Stuff You Should Know Electoral College
Democrats' Best Chance to End Election Subversion Isn't in the Voting Rights Bills
This week, President Joe Biden and Vice President Kamala Harris accept been giving speeches about voting rights, in support of the John Lewis Voting Rights Act and the Freedom to Vote Act currently stalled in Congress. These bills would practise a lot to improve access to voting, only they don't target election subversion—in other words, what happened on Jan. 6, 2021: the "Stop the Steal" credo, Trump supporters fishing for Mike Pence to refuse to certify Biden's election, Business firm and Senate Republicans objecting to state ballot results. To stop subversion, Congress needs to reform the Electoral Count Act. On Thursday's episode of What Side by side, I talked to Rick Hasen, a Academy of California, Irvine police force professor and founder of the Ballot Law Blog, about what that means, why Democrats aren't talking nigh it, and why some Republicans are. This chat has been condensed and edited for clarity.
Mary Harris: Tin you explain what the Electoral Count Act is and why it needs to be reformed and how it entered the scene on January. 6?
Rick Hasen: The Constitution contains very bare-bone rules on how Congress certifies the presidential ballot results. They're contained in the 12th Amendment and there was a dispute back in 1876, this was the Hayes-Tilden election, about who had won that ballot, and virtually how Balloter College votes should be counted. And 1 of the things that Congress did in resolving that dispute was they ready upward a whole commission, and it was controversial. Only one of the things that came in the backwash was this law called the Electoral Count Deed, which sets out many of the rules that utilise to how it is that Congress counts the votes.
A piddling structure.
Yep, a little structure, but written in very unclear and somewhat contradictory language.
So what did that mean on Jan. 6?
So, for instance, the Electoral Count Act doesn't explicitly say the vice president can't just seize some votes, throw them out, and not present them to Congress. But that'southward exactly what Trump tried to get Mike Pence to exercise. And then maybe information technology would exist useful to fix the Electoral Count Act to do things and say the vice president can't do that, and states can't just say, if they don't like the results, it's been a failed election.
Nosotros saw this kickoff shortly after Nov. 3, later on the election, Trump trying to become state legislatures to send in their own slates of electors for him. So in states like Wisconsin and Pennsylvania and Georgia, where Biden won the country but the country legislatures were controlled by Republicans, the idea was permit's have the country legislatures ship in an alternative slate of electors. Now, how could they practice that? Well, ane of the provisions of the Electoral Count Act says if a country fails to hold an election on Election Day, the state legislature can send in a slate of electors. And so the kind of cockamamie theory that Trump was pushing was, well, at that place was so much fraud or irregularity in how these states conducted their elections that the state legislature tin step in and ship in its own slate of electors.
The endgame was either to accept Trump declared the winner or at that place's a role of the 12thursday Amendment that says if nobody gets a majority of Electoral Higher votes, then we conduct a kind of a backup ballot, chosen a contingent election, and that is where the House of Representatives chooses the president, and each state delegation, rather than each representative, gets one vote. And then all the legislators from Texas need to assemble and they get to cast one vote, etc. And this, because there are more Republican delegations than Autonomous delegations, could have led to a Trump victory.
Could you compare what it would be similar to revise the Electoral Count Act to some of the bigger bills that nosotros've been talking virtually?
Well, I think the showtime thing to say is these 2 things are separate. One is dealing with one set of problems and the other is dealing with another gear up of problems. And I don't call up Democrats should give upwardly their take a chance to pass the big bills if they tin can actually find a path with Manchin and Sinema. The reason I'm talking about the other bills is because I don't think that's going to happen. If it is, bully. And some people are very upset with me for talking near this other anti-election-subversion legislation, because they think now is the time to ratchet up the pressure on Manchin and Sinema.
It sounds like you think that time has passed.
I think then. If I'thousand wrong and people in the know recall that ratcheting up the force per unit area would piece of work, by all means get alee. Only I do recall that earlier the 2022 elections, we need to address the result of election subversion. That is the idea that the announced winners of elections might not reflect the people'south choice. The loser could exist declared the winner. Something I never expected to worry about in the The states. Merely the 2020 election aftermath showed me that there are people who would be willing to try to manipulate election results and that there's actually a path to do so.
The bigger bills that have been talked about for the last twelvemonth, a lot of what they're dealing with is voter suppression. Simply subversion is something different, where y'all're changing the issue of an election.
Right. And I think that the presidential ballot is uniquely susceptible to this kind of manipulation, because there are so many steps that need to be taken between the time that voters actually vote and the time that states have their votes counted by Congress on Jan. 6, after the election is over. What we learned from Trump's attempts to try to overturn the results of the 2020 election is that then much of our system depends upon people acting in proficient faith.
If reforming the Balloter Count Human action is the central to blocking off the ways Trump tried to screw with the 2020 ballot, and so why oasis't Democrats been talking about this reform for the last year?
Well, I think it's a petty mysterious to me. As I said, I really thought, and I've been maxim information technology since terminal January, that this should have been task one.
Why did the idea of reforming this police suddenly outburst onto the scene?
And so I think the contemptuous explanation is Republicans are trying to give Manchin and Sinema a shiny object that they can latch onto so that they accept an excuse non to vote for the larger bills. I'm hoping, though, that in that location really is some legitimate involvement to try and get this done on the Republican side. And part of the reason for that is, allow'south suppose the Democrats agreed to blow up the delay and actually passed ECA reform on their own. I don't think that's a very good affair, considering if Republicans control the Firm or the Senate or both in January of 2025, they might not follow the rules that are independent in a Democratic-only passed bill. Then I really think you do need some bipartisan purchase-in in order for this stuff to potentially stick.
