Another Way To Elect A President: The Electoral Count Act (Part 6)

This podcast is part of the Democracy Group.

This is Larry Lussig. We're up to episode five in this miniseries about the post election games that might play out in this 2020 election, given the extraordinary stakes and the way both parties are fighting and believe they need to fight to win. This episode is about the core statutory mechanism which will control how Congress eventually counts the electoral votes. This is referred to as the Electoral Count Act. It's a statute that was passed in 1887 after the almost failed election of 1876, when states sent multiple slates of electors to Congress, requiring Congress to set up a special commission, as you'll hear, to count those votes, and ultimately the president, Rutherford Burchard Hayes, who lost the popular vote, a Republican who lost the popular vote, but was then selected as president by one electoral vote because of how that commission ultimately resolved the contest between those competing slates. This is an extraordinarily important statute, and we are extremely fortunate to have the opportunity to talk to Steven Siegel, a law professor at DePaul Law School. And Stephen has written, he wrote, after the 2000 election, maybe the most comprehensive guide to understanding the Electoral Count act, written as a conscientious legislator's guide, meaning something that a legislator who wants to just do what is right, what the law requires should read to understand, to figure out how the legislator in that fight should vote. So we've just completed this interview. I'm eager that you hear it. Let me pass right now into the interview with Steven Siegel and my colleague Jason Harrow. Okay, so thank you so much, Steven Siegel, on this podcast today, I'm obviously here. And Jason Harrow, who you've heard many times, the chief counsel at Equal Citizens. Jason, why don't you identify your voice at least?

Hey, folks. Larry, it's great to be talking about this really fun issue. And Steven, this is great, great topic. You've done great research. I'm looking forward to this one.

Stephen is maybe the foremost scholar thinking about the history and architecture of the Electoral Count act, which is the provision Congress enacted for guiding Congress and the procedures that it will adopt in counting the electoral votes. We've just had an episode about how the electoral votes get cast and they get wrapped up in envelopes and then sent off to the President of the Senate, who is the Vice president, Mike Pence, this year. But what our hope is in this conversation is just to tell a little bit of the story of how we got to the Electoral Count act and what made it necessary. So, Stephen, professor of Law at DePaul Law School and A friend of mine for many, many years, since I was in Chicago. It's great to see you again. Thank you for doing this. Why don't you introduce the subject by just giving us a little bit of a sense of the struggle in 1876, if you want to start there. That triggered the need for something like the electoral contact.

Well, in the 1870s, after the Civil War, there were a number of messy presidential elections, culminating in the messiest one. And in 1876, when the outcome of the election did matter in how the controversies were settled, there were four states that sent in double returns. Florida, South Carolina, Louisiana, and in addition, in Oregon, there were double returns because of the problem of an elector who was not constitutionally qualified and had been removed by the governor. Two sets of returns came in from these states, and Congress was divided between the Democrats in the House and the Republicans in the Senate.

Sounds familiar.

They created a device that they decided afterwards was unsatisfactory. They created a commission, staffed it with five senators, five congressmen, and five Supreme Court justices. Fourteen of them were evenly divided between Democrats and Republicans. But the 15th vote was Justice Bradley, who was a Republican but was regarded as the most neutral of all the justices. And it was expected he would be the deciding vote. He was. Every vote was 8 to 7. Bradley sided with the Republicans in every contest, and Tilden lost the election. He won the popular vote, but lost the election by one electoral vote. Immediately beginning in 1878, a movement started in Congress to come up with some solution so that elections would be managed better. Bills were introduced in every session. It took 13 years in order to reach the resolution of the Electoral Count Act. We have that many years of discussions and proposals that finally culminated in the Electoral Count act of 1887.

If you told me the Electoral Count act was written in a week, I would forgive it. What's striking is it's written over almost 14 years, and it is still incredibly complicated and cumbersome, and it feels at times incomplete. It is at times incomplete. I wonder when you had the experience of living with the act, which you obviously did, because your account of it is so careful and so detailed, whether you thought that there was some genius inside it or whether it was just a kludge that Congress had to put together when it was finally going to resolve this.

