Democracy Decoded: Season 4, Episode 3 Transcript

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Simone Leeper: It's a hot, busy afternoon in Times Square. People from all over the world come here to get a megadose of the New York City they've seen in movies.

Street Performer: Now ladies and gentlemen, once again, if you guys are ready, everyone say, Ya!

Leeper: Looking to see a show? You don't even have to leave the sidewalk, but if you stop and watch the local street performers, you're also going to be a part of the action.

Performer: At the count of three, give us some New York energy. One, two, go.

Leeper: The city isn't for passive observers. It's a bit like democracy in that way. And with the presidential campaign in full swing, we asked people how they were feeling about the fast- approaching election.

Brai: I feel like it's more important than now than ever.

Leeper: This is Brai. He's from Memphis Tennessee here to visit friends. He admitted he had concerns about the weeks ahead.

Brai: I'm feeling anxious because I feel like we're in a very precarious time in terms of the United States and the environment, so it's a very anxiety- inducing time period for me personally.

John Yglinski: I'm, in general, pretty excited about the election.

Leeper: And this is John Yglinski. He was in town from Austin, Texas along with his baby in a stroller. John was optimistic that this year's election would go more smoothly than 2020's, but he also had concerns.

Yglinski: I am a bit concerned about how all of the one side doesn't really like to concede fair elections and wants to contest everything, but I think I'm confident that it won't be repeated this go- around. I think that after a series of court cases that proved that there was nothing amiss, it should be pretty open and shut.

Leeper: That worry about whether the results of the election will be accepted as legitimate is one that a lot of Americans share.

Tiearra Thompson: Honestly nervous.

Leeper: And this is Tiearra Thompson. She's from Brooklyn.

Thompson: I think this is one of the most scariest but most important elections that I've ever seen in my entire life.

Leeper: She is resolved to get out and vote this fall. She encourages people to do their civic duty no matter what.

Thompson: Just get up and go vote. Two minutes it takes. Go in the booth, vote for who you feel, doesn't matter. Hey, but like I say, people just really need to just pay attention and be aware of what's going on right now because this is serious. This is serious business.

Leeper: You can't blame people for approaching this election with more trepidation than usual. The weeks after the 2020 election were fraught with false accusations of fraud and even violence. In response, lawmakers have taken a hard look at our post- election process.

Senator Angus King: Democracy, our system, is an anomaly in world history. The norm are pharaohs, kings, dictators, emperors, presidents for life. That's the norm. The vast sweep of human history is all about authoritarians running their society.

Leeper: That's Senator Angus King, an Independent from Maine. He took to the floor of the Senate in 2022 to make the case for safeguarding American democracy.

King: The idea that the people can actually participate in the building and operating and electing and creating their government is an unusual one. It's an anomaly in world history. That should tell us something because that means it's fragile, and we have seen how fragile it can be.

Leeper: Americans have come to expect rightly that when they elect someone, that person gets to assume their office. That principle is sacrosanct, no matter which party the winner is from or whether they're an incumbent. Like Tiearra Thompson told us, it's our choice. But before 2020, maybe America took its peaceful transfers of power for granted.

King: Ronald Reagan made a wonderful observation about the every four years inauguration of a President. He said, " It is a commonplace occurrence, and it's a profound occurrence." It's profound because it's commonplace. The peaceful transfer of power is what distinguishes our system from almost all others in the world. We have to be sure that that continues to be the north star of our democracy.

Leeper: I'm Simone Leeper, and this is Democracy Decoded, a podcast where we examine our government and discuss innovative ideas that could lead to a stronger, more transparent, accountable, and inclusive democracy. I work for a nonpartisan organization called Campaign Legal Center. CLC advocates for every eligible voter in America to meaningfully participate in the democratic process.

This season on Democracy Decoded, we're focusing on elections, and in this episode, we're looking at the steps Congress took to shore up the security of the current and future presidential elections after the attack on the US Capitol on January 6, 2021. A huge milestone was a 2022 law called the Electoral Count Reform Act, or ECRA. It updated a law from 1887 that formalized the process of electing a President through the Electoral College. Congress passed that law, the Electoral Count Act, in response to turmoil in elections in the 1870s and 1880s. But that 1887 law had its faults. Susan Collins, the Republican senator who co- sponsored the 2022 Electoral Count Reform Act, called the old law archaic and ambiguous.

