The Electoral Count Act is a 19th century relic that provides rules for how to count electoral votes in presidential elections. Unfortunately, it's so vague and poorly drafted that, in practice, it's close to worthless.
The reason it's back in the news these days is obvious: after the debacle of 2020—and with a potentially worse debacle heading our way in 2024—we could really use something like an Electoral Count Act that actually works. What's more, there's a possibility of getting bipartisan support for an ECA reform, which means this isn't just hot air. We might actually be able to pass something.
But Yuval Levin points out that there are some fundamental disagreements about exactly what needs to be reformed:
This debate is a function of a very basic question so far left unresolved in the bipartisan effort to reform the ECA: Should we be worried about members of Congress trying to undermine the certification of elections or about state officials doing so?
There are reasons to worry about both kinds of scenarios, but ECA reforms could not easily take up both at once because the kinds of changes that would help address one kind of concern would tend to make the other worse. Averting shenanigans in Congress would mean constraining Congress to an essentially ceremonial role and leaving the substantive work of finalizing election results more fully up to the states. But averting shenanigans in the states would mean giving Congress more of an oversight role over the particulars of state certification. You can’t really do both at the same time.
I have an idea to toss out. American law has a thing called a "three judge panel," created in 1910 for reasons that need not detain us. They aren't used a lot these days except in voting rights cases, but they're fairly simple: a panel of three federal district judges hears a case and hands down a ruling, which can then be immediately appealed to the Supreme Court. The idea is that a three-judge panel is more reliable than a single judge, who might be a wacko, and the immediate appeal to the Supreme Court means cases can be decided quickly.
However, as Levin points out, there's a problem with federal judges hearing electoral vote cases, which are solely about state law as passed by state legislatures: "Giving federal courts original jurisdiction over disputes that basically involve how state officials enforce state laws is constitutionally dubious at best and could easily create more problems than it solves." The same is true of a normal three judge panel.
That made me wonder: could we create a different kind of three-judge panel? In this case, it would consist of three state judges and be immediately appealable to the Supreme Court. This would keep state judges as the finders of fact, while the immediate appeal is ideal for cases that need to be handled quickly. And as far as I know, nobody denies that the Supreme Court has final authority over these cases.
Anyway, this is just an idea, and there's more to ECA reform than figuring out how to handle judicial oversight. But maybe something along these lines is worth thinking about?
I suppose I get the practicality of this proposal, but there's a better idea out there that's been talked about a lot over the past 25 years or so. Everyone knows what it is.
That's not passing though.
Meanwhile, we can pass an ECA reform.
Not only is it not passing, but it's not getting upheld by the current Supreme Court even if it does pass.
(I trust no one will weigh with the observation that state legislatures are free to award electoral votes in any manner they choose; the Republicans on the court were mainly chosen for their ability to do the right's bidding, and put the resulting rulings into pretty legal language, no matter how spurious a decision is on the merits.)
But the federal gov't is the guarantor of representative democracy in the states....
Which is true but also highlights the more basic problem which passing new laws doesn’t address. Norms are not self enforcing. There were laws on the books to stop voter suppression but the Obama administration chose not to enforce them. Just as there were laws on the books to stop Russian interference with the 2016 election.
There are laws on the books to punish the attempted coup d’état and deter the next one in 2024. Having new laws which go unenforced is basically hust whistling past the graveyard.
No we can't. Republican support will evaporate.
I guess the problem with three state judges is that, in general, state judges are *elected* and thus are likely to follow the political proclivities of the state actors playing hanky panky with the election results. Besides, federal judges pass judgement on state laws, which impact federal law all the time. How is this any different?
Interesting in concept, but I have to doubt that the part where Congress mandates that state judges form panels would pass constitutional muster.
Regardless whether you're originalist, textualist, traditionalist, whatever, the basic idea seems to be that presidential elections are done in and by the states and results reported to the special joint session of Congress, which is there simply to witness the state-by-state reporting and tabulation of results and witness declaration of the ultimate winners. And also states have to run elections according to federal principles (or such of them as remain after SCOTUS has done its worst with them).
The combination of state responsibility for running elections and federal rule-making means to me that there can't be a really clean way to resolve disputes, and especially not when they're ginned up in bad faith. You can't leave it just to the states because they're often the bad actors (though I thought the FL supreme court's solution in 2000 would have been equitable if it hadn't been big-footed by SCOTUS), and you can't have the feds come in and muscle the states out of the way either, especially now when even the federal courts are so untrustworthy.
