This week, President Joe Biden and Vice President Kamala Harris have 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 do a lot to improve access to voting, but they don’t target election subversion—in other words, what happened on Jan. 6, 2021: the “Stop the Steal” credo, Trump supporters angling for Mike Pence to refuse to certify Biden’s election, House and Senate Republicans objecting to state election results. To stop subversion, Congress needs to reform the Electoral Count Act. On Thursday’s episode of What Next, I talked to Rick Hasen, a University of California, Irvine law professor and founder of the Election Law Blog, about what that means, why Democrats aren’t talking about it, and why some Republicans are. This conversation has been condensed and edited for clarity.
Mary Harris: Can you explain what the Electoral Count Act is and why it needs to be reformed and how it entered the scene on Jan. 6?
Rick Hasen: The Constitution contains very bare-bone rules on how Congress certifies the presidential election 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 election, and about how Electoral College votes should be counted. And one of the things that Congress did in resolving that dispute was they set up a whole commission, and it was controversial. But one of the things that came in the aftermath was this law called the Electoral Count Act, which sets out many of the rules that apply to how it is that Congress counts the votes.
A little structure.
Yeah, a little structure, but written in very unclear and somewhat contradictory language.
So what did that mean on Jan. 6?
So, for example, 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’s exactly what Trump tried to get Mike Pence to do. And so maybe it would be 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.
We saw this beginning shortly after Nov. 3, after the election, Trump trying to get 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 state but the state legislatures were controlled by Republicans, the idea was let’s have the state legislatures send in an alternative slate of electors. Now, how could they do that? Well, one of the provisions of the Electoral Count Act says if a state 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, there was so much fraud or irregularity in how these states conducted their elections that the state legislature can step in and send in its own slate of electors.
The endgame was either to have Trump declared the winner or there’s a part of the 12th Amendment that says if nobody gets a majority of Electoral College votes, then we conduct a kind of a backup election, called 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. So all the legislators from Texas need to get together and they get to cast one vote, etc. And this, because there are more Republican delegations than Democratic delegations, could have led to a Trump victory.
Could you compare what it would be like to revise the Electoral Count Act to some of the bigger bills that we’ve been talking about?
Well, I think the first thing to say is these two things are separate. One is dealing with one set of problems and the other is dealing with another set of problems. And I don’t think Democrats should give up their chance to pass the big bills if they 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, great. And some people are very upset with me for talking about 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 so. If I’m wrong and people in the know think that ratcheting up the pressure would work, by all means go ahead. But I do think that before the 2022 elections, we need to address the issue of election subversion. That is the idea that the announced winners of elections might not reflect the people’s choice. The loser could be declared the winner. Something I never expected to worry about in the United States. But 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 year, a lot of what they’re dealing with is voter suppression. But subversion is something different, where you’re changing the outcome of an election.
Right. And I think that the presidential election 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 so much of our system depends upon people acting in good faith.
If reforming the Electoral Count Act is the key to blocking off the ways Trump tried to screw with the 2020 election, then why haven’t Democrats been talking about this reform for the last year?
Well, I think it’s a little mysterious to me. As I said, I really thought, and I’ve been saying it since last January, that this should have been job one.
Why did the idea of reforming this law suddenly burst onto the scene?
So I think the cynical explanation is Republicans are trying to give Manchin and Sinema a shiny object that they can latch onto so that they have an excuse not to vote for the larger bills. I’m hoping, though, that there actually is some legitimate interest to try and get this done on the Republican side. And part of the reason for that is, let’s suppose the Democrats agreed to blow up the filibuster and actually passed ECA reform on their own. I don’t think that’s a very good thing, because if Republicans control the House or the Senate or both in January of 2025, they might not follow the rules that are contained in a Democratic-only passed bill. And so I really think you do need some bipartisan buy-in in order for this stuff to potentially stick.
Can you just walk me through exactly what legislators are talking about changing and how those changes would have prevented what we saw on Jan. 6?
