The Volokh Conspiracy

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Electoral College

Electoral Count Act Reform

This should be a high priority for the current Congress

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I want to call attention to an excellent op-ed in the Washington Post outlining a framework for reform of the Electoral Count Act. The Electoral Count Act is an 1887 federal statute that governs the process by which presidential electoral votes are transmitted to Congress and officially counted. It is a cumbersome statute that has long needed reform. The 2020 election has demonstrated how the statute can be exploited to steal an election, to put it bluntly, but the past few elections when Democratic legislators were calling for ballots to be cast out should have already highlighted the dangers. It is essential that Congress act now to close that door and avoid some truly ugly scenarios. The foot-dragging by Republican and Democratic leaders on this issue is unconscionable.

A bipartisan group of scholars -- Ned Foley, Mike McConnell, Rick Pildes, and Brad Smith -- published an op-ed laying out a good framework for reform. The key starting point is here:

To prevent another such event, which could be launched by either party in an effort to control the outcome of a hotly contested presidential election, a revision of the Electoral Count Act should be based on the following guidelines:

Whenever there is just one submission of electoral votes from a state — in other words, no competing slates of electors — Congress should disavow any power to question those electoral votes on the ground that there was something wrong with the popular vote upon which those electors were appointed. As long as the state itself has settled on who won that state through policies established in advance of the election, Congress has no role other than to accept those as being the state's electoral votes.

But that is just the start. Read the whole thing.

Update: I see co-blogger Jonathan Adler beat me to the punch.

NEXT: Cross-Ideological Support for Electoral Count Act Reform

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  1. "As long as the state itself has settled on who won that state through policies established in advance of the election, Congress has no role other than to accept those as being the state's electoral votes."

    I note that you said "policies" and not "laws". Keith is apparently fine with elections being stolen, they just must be stolen at the state level.

    1. That is a radial interpretation of the text.

      1. It's a fair interpretation, when informed with a knowledge of recent current events. State governors illegally changed state voting requirements with the pandemic as a pretext.

        1. Which is within their constitutionally granted powers. You could argue about Pennsylvania since the courts there overrode the legislature, but everywhere else the states were within the constitution to do what they did.

          And nobody stole anything.

          1. Kleppe may be at the 'election was stolen and Mike Lindell is a totally sane patriot vilified by communists for being right' level of wingnuttery.

            Which probably qualifies him for some type of premium elite sovereign citizen patriot status at the Volokh Conspiracy.

        2. Kleppe, the issue should not be whether contingencies were addressed with procedure changes. The issue should be whether the procedure changes were ministerial in character—meaning not reasonably construed to bias voting outcomes—or whether they were on their face materially likely to deliver outcomes other than those voters' ballots would have determined. The latter should be barred, the former should be authorized.

        3. State governors illegally changed state voting requirements with the pandemic as a pretext.

          No, they didn't. Here's who decides whether someone violated a particular state's laws: that state's courts.

        4. Kleppe : "State governors illegally changed state voting requirements with the pandemic as a pretext"

          This shtick is a favorite of Brett Bellmore and it's understandable why. You get to claim the election was "stolen" without embracing the cringe-worthy embarrassment of MyPillow-grade lunacy. It's transparent weaseling, but with a paper-thin veneer of rationality.

          Of course every election year in my lifetime (six decades & counting) has seen adjustments to election procedures by executive or judicial act. I once provided Brett with a link to a law site listing election process lawsuits - scores of them over the past quarter-century alone - just to show how phony his hysterical rhetoric was. Nothing in 2020 was remotely new.

          Now, if you want to claim the '20 election adjustments were greater than average and not warranted by the exception nature of the pandemic, please go ahead. However that argument is a long row to hoe and the "constitutional crisis" talk so common to this bullshit meme is necessarily (and rightfully) abandoned.

          And your problems don't end there, because there's no case these measures to ease voting during a pandemic cost Trump anything. Sure, today's Right has a visceral loathing of American voters (as seen in their blizzard of voter harassment bills after the election), but that doesn't translate into a creditable argument.

          Look, I get it: A Trump cultist has had difficulty maintaining his personal dignity since day-one of the previous administration. It was nonstop embarrassments, humiliations & buffoonery. Now his disciples must drag this clown-show gibberish about a "stolen election" behind them, like a rotting reeking carcass chained to their leg. Any argument with the slightest hint of respectability must be alluring.

          But it won't do. The Cult needs to find another excuse for their messiah's loss.

      2. I'm sorry but the knuckle draggers here aren't going to give you a cogent thesis. Anyone believing the election was stolen is already too far gone.

  2. I agree with the authors that there is a need for reform. I am a little concerned that we could see an attempt at the state level to change the results of the popular vote. I would suggest that the state popular vote must be accepted and certified unless it can be demonstrated in a court that it is in error. I don't want to see the popular vote thrown out because of some ex-President's vanity.

    1. That wouldn't be constitutional: Constitutionally, the state legislatures are entitled to pick the manner in which the electors are chosen, and they're NOT obligated to pick them by a popular vote.

      Congress has no authority to tell them it must be by a vote.

      1. That is debatable. There is still the Guarantee Clause.

        1. It's not debatable, it's explicitly stated in the Constitution.

          1. Yes, as I always explained to kids. You and I don't vote for president. The states vote for the president.

            The current way is done by popular vote in the state, but we need to remember that there's no reason it has to be done that way.