I wish I had an answer to that.
The one thing I do want to see drowned in Grover Norquist's bathtub is the new legislative-supremacy reading of the elections clause that says state legislatures acting by themselves have sole and total control over how presidential electors get chosen. That's just an abomination.
but I have to doubt that the part where Congress mandates that state judges form panels would pass constitutional muster.
Yeah, I was wondering about that, too.
The never ending farce called American elections…
A comment by a Swede accustomed to democracy
I doubt Senate Republicans would agree to any proposal that undermines one of their advantages (in this case, the fact that they control the presidential voting in several purple states). Which means we'd need both Manchin and Sinema to be on board.
Everything about Sinema's current anti-Democrat positioning makes sense, including probable opposition to making the awarding of electoral votes to Democrats when they do in fact win a state's presidential popular vote majority or plurality a guarantee, when you remember her Nader-era Green Party roots, & then, after chucking the Greens in the mid-00s, starting a joint campaign financing victory fund with Tulsi Gabbard in 2013.
Joe Manchin may be a Fritz Hollings Democrat, but Kyrsten ain't even that. Cause she is missing the third word of that expression.
Sinema is just in it for the attention and the lulz. She doesn't really believe in anything, and probably doesn't even have a soul, existing solely on a diet of fame/infamy and retweets.
She's a nihilistic bubble head.
I can't read Joe Manchin's mind, and no doubt he's got his culturally conservative streak. But I don't get the impression he actively loathes the Democratic Party. Take BBB, for instance: I think he'd have been perfectly happy to see it pass, as long as his vote wasn't tied to it. But the vibe I get from Sinema is very different: a combination of policy/politics ignorance, vanity and pettiness.
I never said Joe Manch hates the Democrat Party. He is just a Democrat of his era.
Sinema is a chaos agent.
Agent is giving her too much credit.
So....someone makes a wackadoo claim, the three judge panel would just throw it out if they were acting in good faith, and now it's immediately appealed to the Supreme Court. That will work out just great....
What five justices do you think would be in Trump's pocket in 2024? I'll give you Alito, because he tends to be an angry partisan. Then maybe Thomas, then Gorsuch. Kavanaugh and Barrett, I don't see it.
Yeah, but Kavanaugh has to make good on his whirlwind threat. He may secretly not care about Trump, but he is *openly* hostile to Democrats.
Maybe he'll let it go by 2024, or maybe he wants spitefulness to be his life's story.
It’s time to face facts. The Republican candidate for president in 2024 will be inaugurated. One way or another, they will take over. Republican state legislatures will invalidate voting results. Republican controlled election administration will invalidate democratic candidates votes. Voting locations in areas with large numbers of democrats will be closed or poll workers threatened so they can’t be staffed. Republican controlled police will refuse to provide security.
There are a hundred ways the republicans can pull this off. And they will do every one. By 2024, the courts and the state / local police will be unable and unwilling to prevent this.
And there isn’t a damn thing any of us can do about it. The fix is in.
The 1/6 attack, the Summer police protests and looting, violent crime wave, the Portland occupation, and now the Ottawa occupation… all are pointing to more violence. It is in everyone’s interest now to escalate. So they will.
"The 1/6 attack, the Summer police protests and looting, violent crime wave, the Portland occupation, and now the Ottawa occupation… all are pointing to more violence. It is in everyone’s interest now to escalate. So they will."
These are all connected only by being in the same sentence. Which is to say, it assumes a conspiracy theory. Yes, Lenin, Mussolini, Hitler and Mao taught us that violence can work, the the historical contexts are very different. The price of democracy is eternal vigilance, not eternal paranoia.
Not at all. There is no conspiracy linking these events. But each demonstrates the effectiveness of a tactic. How do you attack the capitol? Didn't work the first time all that well, now people know better. How do you stage massive demonstrations? How do you exploit demonstrations to make chaos (looting etc.)? Same with Portland and Ottawa. Extremist groups are learning how to disrupt. They are learning the choke points. They are learning how to prepare.
The nature or ideology of the group is irrelevant. The tactics are being developed and optimized.
well said
Surprised you left out algore's gaming of the Florida recount by only asking to recount a few Democrat-favorable counties or the Wisconsin shitlibs who protested Scott Walker's use of his political capital following his 2010 blowout win in the governor's race to sign Act 10. Considering your list seems much heavier on leftish or liberal malafactors over falangists.
Al Gore didn't win.
