Should Democrats Compromise on Election Reform?

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S1: Earlier this week, President Biden and the vice president, Kamala Harris, gave these deeply weird speeches in Georgia. Good afternoon, Atlanta. The speeches weren’t weird because they were wrong. They were weird because their timing seemed off. The president and his VP were talking about voting rights to landmark bills set before the United States Senate. The John Lewis Voting Rights Advancement Act and the Freedom to Vote Act. If you’ve been paying attention, you know that over the last year, Democrats have been crafting these two massive voting reform bills. You also know those bills don’t seem to be going anywhere.

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S2: And we must find a way to pass these voting rights bill. Debate and vote let the majority prevail.

S1: When I asked Rick Hasen, a professor at UC Irvine who runs the election law blog, what he thought of what Biden had to say. He said this.

S2: I thought it was too little, too late. Biden came in promising to make changes. The problem that Biden has is that he’s got the narrowest of possible majorities in the Senate, and so there’s only so much you can do for Rick.

S1: There there’s been this clock ticking ever since January 6th of last year when President Trump tried to subvert the 2020 election and time time is running out

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S2: over the summer. Biden could have been pushing voting rights, could have been giving a speech a week kind of thing, like LBJ using his bully pulpit. But they decided that they were going to go for their infrastructure plan and their build back better plan, thinking that was going to help them potentially win elections. But of course, we want to have fair elections. And so choosing that is a is a problem

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S1: today on the show. It looks like Democrats may not get voting reform off the ground, but Rick says there’s one more thing they could do to make presidential elections fairer. If the party can agree to give it a try. I’m Mary Harris. You’re listening to what next? Stick around. There are a few things that bug Rick Hasen about all the talk about voting reform on Capitol Hill. First off, there’s the issue of how these laws are going to pass because right now senators would need to get rid of the filibuster to jam them through. And Joe Manchin and Kirsten Cinema, they do not seem keen to let that happen. There’s something else when Rick looks at the big bills the president wants to pass. He sees the way that address access to voting. But he does not see much that would address election subversion, subversion. What happened on January 6th, the stop the Steal credo the Trump supporters angling for Mike Pence to refuse to certify Biden’s election. House and Senate Republicans objecting to state election results. The Democrats two big bills to expand voter protections. They just won’t stop that from happening again. But there is something that could. You just haven’t heard a lot of Dems talking about it. It would involve reforming something called the Electoral Count Act. Can you just explain what the Electoral Count Act is and why it needs to be reformed and how it entered the scene on January 6th?

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S2: The Constitution contains very bare bones 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. There was a dispute about who had won that election, about 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 a very unclear and somewhat contradictory language. I remember back in 2020, I was sitting in a room with a bunch of law professors. We’re having a little informal conference talking about what could we all agree on with the electoral contact me and so that, you know, in the event that there’s a dispute at some point down the line we kind of put out there, we think the rules should be. And we couldn’t because it’s so poorly written and it’s so full of unclear language that it’s a mess.

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S1: So how did what did that mean on January 6th?

S2: So, for example, the Electoral Count Act doesn’t explicitly say, Hey, the vice president can’t just see some votes, throw them out and not 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, like the vice president can’t do that and states can’t just say if they don’t like the results. Oh, it’s been a failed election. And we saw this beginning shortly after November 3rd after the election. Trump trying to get state legislatures to send in their own slate 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 legislature send in an alternative slate of electors. Now, how could they do that? Well, one of the provisions of the electoral context 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 end game was either to have Trump declared the winner or this is a part of the 12th Amendment that says if nobody gets a majority of Electoral College votes and we conduct a kind of a backup election called the 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, the Democratic delegations could have led to a Trump victory.

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S1: 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? Right.

S2: So I think the first thing to say is these two things are separate right there. One, that 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 mansion in cinema. The reason I’m talking about the other bills is because I don’t think that’s going to happen if it is great. You know, and some people are very upset with me for talking about this other intellectual subversion legislation because I think now is the time to ratchet up the pressure on Manchin and cinema.

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S1: It sounds like you think that time has passed.

S2: 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. So let me just frame that 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.

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S1: And this is a really important distinction. So I just want to underline it with you here, which is 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.

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S2: 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 January six 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.

