EP. 31 — REGULARLY GIVEN

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Weston Wamp: I'm Weston Wamp, and this is Swamp Stories, presented by Issue One.

Rep. Dan Crenshaw: “January 6 has always been a ceremonial process where electoral counts are counted by the vice president in the presence of the Congress, as written in Article II of the Constitution, and then they are counted, and the next president is declared.” 

Weston Wamp: Every four years on January 6th, Congress convenes, with the vice president presiding, to carry out an important but ministerial aspect of the peaceful transfer of power. Per the U.S. Constitution, Congress counts states’ electoral votes.

This tradition nearly unraveled a decade after the Civil War when one contentious election posed questions that were not clearly answered in the Constitution. In 1887, Congress passed legislation to clarify its role in counting the electoral votes. But as clear as the legislative intent of the law was, the actual legislative language is — well, let’s say a little messy and now out of date. Earlier this year on January 6th, the ambiguities in that law nearly plunged the country into an electoral crisis, and this left Republicans like Dan Crenshaw angry, as he forcefully expressed on his own podcast 3 days after the Capitol attacks.

Rep. Dan Crenshaw: People were misled. People were lied to about what January 6th really was. They were told that this would be your last stand, this would be the place where you could finally make a difference. This was the final certification of the election. They were told, “If you just object to it and provide the evidence, you can make our case, and Donald Trump would be president.” You were told this by the people you trust in the media, you were told this by commentators, you were told this by elected officials. The president himself told you this. And they lied to you. They lied to you. 

This is Episode 31: Regularly Given 

Matthew Seligman: So in 1876, there was this presidential election where there was a real dispute about how to count the electoral votes. It may seem that just counting is a simple act, that there couldn't be any possible controversy about it, but it turns out there was. And the reason there was is that there were a couple of states in the south that, in the aftermath of the Civil War, had a couple of different groups of people that thought they might be the government of those states.

And so they sent in different slates of electors, pieces of paper saying they were the electors for those states, and those electors supported different presidential candidates. 

Genevieve Nadeau: When we go to the polls in November, we technically vote for a slate of electors who are committed to voting for a particular candidate when they go to the Electoral College in December. Once they vote as part of the Electoral College in December, those votes are sent to Congress, which then counts them in January and announces the winner.

Weston Wamp: Matthew Seligman, Special Counsel with the Campaign Legal Center and Genivieve Nadeau, Counsel at Protect Democracy, are two of the foremost experts of the Electoral Count Act, the 130 year old, antiquated legislation that prescribes much of the role of Congress in a presidential election. Seligman and Nadeau walked me through the events of the fiercely contested Hayes-Tilden election of 1876 that led to its enactment.

Genevieve Nadeau: So during that election, Tilden won the popular vote. He was the Democrat. But there were electoral votes from three Southern states, Florida, Louisiana, South Carolina that were seriously contested. In fact, they sent more than one slate of electors to Congress. And at the time there was no Electoral Count Act, just the 12th amendment that says Congress is supposed to count the votes. And so no real guidance for Congress on how to resolve that dispute.

Ultimately at the time, it was resolved through a sort of grand compromise, called the Compromise of 1877, where Hayes was selected as the president, but in exchange for federal troops withdrawing from the South, effectively ending reconstruction. So the country came very close to the brink at that point, but made it through.

Matthew Seligman: In the aftermath of that conflict, Congress, for a number of years, wanted to figure out some way to resolve these sorts of conflicts without letting the risk go all the way up to inauguration day, where the risk is that two presidential candidates could have two different inaugurations and the federal government, the military wouldn't know whose orders to follow. So as a result of those concerns, those really intense anxieties about the possibility of another crisis like that happened in 1876, Congress ended up passing the Electoral Count Act of 1887. 

Weston Wamp: At the time there were concerns about its inconsistencies and convoluted language — for example it includes a 240 word sentence. But the Electoral Count Act was passed in hopes that it would provide enough of a road map that Congress would be able to navigate another scenario like 1876 if competing sets of electors were sent from one state. And it brought more structure in general — setting out a timeline for states to follow to provide a more orderly process between an election and inauguration of a president.

Before the ECA, only Article II of the U.S. Constitution guided the submission of electors by states and the counting of electors by Congress. Therein lies a broad misunderstanding about the role of Congress in a presidential election. In the days leading up to January 6th, 2021 members of Congress and nearly all major media outlets made references to Congress “certifying” the election.