The Wisconsin legislature has been run by Republicans for the last decade plus with no sign of Democrats gaining control in the foreseeable future.
Not sure what your point is with your "both sides, everyone does it" argument, if only one side actually succeeds at doing it. Other than to be a trolling asshole of course.
My point was our supposed voice of reason Justin is a GQP apologist.
Justin is very invested in getting people to think that an American collapse is unstoppable, inevitable, already in progress, and maybe even not worth opposing anyway. More than a GQP apologist, he really seems intent of seeding demoralization.
Is that accelerationism?
Here is also an idea,
rather than giving oil companies tax breaks and other subsidies, cut those entirely and reimburse the public, not businesses, for any increase in costs.
This will increase the unpopularity of business and inspire people to vote against it.
I am more worried about voter and electoral worker intimidation than about the law, however imperfect it is. Such intimidation is already illegal but I see no proactive DoJ attempts to prevent it until it's too late. Methinks Jan 6th proved people are willing to risk jail to steal an election. What's the comfort if they succeed next time, and some of them do receive punishment?
More and more I'm coming around to the point of view of people who are asking: what is Merrick Garland doing?
The state judge panel would have a similar constitutional problem as the federal panel. Under our federal system, one state’s courts cannot issue decisions or orders binding another state (with limited exceptions, such as extradition). This is why the US Supreme Court was given original jurisdiction over disputes between states (often involving boundary or water rights disputes). Creating a “super-panel” of three state court judges to render binding decisions involving 50 separate sovereign states would violate the principle of state sovereignty over their respective laws. The extent to which Congress can constitutionally legislate requirements for federal elections conducted by the separate states is an interesting and unresolved question, which would likely be decided by the US Supreme Court if Congress were to enact any voting rights or electoral count act legislation.
The larger, and more dispiriting, point is that none of this matters. Laws, the judicial system, and our constitutional system of government in general function only if all sides accept their legitimacy and are willing to cede power when the system yields a result against their wishes. Today’s Republican Party, which calls an insurrection and attempted coup “legitimate political discourse,” has abandoned any pretext of abiding by constitutional limitations. The conundrum of attempting to correct a corrupt state election process with a corrupt Congressional electoral vote-counting process cannot be resolved. If anyone is interested in exploring the Congressional side of it further, Rep. Jamie Raskin’s new book, “Unthinkable,” has an excellent discussion of the flaws of the electoral vote counting system and the dangers of a “contingent election,” i.e., a presidential election being decided by the House of Representatives. The danger is real, the concern is not alarmist, and it is likely to happen.
The idea, as I read this, was for there to be a panel of three state judges in each state, to have jurisdiction over elections in their state.
Your making the assumption that the judiciary aren't a bunch of political hacks, Recent history would suggest that that is not the case (SB8 from Texas, vaccine mandates, gerrymandering, voting rights, etc.)
Kevin, you rarely have bad ideas, but this one's absolutely the worst I've seen in well over a decade of nearly daily reading. This would be even worse and less remediable than the current system. Most states ELECT judges in PARTISAN ELECTIONS. And have you been paying close enough attention to how nakedly partisan the Supreme Court has become the last few years? I suggest following UT Law Prof Steve Vladeck on Twitter and reading the "Dorf on Law" blog.
I don't think there's a way to have a federal law dictate how and when state judges review state election problems. I'm pretty sure a federal law that tried this would get struck down as unconstitutional. Every state would have to pass their own law individually, which makes this a bit of a non-starter.
One thing to note is that Washington, DC is not Ottawa. Ottawa was strategically placed to avoid having to defend it (much further away from the US border versus Washington, DC which was designed to be less vulnerable to rioters and in more recent years lots of layers of security to prevent trucks from being where they are not allowed to be and far fewer routes where trucks are allowed and lots of bottlenecks that can be quickly blockaded to prevent entry. Of the bridges that cross from VA into DC many forbid truck traffic and the ones that permit dump you off away from The Mall and high profile targets.
No truck convoy would ever be permitted into DC right now, I'm thinking that after Oklahoma City a ton of thinking and planning went into making DC safer and then even more thinking and planning went into making DC even more safe after 9/11.
The Canadians blew it big time by operating under an assumption that no group would bother with Ottawa, it was only defended against lone wolf types.
Saw a Canadian documentary in 1967 that said when Ottawa was designated the capital, it was chosen to be a safe from U.S. attacks, and unkind Americam commentators agreed. Nobody, they said, would ever find it.