On ECA: Don't Make the Perfect the Enemy of the Good

Why Marc Elias is wrong. Again.

The U.S. Capitol is seen across the National Mall as supporters of President Donald Trump began to gather on January 6, 2021 in Washington, DC. (Photo by Samuel Corum/Getty Images)

Happy Tuesday. Some potential BFDs to keep on eye on today:

“Top Pence Aides Testify to Grand Jury in Jan. 6 Investigation.”

The appearances before the grand jury of the men — Marc Short, who was Mr. Pence’s chief of staff, and Greg Jacob, who was his counsel — were the latest indication that the Justice Department’s criminal investigation into the events surrounding and preceding the riot is intensifying after weeks of growing questions about the urgency the department has put on examining former President Donald J. Trump’s potential criminal liability.

Former DOJ/Mueller probe prosecutor Andrew Weissman tweeted:

Andrew Weissmann @AWeissmann_

Short's testimony is relevant to a lot: IG investigation into Clark and Eastman; pressure on Pence to not certify;Trump lie that Pence agreed with Trump that the VP had authority not to certify the vote; and people at WH were aware before 1/6 of potential violence that day.

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“Arizona fake-electors subpoenas show breadth of DOJ Jan. 6 probe.”

The subpoenas are just one part of a significant escalation and expansion of the Justice Department’s criminal probe of the events of and leading up to the Jan. 6, 2021, assault on the U.S. Capitol by Trump supporters seeking to overturn the election results. Around the same time in mid-June, federal agents fanned out in multiple states to serve subpoenas, execute search warrants and interview potential witnesses as part of the investigation into the electors scheme.

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“New Jan. 6 panel evidence shows Trump altered his post-Capitol riot speech.”

The former president specifically crossed out a line directed at Jan. 6 rioters that said: “I want to be very clear. You do not represent me. You do not represent our movement.” He also changed a line that originally said those who broke the law “belong in jail” to instead say that they “will pay.”

Another portion crossed out by Trump reads: “I am directing the Department of Justice to ensure all lawbreakers are prosecuted to the fullest extent of the law. We must send a clear message — not with mercy but with JUSTICE. Legal consequences must be swift and firm.”

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The J6 Committee may be having an effect, after all.

The Republican Accountability Project @AccountableGOP

Polling from @Reuters has revealed a significant change in the attitudes of Republican voters before vs. after the Jan. 6 hearings.

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“Utah Senate Hopeful Evan McMullin Is Striving to Make a GOP State Competitive Again.”

SALT LAKE CITY—Deeply Republican Utah hasn’t had a competitive Senate general election in decades. This year might be different, with polls showing a political outsider within striking distance of the GOP incumbent.

Two-term Sen. Mike Lee is facing a challenge from Evan McMullin, a 46-year-old former Central Intelligence Agency officer and erstwhile Republican, who is running as an independent on a platform of political change and policy moderation.

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“Sandy Hook Parents to Testify Against Alex Jones, and a Culture of Lies.”

AUSTIN, Texas — The far-right conspiracy broadcaster Alex Jones spread lies for years about the Sandy Hook school shooting, saying it was staged by the government and that the families of the victims were complicit in the hoax. Juries will now decide in three separate trials how much Mr. Jones must pay for the suffering he caused.

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FFS. “Democrats boost right-wing challenger to GOP Trump foe.”

A new TV ad from the Democratic Congressional Campaign Committee portrays Republican John Gibbs as the true pro-Trump conservative in his effort to unseat Republican Rep. Peter Meijer (R-Mich.) — aligning with Gibbs' own campaign messaging.

• Trump endorsed Gibbs' challenge after Meijer voted to impeach the former president over his role in fomenting the Jan. 6 Capitol siege…

Be smart: The spot is couched as an attack ad, saying "the Gibbs-Trump agenda is too conservative for West Michigan."

• Despite the framing, it hits on precisely the issues any Trump-backed Republican would want to be elevated before a primary contest.