Well, the goal. The theory of the Act. The goal of the act is to keep the controversy out of Congress and allow the states to settle their own election. They had the view that the states were entitled to appoint electors, and they wanted as much as possible for the states to resolve controversies and not Congress because of that. The keystone of the act was the second section of the act, which I think is now 3 USC 5. What they wanted to do is encourage the states to create expeditious elections recount procedures. They wanted it to be through judicial or quasi judicial methods. And they believe that if the states did this, the states would be able to settle their own controversies about the election of electors. In the original act, they gave the states 70 days to do that in the 1930s.

This is because the president was inaugurated in March.

At that time, yes, the election was still in November. Originally, they thought they might move the election to October to give even more time. But they maintained the traditional November election and move electorate balloting to January and gave 70 days for expeditious vote contests to be conducted through quasi judicial mechanisms. A couple of problems we have in the 1930s when we move the presidential inauguration to January 20, reduced the number of days to. To somewhere between 34 and 40, depending on how the calendar breaks. In addition, the states have not taken up the invitation to create expeditious recount procedures in the two times that there were recounts. One in Hawaii in 1960, and then, of course, Florida in 2000. The recount in the courts in Hawaii, it ran overtime and they didn't really settle it until early January. In Florida, we saw that the recount was cut off short of conclusion.

Right. So in the Bush v. Gore case, the Supreme Court seemed to think that it was really essential that the process be brought to a conclusion before the window of the safe harbor provision, the provision you were talking about, three USC five closed. So their view was, you gotta give Florida a chance to satisfy safe harbor, and if you don't, implicit in that was something terrible would happen. But I guess Hawaii in 1960 shows us that nothing terrible would have happened if Florida had not satisfied the safe harbor but had continued to count to get to some kind of result, even if it was late beyond the particular. I can't remember what the date was. I remember what the date of safe harbor was. It must have been something like the 13th back then, right? I mean, there's nothing in the safe harbor that requires that they figure finish it in time. Is that right?

Well, that is correct for the safe harbor to the extent the Supreme Court said that it was the Florida statutes that required the court to come within the safe harbor provision and basing it on the need to follow what the legislature had written as the law and not change the law in any way. If that were a correct interpretation, they would be correct based upon state law. But in the Electoral Count act, there is nothing requiring a state to come within the safe harbor provision. Most of the time, since there is no election contest, states don't use the safe harbor provision. The safe harbor provision does not apply to an uncontroversial election. It only applies when there is a controversy that is settled through judicial or quasi judicial means. However, what is debatable is whether the contest has to finish before the day that the electors ballot. What would be controversial, and we can't say that it's ever been settled, is whether electors who can ballot who have not yet been certified and. And then when they win the electoral contest some days later, as they did in Hawaii, the certification would relate back to the day on which they they balloted. Richard Nixon in 1960 asked for universal consent for accepting the Hawaii ballots that were certified on January 3rd, or actually January 3rd and maybe even January 6th. And he said, without setting a precedent, let's do this. In the 1870s, when the electoral Count act was enacted, there, I think, was a split of opinion. Justice Bradley, who cast the siding votes in part did so by saying that a later certification would not relate back. But there was a scent by Justice Field that it did relate back that was a difference in 1877 between the Republican position and the Democratic position. That's an unsettled, very important point, whether or not the electors have to be seated by not the safe harbor day, but six days later by the day on which the electors ballot.

But I guess in the Florida, in the Hawaii case, and in any of these cases, you would imagine that the wannabe electors would actually gather on this year, would be December 14, and cast a ballot consistent with their preferences, and then the fight about whether they will retrospectively be certified could play out even after they've cast their ballot. What's clear is they can't cast their ballot later, right?

Absolutely.