          2. Brett, so is the Guarantee Clause.

            Beyond that, there are the great big first three words of the Constitution. The entire document is a sovereign Decree from the People themselves. They have the constitutive power, all of it. And except for constitutional drafting itself, elections are the premier examples of the constitutive power's exercise. Government, including state government, does not get to interfere with that. Governments are not sovereign. They report to sovereigns.

            You seem to be conflating the amended-away previous power of state governments to choose U.S. senators, with an imaginary power to deprive the sovereign People of their constitutive power.

            Here is a compromise. Let state legislators do what they want. And let the sovereign People—jealous of their power—punish as federal felonies any non-ministerial, non-vote-counting procedures chosen by state legislators.

            1. Since the clause giving state legislatures this power is explicit and perfectly on point,

              "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: "

              And the guarantee clause is in general terms and enacted at the same time,

              "The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence. "

              It would be perfectly inappropriate to read the guarantee clause as overriding the elector clause.

              1. You don't even need to read them as overriding. The guarantee clause is a restriction on the allowable forms of State government. The elector clause is about the Federal government. They are two entirely different topics with no overlap and therefore no contradiction.

              2. Brett, your supposition—although you appear not to realize it—is that the language, "in such Manner as the Legislature thereof may direct," was authorization to transfer sovereignty from the People to state legislatures. I do not think it is possible to imagine a more unreasonable interpretation of the Constitution.

                1. My 'supposition' is that the words meant what they said. You appear to be trying to override grammar with your own personal political ideology.

                  1. It is a constitution, Brett. You interpret it whole.

                    If other parts of the constitution constrain the part you want to paraphrase, you have to allow that constraint to limit your paraphrase. You can't just ignore evidence you don't like.

                    In interpreting history we start with survivals—the necessarily incomplete evidence the past delivers us—and nothing else. Together, those survivals comprise the historical record. The right method of interpretation is to make the various survivals thus delivered criticize each other. If we do that well—in a disciplined way which excludes present-minded assumptions—the parts of the past which have not survived can at least be speculated upon by reasonable inference.

                    The wrong method is to start in with lessons from today—including idiosyncratic notions about modern grammar, but also including every other tic of imagination which is not a reference to a past survival—and apply those to the past by retrospective time machine. When you are doing it wrong, like that, there is little likelihood you will arrive at respectable inferences.

                    1. The level of abstraction two-step: From the text you abstract principles, then you apply the principles in contradiction to the text.

                      Nope, the principles derived from the text never override the text itself.

                    2. Whoosh. But I expected that.

                2. An explicit statement that the State Legislature directs the manner in which Electors are appointed, is somehow confusing to you Stephen?

                  In what world do words not mean what they literally mean anymore?

                  1. When you say, "literally mean," do you always intend, "According to my paraphrase?" Because nothing in the Constitution, "literally," says states have power to make their governments sovereign instead of the People.

                    If get that you think the wording literally says, "Go ahead states, pick any meaning you like, no limits."

                    1. That's not paraphrasing - it's comprehension.

                      You can't argue against what that sentence explicitly says because the words leave absolutely no room for error. I don't agree with Brett on many things at all, but he's 100% correct regarding this.

                      The State Legislatures determine how the Electors of that State are appointed. There is no ambiguity here, there is no bullshit argument about stripping sovereign power from the State citizens.

                      Citizens elect their Legislatures, and those State Legislatures determine how Presidential Electors are appointed, because that's precisely what the Constitution demands.

                      I challenge you to find any authoritative text on this subject which supports your insane notion that words just don't have meanings anymore, and that proper nouns aren't actually proper nouns.

                    2. Jason, the challenge would be trivial to answer. Just look for quotations on this blog. In case after case, people go to court and win by insisting that every constitutional power must have a limit, or be judged illegitimate. That has been so commonplace that I have criticized it repeatedly. I insist that some constitutional powers are meant to be plenary.

                      Mostly people commenting here object when I do that. But not you, here. You are arguing for what may be the biggest extension of power possible—a power so plenary it can confer on government power to overturn and replace the sovereign it reports to. That's a big power.

                      But your claim is not baseless. Not only is inference of that possibility there, we know from the early history of the nation that the process actually worked that way in some states, apparently without creating major resistance. So what you see is a constitution with an internal contradiction written into it, and no simple way to unravel either the theory or the history.

                      What to make of that now—when the previous practice of interpreting things the way you see them has been universally dropped—is a question I suggest best decided on the strength of what will work best now.

                      I could say a lot more, but would want to look into the history before I did. Your attempt to be conclusive about a complicated subject strikes me as less thoughtful than we probably ought to be now, in the midst of political crisis.

                    3. I challenge you to find any authoritative text on this subject which supports your insane notion that words just don't have meanings anymore, and that proper nouns aren't actually proper nouns.

                      Of course that summary does not describe what I said.

                      But read, On History, by Michael Oakeshott. It is brilliant, but about as digestible as Kant. You might be able to understand it well enough to see that you are stuck in a logical contradiction when you insist a present-minded understanding of word meanings is a competent tool to critique antique text.

                      As for authoritative, Oakeshott on historiography is about as authoritative as it gets.

                      Another principle Oakeshott espouses is that bringing your personal critique to an analysis of something which is a survival from a time past (the Constitution, for instance) is unavailing as a historical method. The correct method is to marshal all related and relevant survivals (insofar as possible; more always being better), then make them critique each other. Afterward you can draw historical inferences. Oakeshott is brilliant at explaining why you do that—and it is a notion which applies pretty strongly against your method of argument here.

