Who Counts Electors: Tackling Ambiguities In Federal Election Laws

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Hubwonk host Joe Selvaggi talks with constitutional scholar Thomas Berry about the process for electing U.S. presidents and the efforts underway to modernize the Electoral Count Act of 1887 to forestall frivolous challenges in the future.

Guest:

Thomas Berry is a research fellow in the Cato Institute’s Robert A. Levy Center for Constitutional Studies and managing editor of the Cato Supreme Court Review. Before joining Cato, he was an attorney at Pacific Legal Foundation and clerked for Judge E. Grady Jolly of the U.S. Court of Appeals for the Fifth Circuit.

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Joe Selvaggi:

This is Hubwonk. I’m Joe Selvaggi.

Joe Selvaggi:

Welcome to Hubwonk a podcast of Pioneer Institute, a think tank in Boston. US presidential elections have two distinct phases. First, the election administration itself, new managed entirely by each of the 50 states and the district of Columbia. And second, the counting of the state’s results in Washington, DC owing to the U.S. Constitution’s vague guidance on the proper administration of presidential elections. Congress, further defined election procedures in the electoral count act of 1887, which continued to recognize the pro primary role of each state to designate its slate to the electoral college and leaving Washington. The largely administrative role of counting those electors. This law had remain untested until 2020 when following an election defeat the outgoing administration along with a substantial number of house and Senate members of this party sought to exploit the perceived weakness and ambiguities of the law by objecting to the election results of several states, indeed bullied by the belief that Congress and the vice president could use the electoral count act to delay or overturn the results of the past election riders on January 6th, 2021, stormed and occupied the capital building the chaos and resentment that in sued from this event has led members of both parties to consider modernizing the electoral count act in a way that reduces confusion and discourages misbegotten challenges from any losing party or candidate.

Joe Selvaggi:

What is the electoral count act? How did its ambiguous language encourage the 2020 challenge to state electors and how can legislators rewrite the law law in a way that reassures the parties, the states and the electorate that are presidential election process is sound. My guest today is constitutional scholar and research fellow Thomas Berry, Mr. Berry, and his colleagues at Cato institute’s Robert A. Levy center for constitutional studies have written extensively on the history of the electoral count act and the need for its reform. Mr. Berry will share with us the intent of the original act, the steps our legislators are now considering to modernize the 1887 law and his suggestions for additional improvements that will help protect the integrity of the way we elect our president. When I return, I’ll be joined by constitutional scholar, Thomas Barry.

Joe Selvaggi:

Okay. We’re back I’m Joe Selvaggi. This is Hubwonk and I’m now pleased to be joined by constitutional scholar and research fellow at Cato Institute. Thomas Berry, welcome back to Hubwonk, Tommy. Thank you. Thank you for having me. Well, we’re gonna go deep on a topic that is now being debated in both houses of Congress. And I think at least the spirit of the, the debate is also being in, in the minds of many Americans. So I wanna take it slowly. We’re gonna be talking about presidential elections, specifically the electoral count act and perhaps it’s reform. But before we get deep on the wonkiness of this particular topic, let’s give a little bit of background to our, our listeners who are not constitutional scholars who do not study this all day long. We know the electoral college in general, it’s some sort of intermediary between me, the voter and how the ultimate count of votes for president of the United States, how they’re counted. Can you explain to us the spirit or the history of the electoral college? How do we get here?

Thomas Berry:

Absolutely. So maybe the first day answer to how did we get here as it relates ultimately to the electoral count act is we got here through the framers, not thinking a lot of problems that we’re having would ever happen or not thinking we’d ever have the kind of controversies we’ve seen. So the original constitution lays out and explains that states decide how they’re going to pick their elector tour today. Every state has a general election in the early days, some had their legislatures choose it’s up to each state’s law to decide how it’s going to do that. And then the constitution lays out pretty specific rules for how the electors meet and vote. They each meet separately in their own states. The intention was for them not to kind of form a cabal and strategize, obviously that hasn’t turned out to be the way it works.