Absolutely. And in fact, we can push it to do they have to have gotten their certification by January 6th, the day that the counting begins? Or can we even push it to the time that the state comes up to be discussed in Congress? There's nothing in the laws of physics to prevent it waiting until then. There is precedent under the conduct of the meeting that once the state is passed in the counting, you can't go back. The electoral count requires that the states come up in alphabetical order. And it doesn't say this in the act, but precedent is that any objections have to be presented when the state comes up and you can't go back to the state after the state has been discussed.

Okay, so let's go through some of the cases just to be clear about how the Electoral Count act is meant to work. So the simplest case is like in most elections, a state has a slate of electors that's certified. There's only one slate. They cast their ballots on the right day. Their ballots are sent in, Vice president opens them, hands them to the tellers. Nobody says anything about them. They get counted. So that's the easiest case. Then the second case that we were just talking about is when there's a contest in the states, like Bush v. Gore, about who actually won the votes in the states. And there's a procedure the state law has set up for resolving that contest. And the safe harbor provision says that if that procedure is completed six days before the electoral votes are supposed to be cast, then Congress says it will treat those as if they are the votes of the state. They will give them a safe harbor, and those votes will then be counted in that way. One of the interesting points in your essay, in your article is that even though that's what the law promises, in practice, you could have a house that objects to a. A slate being accorded safe harbor provision. They could say, we don't believe that the state procedure was followed in time, or something like that. Is that still your view about how this could play out?

Yes, that anything that comes into Congress purports to be what it is. And it's not until Congress accepts it that it is what it is. So Congress needs to be able to say there are certain provisions of federal law that you have to meet in order to have the safe harbor protection. You have to completed your work and has to be final. Which by the way, raises the question, even in what happened in Hawaii, we don't know the answer to the question of if you could ask for a rehearing, is the result final? Congress does not have to accept it at the end. I don't think it matters because if you have only one slate, it takes both houses of Congress to reject it. And both houses of Congress are able to reject a purported electoral thing that has the certification that meets Section five. So the actual count, it doesn't matter. But what would matter to a conscientious Congressman is the questions that you would ask yourself if something comes in and claims Section 2 status. You have to determine whether or not this is the institution set up by the state to resolve the matter. You then have to ask yourself, was it Satisfied? Did they reach a final judgment? So those are different questions than you would normally ask right now.

You referred to this as Section two, just to be sure everybody understands it's Section two of the Electoral Count Act. But Congress has taken all their presidential statutes and they have recodified them in title three. So we refer to this in this podcast as Section 5, which is the safe harbor provision that Bush talked about. It's clear from what you said, but I just make sure nobody gets confused. So let's think about the case where there are multiple slates, though. There are actually two kinds of cases there. One case is when there are competing authorities that assert that they are the final authority that gets to certify the status of a slate of electors. This is sort of what happened in 1876 in the states that had not Oregon, but the other states that had competing slates of electors. So you have one organization that says we are the final determinant under state law. The other says we're the final determinant under state law. There Congress has to decide or should decide which is right and which is wrong. And as you put it, the conscientious legislator should look at state law and figure out which one is actually supposed to be the one making this final determination. Is that right?

That is correct.

And if they agree, then that's great. But if we imagine that parties differing, they won't agree, then you might have no slate that is coming out of that process that is determined just by that process to count. Here there enters this weird tie breaking provision that says the one that's been certified by the governor will presumptively count.

Yes, that is correct.

There's a question Jason and I have argued about, and I don't really think that I have a clear sense of the answer to this is how much can the governor get away with? Right. So imagine a governor who's just as committed to his side winning. We'll talk a little bit later about like what power the legislature might have to appoint its slate of electors. But let's imagine there's another slate of electors picked and the governor just signs that slate, even though if you look at state law, it's pretty clear that's not what the governor was supposed to do. What is Congress supposed to do when it gets something certified by the governor that anybody who knows anything about the law would say is not actually properly certified by the governor?