Susan Collins: A dedicated bipartisan group of senators has worked very hard to craft the legislation before you, united in our determination to prevent the flaws in this 1887 law from being used to undermine future Presidential elections.

Leeper: For Senator Collins and other lawmakers, the update to the old law was a moment of true bipartisan cooperation. Before a bill becomes law, it first must survive a vote in committee. The Senate Rules Committee advanced the ECRA by a vote of 14 to 1. Senator Angus King later said he rarely sees that kind of unity in that committee. One of the reasons for the strong agreement, was the lingering memory of the January 6th attack a year and a half earlier. The ambiguity of the 1887, law was hardly the only cause, but the attack was an unambiguous sign to lawmakers that they had to fortify the system.

Jamie Raskin: Distinguished members of the Senate, my youngest daughter, Tabitha, was there with me on Wednesday, January 6th.

Leeper: This is Jamie Raskin, a Maryland Democrat who has served in the House of Representatives since 2017. In this speech, five weeks after the January 6th attack, he's addressing the House of Representatives, recounting that harrowing experience on Capitol Hill.

Raskin: It was the day after we buried her brother, our son, Tommy, the saddest day of our lives.

Leeper: Also with him and his daughter on January 6th was his other daughter's husband. They were processing a terrible family loss, but the representative had to go to work to do his part in counting the Electoral College votes for President.

Raskin: I invited them instead to come with me to witness this historic event, the peaceful transfer of power in America.

Leeper: Representative Raskin's family were keen to see the process up close, but they had also heard there might be a protest, a rally.

Raskin: They asked me directly would it be safe, would it be safe? And I told them, " Of course, it should be safe. This is the Capitol."

Leeper: His family sat in the gallery and watched the House count the electoral votes. But then as you know, thousands of people violently breached the Capitol. His daughter and son- in- law hunkered in an office. Representative Raskin wasn't able to reach them in the chaos.

Raskin: And all around me, people were calling their wives and their husbands, their loved ones to say goodbye. Members of Congress, in the House anyway, were removing their congressional pins so they wouldn't be identified by the mob as they tried to escape the violence.

Leeper: More than an hour later, the three were reunited. They hugged, and the representative apologized to his 24- year- old daughter for the scare.

Raskin: I promised her that it would not be like this again the next time she came back to the Capitol with me. And you know what she said? She said, " Dad, I don't want to come back to the Capitol." *cough* Of all the terrible, brutal things I saw and I heard on that day and since then, that one hit me the hardest. This cannot be the future of America.

Leeper: The events of January 6th were a violent transgression of the laws, but some claim they were partially inflamed by a purported dispute over election rules. In 2021, the lawmakers of the incoming Congress knew they needed to clarify and strengthen those rules. When it works, the process of electing a President is straightforward. Essentially it goes like this. You cast your vote on or before election day. Your state spend up to five weeks gathering, counting, and adjudicating every ballot cast. By early December, the same year, your state will certify a slate of electors based on the ballots cast by the voters. More on that in a minute.

This year, those electors will be on December 17th, in their respective capital cities, to cast their electoral votes. Those votes are then sent to Congress. The House and the Senate then meet in a joint session to count the electoral votes, with the candidate receiving the majority of the votes becoming President. The old Electoral Count Act left that process riddled with potential ambiguities. And the events following the 2020 election, including the attack on the Capitol, made clear to lawmakers it was time to make some sorely needed, overdue updates.

Catie Kelley: It really was an attack on all fronts in 2020.

Leeper: This is Catie Kelley, one of my colleagues at CLC. Catie is our senior director of policy and strategic partnerships.

Kelley: There was a fake elector scheme that they tried to spin up in seven states. Submitting false slates of electors that would be counted by Congress with President Trump as the winner instead of the actual winner in those states. There was an attempt by state legislatures to declare the election failed within their states, and then they would be able to substitute their choice for President in place of the voters within their states. President Trump also claimed that Vice- President Pence could decide the winner by deciding not to count certain electoral votes on January 6th once it got to Congress for them to count the votes. We've all seen footage now of senators and representatives seeking shelter on January 6th, so I think that this law and the chaos that we all experienced affected them in a way that was very personal. So there was strong bipartisan interests right after the January 6th attack to update the law.