Adam Kinzinger comments:

Adam Kinzinger🇺🇦🇺🇸✌️ @AdamKinzinger

Between this, and Pritzker spending to promote election denier Darren Bailey, I continue to doubt if many dem operatives have a clue how threatened Democracy is. Play with fire. House Dems try to sink pro-impeachment Republican in primary - POLITICO

politico.comHouse Dems try to sink pro-impeachment Republican in primaryIt’s the latest example of Democratic groups boosting pro-Trump candidates in GOP primaries, thinking they’d be easier to beat in the fall.

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Marc Elias’s Wrongness on the ECA

Reforming the antiquated Electoral Count Act is the barest minimum that Congress can do to avoid another attempt to overturn the election. This is known.

The system’s vulnerabilities were starkly exposed during the run-up to January 6, when Donald Trump and his co-conspirators tried to get VP Mike Pence to exploit ambiguities in the 1887 law to block the certification of Trump’s defeat by Joe Biden.

But, so far, Congress has done nothing to fix the flaw.

Against fearsome odds, however, a bipartisan group of senators seem to have come up with a workable solution.

As Greg Sargent wrote last week: “If they succeed, it would constitute a substantial accomplishment, thanks in part to the House Jan. 6 committee’s focus on President Donald Trump’s attempt to overthrow U.S. democracy.” The draft bill addresses the most flagrant of those vulnerabilities.

This would include clarifying the vice president’s role as purely ceremonial, expressly stating that the position has no power to invalidate electors or delay their count.

It would also include raising the threshold for Congress to object to a slate of electors. Right now, only one member from both the House and Senate can force a vote on whether to cast out electors. The reform would require one-fifth of each chamber to force that vote.

The bill would also address the state-level appointment of electors.

Elections expert Rick Hasen thinks Democrats should grab the chance to fix the ECA. The bill isn’t perfect, and it doesn’t solve all of our election problems, he writes, but it represents the best — and at this point, the only — real legislative fix for the current mess.

The Collins-Manchin bill is both a deal Democrats should grab while they can and not enough to fully insulate our elections from the risk of subversion. The key point, though, is that Collins-Manchin is far better than the status quo. It could help diffuse what Professor Rick Pildes has termed an Electoral Count Act “loaded weapon” that may be deployed in 2024. There’s good reason to remove one potent weapon from the election subversion arsenal…

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But, because we can’t have nice thing….

Dem super-lawyer Marc Elias is unhappy with the bill, and is suggesting that maybe Democrats should quash the legislative bird in hand.

Because doing nothing might be a better idea. Seriously. Via the Wapo:

But Elias said the current bill is flawed enough that passing it as is might not be worth it.

“I’m not sure it’s better than nothing,” Elias said. “I’m not sure. I hope it doesn’t come to that.”

You can read Elias’s objections here. Unfortunately, based on this Politico report, his complaints are getting traction among House Democrats, endangering the whole deal. Failure is now a very real option.

Some context here: Elias has been objecting to ECA fixes long before this bill was a twinkle in senators’ eyes.

Along with obsessively dragging Liz Cheney, Elias has repeatedly complained about focusing on fixing the ECA, insisting that any compromise legislation would be “a trap.” In May, he tweeted: “Fixing ECA is not the answer.”

Back in January Matt Yglesias dismantled Elias’s objections in a piece titled: The false "trap" of bipartisanship: Fix the Electoral Count Act if you can; worry about the rest later.”

Elias is also wrong on the merits. There’s no trap here. But his framing tells an interesting story about the evolution of the progressive coalition and some bad bets it has placed. Because fundamentally, it’s Republicans who have gotten smarter and are refusing to fall into the left’s trap.

..

To believe that there’s a trap, you have to believe that Democrats are super close to both scrapping the filibuster and passing this huge voting rights package and that focusing on ECA reform would derail that. But it’s just not true.

ECA reform is not a “trap” because Democrats are drawing dead on their voting rights package.

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We don’t have the space to litigate the whole thing here, but, as Hasen notes, Elias’s “concerns” are “based either upon misreadings of what the act actually does, or quibbles with some small amount of unclear language that could be improved upon as the measure makes its way through the legislative process.”

Indeed, Elias’s sophistry has been thoroughly and comprehensively debunked by Bob Bauer and Jack Goldsmith over at Lawfare: “Correcting Misconceptions About the Electoral Count Reform Act,” and by Ned Foley, Michael McConnell, Derek Muller, Rick Pildes, and Brad Smith in the Election Law blog : “Why Congress should swiftly enact the Senate’s bipartisan ECA reform bill.”