But as Nadeau points out, the Constitution doesn’t use the word certify when describing Congress’ role.

Genevieve Nadeau: I think it's not fair to use the word certify at all in this context. So what Congress does is count. They count the votes. That's it.

The word certify is a common term in elections and so I can only think that that got a bit conflated, but we also saw various actors at the federal level and in and out of government talking about the role of Congress and the role of vice president in ways that are just not accurate.

Weston Wamp: The reason this clarification matters is that without more scrutiny on Congress’ constitutional role, it’s not much of a mental leap to Congress then having the power to “not certify” or as it was called in January, to “reject" electors. 

In the context that Congress has a determinative role in an election, one particularly arcane phrase in the Electoral Count Act became justification for Congress overturning the legitimate election results.

Genevieve Nadeau: "Regularly given" is a term used in the statute to describe electoral votes. If you go back in the history, there's clearly a meaning to that and it's pretty narrow actually, but it just doesn't map on with our current language.

Matthew Seligman: That ambiguity in the existing law is fertile ground for misinterpretations, even by the very best lawyers like Senators Hawley and Cruz.

So these exceptionally skilled lawyers were misinterpreting the Electoral Count Act to object to the underlying election where this phrase, 'regularly given', is supposed to refer to whether the electoral votes were regularly given. And what that's supposed to mean is whether the elector was bribed. So, say we had a situation like 2000 where the electoral vote was extremely close, and then somebody came up with a bag of money to the electors in Florida and said, "I will give you a million dollars each to switch your electoral vote one way or the other."

And that's the sort of situation that this phrase in the Electoral Count Act is supposed to refer to, but it was misused by politicians to try to attack the underlying popular election, which again was, as the federal government has said, was the safest and most secure election in American history. 

Weston Wamp: For good reason, the ECA is a point of consternation for conservatives like Crenshaw and others who are fearful of a dangerous precedent.

His fellow Texas Republican Chip Roy, who was a constitutional lawyer before entering Congress, was pretty clear on Crenshaw’s podcast about the role of Congress.

Rep. Chip Roy: We’re not supposed to be inserting ourselves into the decision making of how those electors were chosen. 

Weston Wamp: And on the question of whether this year’s electors were regularly given, Roy offered an important reminder about the 2020 electors, particularly considering the Electoral Count Act came about in the 1880s over concerns of multiple competing sets of electors.

Rep. Chip Roy: This year, all 50 states returned a single, formal slate of electors. Not more. There were some parties who said they had alternative electors, but none of those were under color of law. None of those were official. None of those were formal.

Weston Wamp: Crenshaw has suggested that the Electoral Count Act needs to be interpreted by the Supreme Court, but Seligman points to a better path to ensuring the ECA is not weaponized again.

Matthew Seligman: I've been a Supreme Court litigator for a long time, and one of the things that I've, and everyone who's litigated in the Supreme Court understands, is that really unclear legislative language puts the court in a really hard place. The better thing to do is to have the American people, through their representatives, clarify what we're supposed to do here. The Supreme Court is an important institution and it has great credibility, but we shouldn't put the court in the position of trying to interpret an uninterpretable law from the 19th century.

The better thing to do is to pass a law now that pitches the ball straight down the middle. This is not a partisan thing. This is, as Representative Crenshaw said, this is something that needs to be fixed, just so our American democracy, so the will of the people, can be reflected in the results of our presidential election. So this is not left, this is not right, and this is not something that ultimately should be put on the Supreme Court. This is something that Congress, as the representatives of the people, can and should fix.

Weston Wamp: On the next episode of Swamp Stories, we’re going to hear from one of the most prominent voices in one of the most politically contested parts of the country. Miami’s own Carlos Curbelo is a 41 year old former member of Congress who has carved a niche as one of the most independent voices in American politics. Curbelo and I will discuss January 6th and whether he sees a bipartisan path to updating the Electoral Count Act.

Weston Wamp: Thanks for listening to Swamp Stories, presented by Issue One, the country's leading political reform organization that unites Republicans, Democrats, and independents to fix our broken political system. Please subscribe to the podcast and share it with your friends. Even better, rate and review it on iTunes to help us reach more listeners. You can find out more at swampstories.org. I'm your host Weston Wamp. A special thank you to executive producer, Ethan Rome, senior producer Evan Ottenfeld, producer Sydney Richards, and editor Parker from ParkerPodcasting.com. Swamp Stories was recorded in Tennessee, edited in Texas and can be found wherever you listen to podcasts.

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