Leeper: The law they had to address was that old Electoral Count Act. It had seemingly one job, to lay out the steps that states would take to elect the President. This should be relatively simple. It's made more difficult by the way Americans elect their President. Under the United States Constitution, we don't elect our President directly. Instead, we use the Electoral College. The Electoral College is not a place, it's rather a process. It's how we convert popular votes into the votes that determine a presidential winner. The Constitution empowers state officials to select people called electors to cast the actual votes for President. Under modern law, an elector's only role is to cast a vote for their state or district's winning presidential candidate. Stay with me here for some quick math. The number of electors in a state is equal to its congressional delegation, two senators plus its number of representatives. When news outlets talk about the road to 270 during presidential election night, that is a direct reference to the number of electoral votes, that is votes by state electors needed to win a majority. When you think of states as weighted players in the Presidential election, Florida with its 30, Pennsylvania 19, Georgia 16, Michigan 15 and so on, that's simply the number of electors those states get to appoint. The old Electoral Count Act was vague and confusing and seemingly left a lot of room for state officials to underhandedly make last- minute changes to their electors that could tilt a national election.

Joe Manchin: The Electoral Count Act was originally passed into law in 1887 and was a valiant but clumsy effort to ensure that another Presidential election, like the 1876th contest between Rutherford B. Hayes and Samuel J. Tilden never happened again.

Leeper: This is Joe Manchin, West Virginia's once Democratic senator who has since changed his party affiliation to Independent. He testified in 2022 to the Senate Rules Committee. That 1876 election he mentioned was among the most notorious fiascos in the history of American elections. Samuel J. Tilden, the Democrat from New York, won a majority of the national popular vote, but electoral votes from four disputed states could have given Rutherford B. Hayes a narrow Electoral College victory. The parties eventually arrived at a cynical compromise, whereby Hayes, the Republican from Ohio, was awarded all of those disputed electoral votes and got to assume the presidency. In exchange, he agreed to end Reconstruction in the South, which at the time was controlled by white Democrats.

Manchin: It was absolutely disastrous. The vulnerability of our democracy was truly revealed. Following two other close elections in 1880 and 1884 and numerous failed attempts at reform, Congress finally passed the Electoral Count Act of 1887. But as we saw on January the 6th, 2021, a lot of the fixes established by the original Electoral Count Act are not merely outdated, but actually serve as the very mechanisms that bad actors have zeroed in on as a way to potentially invalidate Presidential election results.

Kelley: It was an old law with outdated language that needed to be updated to more modern understandings of the language. The ECA did not define what a failed election was.

Leeper: Catie Kelley again of CLC.

Kelley: And so there was opportunity there for state legislatures to claim a failed election and substitute their judgment of who had won the votes for what the voters had already said within the state. And so really this was a process that was just open for abuse and for a rogue state legislator to jump in and undermine the will of the voters within a state.

Leeper: Manchin and other lawmakers pushed ahead with the Electoral Count, Reform Act, or ECRA, to address those and other shortcomings. If you hadn't heard of the ECRA before today, don't worry, you're not alone. There was a lot going on in 2022, but you should keep it in mind when you look ahead to November. The ECRA is one of the biggest reasons why the election of 2024 and future presidential elections should go more smoothly than the weeks after the 2020 election.

Kelley: The goal of the Electoral Count Reform Act was to ensure that the ultimate winner of the Presidential election reflected the electoral college votes. So it did this by replacing the failed election provision that state legislatures used to say that they could decide who the electoral vote winner was within their states. It provided clarity in terms of who the state official was to declare who had won the state's slate of electors. The ECRA says that the governor is responsible for that process, but by making it clear who is responsible for that, there is less opportunity for these fake elector schemes to take hold and get off the ground.

Leeper: The ECRA not only helps clarify the process of appointing electors, it also gives states a deadline to complete that process and submit their electoral votes to Congress.

Kelley: It also creates a process to resolve disputes about slates of electors, before it reaches Congress. So now there is a process within federal court for these questions to be resolved before it gets to the point of Congress counting the votes on January 6th, and the idea behind that change is that there's only one slate that ends up going to Congress from each state.

Leeper: The ECRA is designed to make elections more secure at every stage of the process. The law prohibits anyone other than legitimate electors from claiming to represent their state, and it ensures that any dispute over which are the true electors, gets resolved quickly. Congress will meet on January 6, 2025 to count and certify the electoral votes under the watch of the President of the Senate, also known as the Sitting Vice- President. In 2021 that was Mike Pence, who was under pressure to interfere with the normal counting process. In 2025 that role will belong to Kamala Harris. The ECRA now prescribes the Vice- President's role during this count will be solely ministerial. The law also makes clear the Vice- President has no power to solely determine, accept, reject or otherwise adjudicate or resolve any disputes over electors or electoral votes.