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S1: It became clear to me how important it could be to reform the Electoral Count Act. When I saw Trump aide Peter Navarro making the rounds in the last week, he was explicitly talking about the Trump plan to subvert the election and how it was legal, and he even had a name for it the Green Bay sweep.

S3: We were going to challenge the results of the election in six battleground states. There is a provision to go rather than through the Electoral College to the House of Representatives.

S1: Literally, Ari Melber says. Do you realize you’re describing a coup?

S2: Do you realize you are describing a coup? No, I

S3: totally reject many of your premises there. First of all, the election was still in doubt and would be until

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S2: it was certified second hand. This is precisely why we need A. Election subversion legislation so that people like Peter Navarro can’t go around and make ridiculous claims that you have kind of an air of legality to them, even though they’re not to try to usurp the power of the people and the states to choose the presidential electors.

S1: We’ll be right back. 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.

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S2: Well, I think it’s a little mysterious to me if I said I really thought and I’ve been saying it since last January, that this should have been job one.

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S1: Why did the idea of reforming this law suddenly burst onto the scene?

S2: So I think the cynical explanation is Republicans are trying to give mansion at cinema a shiny object that they can latch on to so that they have an excuse not to vote for the larger bills. I’m hoping, though, that there actually is some 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 ACA 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. They could pass their own what’s called concurrent resolution have different rules for how they’re going to deal with these things. And so I really think you do need some bipartisan buy-in in order for this stuff to potentially stick.

S1: Can you just walk me through exactly what legislators are talking about changing and how those changes would have prevented what we saw on January 6th?

S2: Well, there’s different changes that are being discussed tonight, not part of those discussions. So I don’t know exactly, but 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 remember on January six, even after the insurrection. Senator 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

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S1: because right now it’s just like one person needs to stand up and say, I object,

S2: right? One person in the house and one in the Senate. It’s a pretty low bar, right? And you know, you could raise it to a supermajority to accept an objection. And then there’s all kinds of proposals floating out there. 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, you know, bizarre reading of technical language. Hmm.

S1: Can we dig into the Republican support for reforming the Electoral Count Act and what it really means? You sort of scoffed out a little bit and said, Well, the cynical view is that this is just Republicans trying to give. You know, mansion and cinema, something to distract them while we’ll do this instead of those big bills that your colleagues want to sell you on. But conservative writers have also been speaking out about the need to reform this law. Like what is their motivation here?

S2: 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 someone. 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 are going to 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 rings her in so she doesn’t try to reject votes.

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S1: So the argument is this isn’t about Trump. This is about preventing chaos on either side. Right.

S2: Everybody agrees who 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’s not just, you know, fanciful worrying about this. It’s a real problem.

S1: At the same time, the 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.

S2: Well, so I think that this is all about the debate I mentioned earlier. This is about whether this is an attempt to give senators Manchin and send him a 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, but 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,

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S1: which is now like right now

S2: or within the next few months or.

S1: I want to dig in on and one more thing, which is 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 such a oh my gosh. Like kind of how are we going to fix these things kind of moment when you say it out loud?

S2: 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 are 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, you know, we can’t think of law as the only mechanism that we tried to use to limit the potential for election subversion. We have to think about a popular movement across Partisan Cross Group. Business organizations, labor unions, church groups, bar associations,

S1: things that will reinforce each other,

S2: 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 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.

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S1: It’s interesting to listen to you because part of what you’re articulating is something that I feel like 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 or do you see that logic when you hear him saying that?

S2: 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 if you get Democrats to go along and do it, I think that’s accountability. The filibuster is 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 like, let the chips fall where they may. And if voters like what they see, then they can reward that party by giving them votes in 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’s 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.

S1: Rick Hasen, thank you so much for joining me.

S2: Thank you.

S1: Rick Hasen is a professor of law and political science at UC Irvine. He’s also the author of Election Meltdown, Dirty Tricks, Distrust and the Threat to American Democracy. And that’s our show. What next is produced by Daniel Hewitt, Alan Schwarz, Carmel Delshad and Mary Wilson. We are led by Alison Benedict and Alicia Montgomery. Check the feed tomorrow. Lizzie O’Leary is going to be here hosting what next? TBD? She is going to be looking into what’s holding up a COVID 19 vaccine for the little kids. You’re going to want to listen to that. All right. I’m Mary Harris. You can catch me on Twitter about Mary’s desk. I’ll be back on your feed on Tuesday.