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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.


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.”

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 the 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 60 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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