Congress means the House and the Senate. If the House and the Senate agree, they do not have to respect the governor's certification in fact, it is easily inquired into because in their view, the governor is not acting as a discretionary authority. He is acting ministerially. And there's no question that the Congress can go behind the governor's certification to question whether it was quote unquote lawfully certified. So if you have a unified Congress and you have case where the governor has certified the incorrect slate, a unified Congress does not have to accept it. He is not the ultimate tiebreaker. He's a tiebreaker only when Congress is split. The reason why seems strange to us to give the governor this power. The view of The Congress in 1887 was that they didn't want Congress to have that responsibility. They wanted the state, some organ in the state, somebody who ultimately the people who supported this, and a lot of people in Congress did not support giving the governor this authority, but they said that this person would then take the responsibility and be answerable to his state, to the electorate of the state, for abuse of this authority. Congress were states rights oriented. They didn't want this coming into Congress. And they focused the, in a way, the next to ultimate responsibility in the governor, but only if Congress was split.

So Congress, if they were applying the law in good faith, shouldn't be split. I mean, if it's a willful governor who's just ignoring what the legislature or what the people did and the legislature and he conspires to create an alternative slate, then a good faith Congress acting in good faith, even different parties should be able to recognize that and vote to the contrary. The only time it's an issue is when you've got parties that are split and not a real confidence that they're going to act in good faith.

Also, there are other safeguards outside of Congress. The governor's certification is publicized. This gives time for the state courts themselves to mandamus, enjoin, direct the governor as to what to do. And you need an even more willful governor to defy what their court might instruct. In addition, and a great unanswered question is the extent to which there's judicial review if the governor and Congress do not follow the law. Can the losing candidate bring a quo warranto or some election, a proceeding in the federal courts to have that readdressed. Congress itself was split on whether there could ever be any judicial review after the electoral count. And that is another unanswered question.

Okay, so let's go back to the moment when a slate of electors enters Congress. I mean, there's actually a pretty important procedure there too that we should make sure. People have a clear sense of. There's a pile of papers on top of the president of the Senate's desk. They're put into alphabetical order. And then he. In this case, it's Vice President Mike Pence, will open them one by one and hands them over to the clerks. I mean, the tellers and the tellers. There are four tellers, two appointed from each house. And the tellers are supposed to look at them and evaluate whether they meet the formal requirements of slates of electors from the states. And the formal requirements include certificates of ascertainment and all the other things that go into making sure that we actually have what should be considered the slate of electors from. From a particular state. Is this process a process that the statute is mandating, or is this more just the convention of how we've seen the division of power between the vice president and the tellers?

This is one of the great reforms of the Electoral Count act was to give some content to what happens after the ballots are opened. The Constitution appoints the president of the Senate, usually the vice president, to be the custodian, and he is to bring the ballots, while they are still sealed into this joint session of Congress and open them. At that point, the Constitution stops speaking. It says, he shall open them and they shall be counted. The Electoral Count act enacted the procedures based on what had tradition that had been going on before of requiring that the vice president doesn't even read them. The vice president opens them and gives them to the tellers. The tellers look them over and report on whether they are regular in form and what the votes are and record the votes. So one of the great purposes of the Electoral Count act was as much as possible to drain influence and power away from the vice president as custodian. The Electoral Count act did appoint him to be the chair of the joint meeting. And there are certain powers that come with that. They could have appointed anybody else. Again, the Constitution says he's a custodian. The vice president opens them, and then the votes accounted, they could have appointed anybody else to be the chair of that meeting. They chose to make, as tradition had been the vice president or the president pro tem of the Senate to be the chair of the joint meeting.

Okay, so the teller opens it, and let's say two from the state of Florida are handed over to the tellers, and the tellers open them, and the tellers say, this one meets the formal requirements and this one doesn't. Even at that moment, Congress could overturn the decision of the tellers. Or object to the decision of the tellers, couldn't they?

Yes. Congress can object that on any grounds. However, according to the Electoral Count act, any objection has to be made at the time the State is under consideration. Any objection has to be in writing, and any objection has to be signed by one member of Congress of the House of Representatives and one member of the Senate. After that, the objection is in order and needs to be discussed and voted on by the House and the Senate separately, and then they come back and report on the outcome of that vote.