      2. Are you suggesting that we eliminate popular vote and just let state legislatures decide the elections?

        1. I sense a growing number of conservatives are desperate and disaffected enough to embrace that.

          It's a good thing that over the medium to long term their preferences will be irrelevant in modern, educated, improving America.

          1. I wish I had your optimism that Americans were either educated or improving.

            1. America's improvement is vivid.

              Reason, tolerance, science, modernity, inclusiveness, education, and progress have defeated ignorance, bigotry, backwardness, dogma, superstition, insularity, and pining for illusory good old days in the American culture war, which is not yet over but has been settled.

              During my youth, the bigotry was open, common, even casual.
              Blacks were routinely abused by government and by individual citizens. My classmate was told to 'find another way home' by a neighbor who didn't want her on 'his sidewalk' while walking home from school -- and she did. Women not only were not welcome in graduate schools or in many professional settings but also were dragged by arm, sleeve, or hair into homes for beatings that everyone heard but no one did anything about. Gays were mistreated mercilessly and beaten in alleys -- and that was by the police. Jews were rarely called something as civil as Jew. There weren't many Asians in my neighborhood to be targeted, but Japanese-made cars were called rice-burners and vandalized.

              Today, our vestigial bigots no longer wish to be known as bigots. They prefer euphemisms such as "traditional values," or "religious values," or "conservative values," or "colorblind." The civil rights movement has painted our bigots into increasingly small, desolate corners of America.

              The advances in environmental protection, employment rights, voting rights, consumer rights, and other important contexts also have been formidable. Unearned privilege has been diminished substantially.

              America becomes less rural, less religious, less backward, less bigoted, and less White daily, as obsolete old-timers take their stale, ugly thinking to the grave and are replaced in our electorate and society by better citizens.

              I am optimistic, but also realistic: Democrats should not become overconfident.

              If conservatives perfect a machine that mass-produces half-educated, roundly bigoted, church-going, gullible, easily frightened, stale-thinking, elderly, white, rural southern males -- and the Volokh Conspirators and other Republican lawyers figure a way to register the newly-minted clingers to vote -- America's liberal-libertarian mainstream could have a real problem on its hands.

              Other than that, relax and enjoy the progress.

        2. He's pointing out that it would not be unconstitutional for the legislatures to appoint electors directly, even if it goes against the state's popular vote, and it would be unconstitutional for the Federal government to step in and force a change.

          In fact the National Popular Vote Interstate Compact depends on both of those facts

          1. And the NPVIC is a stupid idea. If people want a national popular vote, they need to amend the Constitution and not come up with a stupid scheme.

            1. Coming up with stupid schemes is what people do when the current system has outlived its usefulness but the amendment process is too unwieldly to actually be useful. Not to put too fine a point on it.

              We're at the point where some on the right are blatantly admitting that they don't believe in democratic elections. Unfortunately, the current system just might allow them to achieve that result. And the real problem here, as I've said multiple times, is the electoral college. Get rid of it and a significant number of these problems goes away.

              1. Coming up with stupid schemes is what people do when the rules don't work to their advantage, and they don't have popular support for changing them.

                If you could actually convince people that the EC should be abolished the amendment would be feasible. The reason it isn't, is that you haven't been able to convince enough people.

                1. As I pointed out last time we had this discussion, the problem is that "enough people" is ridiculously high. Give us a number that's actually reasonable.

                  If the shoe were on the other foot -- if you were trying to create the electoral college -- do you think you would have 2/3 of Congress and 3/4 of the states? Neither do I. And the fact that you did have 2/3 of Congress and 3/4 of the states 200 years ago shouldn't be relevant.

                  1. And as I pointed out, the amendment process doesn't require a large majority, it requires a widely distributed majority.

                    1. You don't think 75% of the states is a large majority?

                      Large or well distributed, the point still remains that we are stuck in a 200 year old time warp with no politically feasible way to fix it. So my side will continue to do stupid schemes, and so will yours when it's in your interest to do so.

                    2. The system isn't testing for overwhelming support, it's testing to see if the support is widely distributed rather than local. Local overwhelming support can't get you over the bar if most of the population is meh about an amendment.

                      If 51% of the population in every state supports an amendment, it will pass overwhelmingly. 51% is not a large majority.

                    3. And it's not a bug that you can't 'fix' something if the belief that it's broken is largely local. It's a feature.

                    4. It’s not a local belief. It’s pretty much the entire country except those areas that benefit from it. And my side will continue to look for end runs around it.

                    5. I can't even begin to imagine the cognitive dissonance it requires to think of oneself as an American or patriot, while proudly professing the intent to circumvent (read: violate) the Constitution deliberately because "waaah, I want it my way!"

                      You might as well have marched on the Capitol last January 6th with the other traitors.

                    6. Jason, there would have been no January 6 if not for the electoral college. Without it, Trump never would have been elected president in the first place, meaning he would not have had the presidential pulpit to whip his followers up into a lather about a stolen election.

                      It is precisely because I love America that I support efforts to repeal the electoral college (or, failing at that, to prevent it from ever giving us another Trump). Your hyperventilations say much more about you than they do about me.

                    7. Krychek,

                      If you want to pass an Amendment, I have no issue with your efforts. If you seek to 'circumvent' the Constitution instead, then you intend to violate it, and that is no better than any other traitor.