Thomas Berry:

Nowadays. They’re all pledged to people in candidates in advance. They meet in separate states. They write down who they’re voting for and they mail it to Congress. And it seems, it’s not entirely clear why mailing it to Congress was done, but it, it basically, that was just sort of the presumption of where else is everyone go, going to be gathered from all 50 states to kind of have one specific local to see who’s going to be president. And so the constitution says all groups of electors send them at the time. It was 13 states. Now it’s 50 plus DC mail them to Congress. It says the president of the Senate. That’s normally the vice president. If there one shall open them and then it switches to the passive voice. And as any as any grammar school teacher will tell you the passive voice, the problem with the passive voice is it doesn’t tell you who’s doing the action.

Thomas Berry:

It says the votes shall then be counted. Period. Doesn’t say, who does the counting? Doesn’t say anything about how the counting happens. It just assumes they be counted. Most likely they didn’t think there would be any controversy. It’s not that hard to do math have a teller in the early days. It would just be a teller would read out, you know, five votes for so and so 12 votes for so and so, but we started to have some controversies. The biggest one by far was the 1876 election, the famous tilter and versus Hayes controversy that lasted months and months kind of the Bush versus gore of the 19th century almost. I think it’s fair to call it a full blown constitutional crisis. The president was really not known who was gonna be sworn in up to a couple days before inauguration day, which was March 4th at the time multiple states were in controversy and multiple states sent competing slates of electors to Congress, a democratic list and a Republican list.

Thomas Berry:

And it had to be decided which one was valid. And so after that controversy Congress really realized, okay, we need to actually have a procedure in place in advance. So we’re not having these solving these problems in the spur of the moment with rules made up on the spot. Cuz when you make up rules on the spot, there’s inherently a partisan tinge to them and people will assume you’re making the rules to help your side. So for about 12 years, they debated how to deal with this. And finally in 1887, they passed the electoral count act, which is what we’re talking about today. And that’s set out the procedure for the count that it goes in alphabetical order, the vice president reads them out and crucially, it said if there’s any controversy over whether votes are valid or not, you have to have a challenge in initiated by one member from each body, a Senator and a Congressman. And then you have a strict two hour debate and then you have a straight up down vote whether to count it or not. And if both houses vote to toss it out, you toss it out. Otherwise you counted. And the hope was that that would streamline things. It would prevent filibustering and it would allow for a choice one way or the other to happen the day of the count.

Joe Selvaggi:

Okay. So we’ve had okay. By my reckoning since the ratification of the constitution 59 presidential elections. And you talked about one catastrophic where I guess hotly disputed result I guess this is post civil war recon construction period in, in our history. So a lot was going on there. So you identified the problem which happened in the 1886 election and the resolution, which is the electoral count act. Presumably we resolved the problem. And yet here we are, have there been other challenges similar to the one you described other crises in, in choosing a president since the act was passed,

Thomas Berry:

None is full blown, but yes, we’ve had a few instances where there have been controversy and the electoral account act has not seemingly not been that great at giving guidance of what’s a valid challenge and what’s not in 1960, there was a long, we count in Hawaii that first went to Nixon. Then it went to Kennedy, both the Hawaii submitted votes for both and Nixon kind of magnanimously. He was vice president at the time. So he just magnanimously said, well, count the votes for Kennedy. That was probably not the right thing to do it. Didn’t set a precedent. And it almost implied that it’s the vice president’s choice when under the act it’s clearly not. We then of course had Bush versus gore, a big controversy. There was an attempt to challenge the votes for Bush from Florida during the count.

Thomas Berry:

But there was several members of Congress challenged it, but no Senator challenged it. And without a a Senator joining in that challenge under the rules of the ECA, you can’t have that two hour debate. Then in 2000 four election, we did have a valid challenge to Bush’s elector from a Ohio because they finally got a Senator to join Barbara boxer challenge didn’t go anywhere. No one else voted to uphold it. So those votes were counted. We had similar challenges in 2016, several challenges were attempted to president Trump selectors from multiple states, no Senator joined on. And then of course we have 2020 where it got a lot more attention than normal because several senators, several Republican senators objected to Biden electoral votes from multiple states. And this was what this was the plan they had to use the electoral count to challenge Biden electors from Arizona, Pennsylvania, a few other states in, and of course this was going on at the same time that the capital was breached and ransacked. And in many people’s view the possibility, the, the hope or perhaps false hope that the ECA could be used to overturn the election was part of what created the fervor that led to the capital being ransacked. And that’s a big reason for the current push we have, which is to clarify what you can and can’t do under the ECA.

