Several true but easy conclusions suggest themselves regarding two stories out this week about the Trump campaign’s attempts to overturn last year’s presidential election. Rather than just look backward, though, let’s focus forward toward a cure.
The cure would be one that everybody on the political spectrum should agree on, even if details remain to be worked out. The cure is to reform the Electoral Count Act, which is written in an absurdly confusing fashion and has always been of questionable constitutionality.
Before explaining why the ECA needs a complete overhaul, consider the two new stories. First, the New York Times reported the Trump campaign already knew it was hogwash when it held a press conference alleging a voting machine company worked with radical financier George Soros and communist Venezuela to steal the presidential contest. The campaign pushed the conspiracy theory anyway. The obvious goal was to create confusion and distrust widespread enough that former President Donald Trump could convince state legislatures, or eventually the vice president, to somehow overturn the election results.
When legislatures didn’t comply, Trump turned his fire on his own vice president, Mike Pence. The second new story shows the lengths to which the president and a heretofore respected attorney went to convince Pence, on his own authority, to reject the outcome determined by 158,383,403 voters.
Lawyer John Eastman wrote a six-point memo outlining a procedure whereby, he argued, Pence could unilaterally declare that because seven different states had presented two competing slates of presidential electors (itself a highly misleading claim), he would declare the states had submitted no “valid” slates at all — meaning Biden lacked an electoral majority.
According to the Constitution’s 12th Amendment, a presidential election producing no electoral-vote majority would go to the House, in which Republicans controlled enough state delegations to win the day and reelect Trump.
Fortunately, Pence consulted former federal judge J. Michael Luttig (who was many conservatives’ favored choice for the Supreme Court when President George W. Bush chose John Roberts instead). As Luttig deftly explained in a Sept. 22 series of nine tweets, he advised Pence that every major element of Eastman’s memo was off base. Pence received similar advice from other sources, and he rightly refused to participate in the ludicrous scheme.
This leads us back to the Electoral Count Act. The reason those remote possibilities existed even in Eastman’s convoluted, theoretical form is that the ECA is so cumbersome and poorly written. One top modern legal scholar wrote that “the law invites misrepresentation” and “is turgid and repetitious. Its central provisions seem contradictory.” A top scholar near the time it was written called it “very confused, almost unintelligible.”
It is the ECA whose so-called “safe harbor” terms determined the disputed 2000 Bush-Gore presidential election, and it is the ECA that sets up a highly elaborate procedure describing how Congress should react if a dispute exists about the validity of each state’s electoral slate. The Rube Goldberg-like interplay between the ECA and the 12th Amendment, and questions about the ECA’s own constitutionality, are what create the muddle Eastman wanted to exploit.
Congress should revisit the ECA. Because there is no way to know which party in the future might benefit, or suffer, from the ECA’s confusion, it is in both parties’ interest to pare down its processes and to describe them in plainer English. If Pence had acted upon the advice in the Eastman memo, the whole U.S. body politic might have come apart at the seams, creating weeks of Jan. 6-like riots instead of just one day.
A single day was bad enough. The best way to avoid another like it is to write a law whose meaning we can count on.