        3. Are you suggesting that we eliminate popular vote

          Who is this "we" kimosabi?

          What states are not using the popular vote?
          What are the emergency procedures in place, to address a situation that prevents the legislature from accepting the counts from random jurisdictions?

          Florida 2000?
          That's when the Florida Supreme Court ordered a state wide recount. With no constitutional power, the Court ordered a recount no one asked for.
          Why?
          The judges, smarter than any other being in the State, declared they had to avoid a constitutional crisis. The calendar was leaking down to zero. Without a declared winner by the date required in the Constitution, a slate of electors could not be named. The "wise" Judges determined an unconstitutional forced state wide recount was the answer. NOT the constitutional provision that delegated that authority to the State House of representatives, if the vote was unable to be certified. The State House was the constitutional fail safe to choose a slate of electors by a vote of House Members.
          BUT... Those super smart judges vetoed the constitution because the judges did not like the fact that the Florida House of Representatives was a Republican majority.

      3. State legislatures are indeed constitutionally entitled to pick the manner in which the electors are chosen. They can choose to appoint electors directly rather than holding a popular vote. But state legislatures are not constitutionally entitled to throw out the election results after the electors are chosen by the popular vote method established by the legislature.

        1. Well, yeah, I agree, once the electors have been chosen there are no backsies, because they've already been appointed.

          The real question is what the legislature can do if the executive and/or judicial branch up and decide not to follow the procedure the legislature specified. There's a strong argument that they have no say in the matter, because the state legislatures are performing a federal function which was given specifically to them, not the state as a whole.

          You'll note that the guarantee clause makes clear that the Constitution does sometimes pick and chose among state level offices that get to perform federal tasks; The executive can only authorize federal help against domestic violence if the legislature is unavailable. It's not a power the judiciary or executive can exercise against the will of the legislature.

        2. "But state legislatures are not constitutionally entitled to throw out the election results after the electors are chosen by the popular vote method established by the legislature."

          I am interested in the case which decided this. Do you have a cite?

          1. You will frequently find there is no on point case for something, because nobody previously had the gall to do the wrong thing.

            In this case the Constitution gives the states the power to decide how the electors will be appointed. It doesn't say anything about their having the power to replace them after that has taken place.

            1. It says nothing about timing of the power at all. You are assuming it must be before the election, but there is no text that limits their power like that.

  3. One factor that is missing from the Op-Ed is the unrealistically short time between election day and the EC vote. The roughly five week period is simply inadequate to address any kind of real court process concerning a vote count, as Al Gore discovered. This issue arises in every election at the Congressional district level (see, e.g., NY22).

    Moving national election day to mid-October, and the EC vote to December 21, would create a better window of time in which to address real court challenges in the event of very close elections (e.g., those that go to automatic recounts, or for which there are identifiable rules-related issues).

    (I note that we presently have a vestigial national holiday in mid-October that could readily be converted to a new National Election Day holiday.)

    1. You have to remember that Gore deliberately delayed his recount demand until the last minute in an effort to prevent Bush from having time to respond in kind. If he'd demanded his recount at the beginning of the challenge period, rather than the end of it, a full statewide recount would have been feasible.

      But, yes, more time to cope with the glacial pace of the courts would be helpful.

      1. Look, it's more Brett making stuff up that's completely fictional and depends on a conspiracy. That did not in any way happen.

        1. It's not my fault you can't remember the events of 2000. Yes, Gore did wait until just before the challenge period expired before requesting his recount.

          Here's the challenge period, the period during which the candidates are entitled to a recount if they request it.

          "102.166 Protest of election returns; procedure.--

          (1) Any candidate for nomination or election, or any elector qualified to vote in the election related to such candidacy, shall have the right to protest the returns of the election as being erroneous by filing with the appropriate canvassing board a sworn, written protest.

          (2) Such protest shall be filed with the canvassing board prior to the time the canvassing board certifies the results for the office being protested or within 5 days after midnight of the date the election is held, whichever occurs later. "

          Gore waited until that period was practically over before requesting his recount. His request for a full recount came after he was legally entitled to one.

          1. Note, no requirement for a full recount. And note, filed within the deadline. How do you come up with the notion that gives you evidence for your conspiracy theory?

            By the way, Brett, did you notice that, "appropriate canvassing board," language. I take that as express language contrary to your assertion that a partial recount could be denied. On the basis of what you present, it looks to me like Gore got the shaft worse than I realized.

            1. A request for a partial recount couldn't be denied during the challenge period. After the challenge period any recounts were discretionary on the part of the SOS, which is one of the points the state legislature took exception to the state supreme court overriding their laws on.

          2. It's not my fault you can't remember the events of 2000. Yes, Gore did wait until just before the challenge period expired before requesting his recount.

            It's not my fault you make stuff up. Gore did no such thing. The election was November 7. On November 9, Gore requested recounts in the four counties he was challenging: Miami-Dade, Broward, Palm Beach and Volusia.

    2. Maybe we move the inauguration back to March and leave the election in November. That would accomplish the same thing, no? I believe that before FDR, March was when POTUS' were inaugurated.

      1. Presidential, VP, and Congressional inauguration dates were changed via the 20th Amendment. Good luck getting it repealed.

        1. Well, since we're discussing repealing amendments, could we also repeal the 16th and 17th? Pretty please? 🙂

          1. Sure, why not. We'll make out a list and start an Article V Convention.

    3. Ugh, no. We have enough problems with lame-duck politicians. Please don't give them an even bigger window to make trouble.