Joe Selvaggi:

So we’re looking at you, you went step by step through all the problems. When you have an ambiguous law that doesn’t clearly define the rules, you invite people to exploit the ambiguity and perhaps give oxygen to those who would, would challenge a result. But it sounds as if really the electoral count act didn’t really come into play in the other disputes you, you described for instance, the 2000 election Bush V gore. I think that was resolved at, at the, in the courts not, not elsewhere. Is there a balance? I mean, what prerogative does the court have? And again, what, what prerogatives do states have, we we’ll take those in turn, but beyond those objections made by senators and congressmen in 2020, how other ways are can we resolve a, a dispute as, to who wins a residential election?

Thomas Berry:

Right, exactly. That was really the intention behind the ECA was that the drafters hoped it would be the courts almost always that would resolve these issues specifically issues related to the conduct of the general election. So if there’s an allegation of fraud, an allegation that a state’s rules, balloting rules weren’t fall load, and, you know, any sort of allegation that the general election was not handled in a legal legally proper way. That’s not for Congress to litigate that’s for the courts to litigate for several reasons, courts are better equipped. They have more time. You can’t answer these questions in two hours of debate on the house floor courts can hear evidence courts have about a month between the general election and when the electors meet, that’s not a ton of time, but it’s way more than Congress has. And so the electoral count act was designed in such a way to allow those issues to be resolved.

Thomas Berry:

And then it’s specifically has a clause called the safe Harbor provision that says if a state’s electors have been challenged and litigated, and the final decision has been made by the state’s highest court. That’s final that’s binding on Congress, Chris can’t second. Guess that and say, no, we think there was fraud in the election. So we’re gonna toss out these votes. So besides what, what the electoral account act was intended for it’s uses vague language. It says you can toss out a vote if it was not regularly given or lawfully certified. And a big problem is that that’s pretty vague language and 130 years later, we have even less of a sense of what it meant 130 years ago, but it seems clearly to have been intended, be limited to problems clearly on the face of the ballot, the electors did something wrong. They met on the wrong day. They didn’t sign and certify it in the right way, those kind of implausible, but still possible flaws with the votes themselves, not re litigating the general election.

Joe Selvaggi:

So let’s put a finer point on it. We’re gonna to talk about 2020 this conversation about reforming the electoral co count act is, is public knowledge. The former president actually used sort of the, the debate as to how we can improve this act as evidence that there were prerogatives that were not exercised specifically. He, he maintains that they vice president had some prerogative to choose to throw out certain ballots is there, as you say the passive voice was used as I am right now using a passive voice. Is there some validity to the notion that there was a prerogative by the vice president? You men mentioned Nixon magnanimously almost the Hawaiian votes he gave to his his, his opponent. But would it have been in any way, shape or form the prerogative of the vice president, the president of the Senate to have discarded some, some votes?

Thomas Berry:

I don’t believe so. The constitutional are basically presumes that when the, when it says the president of the Senate, which is the vice president opens the envelopes, the argument goes that well, since he’s the one holding the votes, he’s naturally the one who should also be counting them, that even though it switches to the passive voice, the person holding the votes is the, who should count them. And there’s also a quasi originalist argument and attempted an originalist argument based on original practice. There are some claims that in the early 18 hundreds Thomas Jefferson, when he was vice president and then in the election where he was elected president essentially made the decision on whether to count votes from Georgia. There was a dispute about whether they were submitted in the correct way. That’s that’s disputed. One is just a historical matter.

Thomas Berry:

It’s disputed whether in fact, Jefferson was the one making that choice or whether he was simply presiding over the session and saw that no member of Congress was objecting to it. But I think the bigger issue is that the constitution is to say that the vice president has this prerogative is to say that it’s so clear from the text of the constitution, that the president vice president inherently has this prerogative, even if a statute says otherwise. And I just don’t think the text of the constitution requires that. In other words, I think it leaves a gap that can be filled in multiple different ways by choice in the text of a statute. And so I think the electoral count act validly made a choice, and I think a good choice, which is makes more sense to put that decision in both houses of Congress, rather than unilaterally and the vice president one, it’s a bad idea to have so much power in one person’s hand two, the vice president is very often a partisan figure who’s involved in the election, either running for vice president or president. And so it doesn’t make sense to put such an important choice in someone with such a big stake in the outcome

Joe Selvaggi:

As clearly. There’s a conflict of interest when you’re the one on the ballot. So it seems an unlikely thing. So let’s just take a step back. We’re talking about electing, electing a president of the United States, rather important decision, and you’ve described it in two different phases, one at the state level where each state govern how it, it, it conducts elections and then sends those electoral votes to Washington and Washington effectively opens the envelopes and counts the votes. But there is a process for objecting to those votes. You alluded to a little bit earlier that a single Congressman representative and a single Senator can object. So let’s take this all apart and let’s assume that there is some sort of problem with the, the slate that has been sent from a state to Washington. What’s the process now and you know, credibly speaking you know, what, what is it trying to address and does it effectively do that?

