yes. I only spoke on the 4th and the 5th with Richard Cullen, who I understood was speaking directly with Marc Short, who I understood in turn was speaking with the vice president.

CHAKRABARTI: I understand. So the reason why I wanted to get all these details clearly laid out for listeners is that on the 6th of January, on that morning, people might remember that Vice President Pence actually issued a letter to the Congress stating that he had no intention to overturn the election, and … he actually quoted you in that letter. I presume he was quoting the tweets that you had put out.

Because he said in the letter, as former U.S. Court of Appeals Judge J. Michael Luttig observed, quote, The only responsible power of the vice president under the Constitution is to faithfully count the Electoral College votes as they have been cast. The Constitution does not empower the vice president to alter in any way the votes that have been cast.

So he actually cited you directly in the letter, and I presume that the back channeling was because the vice president felt like he needed conservative legal support to make the stand that he was going to make.

LUTTIG: Yes, that’s correct, Meghna. And I was honored that the vice president asked me for my counsel. I did not know at the time, and did not learn until the book by Woodward and Costa came out, what John Eastman’s thinking had been. Once I learned that, I tweeted again that Professor Eastman was mistaken at every turn in his analysis.

CHAKRABARTI: We’re going to get to the current proposals for the reform of the Electoral Court Act in a couple of minutes. But Judge Luttig, I have to say, I am compelled by your story here and your analysis. I cannot help it. I got to ask you a couple more questions. Do you recall how long ago John Eastman was your clerk?

LUTTIG: I do not, Meghna. But it would have been more than 20 years ago and perhaps as long ago as 25.

CHAKRABARTI: And so, I mean, generally, at that point in time, how closely were you working with the clerks? I mean, I’m just asking, because what was your reaction when you heard that he was part of this effort to craft a legal rationale to overturn a free and fair election?

LUTTIG: The relationship between a judge and his or her clerk is very, very close. And during the era that John Eastman clerked for me, we were, you know, exceedingly close, personally and professionally. When I finally, you know, read what John’s thinking, legal thinking was, I was surprised and I was disappointed. Because I did not believe that there was any basis whatsoever in the laws or Constitution of the United States to contend that the Vice President had the authority to overturn the presidential election. Or for that matter, even to delay the counting of the vote on January 6th. As reportedly Mr. Eastman advised in the final days before January 6th.

CHAKRABARTI: Judge Luttig, if I may, I appreciate your judicious use of the word surprised and disappointed. I imagine that perhaps the actual thoughts you have are more pointed than that.

LUTTIG: Yes, they are.

CHAKRABARTI: Fair enough. So a year later, now. How much danger do you believe American democracy is in?

LUTTIG: The New York Times editorialized over the weekend that it’s not hyperbole that the future of our democracy depends on reform of the Electoral Count Act. I think that’s correct. You know, last week, as you said, President Trump confirmed his past and present intent to exploit the ACA in 2024, if the need arises. Giving urgency to reform of the ACA, which as yet is still in its nascence.

CHAKRABARTI: … Where would you target specifically, Judge Luttig, in terms of places that you would change or aspects of the law that you would change?

LUTTIG: … I believe and have written that the ACA is unconstitutional to the extent that it gives Congress the power to decide the presidency, in a host of circumstances where frankly, the Constitution and the framers of our Constitution never intended Congress to have such power. Congress is, under the Constitution, constrained to have a largely ministerial role in observing and witnessing the electoral vote count during the joint session of Congress on January 6th.

Well, that role was ministerial, much in the same way that the Vice President’s role in opening the certificates, and presiding over the count of them by the tellers in Congress is ministerial. So I believe in the end, the surest way to prevent reoccurrence of another January 6th is for Congress to limit to the maximum extent possible, the grounds for objection by Congress to electoral slates and their votes. And then likewise limit the ability of Congress to actually sustain those objections during the joint session.