      1. Could do away with that by making their jobs end save for certifying results, if that even needs done.

        Quite frankly, there shouldn't be a lame duck period. Congress does nothing most of the time anyway; why should we need them to "do" anything in a lame duck period either?

        1. Or we could just require that any actions between election day and the new members taking office would require a significant supermajority, so that the option would be available in emergencies, but only emergencies.

  4. "but the past few elections when Democratic legislators were calling for ballots to be cast out"

    ??

    Somehow you have to have a way to say that Democrats are somehow equally guilty, even if you have to make stuff up.

    1. Except there have been calls for active calls to change votes in the college for every election a Republican has won since at least Al Gore.

    2. But he didn't have to "make stuff up", they literally were challenging electors.

      Congress has objected to Electoral College votes before. Here’s a look at past efforts:

      In fact, the unusual thing about 2020's election was that it wasn't the Democrats doing the challenge!

      1. Isolated, symbolic votes. Different from the losing party's mass rejection of the results while at the same moment their supporters have stormed the Capitol, entered the chambers and threatened the lives of those who would certify.

        1. 'But he was only literally correct! That doesn't count!'

          1. Yes, that's right - technically correct only counts for pedants and outcome oriented tools.

            We all know what we're talking about, and it's not symbolic votes.

            1. What's worse, pendants who insist on the literal truth, or people who reject the literal truth if it doesn't serve their purposes? It's the latter who are the "outcome oriented tools".

    3. LOL. Yep, your side too.

      The Clintonistas were openly pressuring Trump electors to just switch.

        1. 'The Clintonistas' doing a lot of work there.

          A few desperate op-eds are not the same as the party apparatus at both state and national level.

      1. No, it's not the same thing, and here's the difference:

        Suppose John Smith wins an election to Congress with 51% of the vote. Encouraging him to switch parties, and awarding the seat to his opponent, are not the same thing.

        1. Nope, it’s the same thing.

          “Ignore the fact that under the rules Trump won your state’s electoral votes, and ignore the fact that you are committed to vote for Trump, and vote for Clinton instead. Exactly what Trump was trying to make happen.

          Your team is every bit willing to bend the rules to steal an election as the other team.

          1. Not a serious argument.

            I advise you to look at the videos of 1/6/21 again, and the refusal even now of Trump to concede and of most Republicans to continue to believe the election was "stolen".

          2. So, just to be clear, if a member of Congress switches parties, you consider that stealing an election?

            1. That’s a really really stupid analogy. Switching parties is nothing like getting an elector to defy his state laws. Why can’t you just admit that Clinton did it too? Denying plain fact is not a good look.

              And captcrisis, this discussion is related to state legislatures setting the rules as is described in the constitution and then having the parties try to work around those laws to “steal” the election. The fact that the Trumpalos decided to throw a riot doesn’t change the plain fact that Clinton tried to do it too in her own way. It was all over the media in 2016. Why do you insist on denying plain fact?

              1. Elections are about who is elected and not what they do with the office once they have it. There have been faithless electors as long as there has been an electoral college. No one thought being a faithless elector was stealing an election until Trump first made that claim in 2016.

              2. getting an elector to defy his state laws.

                You know that not every state has such a law, right? Why do you assume that they were trying to flip electors in states with such laws rather than the ones without? (Note further that the constitutional of such laws was in serious question in 2016. The Supreme Court has since ruled them to be valid, but not as of then.)

                Why can’t you just admit that Clinton did it too?

                Because you made that up. There were discussions about it in 2016, yes. But not by Clinton.

                Full disclosure: in 2016 I did think that encouraging (so called) faithless electors was okay, I have since come to decide that it is not. In an ideal world — or the one designed by the founders — electors would in fact exercise their own judgment and not vote for a sociopath. But we don't live in that world; we live in the world in which it is centuries old custom that they will vote as expected (with a very very stray exception from time to time, as a protest when it mathematically doesn't matter). And it would be seen as wildly illegitimate if an election result turned on faithless electors.

  5. Right problem, wrong solution. Make the full election system must be transparent and fully auditable. That will solve the problem. Preventing recourse in the event of a election inconsistencies will only cause more mistrust in the election system.

    1. I fail to see how that really curbs events that took place in 2020. There are still huge amounts of idiots that believe the election was stolen even when court case after court case was dismissed because of zero evidence of such a thing.

      Even now, there's been a handful at best of fraud and most of that is on the Republican side.

      The election system already IS generally transparent and auditable. The problem isn't that- it's that politicians can and apparently will use whatever bullshit they make up in their head to justify outright lying to the people and convincing the dumbest among us that there was a problem, despite offering no evidence.

      1. Ah, you think that the courts actually looked into the election and that the rulings mean no evidence. Let me guess, CNN fanboy?

        If the election was transparent and auditable, we wouldn't have all these questions. We wouldn't be doing recounts that come up with different numbers. We wouldn't be wondering why partisan organizations had access to the election databases.

        Even now, there's been a handful at best of fraud and most of that is on the Republican side.

        There's fraud on both sides and in every state. That you can only see some is a blindspot on your part.

        1. Courts actually looked into the elections, and found no evidence.

          If the election was transparent and auditable, we wouldn't have all these questions

          "I'm making bad faith arguments without basis. That proves that the arguments must have a basis, because I wouldn't be doing it otherwise!"

