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FIXING THE FINALE OF THE PRESIDENTIAL ELECTION
By Lisa Desjardins, @LisaDNews ([link removed])
Correspondent

It is as if someone put some heavy springs and rubber bands in the center of an elegant metal design. The Electoral College was a let’s-finish-this compromise, created when America’s founders could not agree on whether Congress or voters should choose the U.S. president.

The process was then further shaped near the end of the 19th century, with the Electoral Count Act, or ECA. It set up the rules for nothing less than the finale of the presidential election cycle – the certification of the vote. But the act’s rules are awkward, confusing and not difficult for former President Donald Trump to try to manipulate. It became a core piece of the rationale behind the Jan. 6 insurrection. (An attorney on the Trump legal team at the time suggested a six-point plan involving then-Vice President Mike Pence rejecting the election results, all centered around perceived flaws in the ECA, according to a memo ([link removed]) obtained by CNN and The Washington Post.)

From that experience, and out of concern that the next election could bring similar dangers, senators are trying to reform the law. In classic Here’s the Deal form, we thought it a good idea to lay out a buffet of knowledge about what’s under consideration and why.

What is the Electoral Count Act, and why was it written?

The Electoral Count Act was born in 1887. But it was conceived after the 1876 election, which was perhaps the greatest test of the U.S. Constitution to date.

That election ended in a chaotic political brawl ([link removed]) . Amid rampant charges of fraud, three different states proposed opposing slates of electors, each claiming their candidate won the state’s popular vote. The final decision on the presidency went to Congress and was chaotic, with no laws governing a dispute of electoral votes. It is seen as one of the most bitter and controversial elections in American history. (As a sidenote, this also led to a dramatic 1880 election and the Arthur presidency, which, of course, was among the most surprising and important moments for creating stability in our democracy.)

Taking a deep breath … in 1887, Congress wrote a new statute for the Electoral College – the Electoral Count Act. This laid out more clear overtime rules in a close or disputed election.

What does the Electoral Count Act say?

It is not long. Just a few pages of U.S. law ([link removed]) . But senators in both parties are raising existential problems with it.

What it requires:
* When. The date and time for when Congress meets to certify a presidential election is 1 p.m. on Jan. 6. Problem: There are concerns on one end that the schedule may not give states enough time if counting is close and goes to a recount. On the other end, there are concerns that there is so much time that a bad actor could convince a governor or state government to inappropriately change a slate of electors.
* Who. The president of the Senate – the vice president of the country – presides over the certification. That person announces the final electoral tally for the presidential election. Problem: While no other powers are given, the law does also not specifically limit what the vice president does.
* What is a valid objection? The language is written in the negative, “no electoral vote ... regularly given by electors whose appointment has been lawfully certified ... shall be rejected.” Problem: What are “regularly given” and “legally certified”? Both refer to state processes, but they are vague about who certifies and how.
* Process. If there are objections to the electors’ votes, so essentially to the state’s results, the act requires a written objection signed by 1) a senator and 2) a House member from that state. That alone triggers a congressional vote, which could overturn the slate of electors. Problem: That’s a low bar.
* Votes. Following that, the House and Senate meet separately to debate and vote on that objection.
* Disagreements. If one chamber rejects an objection and another upholds it, the act seems to indicate the decision reverts to the state’s governor. Problem: There is vague and unclear language about exactly when this happens. Another problem: What if the governor is a partisan trying to influence the election?

Who is spearheading reform?

There are two groups of senators working separately on this. (Of course there are.)
* Three high-ranking Democratic(ish) senators. Sens. Dick Durbin, D-Ill., Amy Klobuchar, D-Minn., and Angus King, I-Maine, have produced their own draft reform bill ([link removed]) . Durbin chairs the Judiciary Committee, which oversees elections, and Klobuchar chairs the Senate Rules Committee, which oversees most procedures in the chamber.
* A bipartisan group of at least 16 senators, led by Sens. Susan Collins, R-Maine, and Joe Manchin, D-W.V. For this group, the Electoral Count Act is one piece of what might be a larger bill. They are meeting now and determining what can get broad Senate support (so, 60 votes).

How might lawmakers change this?