So if one comes in and there's an objection and they go out and they deliberate on the objection and they come back and they've agreed, then that's fine. But if they disagree, then we still have this question of what we do with the slate of electors, that we don't have an agreement by Congress on whether it shall count or not.

I believe there is an answer to most questions. I might raise one that I think there wouldn't be an answer to the electoral count. Well, Section 15, USC Section 15, originally Section 4 of the Act. But USC Section 15 says if there is one slate of electors and there's an objection, the objection is only sustained if both houses of Congress agree. If there are more than one slate of electors and there's an objection, then it takes both houses of Congress to sustain the objection. And as you've mentioned before, if there's more than one slate and the houses disagree and one of them is certified, properly certified, lawfully certified by the governor, that one becomes a tiebreaker

and that one's the one that's ultimately counted.

Yes.

Right. But again, we could imagine, however this multiple slates come in, if Congress is not acting in good faith in the sense that they're just voting in a partisan way, which slate they're going to count. The partisan resolution of this could easily flip from what the legal resolution of it would be. I mean, we would look at it as lawyers, regardless of whether we're Democrats or Republicans. And we would say this was a certified election and these are the people, this is the slate that should count. But we have this other slate that is signed by the governor, and Congress has basically agreed with the slate signed by the governor by not agreeing to destroy that unanimously.

Yes. And they were well aware, obviously from the years they lived through of the power of partisanship. There are many comments that we don't know who to trust. In fact, one person said, I wouldn't even trust myself when the presidency of the United States is at issue. But again, Aside from judicial review, which once again these days do we say the courts are not partisan and we would accept anything that the courts say as lawyers. There is so much distortion of partisanship in the way that people think. Motivated reasoning is extraordinarily powerful. But ultimately the proponents of the act said, in all human affairs, there ultimately must be a final arbiter. Once that final arbiter has spoken, there is nothing that human beings can do to change that. So we are concerned at this moment about the problems raised by a split Congress. They also were concerned about the problems of a unified Congress and that a unified Congress could act inappropriately. We're living in the days of a split Congress. But as we know, there's an election coming up. And actually one of the improvements I've talked about how the act has been made more difficult since it was enacted by cutting down the amount of time. At least it is the new Congress that will address these problems, one that is freshly elected in the same election as the purported president. In the 1870s, 1880s and up to 1930, it was the lame duck Congress that would address all these issues. And so at least it would be a freshly elected Congress that would address these problems. Ultimately. Unified Congresses have partisanship problems. Split Congresses have partisanship problems. So no matter which way how we look at it, there are problems brought in by partisanship.

Can you say a little bit more about that extraordinary historical setting that you just alluded to in that answer? Because I've been wondering what it was like as you read these debates and think about the history. The immediate generation of presidential elections for folks in the 1870s and 80s was so extraordinary, beginning with 1860 election of President Lincoln literally tearing the country apart, right? Being the immediately precipitating event to South Carolina's secession, to a disputed election in 1876. That Chief Justice Rehnquist book about that contested election says came within a hair's breadth of real violence in Washington, D.C. we haven't lived with that, but given all that, I can imagine Congress is thinking a number of different things and I'm curious how they resolve them, right? They could be thinking, let's just get an answer peacefully, right? No more of this secession or threats of violence. Or they could be thinking, no, let's encourage the states to get the real legitimate answer, and so let's give legitimacy to the process and encourage good alive. Do you know how they sort of struck that balance there? Or is that a false choice that I'm presenting?