          There aren't any questions, aren't any recounts coming up with different numbers beyond the statistically insignificant inherent variations in counting that will always occur if one counts a large number of items twice.

          There's no evidence of "fraud on both sides and in every state." There have been identified a handful of isolated instances of fraud — that one can count on one's fingers and toes — virtually all of which, if not all, involve registered Republicans casting extra illegal ballots on behalf of their family members.

        2. "If the election was transparent and auditable, we wouldn't have all these questions. "

          Wrong.

          Better: If we didn't have all these bigoted, disaffected, stupid, desperate clingers, we wouldn't have all these questions.

  6. Let the Punch-and-Judy debate commence.

    Oh, yes it is!

    Oh, no, it isn't!

  7. The basic problem with the FBI is that it has no visiblw organized crime input. Other regulators have significant input and even oversight from the industries they regulate. The FDA pays close attention to the needs of the drug industry, ATF to the needs of the gun industry, Agriculture to the needs of farmers, etc.

    The FBI, unique among government regilators, has no official mandate to pay attention to the wishes and needs of the highly important and quintessentially American industry it regulates. An unconscionable state of affairs!

    But all is not lost. Like any other insustry, professional thieves can go over the heads of government bureaucracies directly to Congress.

    And as long as their representatives are secularly in place, and paid, these tom-fool so-called reform efforts by the industry’s enemies to put one over on them will come to nought.

    This is as true for the election-rustling industry as for any other.

    Will these wgg-headed pinko good-government academic types who think red-blooded Americans should keep their hands out of other people’s pockets where there are a lot of profits to be made every learn?

    What counts in America is success. If you can take the office legally, why not.

    None of this pinko communist free election bullshit. Come on! We went through a century of pretending to have free elections and making sure only white people one, all nice and legal. That’s the American way. Making sure the right white people win isn’t really any different.

    1. "The basic problem with the FBI is that it has no visiblw organized crime input."

      Whitey *who*? No, doesn't ring a bell...

  8. Okay, two threads, two posts. Here it is again.

    The OP looks like it calls for an authorization for cheating by state legislatures which want to overturn vote counts.

    The urgent need at this point is for federal legislation which makes voting administration at the state level a solely ministerial function, and makes it impossible legally to create an election outcome contrary to voters' intentions as expressed by their ballots. The following requirements need to be addressed:

    1. The personal responsibility of every person involved in election administration. There should be a requirement for an oath to uphold the Constitution, which says further that determination of an election outcome is a power reserved solely for the sovereign People, who determine that outcome by casting their ballots. Every state legislator participating in making state election rules must be sworn to that oath. Every officer of every vendor which supplies election equipment must be sworn to that oath. Every person involved in setting up election machinery and procedures, and conducting voter registration, and conducting election process must be sworn to that oath. Every person involved in counting votes must be sworn to that oath. Violation of the oath must be a federal felony.

    2. Election organization and management must be defined as a ministerial responsibility to facilitate voting, and to make it as easy as reasonably possible for voters to register and to vote. Non-ministerial means to be ruled out should include every policy or rule which has potential power to bias the outcome of an election, with bias defined as anything which purports to create an election outcome which relies on anything but voters' tabulated ballots. Every means which purports to give power to any source of election outcome except vote counting should be ruled out, and all attempts to do that—including attempts to do it under color of law—should be defined as federal felonies.

    3. All voting methods to be used must produce a paper record sufficient to enable an accurate count, and a subsequent audit after the election. Custody of those voting papers must be secured against partisan access, before, during, and after the election, until after elected officials have taken office. Thereafter, any access to voting papers must be conducted under a process to guarantee public oversight of everything done with those voting papers, and to prevent exclusively partisan access at all times until the terms of office of those elected have expired.

    4. Use of the electoral college must be approved as an authorized part of presidential elections. To the extent that review of federal electoral vote counting procedures determines they are faulty or ambiguous, congress should fix the problems.

    1. Congress has no power to prevent a state legislator from appointing the electors themselves if it wants. Nor can it prevent them from conducting a strictly advisory popular election before they do so, as long as the electors end up appointed on the correct day. It’s the state legislatures’ will that determines who becomes president. Ordinary citizens only get a say or involvement in the matter if that’s what the state legilsatures want.

      State legislatures can’t create a sham popular election, purporting to submit the matter to popular vote without actually doing so. But an advisory popular election wouldn’t be a sham.

      1. RederY, you are reading antique text, and giving it meaning upon which the historical record is, I think, silent. The notion that it is, "the state legislatures’ will that determines who becomes president," seems without explicit historical support.

        That certainly is not what the text actually says. It seems so far afield from the actual language and theory of the federal constitution that I think you must be cautious in the extreme before accepting it. But perhaps I am the one who is mistaken. Do you have some historical cite to support your meaning for the paraphrase you chose?

        However, even if someone said something to support that notion of yours, please, try to deal with the fact that your interpretation implies a state legislative power to overturn the sovereign constitutive power of the People, and bestow it instead on state legislators—who in historical context are otherwise regarded as utterly subordinate to the sovereign People, just as the federal government is.

        Thus, your interpretation creates a startling contradiction in the theory of American constitutionalism. On that basis, without very strong evidence from the historical record, I would probably interpret a mere snippet of support as outside the founders' general intent, and a likely misinterpretation by any historical person who said it. But do you even have such a snippet? Or maybe much more, from leading founders, in which case I will have to backtrack. Other than your own choice of words, what is your evidence?