Some ideas under discussion:
* Raise the bar, by a lot, for triggering a vote of Congress over an electoral slate. The King-Klobuchar-Durbin proposal would move it from the current two members of Congress (a House and Senate member from the state involved) to one-third of all members. (That’s 179 members, if all 535 voting seats are filled.)
* Make it harder to overturn a slate of electors. King-Klobuchar-Durbin would drop the current majority vote for each chamber and require a three-fifths vote instead.
* Specify and narrow what could make for a valid objection. The King-Klobuchar-Durbin proposal, for example, would limit objections to things like: if the slate of electors wasn’t submitted correctly; if the electors are not U.S. citizens, too young or otherwise unqualified; or if the candidate for president or vice president turns out to be unqualified.
* Get specific. Spell out that the vice president cannot affect the counting or certifying of electoral votes.
* Place someone else in charge of the proceedings. King-Klobuchar-Durbin would direct the Senate president pro tempore, the most senior member of the majority party, to preside. (If that person is on a presidential ticket, then the next most senior senator would take over.)

So … what happens next?

This effort is moving quickly in the Senate at the moment. What the Collins-Manchin group comes up with will be important and set a tone, both for what is in a final bill and for how much support it can get. Watch for Sens. Collins and Manchin to meet with Sens. King, Klobuchar and Durbin. When that happens, a bill should be coming soon.

Currently prospects are good for something passing in coming weeks and months. But there are still significant obstacles. There remains concern from the left that passing Electoral Count Act reform will hurt any chances of voting rights legislation as they’d like to see it. At this point they need 60 Senate votes – so, 10 Republicans – to pass larger voting rights reform. Some Democrats feel strongly that ECA reform must come with voting rights reform as well.

And of course there is the other chamber. the House.

Our best guess: Look for some final maneuvers on this perhaps in March and April. Add our +four weeks margin for error for the current Congress and then we’re talking possibly May. But still within reach.

WE WOULD LIKE TO HEAR FROM YOU! What would you like to know about politics this year? Do you have questions about the upcoming midterms? What's happening on Capitol Hill? Voting (or barriers to voting)? Specific legislation? Tell the Here’s the Deal team here. ([link removed])

BREYER, IN HIS OWN WORDS

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By Ian Couzens, @iancouzenz ([link removed])
Associate Producer

Joshua Barajas, @Josh_Barrage ([link removed])
Senior Editor, Digital

In a 2010 interview with the PBS NewsHour’s Jeffrey Brown, Supreme Court Justice Stephen Breyer pulled out a pocket-sized copy of the U.S. Constitution.

He had recently written about the role of the Supreme Court in his book “Making Our Democracy Work,” viewing the justices’ work not through a lens of power, but one of necessity.

Breyer told Brown that he chose the title because the framers “intended [the Constitution] as a document that wouldn't be a painting in a museum for people to look at. They intended something that would be effective.”

He said that if you take the Constitution and its principles seriously -- protecting human rights, assuring a degree of equality, splitting power among many groups and insisting on a rule of law -- as a "recipe for an effective democracy," that it not only “helps not only guide the court; it also helps shape attitudes among people in the country.”

Breyer, a senior member of the court's liberal wing, announced last week that he will retire at the end of this term. Nominated by former President Bill Clinton in 1994, Breyer championed significant opinions on hot-button issues, like abortion and affordable health care.

Throughout his time on the Supreme Court, Breyer has been known as a pragmatist, renowned for his ability to find common ground with his fellow justices. His retirement will allow President Joe Biden an opportunity to fulfill his campaign promise of appointing a Black woman to the high court.

More on Breyer’s retirement from our recent reporting:
* Watch: Democrats promised a swift confirmation ([link removed]) to fill Breyer’s seat.
* One Big Question: What can Democrats do if Republicans oppose Biden’s nomination ([link removed]) ?
* Analysis: A close look at Breyer’s career and opinions on the bench ([link removed]) . Also: How his retirement may change the court ([link removed]) .
* Perspectives: Two former law clerks under Breyer talk about the legacy the justice leaves behind. One remembers Breyer as “both a pragmatist and optimist.” ([link removed]) Another former clerk says Breyer is “one of the great dissenters.” ([link removed])
* Quick Tidbit: In his 27 years on the bench, Breyer has served with 15 other justices ([link removed]) .

#POLITICSTRIVIA
By Matt Loffman, @mattloff ([link removed])
Politics Producer

Justice Stephen Breyer announced his retirement last week after serving nearly 28 years on the Supreme Court. Just six current senators – three Democrats and three Republicans – were in office when Breyer was confirmed in 1994.

Our question: Can you name the six senators? And how many of them voted in favor of his confirmation?

Send your answers to [email protected] (mailto:[email protected]) or tweet using #PoliticsTrivia. The first correct answers will earn a shoutout next week.

Last week, we asked: Which U.S. president is credited with helping make ice cream popular in the U.S. by serving and personally recommending some recipes?

The answer: Thomas Jefferson ([link removed]) .

Congratulations to our winners: Barry Weinstein and Susan Kupsky!

Thank you all for reading and watching. We’ll drop into your inbox next week.
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