CHAKRABARTI: … Well, Judge Luttig, we only have you for a couple of more minutes, and there’s at least two questions I’d like to ask you. First of all, I’ve seen that you think that, in fact, the best option right now would be to repeal the Electoral Count Act. Can you tell me about that a little bit?

LUTTIG: Yes. I believe that’s the single best. And that’s because I believe, as I said, that it was unconstitutional for the 49th Congress, 135 years ago, to assume to the Congress that the power to essentially adjudicate the disputes over the state electors selection, slash election. And their votes, that are forwarded to the Congress for counting on January 6th. But let me respond to Mark again. He is exactly correct.

The talking point about the need to reform the ACA, it focuses on the ambiguity in the law, and it’s labyrinthine and confusing and therefore ambiguous. The former president, and his allies, and supporters and lawyers did not exploit the provisions of the ACA that are ambiguous. They exploited the provisions that are unambiguous. And those are the provisions that, in my view, are unconstitutional.

CHAKRABARTI: Okay. Judge Luttig, I have you for one more minute, only 60 seconds. And what you just said, though, I’ve got to ask, you’re rightly pointing out about how Donald Trump and his allies exploited the Electoral Count Act. But we’re only in this place right now as as a nation, largely because of the ideological capture that Trump has over the Republican Party. And so, in a sense, it doesn’t matter what the law is. Do you believe that the Republican Party is the party that believes in the rule of law anymore?

LUTTIG: I believe that the party as a whole certainly does. But I understand the concern, because to the extent that the former president still has a stranglehold on the party, then we have to take whatever steps necessary to prevent the reoccurrence of another January 6th. But while I believe that the act is unconstitutional, I’m realistic. And so I do favor proposals of the kind that Senator King, Klobuchar [have put forward].

Interview Highlights: Understanding The History And Future Of The Electoral Count Act

On the beginning of the push to reform the Electoral Count Act

Mark Joseph Stern: “The events of last year and especially of January 6th, really illustrated how dangerous the Electoral Count Act is, because it’s drafted so poorly and contains so many ambiguities. Now, for many decades, those ambiguities haven’t posed a serious problem to our democracy. Because most elections were conducted in an orderly manner, and the loser was willing to admit that he lost. Of course, 2020 was very different, and Trump and his associates tried to exploit these sort of cryptic terms in the law to insist that they could still win an election that they had lost, by deploying Republican lawmakers and Mike Pence to essentially overturn the results of a handful of states that Biden carried.”

The ECA originates in 1887. And it’s because of concerns in the Reconstruction period about southern states, and how they were sending electors in presidential elections. Is that right?

Mark Joseph Stern: “Yeah, that’s right. So it has its origins in the contested 1876 presidential election, the Tilden v. Hayes contest, where a number of states experienced real fraud at the polls, and ended up sending different slates of electors to Congress, which had no idea how to deal with the problem. Congress took its time in the following decade in actually addressing this and laying down a blueprint for future problems, but eventually did come through with the Electoral Count Act.

“Whoever drafted it must have had a very sick sense of humor. Because rather than actually clarifying the process here, it muddied the waters with a number of ambiguities. Probably most importantly, using the terms ‘regularly given’ and ‘lawfully certified,’ which seemed to suggest to some that perhaps Congress has a role here in actually deciding the election, and rejecting the slate of electors sent by states. But if you look at the full context of the law, are actually just sort of bizarre and unusual ways of saying that Congress needs to go ahead and vote to certify these these slates, unless there is something egregious and objectively flawed in the way that a state conducted its election.”

On understanding these ambiguities in the ECA 

Mark Joseph Stern: “One of the phrases in the law says that ‘Congress can reject electoral votes that are not regularly given.’ And another says that ‘Congress can reject electors who are not lawfully certified.’ So step back and remember, this is the moment when, officially, the next president is selected. Under the 12th Amendment, Congress has to do something here to say, Yes. We have examined the slate of electors and determined that the winner is the winner. And so the goal here was to give Congress some guidelines.