        1. I mean, ReaderY is technically wrong, in that pursuant to the constitution it's the electors' will — assuming that a majority agree — that determines who becomes president. The constitution gives to the legislatures the power to pick electors, not the power to pick the president.

          But he's more right than you are, because the constitution does in fact assign that to the legislatures, not the people. The "historical record" to which you allude is overwhelmingly clear, because a majority of states didn't ask the opinion of their citizens for decades.

          1. No, Chiafalo v. Washington disposed of that position by sumultaneously clarifying that:

            1. Electors are mere ministerial functionaries who can be appointed solely to vote for a pre-sepecified candidate. They be dismissed, and new ones appointed, or punished, or both. if they don’t do what they were appointed to do. So no, electors have no say in the matter.
            2. State legislatures retain the constitutional authority to appoint presidential electors and direct them how to vote themselves, directly, if they want. The Supreme Court was very explicit about this point.

            So the upshot of the Chiafalo case is that legislatures are now more firmly in the driver’s seat then they were before. They don’t have to involve the general public in presidential elections at all. And they can dismiss electors who won’t do what rhey are told. State legislatures can let electors make up their own minds if they want, just as they can appoint wlectors by popular ballot if they want. But hey don’t have to do either. Popular elections are just as much a matter of legislative grace as Hamiltonian electors.

    2. Stephen, the constitution explicitly says that the state legislatures set the rules for how each state’s electoral votes are awarded. Period, end of sentence.

      The feds have no say, unless someone’s civil rights are being infringed. Write as many paragraphs as you want, but the feds have no say.

      1. I've long wondered if awarding all of a states electoral votes to the winner of that states election was an abridgment of someone's rights.

        California awarded all of its 55 electoral college votes to Biden, despite Trump receiving 34.3% of the votes in California or about 18 electoral votes.

        I understand Maine and Nebraska award their votes based the vote in each congressional district with two votes going to the overall winner in the state.

        1. Several lawsuits have been brought over the years against WTA. They have all been rejected by the courts.

      2. bevis, my reply to ReaderY above applies to you as well, and to Bellmore, no doubt.

        1. The first amendment is “antique text” as well. All of that antique text is what establishes how we do things until (as has been done) we replace that antique text with something else.

          The state legislatures don’t decide who becomes president. They decide how their state’s electoral votes are to be decided. That’s it. The constitution is very clear. The fact that you wish it were different doesn’t matter. Wanting to do something other than what the constitution says because you don’t like the outcome is sort of like, you know, stealing an election.

  9. The proposal would provide that "As long as the state itself has settled on who won that state through policies established in advance of the election, Congress has no role other than to accept those as being the state's electoral votes." That implies that, at present, Congress does have a substantive role to resolve disputes about who won. So Trump was right and Pence was wrong? Seriously?

    1. No, not seriously, for two reasons:

      1) . As the article notes, there weren't any disputes to resolve in 2020. Each state appointed one and only one slate of electors. (Prof. Eastman, as shocking as this may be to some, lied about that.)

      2) But if there should be multiple slates nominated by a given state, then there are only two choices: (1) that state's votes are automatically thrown out; or (2) someone must decide which slate to count. Now, the constitution weirdly doesn't specify how to make that decision, but it seems plausible that the body doing the counting would make that determination. But that's not Mike Pence. The vice president's role under the constitution is literally to open the envelopes, not to make any decisions at all.

      The ECA specifies how that process would work. It also does not give any role to the vice president.

    2. The Constitution assigns Congress the role of resolving disputes. Pence agreed with that. He presided over several votes on whether to throw out electoral votes or not.

      Trump had said that the Vice President personally could throw out electoral votes. When Pence said that only Congress as a body, not the Vice President individually, can throw out wlectoral votes, he was disagreeing with Trump, but completely agreeing with the idea that Congress has a substantive role to resolve disputes.

      1. Thanks, Reader Y, for that explanation. So if the new law is passed, a corrupt State government could (say) disallow validly cast votes and declare a candidate the winner, even though he/she actually got fewer votes than the other candidate, and Congress couldn't do anything about it?

        1. In fact, that's exactly what the NPV initiative would do: Throw out a state's popular vote if the national popular vote was different.

          1. Brett, I also oppose the NPV initiative, but that's really a different issue than how to deal with disputes over the vote count in a particular State. Under present law, if (say) North Carolina voters went 60-40 for DeSantis over Harris, but under NPV the State then cast its electoral votes for Harris, couldn't Congress reject the votes for Harris and treat DeSantis as the winner of NC's electoral votes? And if the answer to that is yes, wouldn't the proposed new law require Congress to accept whatever NC sent up as their official electoral vote count? Is that a step forward?

            1. couldn't Congress reject the votes for Harris

              No. There is no provision in the Constitution or in federal law for Congress to reject votes unless there is more than one slate of electoral votes sent to Congress from that state.

  10. The idea that only states can be trusted to conduct fair elections, and Congress cannot be, would have been astonishing to anyone at any time in the century prior to perhaps 1970.

    At the end of the day you have to trust someone. The Constitution trusted Congress to count returns fairly.

    A law obviously can’t address a corrupt Congress. The that Congress can prevent itself from being corrupt by statute is as absurd as the idea that the Supreme Court can prevent its successors from being corrupt by a judicial decision, or a President by executive order.

    If Congress wants an incumbant president of the same party to stay in power, it can just pass a new law before it starts counting, or even in the middle.