From press reports, it looks like they include things like potentially involving federal courts in resolving disputes over which states’ presidential elector slates should be accepted, clarifying the role of the vice president’s really just the master of ceremonies, making it harder to raise objections. You may remember on Jan. 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 before Biden was finally declared the winner. So you could raise the threshold for when there could be objections. There’s 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 support for reforming the Electoral Count Act and what it 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 law. What’s their motivation here?
So I do think that many Republicans were disgusted with what Donald Trump tried to do. Some of them are afraid to say it, or some, like Mitch McConnell, said it at the time, back in January of 2021, but they backed away because Trump is such a potent force. I mean, you pay a political price for jumping on this issue. But I think many Republicans think it’s abhorrent. And if you’re looking for kind of a self-interest point for favoring anti-election-subversion legislation and fixing the Electoral Count Act in particular, it’s going to be Vice President Kamala Harris who’s going to be presiding over the Electoral College, the counting of the Electoral College slates in January of 2025. And so you might want to have something that reins her in so she doesn’t try to reject votes.
So the argument is this isn’t about Trump, this is about preventing chaos on either side.
Right. Everybody agrees, who’s studied this, that the Electoral Count Act is not clearly written and that there’s lots of room for manipulation. And now that we have seen in 2020 a path to try to have that manipulation, all the more reason we need to do something about it. It’s not just fanciful worrying about this. It’s a real problem.
At the same time that Republicans have been speaking out in favor of this kind of reform, I’ve been interested to watch some Democrats distancing themselves from the idea of reforming the Electoral Count Act. And I wonder what you think when you see that.
I think that this is all about the debate I mentioned earlier. This is about whether this is an attempt to give Sens. Manchin and Sinema cover to not support the larger voting rights bills. And if that’s what this is about, then deal with Electoral Count Act reform later.
There’s something to that, if that’s your worry. But here’s my worry on the other side. Suppose this gets kicked down the path and then we get into the full throes of the 2022 election season. And then, people want to put this on the agenda, but it’s Republicans that now control the House 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 that would prevent Trump from trying to manipulate election results in the future? He’d be immediately attacked. He could lose his speakership. So if this kind of change is going to happen, I think it’s going to have to happen in the period before we change leadership in the House.
Which is right now.
Or within the next few months, sure.
You’ve talked about how, even if the Electoral Count Act got reformed, it’s not clear future congresses would be bound to the law, which is just, like, how are we going to fix these things?
The law is only constraining to the extent that people will follow the law. Laws are not self-executing. People have to enforce them, and there’s nobody to enforce if Congress chooses to come up with a different set of rules or to ignore the rules. It’s very likely when it comes to something like counting Electoral College votes that the courts are going to stay out of it because they’re going to see this as a political question that’s really left to Congress. And so we can’t think of law as the only mechanism that we try to use to limit the potential for election subversion. We have to think about a popular movement, a cross-partisan, cross-group, business organizations, labor unions, church groups, bar associations.
Things that will reinforce each other.
Right, because one of the things that Trump tried to do for four years as president was to tear down support for all the institutions that support our democracy. 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 society, they’re much more likely to be lawless, because 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, you 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 time, which is in order to pass durable legislation, we need the Republicans to come alongside us. Is that what you’re saying? Do you see that logic when you hear him saying that?
That’s not what I’m saying at all. When it comes to regular legislation, to the winners go the spoils. You know, if Biden runs on a platform of doing something like Build Back Better and he can get Democrats to go along and do it, I think that’s accountability. The filibuster’s actually bad in this sense because it lets you pass the buck and voters don’t know who to blame. I think Democrats should be able to come in and pass their agenda, and Republicans should be able to come in and pass their agenda without the filibuster and just let the chips fall where they may. And if voters like what they see, then they can reward that party by giving them votes the next time, or they could punish them if they don’t like it.
But I’m making a particular point about the rules for running elections or for counting votes. There, I think, given Congress’ power, it’s very important that there is a bipartisan agreement on what those rules are going to be, because they’ll be more likely to be binding on both parties in the future.
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