No, I think that's a very acute description of what they were facing. And it goes back to what I said earlier. Their desire was to get the states to resolve their own problems and then have it not come into Congress. They looked at the, the section five, the one that provides for a safe harbor, as the keystone of the entire project that would enable the states through judicial methods, to determine who were their electors. They wanted all problems resolved in the states and hope to keep it out of Congress. So it would be unfortunate, in their view, if the contest proceeded into Congress. One limitation, though, is that they wanted the states to identify who were their electors. There are problems that arise after the electors are identified. Are the electors constitutionally qualified to vote? Did they vote on the right day? Did they vote through the right methods? There are many post ascertainment questions that still would come to Congress and they would have to deal with, but their goal was for it to be resolved state by state and for Congress to at least know who won the election.

Yeah. Were there folks then given that solution and given that emphasis, which it seems to me puts a little more on the thumb of having an orderly count in Congress and a little less on Congress really ensuring free and fair elections in the states if they're just going to be very deferential to states, Were there folks who objected to this and said that this gives states too much power, especially considering we didn't talk very much about why there was a dispute in 1876. Right. But there was massive intimidation of black voters in the south and unfair elections. And so are there people saying, hey, wait a second, this electoral count act, by giving all this power to the states and saying congress should butt out, this lets this voter suppression continue? Because so long as a certificate says, well, Florida violated the Constitution, it didn't let black people vote, but that's our slate, Congress, you accept it. Were there objections along those lines?

Yes, there were concerns, but there also were concerns that Congress would be imposing on the states very mistrustful of the national interest. Again, there was a very strong states rights component. In fact, the House of Representatives in the ultimate legislation voted that the governor's certificate be absolutely binding and that the two houses of Congress could not override it. And they receded from that position in the ultimate conference. I mean, one of the grounds upon which Congress, a united Congress could act would be that the election was fraudulent, The election was unconstitutional. These are one of the implicit grounds for objecting to a vote are constitutional violations. However, notice in what I'm saying, it takes the United Congress. The question that you're raising Is, should one house of Congress have the power to say something is wrong with the state, or should it take both houses of Congress to object to what the state did? Their resolution is both houses of Congress have the ultimate say, not one house of Congress. In the immediate aftermath of the Civil War, electoral counts had been governed by something that they called Joint Rule 22 that gave veto power to one house of Congress and ultimate national point of view. So I think the answer to your question is everything you're concerned about can be raised and dealt with by united Congress. In a divided partisan Congress, they can't be.

Yeah, so that's like saying a unicorn can solve this problem.

Balance.

They struck nothing, nothing more than a unicorn. Okay, I want to go back to the question of, like, where we get,

why is a united.

Well, I'm saying today the idea of a united Congress is a unicorn.

Oh, at this moment in time. But we have had instances, I don't know what the count is that one party controls both branches of Congress.

And it might, according to Nate Silver, the probabilities are the next Congress will be united, the Senate will be taken by the Democrats, and the Democrats will keep the House. So, you know, we could have that, but if we don't, then it seems hard to imagine them acting together if they're not the same party.

Yes, there's much more power in the states when Congress.

So let's talk a little bit about again about how we get to multiple slates. One really important point about the current constitutional debate is that there's a whole bunch of depending on your side of this debate, either hoopa or truth to this belief that legislatures have a kind of superpower in our constitutional scheme and that they can't be second guessed by anybody. And that's because the Constitution says legislatures are going to set the manner of appointment, and so they get to do what they want. And given the relatively sloppy language in bush and in McPherson, they have the right to recall their vesting of the appointment of the electors in the people, quote, at any time. So that view imagines that we have this ongoing capacity in the legislature to decide. It doesn't like what the people did and like pick another slate of electors. I think it's an important historical point to put on the table right here that in none of the cases that we were Talking about in 1876, did any legislature decide that it was going to overturn the decision of the people or reject the decision of the people. All of these were multiple slates that were created outside of the legislature. Acting peremptorily.

It's absolutely true. And I can say that during all the years of debate about the Electoral Count act, no one ever raised the possibility, the situation, that a legislature would step in under what is now 3 USC 2 and to call the election a failure and appoint its own slate. They were acting as if it simply could not be done. The relation, in fact, one of the perhaps misconception that some people have is that the statute that gives the legislatures powers to step back in and appoint their own legislature is part of the Electoral Count Act. It wasn't. It isn't. It was enacted in 1845. It was already on the books. And how it interfaces with the Electoral Count Act I regard as a tremendously open question.