Thomas Berry:

Yes. So the process now is that everything has to be in writing. You have to have a written objection, clearly laying out your theory of what’s wrong with the slate. They go one by one reading through them. So you wait alphabetically until you get to Pennsylvania or whatever state you, you, you wanna challenge. You present the vice president with this signed paper, the Senator, and a member of Congress signing it. And then if it’s valid, if it’s signed the two houses immediately separate, they go back to their separate chambers. They debate with this two hour time limit and a five minute time limit on any individual member speaking, and then they vote up or down. These text a, again, the text of the statute is vague on what’s a valid challenge and what’s not. And that unfortunately has given leeway to some members to say, well, we can make any kind of challenge we want.

Thomas Berry:

I would say that used in the best way. It’s a stop gap against corrupt states. So suppose some state’s governor just hijacks the whole process for himself, you know, pushes out the board of electors, says, I’m convinced I know who won this and just sends a slate to Congress and doesn’t let anyone else send a slate to Congress. That would be the kind of, you know, pull lever in case of emergency scenario where Congress should toss out those votes votes that were clearly fraudulent or say in an extremely unlikely event that a slate of electors was there’s was bribed. There’s obvious, EV there’s clear evidence that they just voted corruptly. They sold their votes. Then Congress could validly choose to toss those out. And I think if something like that happened, you would have and support for tossing those out. And so that’s why some people have suggested perhaps the threshold should be raised beyond just a bare majority, that if there’s ever a time to validly toss out a vote, it should be so clear that both parties would agree that these votes just can can’t be counted. But the, the biggest problem with the current version and the thing that needs to be changed, if it’s reformed is to spell out, spell what I’m talking about now, list what is a valid reason to toss out a vote? It was, it was a bribery. It was not cast on the right day. It was not certified by the board of electors, et cetera. And so the Congress knows anything besides what’s on that list is not valid reason to challenge. Let’s,

Joe Selvaggi:

Let’s just go down that rabbit hole a little bit further. Let’s assume there is a, a corrupt governor who said send the invalid slate. There’s an objection. And that objection is sustained. Let’s call it Pennsylvania. What happens to those votes? And then what happens to the election?

Thomas Berry:

Well under the electoral count act simply, I don’t know the exact term. It uses dis tos today. We’ll say something like discounted tossed out. They’re not part of the total. So every everybody knows from like five 30, eight.com that the total number electoral votes is 538, which normally means you need two, a majority, 270 to win. There is some debate, some uncertainty, if you toss out votes, does it affect the so-called denominator? The total? So if I toss out a state with 38, if I toss out 38 electoral votes do you still need 270 to win to is it sort of 270 out of the 538 that were tried to be cast? You now just have 500 total. So now you only need 251 to win. So one of the proposals for reforming the electoral count act is to make that explicit.

Thomas Berry:

My own view is that if you’re tossing out, if a vote was validly cast, but there’s a problem with the vote itself, you should include that in the denominator, the total, if a vote was not even validly cast, say the elector was ineligible to be an elector. That should not be part of the total because the elector was really never even validly appointed. But in any event, you, you do the math, you hopefully know what the denominator is, and you see whether anyone has won a majority with that new math. Be it, you know, has, if you’re down to 500, has anyone won 251 out of 500? And if no one has won a majority, the constitution says you go to the house of representatives for what’s called a contingent election, which is where they take the top three electoral vote getters. And they vote Congressman by Congressman, but with each state counting equally. So all the 50 odd members from California only have one collective vote, whoever whoever wins the majority of them, the one member from Wyoming and North Dakota and South Dakota each have one vote. And so whoever eventually wins 26 states becomes president.

Joe Selvaggi:

Interesting. Thank you. And I’m impressed by the, your ability to do that math on the fly there’s no, no no calculator scenes, well, that’s why I picked

Thomas Berry:

38 to get down to 500 even. Wonderful.