In sum, the bipartisan bill would be a major improvement over the antiquated Electoral Count Act. ECA reform has to be truly bipartisan and not merely to the barest extent needed to overcome a potential Senate filibuster. At the end of the day, the ECA is self-enforcing; the Act works only as long as Congress is willing to bind itself to the Act’s terms. That makes buy-in from both sides of the aisle essential. The fact that the large group of bipartisan Senators has gotten this far is a promising sign that Congress might well solidify the legal framework for future presidential elections.

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Bonus: Before Democrats follow Elias off the cliff on the ECA, they need to revisit this masterful fisking of the litigator by Rick Hasen: “Marc Elias is Sometimes Counterproductive When It Comes to Protecting Voting Rights, Election Integrity, and the Interests of the Democratic Party.”

No kidding.

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Quick Hits

1. What Viktor Orbán Revealed This Weekend

H. David Baer, in this morning’s Bulwark:

Much commentary about Orbán’s speech has focused on what he said about race. But as Ákos Hadházy, one of Hungary’s contemporary political dissidents, pointed out, Orbán’s racial comments were a “rubber bone”—that is, a toy Orbán’s liberal critics can’t stop chasing and tugging on, when they ought to be focusing on more substantial political matters. That is exactly what Orbán wants, because the misplaced focus helps him to deflect attention away from his serious and more dangerous intentions.

The true significance to the speech lies in what it reveals about Orbán’s ever-expanding and overweening political ambition. Over the course of an hour, Orbán skillfully weaved together half-truths, untruths, and internal contradictions to create the impression that he is a great statesman who understands the world and knows how to lead Hungary to greatness.

Orbán believes in, and is banking on, the demise of the West. His comments on race should be understood in that context.

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2. The Real Math on Moderation

Lauren Harper in today’s Bulwark:

Research demonstrates that moderates do better and are more popular than extreme and ideological candidates. The record of the past few years drives that point home: Justice Democrats and Our Revolution, organizations that have been stalwarts of the progressive left’s post-2016 insurgency, have supported more than 100 candidates since 2018 but have yet to flip a single swing district.

In fact, the four Justice Democrats-backed candidates who won in 2018 (Alexandria Ocasio-Cortez, Ayanna Pressley, Rashida Tlaib, and Ilhan Omar) did so in such dark-blue strongholds that Joe Biden carried their districts two years later with more than 73 percent of the vote. When it comes to which kinds of candidates win the critical races that decide who controls the government and protects democracy, the progressive left lacks any electoral evidence to point to.

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3. Saying Goodbye to My Father From Half a World Away

Make sure you read this beautiful tribute by our colleague, Shay Khatiri:

In those final weeks, I wished and hoped in my desperation that there were some way he could visit me in the United States or, as things worsened, some way I could fly to his bedside in Iran. But there was no way. So we told one another on the phone how much we loved each other. And I told him how lucky and proud I was to be his son. And he died a happy father, proud that I was my own man.

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Cheap Shots

Speaking of former Pence aide Marc Short, here is what he said about Matt Gaetz:

“Well, I don’t know if Mike Pence will run for president in 2024,” Short said. “But I don’t think Matt Gaetz will have an impact on that. In fact, I’d be surprised if he was still voting. It’s more likely he’ll be in prison for child sex trafficking by 2024. And I’m actually surprised that Florida law enforcement still allows him to speak to teenage conferences like that. So I’m not too worried about Matt Gaetz, thanks.”

You can watch here:

Acyn @Acyn

Short: I don’t think Matt Gaetz will have an impact… in fact, I’d be surprised if he was still voting. It’s more likely he’ll be in prison for child sex trafficking… I’m surprised law enforcement lets him speak to teenage conferences like that

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Burn.

Rep. Liz Cheney @RepLizCheney

Hey @SenTomCotton - heard you on @hughhewitt criticizing the Jan 6 hearings. Then you said the strangest thing; you admitted you hadn’t watched any of them. Here’s a tip: actually watching them before rendering judgment is more consistent with “Anglo-American jurisprudence.”