We've had an episode about this episode in this podcast, and our resident historian Mike Rozin helped us see this very clearly. But one kind of terrifying thing about this interpretation of the limited scope of the section 2 of the 3 use 2 is the state of North Carolina today. If you looked at North Carolina's statute today, it's the only statute that explicitly invokes three use. It explicitly says exercise in the power of Congresses given us under 3 USC 2. We say, and the essential structure is if the electors have not been determined by a certain date, which is basically before they are going to have to vote, then there's one procedure for the legislature to select a slate and another procedure for the governor to step in and select electors. And then the most interesting provision says those electors are supposed to reflect the will of the people, but their judgment about what the will of the people is, is not reviewable by anybody. No court can second guess their judgment of the will of the people, which of course creates this obvious strategic game. If you're not going to play in good faith, which is just draw it out, like continue the fight about who's the proper slate of electors until it's too late. And then at that point, either the legislature or the governor gets to step in. There's a problem with the legislature because you've got to convene a special session, but either gets to step in and appoint the slate of electors, and that slate can do whatever it wants, essentially. Given that there's no capacity to review what they do relative to the vote of the people in the state, that seems beyond what 3 USC 2 was originally thinking about, because they were thinking about states that had a majority requirement. But what's striking is it's also way beyond anything that the framers of the Electoral Count act were ever Thinking about in the strategic way in which a legislature could step in and appoint some slate that would be contrary to the votes of the people.

Yes, as I just said, it never came up. We do not know what their thoughts were about the meaning of what is now 3 USC 2. And it's hard to interpret a silence. There could be many reasons why it was never mentioned, never discussed any way, and why during the 1870s no legislature did it. It does support the inference of the view that once an election is had, the right to vote kicks in, and that is not within the meaning of failure, that the North Carolina statute that you mentioned is not a proper interpretation of the notion of failure under the federal statutes. It would be a matter of federal law and ultimately a matter of constitutional law whether that North Carolina statute is correct. It does promote what the Electoral Count act was trying to eliminate. It encourages the creation of a messy election. It encourages drawing things out so that the states cannot resolve things as a matter of policy. It's not what the Electoral Count act envisioned should be allowed.

Okay, this has been really helpful. I just wonder in reflection on this piece of legislation which has not really mattered in its crucial point in any election, since there's the question of how Hawaii would count. But it didn't matter ultimately. And it could have mattered if Louisiana had done something in 1960, but they didn't. So I just wonder whether you view the relative quiescence here as a product of its wisdom or as just the accident of history.

Accident of history, the failure to have close and contested elections. But I wonder what would be better. I mean, their view was that motivated reasoning when the presidency of the United States comes in, is inevitable. And they wanted to have something that would work in a mechanistic way to get an answer. Let me remind us of again. I study the act, so I may be prone to thinking highly of it. I think obviously there are problems that need to be readdressed. But Justice Brandeis is famous among many things for saying many questions. It's better to have an answer than to leave it unresolved. They wanted to get an answer through a relatively clear process, knowing that any answer would be questionable.

On that vein, then, Stephen, I wonder if the fact of the time it was written bears on whether they were right about that. They wrote the Electoral Count act before this 20th century innovation that we call bureaucracy. So they claimed that any possible decision was always partisan. But we've at least tried an American government since then to set up institutions that are supposed to be insulated from political influence. Would that be a better way if you were rewriting the 2020 act, to have many states, for instance, have electoral canvassing boards that are composed of professionals that are supposed to be nonpartisan? Is there a way to resolve election disputes with reference to those, or have that at the federal level? Or is this just necessarily a political process?

I can only say they believed it was necessarily a political process. I would like more professionalization. You can imagine a federal election, a permanent professional election bureau. But I do want to say it aside. Today people are trusting bureaucracies and professionalizations less and less. Will it have the full faith and credit of the American people when it addresses these problems? I would think professionalization is better, but I think that is also questionable in many minds, especially today, when our institutions are under attack.