Kelley: The role of the Vice- President is purely ministerial, and the Vice- President does not have more authority than starting the process and getting the votes counted on January 6th. The Vice- President does not decide who the winner is. Finally, the ECRA raises the threshold for objections in Congress, so it's not just one representative and one senator now who can split the chambers and force the issues into debate. It's one- fifth of each chamber required to raise an objection before the House is split in debate and objection.

Leeper: In 2021 frivolous objections in Congress forced the House and Senate to split to debate those objections. Under the ECRA, instead of one representative and one senator being able to raise objections, 87 representatives and 20 senators would need to sign on. It's a much higher hurdle and another safeguard against a repeat of 2020. In some ways, the ECRA is the sort of law that you might not expect a polarized Congress to pass. After all, this is an election cycle in which one candidate was at the center of the very crisis that the law is meant to address. But as Catie explains, neither party had an existing position on the old law, the ECA, so reforms were more straightforward. No one felt bound to defend the ECA's flaws.

Kelley: A lot of other elections work is stuck in partisan quagmire with both parties very dug in on their particular policy positions, but the ECA was a very old law, so they're all coming to it relatively fresh. And what we saw was a group of bipartisan senators lead the process of drafting an updated law.

Susan Collins: We have before us an historic opportunity to modernize and strengthen our system of certifying and counting the electoral votes for President and Vice- President.

Leeper: Here's Susan Collins, Maine's Republican Senator, testifying in 2022 to the Senate Rules Committee in support of the ECRA. With Joe Manchin, she sponsored the bipartisan bill.

Collins: Nothing is more essential to the survival of a democracy than the orderly transfer of power, and there is nothing more essential to the orderly transfer of power than clear rules for effecting it.

Kelley: It was a thoughtful process of seeking input from outside experts, but really the senators controlling the process and building support for it among their colleagues along the way. It really was a refreshing change to see this kind of leadership coming in a bipartisan way from the lawmakers and ultimately moving with some urgency to go ahead and make the changes in advance of the next election.

Leeper: Catie and others are now working with states to make sure they understand the requirements of the ECRA.

Kelley: I like to think about the changes that the ECRA made as making it very clear about who has responsibility for different parts of the state post- election process, with the governor signing the certificate of ascertainment and closing the door for other slates to be submitted to Congress improperly.

Leeper: To many voters and to much of the media that covers Washington, the ECRA might seem too in the weeds, too procedural to merit much attention. And I get it. Not everyone has the patience or the inclination to geek out on election certification, and it can feel far removed from our everyday lives. Yet I keep thinking back to the large- scale sweep of history that Senator Angus King described. Our system is different. We don't hand off our most powerful positions to royals or dictators. Heredity and force don't win here. Instead, we vote, and a winner is declared. And as Susan Collins reminded us, the peaceful transfer of power depends on clear rules. We're lucky, that in 2022 lawmakers crafted the Electoral Count Reform Act to bring clarity to the process.

Kelley: Heading into the November election, I think that there are reasons for optimism here. Congress did its job to make the changes that it needed to to make sure we had a better process for the 2024 election. Certainly there are challenges, and we're all aware of the concerns heading into this election, but it's going to be a clearer process run by competent, well- trained election officials.

Leeper: Special thanks to Catie Kelley and all the folks we talked to on the streets of New York for appearing in this episode. You can find more background information on the topics discussed in our show notes along with a full transcript of the episode.

This season of Democracy Decoded is produced by JAR Audio for Campaign Legal Center. CLC is a nonpartisan, nonprofit organization that advances democracy through law at the federal, state, and local levels. Fighting for every American's right to responsive government and a fair opportunity to participate in and affect the democratic process. You can learn more about us and support our work at campaignlegal.org.
I'm your host, Simone Leeper. Thanks so much for listening. If you learned something today, we'd really appreciate it if you could leave us a review on your podcast platform of choice, and hit subscribe to get updates as we release new episodes in the coming weeks. Leading the production for CLC are Casey Atkins, multimedia manager, and Matty Tate- Smith, senior communications manager for elections. This podcast was produced by Sam Eifling and Reaon Ford, edited and mixed by Luke Batiot. Democracy Decoded is a member of The Democracy Group, a network of podcasts dedicated to engaging in civil discourse, inspiring civic engagement, and exploring the future of our democracy. You can learn more at democracygroup.org.