Joe Selvaggi:

Okay. Fair enough. All right. So let’s, let’s talk about we’ve, we’ve it really explored what the challenges with the current electoral count act is and how it played into the 2020 dispute. Let’s talk about how where we haven’t already covered it. How the new I believe it’s a Democrat Senator group that is trying to develop a a new act called the electoral count modern modernization act. It’s it’s presumably going to address all the concerns we’ve already discussed. Let’s if you will take us through where you see the key elements where what they’re getting right. And what in order of importance.

Thomas Berry:

Sure. So I think the most important thing they’re getting right, is that they are listing out the valid grounds for a challenge. I think that’s absolutely key because it tells the most important thing is to tell members of Congress in advance. This isn’t about reli, the election. We can’t have challenges like we had in 2020, where Josh Holly is saying, you know, there was widespread fraud in five states. And even though the courts didn’t find it, we’re gonna throw these ballots out anyway, because we’re convinced that there’s fraud, that that’s just should not be of valley grounds for objection. Another thing they get right in my view is raise the threshold to make a challenge. I think one from Senator and one member of Congress, way too low, it allows crack pot challenges to take up two plus hours of Congress’s time. And just could, as we saw in 20 January, 2021 fan the flames of uncertainty it raises the threshold to one third.

Thomas Berry:

Each we can debate where that threshold should be. At Cato we’ve suggested one fifth wherever you end up putting that something well above one person in each house is absolutely key. It also spells out more explicitly how you go through litigation in the courts to to settle these issues. I think that that’s on the right track. I think it overcomplicates things a little bit, it creates, it gives what’s known as the cause of action, which is kind of the right to bring a lawsuit to a lot of different people. I don’t think that’s really necessary. I think you can simply leave it to the candidates to bring the lawsuits related to is a valid elector. So there are some details about how it is how it would create new systems in the courts that I think can be objected to. But on the whole, I think it, it’s a good start and I think even those who proposed it admit that it’s, this is the starting point, not the finishing line.

Joe Selvaggi:

There’s also a lot you’ve written quite a bit on ensuring the timeline. You know, we’ve got an early November election and we’ve got a the count of those electoral ballots January 6th it would change or speed up or insist that certain right solutions occur long before we’re in the position of counting ballots. Is that right?

Thomas Berry:

Yeah, that’s a, that’s a great point. And that is something else that I think is, would be a big improvement. A lot of people forget that we only have had a January 20th inauguration day since 1933, the 20th amendment before that amendment was passed. Inauguration day was March 4th. There was much more time for courts to deal with these issues. And so before 1933, everything was later in the calendar. The count was later, it was in February rather than January the electors met later. And so you and the electoral count act explicitly pushed later in the calendar. The electors meet, met with the express reason to give the courts more time. And I think we can do that today. So I believe the modernization act pushes it back to late December when the electors meet the, the deadline for any court challenges to finish up and for the final slate from each state to be final.

Thomas Berry:

And I think that’s an improvement. You really don’t need this gap time between the electors voting and Congress meeting to count nothing is happening there, except the ballots traveling by mail, which hopefully even the postal service can get that done in six days. You know, some may have their doubts, but hopefully that’s not too much to ask. Yeah. so it’s not Bonny express, right? It’s more important to have more time for litigation both to get it right. And second to get the appearance of getting it right. I think too many people had a talking point both this year and in 2000 Bush V gore that they didn’t trust the court decisions because they seemed rushed cuz they have this tight window of about a month. And so if it can build more trust and more faith in the litigation and in the court process, that’s a good in itself cuz you’re less likely to have, you know, the strife that we saw on January 6th.

Joe Selvaggi:

Sure, sure. This might be getting too much into the weeds, but you even talk about the what the act should do in the eventuality that they a candidate, the candidate that gets the most electors either is either dies or there’s been some talk about eligibility. If, if it’s found that the, the person who’s been a elected may be subject to a case of edition or something like this whether those that candidate could be invalidated. Does it speak to this as well?