Okay, Jason, your job is usually to be optimistic. That was a pretty faint effort. Pointing to an optimistic ending here. Do you have something?

No, I mean, I think that's so interesting, Stephen. Right. It highlights something that I think people are coming to realize in this 2020 election, which is it's sort of all politics. Right. And it goes to what we set up and what you set up. Larry and Stephen, at the top of the episode, which is the 12th amendment requires Congress to count the votes at the end of the day. And Congress is a political body. And so I don't know what the optimistic answer there is, Larry or Steven, maybe I'll throw it back to you to offer some of those concluding thoughts. But it does strike me that's the bottom line. And so I really appreciate your answer to that last question. Stephen.

Yes, I did want to give the other side. I ultimately like what you're suggesting, but want to point out that it has problems also. Now, the Constitution, drawing from what you said, the Constitution does say that Congress shall count the vote. Congress could set up a permanent electoral commission to do these things, which then Congress would say, we will accept your answer. But under the Constitution, Congress would need to rubber stamp that. That raises questions of whether or not Congress can bind itself. Would you want both houses of Congress to be able to object to it in a way? They tried it with less professionalization in 1877, and what came back was a party line vote. That was their experience. They didn't think of a civil service. In fact, at that time, civil service was new and untested.

The cynicism of politics is irresistible. I mean, I feel sorry for Justice Bradley in that story because if you actually read what Bradley wrote, there's a coherence to his argument, and it's plausible. And I think ultimately, I believe what he was saying to resolve the questions the way he did. Maybe the Oregon one's a little bit hard to accept, but the other ones, it seems pretty clear. And yet because he was a well known Republican, everybody read it as just the product of being a Republican. There was a. I guess it was Justice Davis. Was that the justice who. It was originally supposed to be the deciding vote. And he was genuinely neutral or genuinely viewed as nonpartisan. And then I think the state of Illinois made him a governor, made him a senator, just in time to avoid him being able to serve on the commission.

Yeah. Yes. That could have been a ploy of theirs that ultimately backfired. I suppose they made. I guess the story is they made him a senator so that he would look favorably upon their party. His response was, now I will have to leave the commission. And Justice Bradley was the substitute.

Yep. Okay. This has been really interesting and it's been really helpful in helping us think through this. I'm grateful for your time, Stephen, and for your work, which we will link to in our. In our episode. And what's wonderful about your work is that it was written for, as you described, the conscientious legislator, which means it's written in a way to be understandable by anybody, and I guarantee anybody who sits down with that work. It's long, but it's clear and it's very compelling in its understanding of what the act was about. And this might become the most important act of the 2020 election. So at least we have something we can go to. To look at it, to understand it.

Well, thank you very much. And in every election, I hope that it isn't crucial.

Praying for your own irrelevance. That's good. There's a humility in that that we should all aspire to. Okay, great. Thank you, Steven. Thank you, Jason. That's the end of this episode.

Great. Thank you very much.

That's the end of this episode. I apologize if in this episode we're a little bit unclear about what's coming next. This actually was one of the last episodes recorded, and I'm afraid we were eager to imagine finishing this project to get it out on time for the election. So the next episode in this podcast is actually quite a tragic idea. The episode considers what happens if the candidate for president or vice president were to pass away between the election and the time the Electoral College must vote. You'd think that question would be resolved. Turns out it's not resolved. These podcasts are produced by equalscitizens Us. You can find us on the web at Equal Citizens US and these podcasts at EqualCitizens US. Anotherway. You can find a place there to help spread these podcasts. Please share and spread these podcasts. And you can find a place where you can help support the cost of producing and distributing these podcasts. That is Equal Citizens Us. You guessed it. Donate. We offer our advice here pro bono, but it turns out there are other costs that are not free. Stay tuned for the next episode. Thanks for listening. This is Larry Lessig.