    1. ReaderY, that the kind of miscarriages you describe could be attempted is within the capacious bounds of speculation. That it could in any way be legitimate to do them is inconceivable.

      Here is a question. In that last sentence I wrote in the paragraph above, what makes doing that stuff illegitimate? I expect if you take that question seriously, you will find yourself more constrained in your answers than you suppose.

  11. "As long as the state itself has settled on who won that state through policies established in advance of the election, Congress has no role other than to accept those as being the state's electoral votes."

    And what about cases like Florida in 2000 (Bush v Gore) where the state was engaged in repeatedly changing the rules for counting ballots after the election was over?

    1. You will perhaps recall that the state legislature was proceeding with actions to send the Bush slate to Congress in the event the illegally ordered state supreme court recount 'changed' the election outcome.

      1. The state legislature deciding to appoint a slate rather than using the election outcome would also qualify as changing the rules after the election. It doesn't change my comment in regards to the proposed changes to the electoral count act at all.

        1. The election outcome according to the rules the legislature enacted is the only election outcome that has any significance here. The state supreme court didn't get around to designating a different election outcome because the federal Supreme court put an end to their "keep recounting until Gore wins" effort.

  12. Wouldn't it be faster, and save many, many tax dollars to just have Facebook run a poll and announce the winner?

  13. The Constitution seems to leave the manner in which electors are selected ENTIRELY up to each State:
    "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress . . . ."
    It doesn't have to be by popular vote. It could be appointment by the State Legislature (the way Senators used to be chosen). Electors could be appointed by lottery. Or by the Governor, or the Speaker of the lower house of the State Legislature. Whatever "the Legislature thereof may direct." So where would Congress derive the authority to decide whether to accept the State's appointment of electors?
    "The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted." Isn't that purely a ministerial act? Is this the Certificate from North Dakota? Yes. What does it say? Next!

  14. When someone is arguing for the legality of something they claim will never happen, it makes you wonder.

  15. As others have pointed out, this reform addresses what Trump tried to pull off but makes it more likely that a state could steal an election. It's a national election and it is more than high time for it to be administered nationally. As such, a constitutional amendment is in order.

    A national popular vote is one idea. But as an alternative that maintains the greater weight given to smaller states, the electoral count vote could be proportionally divided based on the statewide popular vote (with fractional electoral votes and a minimum threshold to get any votes) and the electoral votes automatically computed as such (no electors). This idea eliminates the greater weight now given to purple states. And perhaps more importantly, does away with the shenanigans of trying to win a state's entire electors.

    1. It's not "stealing" if you're legally entitled to do it.

      I personally think the Congressional District approach, currently used in Maine and Nebraska, is a reasonable compromise between winner takes all and strict proportionality.

      But it's up to the states to do it, not the federal government.

  16. There's probably no point in saying anything about this subject - whatever you say, either the supporters of the left ass-cheek of the duopoly will accuse you of being a supporter of the right ass-cheek, or the right ass-cheek will accuse you of being a supporter of the left ass-cheek.

    But the left and right ass-cheeks, working together, support the same asshole - the duopoly regime.

    Anyway, for reference, here's the Wikipedia article on the Electoral County Act.

    https://en.wikipedia.org/wiki/Electoral_Count_Act

    Note how Wikipedia flags their own article: "This article may be too technical for most readers to understand."

    But that doesn't apply to the commenters here, does it? They're all experts in the constitution and the laws, so they should easily be able to show the parts of the Act which are wrong or defective. I'm sure that, despite the superficial appearance of complexity, this is actually an easy issue which can be resolved by the application of a few basic self-evident principles which only wicked people would oppose.

    Incidentally...

    The op-ed mentions calling on the aid of a nonpartisan commission to resolve certain electoral-count disputes. Remember that this got tried in 1877. 8 Republicans and 7 Democrats, but some of the commissioners were Supreme Court Justices, bringing us the benefits of a review of the situation by trained federal judges. The nonpartisan commission voted 8-7 that the Republican candidate, Rutherford B. Hayes, had been duly elected. By some strange chance, the commission divided precisely on Republican and Democratic lines. Somehow, the non-judicial members must have infected the otherwise-nonpartisan Supreme Court justices.

    Why not scrap this whole electoral system and adopt a direct national vote - no country with direct national voting for the Presidency has *ever* had dangerous disputes over who won the Presidency.

    1. The Founders knew they could never have gotten all or even most States to sign on to the Constitution if the President were elected by "a direct national vote". That would have resulted in a federal government dominated by Massachussets, New York, Pennsylvania, and Virginia. The dominant States are different now, but the principle is still the same. Our present system means that almost every State is important as a potential member of a winning coalition. We are a diverse Nation. Our national leader must at least be able to pretend to care about what all of us think and want. That's worked reasonably well. There's no reason to think a change would improve our Government.

      1. The Founders did what was necessary to get the Constitution signed. There is no perfect system. A direct national vote would put an emphasis on large urban areas. The current system exaggerates the political power of lower populated states. The sad reality is that the President is now elected by a handful of states that have competitive elections. I live in one, Wisconsin.

        What is really needed is for more states to be competitive and that likely requires better candidates.

  17. From 12A:
    “The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;-The person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed;”

    As long as one person got the majority of the EC, there is no vote to take, no procedure to object to EC votes, and no certification needed from the VP.

    1. The law clearly supports the duopoly's left buttock!

      No, the law clearly supports the duopoly's left buttock!

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