Thomas Berry:

Yeah, that’s a great point. So the current draft, I think, does not sufficiently address this succession issue. And again, these are all very unlikely, but as we’ve seen, unlikely events can happen so better to address them in advance rather than get caught off guard when they do happen. One of the, the 20th amendment, which I just mentioned most famous for moving up inauguration day, much less famous for another change, but could be just as important. It clarifies that if the president elect dies before for inauguration day, the vice president elect gets foreign in before that amendment, it was kind of unknown how you would deal with that scenario. And we almost had that happen once 1872 election democratic nominee, horse, Greeley loss election, and then died about a month later. So luckily he didn’t win and we didn’t have a crisis, but if he had one, we would’ve have had a constitutional crisis.

Thomas Berry:

20Th amendment clearly lays out if the president elect dies or fails to qualify. So that’s, you know, the unlikely event that we suddenly discover, oh no, this person is not a natural born citizen. Or this person is under 35, which is the minimum age in the constitution. Or as you suggested, you know, the 14th amendment bans, any, anyone who engaged in sedition, you know, it could be a court or whoever decides that decides that this person is ineligible in all of those scenarios. The vice president elect is supposed to act as president. And that makes sense. And that’s correct because the same party, it keeps the white house with the party that won the general election and that’s the principle behind it. So that democratic sense, the problem is that if the electoral count act is used, instead if you toss out all the votes for that dead winner or the ineligible winner, you hand the white house to the opposing party, they’re the only ones with any electoral votes left standing.

Thomas Berry:

So that’s undemocratic one and two it’s kind of arbitrary, right? Because if the death had happens or if the ineligibility is discovered before the count you toss ’em out, the white house switches parties, if the death or the ineligibility is occurs after the count 20th amendment kicks in, no matter what, it’s your only option vice president elect becomes president. So what I think Congress needs to focus on and make explicit is that you do count the votes, even if the, even for a dead person or even for a not eligible person. And then you make the vice president gets sworn in.

Joe Selvaggi:

Now you’re a PA paper even talks about I we’re, we’re, we’re having this conversation in the context of, of some legislation that really did try to federalize much of the role of elections. Instead of leaving those powers with the states, you do go into some detail as to which, which elements of the election, the the act should not take away or you serve from a state level, meaning hands off the state’s prerogatives at a certain level, what are some of the things you wanna make sure the act doesn’t do with regard to state’s prerogatives?

Thomas Berry:

Sure. So the first of all, the constitution makes clear that the states are the ones who are deciding the procedure for the votes. So how the, how the manner in which the electors are selected and that includes enter in which the general election is conducted. So you don’t wanna bill that that has essentially setting out requirements for how the electors are decided or how the general election is conducted, or that sets out standards of, of review that kind of presume that there’s a right way or a wrong way to have the election. So really of the standards should be state law governs, and then whether the election was valid or not is judged against the preexisting state law. So the proper role for the, the federal government is really just to make sure that the rules are fair and decide in advance.

Thomas Berry:

So a proper role is to say whatever rules you set don’t change them after the game. So I think who would be totally valid to say state you can’t suddenly after election day say, you know what, nevermind, we’d actually prefer to have our legislature decide who, who our electors are, cuz we don’t like how the general election went. That should be out. So I’m totally in favor of setting a hard date. You know, November 1st, Tuesday, November is election day, whatever procedure you have in place on that day is what you stick with. No, no changing the rules, if you don’t like it.

Joe Selvaggi:

Now we, we, I mentioned at the, at the top of the show that this is an initiative, this electoral count modernization act is a as a Democrat initiative. But there are some Republicans joining in, in the conversation in the debate, a, a rare incidence of, of bipartisanship. We’ve talked a little bit, you and I just now about the benefits of having a, a more clear process and that it doesn’t tempt any kind of let’s say frivolous challenge say more about why you think it’s really in the Republican’s interest to join the fight and ensure that this reform moves forward.

Thomas Berry:

Absolutely. So any rule that you’re setting in advance, any, any flawed rule, you never know who’s going to exploit it or which side is going to benefit from it. So all of the calls in 2020 for Mike Pence to seize power overturn the election unilaterally, you know, toss out votes, those calls just as easily could come to a democratic vice president in a future election. Fair is fair. Whichever side might benefit from it. And Republicans often voice support for the electoral college in general. There’s a lot of calls. Many of it coming from the left to toss out the electoral college system entirely go to just a nationwide popular vote. I think Republicans have valid concerns valid reasons to prefer key keeping the electoral college system ensure that you have reasonable, that people care about smaller, more rural states. That was the framer’s original intention and a robust and fair electoral count act is key to maintaining faith in the electoral college system. The more people think this is a game that can be rigged more likely they are to maybe say, why not just toss out the whole system entirely and go to a nationwide popular vote. And so I think if Republicans wanna support keeping an electoral college, they should want a legal framework that makes clear that we’re going to respect the outcome of the vote as decided by the electoral college as decided by validly selected and chosen electors.