“But the law does not actually explain what it means for electoral votes to be regularly given, or what it means for electors to be lawfully certified. Is that a subjective judgment call that that Congress is supposed to make by itself? Is Congress supposed to launch an investigation? Is it supposed to use this moment to potentially overturn results certified by states, and say our judgment is better than yours to the states? Nobody really knows the answer to those questions.”

Why would the Senate need to reform the Electoral Count Act if Vice President Pence wasn’t able to overturn the 2020 election?

Mark Joseph Stern: “That’s sort of one of the beautiful things about having a Congress that is tasked with updating the laws of our nation. When it discovers that one certain law is not being implemented in the correct way, or that many folks are questioning the manner of its implementation, it can go back to the drafting table and say, You know what? We need to make this much clearer to ensure that it’s carried out the way that we intended it to.

“And I think the Electoral Count Act reform bill that Senator King has introduced, the draft that we’ve seen online does a great job just sort of filling out this sparse language from the original law and explaining that no, the vice president really does not get to set aside an envelope. He is opening them, and reading them and doing nothing more, and any attempt to do more would be not just undemocratic, but probably unconstitutional.”

Senator Angus King on the big issue that needs clarification in the Electoral Count Act

Senator Angus King: “We make clear that the vice president doesn’t have any role other than a serious ceremonial role of opening the envelopes. And as you know, the former president put enormous pressure on Vice President Pence — to use his term, ‘overturn the election.’ That’s not contemplated in the Constitution, it’s not contemplated in the Electoral Count Act. But given our recent experience, it struck us as sensible to make that clear once and for all.”

On why Donald Trump trying to invoke the ECA is unconstitutional, and what’s next

Norman Eisen: “First of all, there is no real dispute. There’s no serious dispute about the arguments Trump was making, that Pence could overturn the election. And no matter what you do to the ECA and I support ECA reforms on the thresholds. … But there’s no dispute. I co-wrote a report on January 4th again for the state’s United Democracy Senate guide, the guide to Counting Electoral College votes, that made clear the vice president couldn’t do this stuff, no matter how you reform the ECA. Trump and his ilk, because they are fundamentally anti-Democratic.

“And the Republican Party has slipped over with this unanimous resolution embracing Jan. 6th. Judge Luttig was wrong about that, and that’s a critical error, and it goes into Senator Manchin’s reasoning as well. We can’t count on the usual kind of bipartisan cooperation. Who’s to say that this will ever happen? It’s like Lucy and the football, from a party that is so fundamentally hijacked. And that’s not to say every person. … There may have been others. I didn’t see it. There certainly wasn’t a chorus of condemnation. So I think all of that context has to be considered as we discussed this subject.

“And the last point I want to make you. There is a great national debate going on. It was cued up. We need to continue that debate and not just say, Oh, new Jim Crow election hijack and sabotage from coast to coast. Hundreds of bills. Oh, we’re going to ignore that, We’ll have a nice little conversation about the ECA. No. Think of it this way. All of us, the people of this country, hundreds of millions of us who are affected by these terrible larger laws. We need to insist that these larger protections be included.

“That’s part of the negotiation that will go on in Congress. I think we need to be very loud and clear about that. But as I said in the Post, I do think in that context, ECA reform is one of many things that must be considered. If we’re quiet, then they’ll never —  these GOP stalwarts who have gone over to the dark side. There is no hope at all. So we need to be very loud about the crisis that we’re facing now.”

Are there actually votes in the Senate to support any kind of overhaul of the Electoral Count Act?

Mark Joseph Stern: “I think that there are. I think that enough senators see how this law’s a loaded gun that could be aimed at either party, in any future election, to inflict mass disenfranchisement by throwing out millions of votes. And so I am cautiously optimistic that some kind of meaningful reform will pass and address at least one of the many problems that Norm just laid out for us.”

This article was originally published on WBUR.org.

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