Can you simply walk me through exactly what legislators are talking about changing and how those changes would have prevented what we saw on Jan. half dozen?
From press reports, it looks similar they include things similar potentially involving federal courts in resolving disputes over which states' presidential elector slates should be accepted, clarifying the role of the vice president'southward really just the chief of ceremonies, making it harder to raise objections. Yous may remember on January. 6, even after the insurrection, Sen. Josh Hawley joined with some Republican House colleagues in objecting to the votes in Pennsylvania. And they had a whole debate about that earlier Biden was finally alleged the winner. So you could raise the threshold for when there could be objections. There'due south a lot that could potentially be done. … I think it's less important what the specifics of the proposals are, but that they deal with attempts at trying to manipulate the process through some kind of bizarre reading of technical language.
Can we dig into the Republican back up for reforming the Electoral Count Human activity and what information technology really means? You said the cynical view is that this is just Republicans trying to give Manchin and Sinema something. But conservative writers have also been speaking out about the need to reform this police force. What's their motivation hither?
So I do think that many Republicans were disgusted with what Donald Trump tried to do. Some of them are afraid to say information technology, or some, like Mitch McConnell, said it at the time, back in January of 2021, but they backed abroad considering Trump is such a potent force. I mean, yous pay a political price for jumping on this issue. But I think many Republicans call back information technology's abhorrent. And if you're looking for kind of a cocky-interest point for favoring anti-election-subversion legislation and fixing the Electoral Count Act in particular, it'due south going to be Vice President Kamala Harris who's going to be presiding over the Electoral College, the counting of the Electoral Higher slates in January of 2025. And so yous might want to have something that reins her in and then she doesn't try to reject votes.
And then the argument is this isn't almost Trump, this is most preventing anarchy on either side.
Right. Everybody agrees, who's studied this, that the Balloter Count Deed is not conspicuously written and that at that place'southward lots of room for manipulation. And now that we have seen in 2020 a path to try to have that manipulation, all the more than reason we need to practise something about it. Information technology's not but fanciful worrying well-nigh this. It's a existent problem.
At the same fourth dimension that Republicans have been speaking out in favor of this kind of reform, I've been interested to scout some Democrats distancing themselves from the idea of reforming the Balloter Count Deed. And I wonder what you think when you lot see that.
I think that this is all about the argue I mentioned before. This is about whether this is an attempt to give Sens. Manchin and Sinema encompass to not support the larger voting rights bills. And if that'south what this is about, then deal with Electoral Count Human activity reform later.
There'due south something to that, if that's your worry. Merely hither'due south my worry on the other side. Suppose this gets kicked downwards the path and then we get into the total throes of the 2022 election season. And then, people desire to put this on the agenda, only information technology'southward Republicans that now control the Business firm of Representatives, and it's Kevin McCarthy who is the speaker of the House. Is Kevin McCarthy, who obviously fears Donald Trump, going to bring up a measure out that would prevent Trump from trying to dispense election results in the future? He'd be immediately attacked. He could lose his speakership. So if this kind of alter is going to happen, I think it's going to take to happen in the period before nosotros modify leadership in the House.
Which is right at present.
Or within the adjacent few months, sure.
You lot've talked about how, fifty-fifty if the Balloter Count Act got reformed, it'south non clear future congresses would be jump to the law, which is but, like, how are we going to fix these things?
The police is only constraining to the extent that people will follow the law. Laws are not cocky-executing. People have to enforce them, and there's nobody to enforce if Congress chooses to come upwardly with a different set up of rules or to ignore the rules. It's very probable when information technology comes to something like counting Balloter College votes that the courts are going to stay out of it considering they're going to encounter this as a political question that's really left to Congress. Then we can't remember of police as the simply mechanism that we endeavor to utilise to limit the potential for election subversion. We have to think about a popular movement, a cantankerous-partisan, cross-group, business organization organizations, labor unions, church building groups, bar associations.
Things that volition reinforce each other.
Correct, because one of the things that Trump tried to practise for four years equally president was to tear down back up for all the institutions that back up our republic. The press, the judiciary, the FBI, the opposition party—all of these institutions were attacked. And when people lose respect for the institutions that govern their gild, they're much more likely to exist lawless, considering they're much more likely to see the existing legal structure as illegitimate and to bring it directly to the issue of election subversion. If you believe that the last election was stolen, yous might put up with an attempt to steal it back the next time.
Part of what you're articulating is something that I feel Joe Manchin says all the fourth dimension, which is in club to pass durable legislation, nosotros demand the Republicans to come alongside us. Is that what you're maxim? Practise you run into that logic when you hear him saying that?
That'south non what I'm proverb at all. When it comes to regular legislation, to the winners go the spoils. Y'all know, if Biden runs on a platform of doing something like Build Dorsum Better and he can become Democrats to continue and practice it, I call back that'due south accountability. The filibuster's actually bad in this sense because information technology lets you pass the buck and voters don't know who to blame. I call up Democrats should be able to come up in and laissez passer their agenda, and Republicans should be able to come in and pass their agenda without the delay and just let the fries fall where they may. And if voters like what they meet, then they can reward that party past giving them votes the next time, or they could punish them if they don't like it.
Simply I'yard making a detail point about the rules for running elections or for counting votes. In that location, I recollect, given Congress' power, information technology'southward very important that there is a bipartisan agreement on what those rules are going to be, because they'll exist more likely to be binding on both parties in the future.
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Source: https://slate.com/news-and-politics/2022/01/electoral-count-act-reform-voting-rights-bills-election-subversion.html
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