Joe Selvaggi:

Now, the election is the presidential election is still two and a half years away. Not that far. We’re in the debate stage of these reforms to the electoral college. Is there a deadline before which the act must be passed in order to be binding on this upcoming election? You know, is it, if the clock is ticking, what’s, what’s our deadline

Thomas Berry:

Legally there’s two answers legally and politically, legally. I don’t think there’s really any deadline other than election day to 2024 itself. You know, the rules, it would not be ideal to change the rules of the road that close to it, but I think legally, whatever rules are in place on that day is all that matters. Politically is a very different question. The closer you get to the heat of battle, especially once it’s known who the candidates are in my view, the less likely it is that some thing’s going to be passed. Everyone’s gonna be more risk averse. Everyone’s gonna think, is this gonna hurt us more than it helps us? You could have a particular candidate. Who’s not a fan of reforming the electoral count act. Who’s a candidate for one or both parties. So I think it’s much better.

Thomas Berry:

I think pragmatically, it would be much better to pass it this year before even the midterm election. Because midterm is the unofficial start of the presidential campaign essentially the day after the midterms. And so right now, when we don’t know who the nominee at least with the Republicans is going to be when we don’t have any specific controversies already ramping up about how states choose their electors or about early voting or any of that this is the best time to kind of stay in the veil of ignorance. When both sides should realize it’s in the rational self-interest to, to create rules that are, that are fair for both sides and, and are more likely to benefit than, than harm both sides in the long run.

Joe Selvaggi:

So if we are ever sober and rational, this is, this is the moment we’ve become gradually less. So as, as election day approaches I’m, I’m sure we’ve peaked the interest of our listeners on this topic I’ve said I’ve enjoyed your right and research on the issue for our listeners who wanna learn more or follow you, or, or keep up to date with the progress of this reform of this very, very important electoral college modernization act, where can they find your work on, on the topic?

Thomas Berry:

Absolutely. I’m just one of the folks at Cato who’s been interested in this. I, how highly commend the work of Andy Craig, my colleague a writer at Cato. He, he, and he’s been writing a series of blog posts at the Cato at Liberty blog. So I’d, I’d encourage everyone to, to search Cato at Liberty and you’ll find the blog. You can also search. So if you go to my page, cato.org/people/thomas-berry, you’ll see all, all of my writings in general in including my, my blog posts on this, or you can just go to Cato and, and search a electoral count act. And, and you’ll see the long list of writings by me by my colleague, Andy Craig, and also my colleague Walter Olson has written in particular about why Republicans and people of all stripes should support this election reform in particular. And as you’ve said, we have one proposal now it seems likely that in the near future, we’ll have a second proposal by a group led by Susan Collins and Joe Manchin. And we’re likely to have one from the us as well. So we’re planning to respond in detail to each of those lay out what we think works and doesn’t work. And hopefully this is going to be an active process through the next next couple of months when Congress is likely to be considering and perhaps voting on them.

Joe Selvaggi:

Well, maybe it’s too early to celebrate, but I’d like to just rejoice in the notion that we can actually in Congress agree on something and reach across the aisle and find a, a solution, a potential solution for what had seemed like an intractable issue. So this is very exciting. I’m sure to our listeners on both sides of the aisle, thank you very much for taking your valuable time with us at me. You’ve been a real font of information and a subject matter expert, like no other, thank you very much.

Thomas Berry:

You. That’s that’s too kind. I really enjoyed it.

Joe Selvaggi:

This has been another episode of Hubwonk a podcast of pioneer Institute. If you enjoy today’s show, there are several ways to support us and Pioneer. It would be easier for you and better for us. If you subscribe to Hubwonk on your iTunes podcast, catcher, if you’d like to help it, make it easier for others to find Hubwonk, it will be great if you offer a five star rating or a favorable review, if you have ideas or comments or suggestions for me about future episode topics, you’re welcome to email me at hubwonk@pioneerinstitute.org. Please join me next week for a new episode of Hubwonk.

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